The People v. Sievert

Filed 9/26/13 CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yuba) ----

THE PEOPLE, C072168

Plaintiff and Respondent, (Super. Ct. No. CRF12225)

v.

JASON EDWARD SIEVERT,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Yuba County, Scrogin, Judge. Affirmed.

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.

* Pursuant to California Rules of Court, rule 8.110, this opinion is certified for publication with the exception of part II of the Discussion. 1

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.1

1 Because the trial court used CALJIC instructions, the relevant instructions for unconsciousness would have been CALJIC Nos. 4.30 (unconsciousness) and 4.31 (presumption of consciousness). CALJIC No. 4.30 provides that “[a] person who while unconscious commits what would otherwise be a criminal act, is not guilty of a crime. [¶] This rule of law applies to persons who are not conscious of acting but who perform acts while asleep or while suffering from a delirium of fever, or because of an attack of [psychomotor] epilepsy, a blow on the head, the involuntary taking of drugs or the involuntary consumption of intoxicating liquor, or any similar cause. [¶] Unconsciousness does not require that a person be incapable of movement. [¶] Evidence has been received which may tend to show that the defendant was unconscious at the time and place of the commission of the alleged crime for which [he] [she] is here on trial. If, after a consideration of all the evidence, you have a reasonable doubt that the defendant was conscious at the time the alleged crime was committed, [he] [she] must be found not guilty.”