People v. Perez

[234]

Opinion

GINSBURG, J.

*

Appellant appeals from a judgment entered pursuant to a jury verdict convicting him of battery upon a police officer engaged in the performance of his duties (Pen. Code, § 243).

1

His sole contention is that the trial court erred in refusing to instruct the jury on the theories of self-defense and the effect of possible excessive force used by the officer.

Appellant was arrested on a charge of driving a vehicle while intoxicated. ■ During the booking procedure, he engaged in an altercation with the booking officer, Deputy Sheriff Keaton. The testimony of Officer Keaton is that appellant refused to be fingerprinted and he grabbed appellant’s hand to obtain the prints. Appellant endeavored to break away and in so doing fell forward, hit the booking machine, and injured himself. This testimony was corroborated by others, including a jail inmate.

The testimony of appellant is that Officer Keaton suddenly yelled, “I told you to sign this booking slip three times,” grabbed him by the hair and slammed his head against the booking desk, causing his nose and mouth to bleed.

From this point on, we must rely exclusively on the testimony of witnesses called by the prosecution; appellant testified he remembers nothing of what happened thereafter.

The testimony of several other witnesses, all in substantial agreement, is therefore undisputed. They related that after the altercation appellant requested and received change for a $5 bill from Officer Keaton so he could call his mother. He then went to the telephone and made his call. Keaton stood with his back to appellant and was occupied with releasing another prisoner. Appellant completed his call and as he walked toward Keaton from behind, he picked up a stool, raised it, and hit Keaton on the head before he could turn around. The blow inflicted a wound approximately

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