Filed 9/15/20 P. v. Williams CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

GLEN WILLIAMS,

Defendant and Appellant.

F077722

(Super. Ct. No. MF012770A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. David Wolf, 

Judge.

Gabriel Bassan, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and 

Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

A jury convicted defendant Glen Williams of one count of battery by a prisoner on 

a nonconfined person in violation of Penal Code section 4501.5 after he engaged in a 

scuffle with correctional officers while in prison. The jury acquitted defendant of a 

second count of battery as it related to another officer. Defendant challenges his 

conviction, arguing the trial court reversibly erred in denying his request to instruct the 

jury on self-defense because he contends there was evidence the officers used excessive 

force against him.

We affirm the judgment.

FACTUAL BACKGROUND

On June 2, 2017, three officers began to escort defendant, an inmate, to his 

assigned cell from a holding cell. Defendant physically resisted because he did not want 

to return to his assigned cell. A scuffle ensued and defendant was subsequently charged 

with kicking two of the escorting officers during the incident.

Prosecution

The three escorting officers involved in the June 2, 2017, incident and an 

observing officer testified at trial.

Sergeant Toscano

Sergeant Michael Toscano worked as a correctional officer in the California 

Correctional Institution, Tehachapi. He testified that on June 2, 2017, defendant asked to 

speak to a sergeant; accordingly, Sergeant Toscano spoke with defendant at the holding 

cell where defendant was being held. During their conversation, defendant told Sergeant 

Toscano he did not want to return to his assigned cell. Instead, he wanted to be housed in 

administrative segregation because he did not want to be with other inmates. Sergeant 

Toscano explained “administrative segregation” is a prison unit where inmates are sent 

when they commit a rule violation within the institution that warrants separation from the 

general population. When in administrative segregation, an inmate is kept in restraints 
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any time he leaves his cell. Sergeant Toscano could not put defendant in administrative 

segregation without a reason. So, he informed defendant the officers were going to 

transport him back to his assigned cell. Sergeant Toscano then asked Officer James 

Robinson and Sergeant Brandon Gentry to assist him in escorting defendant back to his 

assigned cell.

Defendant complied with Sergeant Toscano’s orders to submit to restraints; he 

stood up, turned around to face the back of the holding cell, and placed his hands behind 

his back and into the unlocked food port to permit the officers to handcuff him. Sergeant 

Toscano handcuffed defendant and ordered him to step towards the back of the holding

cell; again, defendant complied. Sergeant Gentry then unlocked the holding cell door and 

opened it. At the time, defendant’s legs were unrestrained. Officer Robinson approached 

defendant, grabbed his left arm to secure him, and told him to step backwards out of the 

holding cell; defendant again complied. At that point, no force had been used against 

defendant.

Sergeant Toscano then heard a commotion and saw defendant "kick[ing] out his 

legs” and trying to “pull away” from Officer Robinson. He saw defendant kick Sergeant 

Gentry. Sergeant Toscano testified he “clearly remember[ed] seeing the defendant’s leg 

make contact with ... Sergeant Gentry[’s]” lower leg. Sergeant Toscano then saw the 

officers take defendant to the ground almost simultaneously and defendant “was still 

struggling ... [and] kicking out his legs.” Sergeant Toscano ran to defendant and tried to 

secure him from hitting or kicking anyone else by grabbing his ankles; defendant 

continued to kick and twist from side to side.

Sergeant Toscano grabbed defendant’s pant legs and defendant continued to kick; 

Sergeant Toscano lost control of one of defendant’s legs, and defendant kicked him in the 

stomach. Sergeant Toscano backed away and struck defendant one time on his right 

thigh with a baton to subdue him. Defendant stopped resisting, and Officer Robinson 

secured his legs while Sergeant Toscano retrieved leg restraints. Sergeant Toscano put 
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leg restraints on defendant, and defendant was returned to the holding cell. Sergeant 

Toscano denied using any force against defendant during the incident besides striking 

him once with the baton. He also denied sustaining any lasting injuries as a result of 

defendant kicking him.

Officer Robinson

Officer Robinson also testified at trial to a series of events consistent with 

Sergeant Toscano’s testimony. He recalled that on June 2, 2017, Sergeant Toscano asked 

him and Sergeant Gentry to assist with escorting defendant from a holding cell to 

defendant’s assigned cell and that defendant complied with Sergeant Toscano’s orders to 

turn around, submit to handcuffs, and exit the holding cell backwards. Once defendant 

stepped out of the cell, Officer Robinson placed his hand on defendant’s left biceps to 

guide him towards his assigned cell; he denied squeezing defendant’s arm in a hard 

manner. Defendant “became resistive and started tugging away”; he stated he was not 

going back to his assigned cell. Defendant “stopped” his forward movement, “started 

twisting his body,” and tried to break out of Officer Robinson’s grasp. While standing, 

defendant began to kick backwards in Sergeant Gentry’s direction, though Officer 

Robinson did not witness defendant’s foot strike Sergeant Gentry. After he saw 

defendant kick towards Sergeant Gentry, Officer Robinson “responded and used [his] 

physical strength and body weight and pulled [defendant] to the ground to prevent him 

from further attacking or kicking anybody”; it happened “almost simultaneously.” 

Before that point, Officer Robinson denied exerting any physical force on defendant. 

Officer Robinson hooked his arm through defendant’s and pulled him down while 

ordering defendant to “get down.” Officer Robinson, who weighed approximately 310 

pounds, landed on top of defendant. Officer Robinson applied what he believed to be 

necessary force with his hands and body weight on defendant’s upper left shoulder and 

lower back, and he used his right knee on defendant’s lower back to “keep him from 
5.

squirming”; defendant continued to kick. Officer Robinson then saw Sergeant Toscano 

try to grab defendant’s feet to control them, but defendant kicked out of Sergeant 

Toscano’s grasp and kicked him in the stomach. Officer Robinson saw defendant’s legs 

strike Sergeant Toscano in the stomach. Sergeant Toscano let go of defendant’s feet and 

struck him once with his baton. Defendant stopped resisting and became compliant.

Sergeant Gentry

Sergeant Gentry also testified to a version of events consistent with Officer 

Robinson’s and Sergeant Toscano’s. He testified he was with Officer Robinson when 

Sergeant Toscano radioed Officer Robinson to assist him with an escort; they both 

responded to defendant’s holding cell. Defendant complied with orders as he was 

handcuffed and exited the cell. Sergeant Gentry placed his left hand on the inside of 

defendant’s right arm to escort him. No officer had used force against defendant at that 

time. They took a step or two and then, while standing, defendant began to kick and 

twist, kicking towards Sergeant Gentry multiple times. Defendant struck Sergeant 

Gentry’s left shin and Sergeant Gentry felt sharp pain. Sergeant Gentry told defendant to 

stop kicking him and to get on the ground. Defendant continued kicking and struck 

Sergeant Gentry again on his right knee; again, Sergeant Gentry felt sharp pain. Sergeant 

Gentry used his physical strength and his grasp of defendant’s right arm to pull defendant 

to the ground. Defendant landed on his stomach. Sergeant Gentry denied kicking, 

striking, hitting, or elbowing defendant. Sergeant Toscano then tried to grab defendant’s 

legs but defendant continued to kick; he kicked Sergeant Toscano in the stomach with his 

feet. Sergeant Toscano unholstered his baton and struck defendant one time in the right 

thigh. Defendant became compliant and stopped resisting. The People introduced 

photographs of Sergeant Gentry’s legs after the incident at trial; his left shin and his right 

knee were red and both had abrasions on them which, he testified, resulted from 

defendant’s kicks.
6.

Officer Pitt

Officer Seth Pitt witnessed the June 2, 2017, incident from the control booth. He 

saw the officers escort defendant out of the holding cell, and then defendant started 

twisting and kicking. He saw defendant kick Sergeant Gentry before defendant was 

taken to the ground. Defendant continued to kick while he was on the ground, but 

Officer Pitt did not see him strike anyone. He saw Sergeant Toscano take out his baton 

and strike defendant and defendant then began complying.

Officer Blackburn

After the defense rested, the prosecutor called Lieutenant Scott Blackburn, who 

testified he conducted a videotaped interview with defendant on June 2, 2017, because 

defendant claimed he was the subject of unnecessary force. The videotaped interview 

was played for the jury. In it, defendant explained to Lieutenant Blackburn that the 

officers were trying to force him back to his cell while he refused; then, they slammed 

him to the ground and started hitting him and accusing him of battery. Defendant stated 

they “used illegal excessive force” by trying to force him back to program housing. 

Defendant explained his resulting injuries and Lieutenant Blackburn videotaped them.

Defense

Defendant testified on his own behalf and denied hitting or striking any of the 

officers that day. According to defendant, on the day of the incident, someone had 

opened his cell door to permit him to slide out his breakfast tray. Defendant walked out 

of the cell. An officer repeatedly ordered defendant to return to his cell. Defendant 

refused and stated he wanted to go to restricted housing, also known as administrative 

segregation. At trial, he explained prisoners were less restrained in “program housing,” 

and he preferred restricted housing because he would not have to worry about conflicts.

Staff members responded to defendant, handcuffed him, and transferred him to a 

holding cell where he waited. A few minutes later, Officer Robinson arrived and asked 

defendant what was going on; defendant said he was refusing to return to program 
7.

housing. Officer Robinson explained to defendant he could not refuse program housing 

and then he left. Sergeant Toscano came to the holding cell. Defendant again said he 

was refusing program housing. Sergeant Toscano also explained to defendant that he 

could not refuse program housing before he walked away.

Sergeant Toscano returned a few minutes later with Officer Robinson and 

Sergeant Gentry. Sergeant Toscano ordered defendant to turn around and submit to 

handcuffs. Defendant continued to say he was refusing program housing, but he 

complied with the directives because he believed the officers were taking him to 

restricted housing. Defendant complied with orders to walk to the back of the holding 

cell and then to back out of the cell. He confirmed no officer had touched him at that 

point. Officer Robinson grabbed defendant’s arm when he exited the cell, and the 

officers tried to pull him towards program housing.

Defendant realized the officers were trying to take him to program housing, so he 

tried to bend towards the ground to resist without attacking the officers. The officers 

pulled and dragged defendant as he tried to pull them to the ground, and “then they 

pushed [defendant] on the ground.” Defendant struggled with the officers; after the 

officers pushed him to the ground, “they kept pulling and dragging [defendant] and trying 

to force [him] up.” Each time the officers pushed defendant down, they put their weight 

on him. He could not move his legs. The third time the officers forced defendant up, 

they “slammed [him] back down and kept ordering [him] to stop refusing to go to 

[program] housing.” According to defendant, Sergeant Toscano punched him hard in his 

forehead and told defendant that he had kicked the staff. Officer Robinson and Sergeant 

Gentry then started hitting and punching defendant’s body before placing mechanical 

restraints on his legs. After that, defendant stopped resisting. Defendant denied kicking 

or intending to assault any of the officers.

After the officers placed defendant in leg restraints, Officer Robinson and another 

assistant staff member escorted defendant back to his assigned cell. Later, they took him 
8.

to restricted housing. According to defendant, during that escort, Officer Robinson and 

the staff member pushed defendant to the ground. Sergeant Toscano and Sergeant Gentry 

were in the room; they ran over and began hitting defendant’s face and body while telling 

him to stop resisting even though he was not resisting. Defendant again denied kicking 

or assaulting any officer at that time, stating he could not move his body because he was 

lying on his stomach with the officers on top of him. The officers continued to hit him. 

Eventually, they took defendant to restricted housing. Defendant recalled speaking with 

a lieutenant after the incident, and the lieutenant photographed defendant’s body. The 

photographs were admitted at trial; defendant testified the redness in the photographs 

resulted from the officers hitting him. When shown pictures of Sergeant Gentry’s 

injuries, defendant denied kicking him; however, he testified Sergeant Gentry could have 

sustained the injuries while attacking defendant.

In closing, defense counsel argued, in part, that defendant did not willfully touch 

the officers. Instead, he was flailing his legs and writhing his body in resistance; he did 

not commit a willful battery. Defense counsel directed the jury to CALCRIM No. 3404, 

noting that if the jury concluded defendant acted accidentally, it was a defense to the 

charges.

Verdict

Defendant was charged with two violations of Penal Code section 4501.5, battery 

on a nonconfined person—count 1 related to Sergeant Gentry and count 2 related to 

Sergeant Toscano—as a result of the incident. The jury convicted defendant of count 1 

(battery of Sergeant Gentry) but acquitted him of count 2 (battery of Officer Toscano). 

The court sentenced defendant to eight years’ imprisonment.

DISCUSSION

In his sole issue on appeal, defendant contends the court reversibly erred in 

refusing to instruct the jury on self-defense. Because defendant was acquitted of the 

charge related to Sergeant Toscano, our review is limited to whether the court 
9.

prejudicially erred in failing to give a self-defense instruction as it relates to the charge 

pertaining to Sergeant Gentry.

Relevant Factual Background

After the presentation of evidence, defense counsel argued in support of a selfdefense jury instruction. He noted defendant “has denied flatly that he struck an officer,” 

willfully or accidentally, but the officers testified defendant struck them. Accordingly, 

there was a “dispute in that evidence,” and he was not limited to arguing the version of 

events testified to by defendant. The jury was also not required to pick one version of 

events or the other but rather could accept or reject parts of each witness’s testimony.

Thus, he argued, it was “consistent with the evidence ... to ... claim ... 

[defendant] did strike an officer, but that the strike of the officer didn’t follow the 

officer’s timeline, and that ... it was after the excessive use of force against [defendant].” 

Defense counsel argued the evidence could support such an interpretation even though 

“no witness ha[d] yet specifically stated as much.” He noted, “in order to instruct on selfdefense, the evidence only needs to raise a reasonable doubt about that issue,” even if 

self-defense is not “actually asserted” or “actually proven.”

The prosecutor responded the evidence did not support a self-defense instruction. 

He explained the officers testified defendant kicked Officer Gentry before any force was 

used against defendant. Rather, the first use of force occurred when the officers took 

defendant to the ground, which occurred after defendant kicked Officer Gentry. Then, 

while on the ground, defendant kicked Sergeant Toscano while he was trying to restrain 

defendant’s legs; “Sergeant Toscano had not used any force against the defendant at that 

time.”

He further argued the “key here for the lack of self-defense is the defendant’s own 

testimony.” Defendant denied kicking or striking the officers entirely. So, “the only way 

that there could possibly be a self-defense argument is if the jury were to believe a 
10.

portion of the officer’s testimony, disbelieve the defendant’s testimony, and come up 

with ... their own ... separate scenario that has not been testified by any witness and is 

not a logical inference based on the testimony of the officers, which under all of their 

testimony there would be no self-defense argument in this case. And by the defendant’s 

own testimony, he never used any act of force against him, therefore he didn’t act in selfdefense.”

The court agreed with the prosecution that the evidence did not support a selfdefense instruction. It concluded, “[L]ooking at the evidence, I must have some 

evidence, not just speculation. And if I look at actual evidence that’s coming into the 

trial, I don’t see any evidence of self-defense either from prosecution or the defense.” 

Relatedly, the court concluded instructions on an officer’s lawful performance of duties 

and use of force were not relevant.

I. Standard of Review

We review de novo a court’s decision not to give a particular jury instruction. 

(See People v. Simon (2016) 1 Cal.5th 98, 133; People v. Manriquez (2005) 37 Cal.4th 

547, 581; People v. Waidla (2000) 22 Cal.4th 690, 733.) An instruction requested by a 

defendant need only be given “if it is supported by substantial evidence, that is, evidence 

sufficient to deserve jury consideration.” (People v. Marshall (1997) 15 Cal.4th 1, 39; 

accord, People v. Moon (2005) 37 Cal.4th 1, 30 [“a trial court may properly refuse an 

instruction offered by the defendant if it ... is not supported by substantial evidence”]; 

People v. Curtis (1994) 30 Cal.App.4th 1337, 1355 [“A trial court has no duty to instruct 

the jury on a defense—even at the defendant’s request—unless the defense is supported 

by substantial evidence”]; People v. Elize (1999) 71 Cal.App.4th 605, 615 [“in the event 

that there is substantial evidence of a defense inconsistent with the defense advanced by 

the defendant,” the court should give the instruction on the alternate defense “if the 

defendant simply requests the instruction expressly”].) “The trial court need not give 
11.

instructions based solely on conjecture and speculation.” (People v. Young (2005) 34 

Cal.4th 1149, 1200.)

II. Applicable Law

To justify an act of self-defense, the defendant must have an honest and reasonable 

belief bodily injury is imminent. (See People v. Minifie (1996) 13 Cal.4th 1055, 1064; 

accord, People v. Perez (1970) 12 Cal.App.3d 232, 236 [the right of self-defense is based 

upon the appearance of imminent peril to the person attacked].) Furthermore, the right to 

self-defense is limited “to the use of such force as is reasonable under the circumstances.” 

(People v. Minifie, supra, at p. 1065.) “Although the belief in the need to defend must be 

objectively reasonable, a jury must consider what ‘would appear to be necessary to a 

reasonable person in a similar situation and with similar knowledge ....’ [Citation.] It 

judges reasonableness ‘from the point of view of a reasonable person in the position of 

defendant ....’” (People v. Humphrey (1996) 13 Cal.4th 1073, 1082–1083.) An inmate 

has a right of self-defense against an officer only when the inmate is faced with an 

improper use of force by the officer. (See People v. Coleman (1978) 84 Cal.App.3d 

1016, 1023; accord, CALCRIM No. 2671 [“If a custodial officer uses unreasonable or 

excessive force while (restraining a person ... [or] overcoming a person’s resistance ...), 

that person may lawfully use reasonable force to defend himself or herself”].)

III. Analysis

Defendant contends the court erred in refusing his request for a self-defense 

instruction because there was evidence the officers used excessive force. He argues the 

lack of a self-defense instruction vitiated the jury’s findings and prejudiced the verdict, 

particularly given that the jury acquitted him of count 2, evidencing that they accepted his 

testimony in part. The People respond that defendant “failed to show any link between 

his reasonable belief that he was in imminent danger and his subsequent action to support 

the instruction.” They further contend that “piecing together selected portions of the 
12.

prosecution’s case and the defense case does not lead to a reasonable scenario under 

which [defendant] could claim self-defense.” We agree with the People.

The trial court did not err in refusing to give a self-defense instruction because 

substantial evidence did not support it. (See People v. Blair (2005) 36 Cal.4th 686, 744–

745, overruled on other grounds in People v. Black (2014) 58 Cal.4th 912, 919 

[substantial evidence means “evidence from which a jury composed of reasonable 

persons could conclude that the facts underlying the particular instruction exist”].) 

“[B]oth self-defense and defense of others, whether perfect or imperfect, require an actual 

fear of imminent harm.” (People v. Butler (2009) 46 Cal.4th 847, 868.)

Here, there was no evidence defendant feared imminent harm or was faced with 

the improper use of force when he kicked Sergeant Gentry. Rather, all the officers 

testified defendant kicked Sergeant Gentry before any force was used or threatened 

against defendant. Put differently, while there was evidence the officers used force 

against defendant and evidence that defendant kicked Officer Gentry, there was no 

evidence defendant kicked Officer Gentry in response to the use of force. (See People v.

Wilson (1976) 62 Cal.App.3d 370, 374 [“the jury must conclude that defendant ‘was 

actually in fear of his life or serious bodily injury and that the conduct of the other party 

was such as to produce that state of mind in a reasonable person’”].) Thus, there was not 

substantial evidence defendant acted in self-defense.

The cases cited by defendant are inapposite. (See People v. Elize, supra, 71 

Cal.App.4th at pp. 610, 615–616; People v. Villanueva (2008) 169 Cal.App.4th 41, 44; 

People v. Mayweather (1968) 259 Cal.App.2d 752, 755–757.) Unlike those cases, here 

there was no evidence from which the jury could conclude defendant reasonably believed 

he was in imminent danger of suffering bodily injury when he kicked Sergeant Gentry. 

(Cf. People v. Elize, supra, at pp. 610, 615–616 [sufficient evidence to warrant selfdefense instruction where there was evidence defendant discharged gun after being 

physically attacked by women]; People v. Villanueva, supra, at pp. 44, 50–54 [self-
13.

defense instruction warranted where there was evidence defendant shot at victim after 

victim accelerated towards defendant in a car in an apparent attempt to run him over]; 

People v. Mayweather, supra, at pp. 755–757 [error not to give self-defense instruction 

where there was evidence defendant and victim were engaged in a physical altercation 

and the victim was approaching defendant when defendant shot him].) Rather, in the 

instant case, the jury would have had to speculate regarding evidence it did not have—

evidence that defendant kicked Sergeant Gentry in response to the use or threatened use 

of excessive force—in order to conclude defendant acted in self-defense. (See People v.

Perez, supra, 12 Cal.App.3d at p. 236 [“The right to have a jury instructed on selfdefense must be based upon more than imagined facts or inferences”]; accord, People v. 

Hughes (2002) 27 Cal.4th 287, 365 [inference based only on speculation is not 

reasonable].)

Accordingly, the court properly denied defendant’s request for a self-defense 

instruction because substantial evidence did not support it. (See People v. Perez, supra, 

12 Cal.App.3d at p. 236 [court did not err in refusing to instruct jury on self-defense and 

possible effect of excessive force by officer where there was no appearance of imminent 

peril to defendant when he assaulted officer given time interval between alleged use of 

force by officer and defendant’s assault on officer]; People v. Sedeno (1974) 10 Cal.3d 

703, 718, negative history on other grounds [“It is not error to refuse a request for 

instructions on self-defense when there is no evidence from which it can be inferred that 

the defendant feared great bodily harm or death at the hands of the victim”]; accord, 

CALCRIM No. 3470 [providing a defendant is not guilty, “if (he/she) used force against 

the other person in lawful (self-defense ...),” which requires, in part, that “[t]he defendant 

reasonably believed that (he/she ...) was in imminent danger of suffering bodily injury 

[or was in imminent danger of being touched unlawfully]”].)

We reject defendant’s contention.
14.

DISPOSITION

The judgment is affirmed.

PEÑA, J.

WE CONCUR:

FRANSON, Acting P.J.

DESANTOS, J.