P. v. Tippins

Filed 7/17/06 P. v. Tippins CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

A jury convicted appellant Ryan Tippins of felony battery on a custodial officer (Pen. Code, § 243.1),[1] and the trial court separately found that Tippins violated the terms of his probation. On appeal, Tippins contends the jury instructions erroneously allowed the jury to conclude he could be guilty even if the officer used unreasonable or excessive force when Tippins allegedly committed the battery. He also argues that the order revoking his probation must be set aside if the judgment of conviction is reversed.

We agree that the jury instructions improperly suggested Tippins could be guilty of battery on a custodial officer even if the officer used excessive force. Because the instructional error concerns an element of the crime, we must reverse where, as here, the error was not harmless beyond a reasonable doubt. However, our reversal of the conviction does not compel us to set aside the order revoking probation, which was based on the trial court's separate findings and not on the mere fact of a conviction in the jury trial. Accordingly, we reverse the judgment in part.

Procedural History

This appeal arises out of two separate but related criminal proceedings. In the earlier action, Case No. CR108309, the Napa County District Attorney charged Tippins by information with felony vandalism (§ 594, subd. (b)(1)), two counts of felony assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), and failing to stop at the scene of an accident, a misdemeanor (Veh. Code, § 20002, subd. (a).) Prior to trial, the district attorney dismissed one felony assault count. At the conclusion of trial, the jury returned a guilty verdict on the charge of misdemeanor failure to stop at the scene of an accident, but it was unable to reach a verdict on the two remaining counts. As a result of a negotiated disposition, the court dismissed the felony vandalism charge and the district attorney reduced the remaining felony assault count to misdemeanor assault, to which Tippins pled no contest. On January 9, 2003, the court placed Tippins on three years' probation and ordered that he serve 120 days in jail.

On September 30, 2003, the district attorney filed a petition to revoke or terminate probation in the first case, alleging that Tippins failed to obey all laws and that, on May 7, 2003, he had committed a battery on a custodial officer in violation of section 243.1. The court summarily revoked the grant of probation.

The battery on a custodial officer allegation gave rise to the second criminal action involved in this appeal, Case No. CR113331. In the second action, the district attorney charged Tippins by information filed September 24, 2003, with committing a battery upon a custodial officer (§ 243.1).

A jury trial commenced in the second action on August 23, 2004, with the trial court simultaneously conducting its hearing on the probation violation. On August 31, 2004, the jury returned with a guilty verdict. The court separately found that Tippins had violated his probation as a result of committing battery on a custodial officer.

Following Tippins's conviction for battery upon a custodial officer in the second case (CR113331), the court placed Tippins on three years' probation and ordered that he serve 30 days in jail. In the first case (CR108309), the court revoked the grant of probation and ordered that Tippins serve 30 days in jail, to be served concurrently with the jail sentence in the second case.

Tippins timely appealed from the order revoking probation and from the judgment of conviction.

Facts

On May 7, 2003, Tippins was incarcerated at the Napa County jail, where he was serving his 120-day jail sentence for misdemeanor convictions for assault and failure to stop at the scene of an accident. When correctional officer Chris Thomas approached Tippins' cell that day, he saw Tippins lying down. Thomas was required to count inmates during his shift, a task he performed by passing by each cell, observing the inmate, and looking at the inmate's wristband. Each inmate wears an identification bracelet bearing the inmate's name, picture, and booking number.

Thomas twice asked to see Tippins' wristband but received no response. He asked again more loudly but Tippins, who appeared to be asleep, did not answer. Thomas, who observed that Tippins was not wearing an identification wristband, tapped a large key against the cell bars. When Tippins failed to respond, Thomas continued counting other inmates. Thomas then informed the acting corporal on duty, Chris Wilson, that Tippins did not have a wristband. She instructed him to write up Tippins for an in-custody rules violation. Thomas returned to Tippins' cell to advise him of the violation and obtain his signature. After Tippins failed to acknowledge his knocking, Thomas entered the cell.

Tippins, who had been wearing earplugs, sat up on the bed when Thomas entered. Thomas informed Tippins he was receiving a write-up for not wearing his wristband. Tippins responded that he had been on a work furlough and had not received a wristband. Thomas reported this information to Corporal Wilson, who confirmed that Tippins was a â€