California Court of Appeals, Third District, Yuba
CERTIFIED FOR PARTIAL PUBLICATION[*]
APPEAL from a judgment of the Superior Court of Yuba County, No. CRF12225 Scrogin, Judge.
Bradley A. Bristow, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Eric L. Christoffersen, Deputy Attorney General, John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.
ROBIE, Acting P. J.
Defendant Jason Edward Sievert was found guilty of resisting a police officer. He appeals the judgment based on the absence of a sua sponte jury instruction on the defense of unconsciousness and ineffective assistance of counsel relating to evidence of some of defendant’s prior convictions. Finding no merit in either argument we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2012 police responded to a report made by defendant’s mother of a disturbance involving defendant. Because defendant failed to comply with the officers’ demands, the officers “tased” him. Upon being tased, defendant fell “directly backwards, stiff as a board.” Following the tasing, the officers attempted to restrain defendant, but he punched, kicked, and whipped back and forth. Once defendant was restrained, the officers discovered that defendant had sustained a head wound. He was taken to the hospital where he received several staples in his head.
Defendant was charged with two counts of resisting an executive officer and one count of resisting a peace officer. His defense was that he “was knocked out” and therefore did not possess the will or knowledge necessary to commit the crimes. Defendant neither requested nor received an instruction on the defense of unconsciousness from the trial court.
One issue before trial concerned use of defendant’s prior convictions to impeach him should he testify. Although the trial court was “inclined to allow” the evidence, it deferred a final decision until a later date due to confusion about specific aspects of the convictions. At no time before or during trial did defense counsel make a motion to exclude or sanitize the evidence. In fact, defense counsel elicited the information herself from defendant on the stand.
On August 8, 2012, the jury returned a verdict finding defendant guilty of all three counts.
Defendant timely appealed the judgment.