At trial, the prosecution played the security footage for the jury, and the deputy
testified she was certain the “salty, warm” liquid that splashed into her eyes and mouth
was urine. Giddens testified in her own defense and denied throwing anything at the
deputy, but her attorney presented a different theory during closing statements, arguing
the prosecution had failed to prove beyond a reasonable doubt the liquid was urine as it
was just as likely Giddens had made a concoction of warm water and rotting food from
her cell. The jury found Giddens guilty as charged.
On appeal, she asserts the following three grounds for reversing her conviction:
(1) the jail violated section 243.9’s mandatory duty to collect a sample of the suspected
gassing substance and test it to determine whether it in fact contains a bodily fluid; (2) the
failure to test the contents of the liquid also violated her due process rights to the
disclosure of potentially exculpatory evidence; and (3) the trial judge erroneously denied
2
her section 1118.1 motion to dismiss the gassing charge for insufficient evidence. We
disagree on each point and affirm.
I
FACTS
At West Valley Detention Center in Rancho Cucamonga, inmates receive their
meals on styrofoam trays delivered through a foot-wide “tray slot” in the center of their
cell doors. The jail employs a tray-for-tray mealtime policy, for sanitary reasons. To
receive the current meal, inmates must pass the spent trays from their previous meal
through the slot so they may be disposed of and don’t remain in the cells for extended
periods of time. On August 17, 2018, San Bernardino County Sheriff’s Deputy Jenna Van
Leer was on lunch duty in Giddens’s unit delivering trays of food. When she reached
Giddens’s cell, Deputy Van Leer could see through the window in her door that Giddens
had taken off her pants and was wearing only her shirt and underwear and that she had
multiple spent trays stacked in her cell.
Deputy Van Leer opened the tray slot in Giddens’s door and asked for her spent
trays. Giddens refused to hand them over, so Deputy Van Leer finished serving the rest of
the unit before returning to Giddens’s cell. As Deputy Van Leer served the others,
Giddens started throwing her spent trays out of her tray slot. When Deputy Van Leer
returned, Giddens pushed her hands through the slot and demanded her lunch. Deputy
Van Leer asked Giddens to remove her hands from the slot. She refused and she pushed
back against the slot as Deputy Van Leer tried to close it. Deputy Van Leer told Giddens
3
she would give her the meal (which consisted of two trays) if she removed her hands, and
Giddens complied. But as the deputy bent down to give her the trays, Giddens ran to the
back of her cell and grabbed an eight-ounce milk carton. The carton had been completely
unsealed and opened at the top so it resembled a square cup. Giddens hurled the carton at
Deputy Van Leer. When it hit the cell door, some of its contents splashed through the
opening between the frame and the door and hit the deputy’s face and hair. As she wiped
the liquid off her face with her sleeve, Giddens said angrily, “You should have given me
my trays the first time, cunt,” then laughed.
Deputy Van Leer called her partner, Deputy Tyler Gilbert, for assistance, and
when he learned what had happened he took her to the hospital where she received blood
tests to determine whether she had contracted any infections from the incident. When
Deputy Gilbert returned to Giddens’s cell about 15 minutes later to remove her, he found
Giddens nude and wet. She had flooded her cell by clogging her toilet, and she had
smeared feces on her tray slot. Deputy Gilbert also noticed feces on Giddens’s hands
when she slid them through the slot to be handcuffed.
At trial, the prosecution played the surveillance footage of Deputy Van Leer
delivering lunch to the unit. The second time she stops at Giddens’s cell, you see her
bend down to slide the trays through the slot then jump back and wipe her face with her
sleeve. Deputy Van Leer told the jury that as soon as the liquid dripped into her mouth,
she knew it was urine. She said it was warm, salty, and clear, and neither tasted nor
looked like any of the beverages served to inmates (a limited list consisting of just milk,
4
water, coffee, and Kool-Aid). She said while she doesn’t “go around tasting urine,” she
used to be an emergency medical technician (EMT), an occupation that involved frequent
close contact with the bodily fluid. She said she had “been peed on” multiple times as an
EMT. “It’s part of the job.”
When asked if the jail had tested the liquid to determine whether it was, in fact,
urine, Deputy Van Leer said she wasn’t sure if such testing was available, and in any
event, there wasn’t enough of the liquid on her or the floor to collect a sample. During
cross-examination, defense counsel asked her why she had described it as an “unknown
liquid” in her incident report if she was certain it was urine. She explained she had
wanted to call the liquid urine, but her sergeant instructed her not to, despite the fact she
was “a hundred percent sure” what it was.
Echoing Deputy Van Leer, Deputy Gilbert said it would have been impossible to
collect a sample of the liquid by the time he reached Giddens’s cell because Giddens had
flooded it. He had similarly described the substance as an “unknown liquid” in his
incident report but added that it “appeared to be urine.”
Giddens testified in her own defense and denied ever having thrown “anything,
any date, any year, at anyone.” When asked about the surveillance footage, she said, “I
did not see anything on the surveillance video. I don’t even believe that was even me to
tell you the truth.” She said the person in the video was actually “a woman named Mary”
and that she felt bad for Mary because Deputy Van Leer wasn’t feeding her. She also
denied smearing feces on her tray slot. She said the brown substance Deputy Gilbert
5
discovered (and photographed) when he returned to her cell was actually “California
State Certified discipline loaf,” which “looks like feces and it tastes like feces, and they
force you to eat it.”
To rebut Giddens’s claim that she had never thrown anything at any of the
deputies, the prosecution called Deputy Ryan Chen, who said that four days before the
incident with Deputy Van Leer, he had been called to clean Giddens’s cell because she
had smeared feces inside it. When he arrived outside her cell door, Giddens, who was
inside, naked, threw a “white container” full of liquid at him and said, “Eat my shit,
bitch.” As they had with Deputy Van Leer, the container’s contents splashed through the
opening between the frame and the door and hit Deputy Chen’s face and body. He said
the liquid smelled foul and was not milk.
The prosecution also recalled Deputy Gilbert, who said the “disciplinary diet” at
West Valley Detention Center consists of a meat and vegetable loaf that has a crumbly
texture similar to bread, and it is served only twice a day, at breakfast and dinner. He said
he had been in close proximity to the brown substance on Giddens’s tray slot and hands
and was sure it was feces and not food.
During closing argument, defense counsel argued the prosecution had not met
their burden of proving the liquid was urine. He pointed out that because Giddens had old
food trays in her cell at the time and because the jail had not collected and tested the
liquid, it was “not . . . unreasonable” to infer “the liquid consisted of rotting food, water
6
or a mixture thereof.” The jury convicted Giddens of a single felony count of battery of a
peace officer by gassing (§ 243.9), and the trial judge sentenced her to one year in prison.
Giddens filed a timely notice of appeal.
II
ANALYSIS
A. Section 243.9
Giddens makes two arguments why the lack of testing to determine the contents of
the liquid she threw at Deputy Van Leer requires reversal of her gassing conviction. First,
she claims section 243.9 imposes a mandatory duty on the correctional facilities where
suspected gassing incidents occur to test the suspected substance to ensure it meets the
statutory definition of a gas (i.e., contains bodily fluids). Second, she says that even if the
statute doesn’t impose such a duty, West Valley Detention Center’s failure to perform
such testing in this case is evidence of a bad faith failure to preserve “potentially
exculpatory evidence” in violation of her constitutional due process rights. Both
arguments fail.
We start with Giddens’s assertion of a statutory duty. The meaning of a statute is a
question of law we address using our independent judgment. (People v. Valdez (2018) 28
Cal.App.5th 308, 312 (Valdez).) Our task when interpreting statutes is to discern the
Legislature’s intent “so as to effectuate the purpose of the law.” (DuBois v. Workers’
Comp. Appeals Bd. (1993) 5 Cal.4th 382, 387.) “The statutory language itself is the most
reliable indicator, so we start with the statute’s words, assigning them their usual and
7
ordinary meanings, and construing them in context. If the words themselves are not
ambiguous, we presume the Legislature meant what it said, and the statute’s plain
meaning governs. On the other hand, if the language allows more than one reasonable
construction, we may look to such aids as the legislative history of the measure and
maxims of statutory construction. In cases of uncertain meaning, we may also consider
the consequences of a particular interpretation, including its impact on public policy.”
(Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1190; see also People
v. Zambia (2011) 51 Cal.4th 965, 972.)
Section 243.9 governs gassing in a jail or local detention facility and consists of 1 multiple subdivisions. The first, subdivision (a), categorizes the offense as an aggravated
form of battery and provides that “[e]very person confined in any local detention facility
who commits a battery by gassing upon the person of any peace officer” is guilty of a
felony. (§ 243.9, subd. (a).) Subdivision (b) defines “gassing” as “intentionally placing or
throwing, or causing to be placed or thrown, upon the person of another, any human
excrement or other bodily fluids or bodily substances or any mixture containing human
excrement or other bodily fluids or bodily substances that results in actual contact with
the person’s skin or membranes.” (§ 243.9, subd. (b).) In defining gassing, the provision
also implicitly defines a gassing substance as “any mixture containing human excrement
or other bodily fluids or bodily substances.” (Ibid.)
1 Section 4501.1 governs gassing in state prisons and is essentially identical to section 243.9. 8
Subdivision (c)—the provision at issue—directs the jail or local detention facility
to promptly investigate every reported incident of gassing. (§ 243.9, subd. (c).) The
provision states: “The person in charge of the local detention facility shall use every
available means to immediately investigate all reported or suspected violations of
subdivision (a), including, but not limited to, the use of forensically acceptable means of
preserving and testing the suspected gassing substance to confirm the presence of human
excrement or other bodily fluids or bodily substances. If there is probable cause to
believe that the inmate has violated subdivision (a), the chief medical officer of the local
detention facility, or his or her designee, may, when he or she deems it medically
necessary to protect the health of an officer or employee who may have been subject to a
violation of this section, order the inmate to receive an examination or test for hepatitis or
tuberculosis or both hepatitis and tuberculosis on either a voluntary or involuntary basis
immediately after the event, and periodically thereafter as determined to be necessary by
the medical officer in order to ensure that further hepatitis or tuberculosis transmission
does not occur. . . . The results of any examination or test shall be provided to the officer
or employee who has been subject to a reported or suspected violation of this section.”
(Ibid.)
Finally, subdivision (d) requires the jail or local detention facility to “refer all
reports for which there is probable cause to believe that the inmate has violated
subdivision (a) to the local district attorney for prosecution” (§ 243.9, subd. (d)), and
9
subdivision (e) makes clear that “[n]othing in this section shall preclude prosecution
under both this section and any other provision of law.” (§ 243.9, subd. (e).)
According to Giddens, subdivision (c) was enacted for the inmate suspect’s
benefit, to ensure there is direct proof they used a gassing substance within the meaning
of subdivision (b). Giddens focuses on the first part of the provision, which says that a
prompt investigation shall include “preserving and testing” the substance “to confirm the
presence of human excrement or other bodily fluids or bodily substances.” (§ 243.9,
subd. (c).) She argues that the inclusion of a preservation requirement inures to the
inmate’s benefit only, as a means of determining whether they in fact violated the statute.
But Giddens’s interpretation ignores the rest of the provision, which, in our view,
reveals the purpose behind the prompt investigation mandate. The provision goes on to
say that when there is “probable cause to believe that the inmate has violated subdivision
(a),” the chief medical officer of the facility may order the inmate to be tested for
hepatitis and tuberculosis—contagious diseases commonly transmitted through bodily
fluids—“in order to ensure that further hepatitis or tuberculosis transmission does not
occur.” (§ 243.9, subd. (c), italics added.) Additionally, all test results must be provided
to the potential gassing victim. (Ibid.) Nothing in the provision mentions or relates to
evidence gathering for prosecutorial purposes. In fact, section (e) underscores that the
medical testing and investigation protocols in subdivision (c) “shall [not] preclude” a
prosecution for gassing in violation of subdivision (a). In other words, subdivisions (a)
and (c) are independent; the latter does not inform or restrict the former.
10
We find the text of this provision unambiguous. Whether read in isolation or in
conjunction with the rest of the statute, it is clear the class protected by the investigation
called for in subdivision (c) are the potential gassing victims, not the violators. In other
words, the purpose of the prompt investigation called for in subdivision (c) is to ensure
that a battery by gassing does not lead to the transmission of communicable diseases or
infections. This purpose in turn promotes the purpose of the statute as a whole, which is
to “protect[] peace officers from battery by inmates.” (Valdez, supra, 28 Cal.App.5th at
p. 315.) We therefore conclude subdivision (c) does not create any rights for the inmate
or impose a duty on the facility to preserve the suspected gassing substance for criminal
evidentiary purposes.
But even if, for the sake of argument, we accepted Giddens’s interpretation of
subdivision (c), the provision’s testing directive is not absolute. Subdivision (c) directs
the facility to use “every available means” to investigate a suspected gassing incident.
According to the evidence presented at trial, it would have been impossible to collect a
sample of the liquid that hit Deputy Van Leer (because she immediately wiped it off with
her sleeve), and Giddens herself made it impossible to collect a sample from the portion
that remained in her cell by flooding her cell immediately after the incident. On this
record, the jail was simply unable to collect a sample of the liquid.
This brings us to Giddens’s second argument—that West Valley Detention
Center’s failure to preserve and test the liquid violated her constitutional right to the
11
disclosure of “potentially exculpatory evidence.” Setting aside the fact she failed to raise
this objection during trial, we find the objection meritless.
“Generally, due process does not require the police to collect particular items of
evidence.” (People v. Montes (2014) 58 Cal.4th 809, 837.) Instead, the constitutional
guarantee of due process “imposes a duty on the state to preserve ‘evidence that might be
expected to play a significant role in the suspect’s defense.’” (Ibid., quoting California v.
Trombetta (1984) 467 U.S. 479, 488.) To fall under this category, the evidence must
“possess an exculpatory value that was apparent before the evidence was destroyed.”
(Trombetta, at p. 489, italics added.) And, unlike the government’s duty to disclose
material exculpatory evidence under Brady v. Maryland (1963) 373 U.S. 83—which
applies regardless of the mindset of the government actors—the failure to “retain
evidence that is potentially useful to the defense” does not violate due process “unless the
accused can show bad faith by the government.” (City of Los Angeles v. Superior Court
(2002) 29 Cal.4th 1, 8, citing Arizona v. Youngblood (1988) 488 U.S. 51, 58, second
italics added.)
In light of these principles, Giddens’s constitutional challenge faces two
insurmountable hurdles. First, she cannot demonstrate the liquid she threw at Deputy Van
Leer was potentially or apparently exculpatory. Having felt the liquid on her skin and
tasted it, Deputy Van Leer was certain it was urine, and that is a judgment any lay person,
and certainly a former EMT, is capable of making. As a result, there was no reason to
believe that testing the liquid’s contents would exonerate Giddens by revealing an
12
innocuous composition. Second, and more importantly, Giddens cannot demonstrate bad
faith on the jail’s part because she was responsible for destroying the evidence she claims
was missing from her trial.
For all of these reasons, we reject Giddens’s statutory and constitutional claims of
error.
B. The Section 1118.1 Motion
At the close of evidence, defense counsel made an oral motion to dismiss the
gassing charge under section 1118.1, which requires acquittal “if the evidence then before
the court is insufficient to sustain a conviction.” (§ 1118.1.) The judge noted that while
Deputy Van Leer’s incident report used the phrase “unknown liquid,” her testimony at
trial was that she was “100 percent certain it was urine.” The judge concluded this
conflict in the evidence was “obviously an issue of credibility for the jurors to decide”
and denied the motion.
Gidden contends this ruling was incorrect. She argues the trial judge was required
to grant her motion because the evidence was susceptible to “more than one reasonable
inference” as to the liquid’s composition. Acknowledging that the deputy’s testimony
supports a finding that the liquid was urine, she argues there was also enough evidence to
support a contrary finding. Relying on the deputy’s use of the phrase “unknown liquid” in
her incident report and the evidence regarding the contents and layout of her cell,
Giddens argues the record also permits the jurors to conclude the liquid contained no
urine and was instead made up of some mix of water and decomposing food.
13
This argument conflates CALCRIM No. 224, the jury instruction on evaluating
circumstantial evidence, with the standard for a motion to dismiss for insufficient
evidence under section 1118.1. The former applies to the jury’s deliberations and says
that if the circumstantial evidence presented at trial supports two reasonable
conclusions—one that points to guilt and the other to innocence—the jury must accept
the one that points to innocence. But this rule does not apply to the threshold question
section 1118.1 asks, which is “‘simply whether the prosecution has presented sufficient
evidence to present the matter to the jury for its determination.’” (People v. Stevens
(2007) 41 Cal.4th 182, 200.) “The standard applied by a trial court in ruling upon a
motion for judgment of acquittal pursuant to section 1118.1 is the same as the standard
applied by an appellate court in reviewing the sufficiency of the evidence to support a
conviction, that is, ‘whether from the evidence, including all reasonable inferences to be
drawn therefrom, there is any substantial evidence of the existence of each element of the
offense charged.’” (Ibid., italics added.)
Guided by the correct standard, it is obvious why Giddens’s claim of error fails.
By acknowledging that Deputy Van Leer’s testimony reasonably supports a conclusion
the liquid was urine, she necessarily also concedes the prosecution met its burden of
presenting substantial evidence of guilt. Disposing of this issue does not require us to
explain why, in our view, the jury could easily find Deputy Van Leer to be a more
credible witness than Giddens and also find the evidence the liquid was urine was
14
stronger than the evidence it was not. The mere fact there was, as Giddens admits,
conflicting evidence of guilt, means the trial judge was correct to deny the motion.
III
DISPOSITION
We affirm the judgment.
SLOUGH J.
We concur:
RAMIREZ P. J.
MILLER J.
15
Filed 11/30/21 CERTIFIED FOR PUBLICATION COURT OF APPEAL -- STATE OF CALIFORNIA FOURTH DISTRICT DIVISION TWO
THE PEOPLE, E073390 Plaintiff and Respondent, (Super.Ct.No. FWV18004475) v. The County of San Bernardino CHELSEA TAYLOR GIDDENS, Defendant and Appellant. ORDER MODIFYING OPINION AND GRANTING PUBLICATION
[NO CHANGE IN JUDGMENT] _______________________________________
THE COURT
We GRANT the request to publish the opinion filed in this matter, which meets the standard for publication in California Rules of Court, rule 8.1105(c). The court ORDERS the opinion filed on November 5, 2021 certified for publication.
On our own motion, the court ORDERS the opinion modified as follows:
1. In the last paragraph on page 10, delete the last two sentences, which state, “In fact, section (e) underscores that the medical testing and investigation protocols in subdivision (c) ‘shall [not] preclude’ a prosecution for gassing in violation of subdivision (a). In other words, subdivisions (a) and (c) are independent; the latter does not inform or restrict the former,” and substitute the following two sentences: “In our view, that silence speaks volumes. If the Legislature had intended to depart from the general rule that violations of the Penal Code may be proven by any competent evidence, we think they would have made the new rule explicit.” 2. In the second sentence of the first paragraph on page 11, add the phrase “and other people who may be exposed to infection,” so the sentence reads: “Whether read in isolation or in conjunction with the rest of the statute, it is clear the class protected by the investigation called for in subdivision (c) are the potential gassing victims and other people who may be exposed to infection, not the violators.” 3. At the end of the first paragraph on page 11, add the following sentence: “While the lack of forensic proof that the substance used is a bodily fluid may affect the strength of the prosecution’s case, nothing in the statute suggests it should be fatal.”
1
Except for these modifications, which do not affect the judgment, the opinion is unchanged.
CERTIFIED FOR PUBLICATION
SLOUGH J.
We concur:
RAMIREZ P. J.
MILLER J.
cc: See attached list
2
MAILING LIST FOR CASE: E073390 The People v. Chelsea Giddens
Superior Court Clerk San Bernardino County 8303 N. Haven Ave Rancho Cucamonga, CA 91730
Junichi P. Semitsu Office of the Attorney General P. O. Box 85266 San Diego, CA 92186-5266
Taylor L. Clark P.O. Box 2887 Malibu, CA 90265
Appellate Defenders, Inc. 555 West Beech Street, Suite 300 San Diego, CA 92101 2396
3
AI Brief
AI-generated · verify before citing
Holding. The court held that Penal Code section 243.9 does not impose a mandatory duty on detention facilities to test suspected gassing substances for the benefit of the accused, nor did the failure to test the substance violate the defendant's due process rights.
Issues
Does Penal Code section 243.9 require detention facilities to test suspected gassing substances to confirm the presence of bodily fluids for the benefit of the accused?
Did the failure to test the liquid violate the defendant's due process rights to the disclosure of potentially exculpatory evidence?
Did the trial court err in denying the defendant's section 1118.1 motion to dismiss for insufficient evidence?
Disposition. affirmed
Quotations verified verbatim against the opinion
“the purpose of the prompt investigation called for in subdivision (c) is to ensure that a battery by gassing does not lead to the transmission of communicable diseases or infections.”
“subdivision (c) does not create any rights for the inmate or impose a duty on the facility to preserve the suspected gassing substance for criminal evidentiary purposes.”