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Filed 11/5/21 P. v. Giddens CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

CHELSEA TAYLOR GIDDENS,

Defendant and Appellant.

E073390

(Super.Ct.No. FWV18004475)

OPINION

APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson 

Uhler, Judge. Affirmed.

Taylor L. Clark, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Junichi P. 

Semitsu, Deputy Attorneys General for Plaintiff and Respondent.
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While an inmate at West Valley Detention Center, defendant Chelsea Giddens 

threw a milk carton filled with urine at a deputy, hitting her in the face. As a result of the 

incident, which was recorded by one of the jail’s security cameras, the prosecution 

charged Giddens with one count of “gassing” a peace officer (Pen. Code, § 243.9), an 

aggravated form of battery that occurs when an inmate intentionally causes “any mixture 

containing human excrement or other bodily fluids” to make contact with the officer’s

“skin or membranes.” (Pen. Code, § 243.9, subd. (b), unlabeled statutory citations refer to 

this code.)

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 
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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 slotso 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 
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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, 
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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 
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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 
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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 
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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 

multiple subdivisions.1The 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.
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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 
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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.
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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 
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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 
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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.
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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 
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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.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH

J.

We concur:

RAMIREZ

P. J.

MILLER

J.