Filed 8/20/15 P. v. Harris CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

RONALD HARRIS,

Defendant and Appellant.

 D068065

 (Super. Ct. No. FSB1205607)

APPEAL from a judgment of the Superior Court of San Bernardino, Lorenzo R. 

Balderrama, Judge. Affirmed.

Richard Glen Boire, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Randall Einhorn 

and Parag Agrawal, Deputy Attorneys General, for Plaintiff and Respondent.
2

A jury convicted Ronald Harris of simple assault, a misdemeanor, as a lesser 

included offense of assault with a deadly weapon. (Pen. Code, § 240.) Harris was 

granted probation on various terms and conditions which are not at issue here. 

Harris appeals contending the trial court committed reversible error in replacing 

two sick jurors with alternates while Harris was absent, having failed to appear. Harris 

also contends the court erred in its instructions to the jury on Harris's defense that he was 

making a citizen's arrest at the time of his contact with the victim. Finally, he contends 

the court erred in admitting certain prosecution rebuttal evidence. We will find no error 

by the court with regard to any of Harris's contentions. Therefore we will also reject his 

claim of cumulative error.

STATEMENT OF FACTS

Harris does not challenge the sufficiency of the evidence to support his conviction. 

His only evidentiary challenge is a claim the prosecution's rebuttal evidence was 

irrelevant. Accordingly we will set forth only a summary of the evidence produced at 

trial. We find the summary of facts in the respondent's brief to be accurate and we adopt 

it here for convenience.

On December 6, 2012, around noontime, Jesus Padilla was riding his motorcycle 

northbound on Mountain View Avenue toward the I-10 freeway in Loma Linda. Padilla 

was splitting lanes1 as he drove down Mountain View while the other vehicles were 

stopped. As Padilla was approaching Business Center Drive, while splitting lanes on a 

 

1 Splitting lanes means to ride between two lanes.
3

two-lane street, a car being driven by appellant moved to the middle of the lane to block 

Padilla from moving forward. Padilla stopped next to this car. The car was directly to

Padilla's right.2 Padilla raised his arms with his palms out, in order to communicate, 

"What are you doing?" Padilla did not hit or kick the car. After the light turned green,

the car continued to block Padilla. Padilla moved behind the car and eventually, when 

the road split from two lanes to three lanes, Padilla attempted to pass on the right side of 

the car, travelling about 10 to·15 miles per hour. Appellant then drove directly toward 

Padilla, striking him and causing him to fly off the motorcycle.

Around the same time of the collision, Denise Cummings was also driving 

northbound on Mountain View. Cummings witnessed the collision. Before the collision, 

Cummings was driving behind appellant, and noticed a motorcycle riding in between

lanes. The motorcycle was on her left side. Cummings moved her vehicle to the right to 

allow the motorcycle to pass; however, appellant swerved toward the motorcyclist and 

"continued to swerve at [the motorcyclist] multiple times." Cummings believed appellant 

was trying to hit the motorcyclist. The motorcyclist avoided appellant, slowed down, and 

then again attempted to pass. Appellant swerved toward the motorcyclist, preventing the 

motorcyclist from passing. Cummings saw the motorcyclist raise his hands indicating, 

"Hey, what are you doing?" Next, the motorcyclist slowed down, was positioned 

between appellant and Cummings's vehicle, and then tried to pass appellant on the right 

 

2 On cross-examination Padilla testified that he did not have any·contact with this 

car at Mountain View Avenue and Redlands Boulevard, which preceded Business Center 

Drive on Padilla's route. 
4

side, travelling at approximately 10 to 15 miles per hour. During this attempt to pass, 

appellant again swerved toward the motorcyclist, and the motorcyclist hit the side of the 

car with his hand. Appellant made another swerving motion, this time more "extreme,"

and hit the motorcyclist. As a result, the motorcyclist flew off his motorcycle. 

Cummings stopped her vehicle, called 911, and checked to see if the motorcyclist was

okay. Appellant was not concerned with the motorcyclist's well-being and was taking

pictures of the scene. 

Padilla was taken by ambulance to the emergency room. He suffered back, neck, 

and leg pain for a few months as a result of the collision. Additionally, Padilla's 

motorcycle was damaged. San Bernardino County Sheriff's Deputy Chris Hensman

responded to the scene of the collision. Deputy Hensman saw a dark colored Saab with a 

motorcycle wedged underneath it. Deputy Hensman contacted appellant who was 

agitated, semi-angry, and excited. Hensman documented that appellant's passenger side

mirror was broken.

Defense Case

Eleanor Borkowski was driving northbound on Tippecanoe Avenue·on 

December 6, 2012, when she saw a motorcyclist stop by the driver's side window of a 

stopped car in the lane next to her even though there was room for the motorcyclist to 

continue forward. The motorcyclist and driver exchanged words and, when traffic started 

to move, Borkowski honked her horn indicating to the motorcyclist to move in front of 

her. Instead of moving in front of Borkowski, the motorcyclist moved behind the car 
5

with which he had an altercation. The motorcyclist approached the car on its right side 

and Borkowski heard a crash and saw the motorcycle go "down."

Appellant testified that he drives a blue 1999 Saab 95. On December 6, 2012, he 

was traveling north on Mountain View. He was stopped in traffic south of Redlands 

Boulevard and moved his car leftward within his lane to see what was causing the traffic. 

As he was looking out, he heard a loud noise coming from the driver's side window that 

scared him. He saw a motorcyclist at the window, and believed the motorcyclist struck 

the window with his left hand. The motorcyclist made a threatening gesture as if he 

wanted to fight appellant.

When traffic started to move, the motorcyclist rode by appellant and hit the 

driver's side mirror, causing it to go all the way forward and then snap back in place. 

After the incident, the driver's side mirror had three slight chips in the paint that appellant 

claimed were not present before. Appellant claimed that he reflexively swerved to the 

right and then back left to center himself. The motorcyclist rode away. Appellant 

testified he tried to get close to the motorcycle to get his license plate number. As 

appellant approached Business Center Drive, he could not see the motorcyclist, who had 

moved ahead of him. After Business Center Drive, as appellant was reaching the I-10 

freeway, appellant saw the motorcyclist again. Appellant began to merge into the next 

lane with his turn signal activated and his car angled between the lanes because of the

stopped traffic. He saw the motorcyclist positioned behind him, and the motorcyclist 

either blew his horn or made gestures. Appellant saw the motorcyclist with his hands up, 

palms in the air. Appellant believed Padilla was upset.
6

Appellant testified that the motorcyclist subsequently rode alongside the right 

(passenger) side of his vehicle, stopped, stood on one foot, and hit the mirror as hard as 

he could with his left hand, causing the mirror to break. Appellant reflexively moved his 

car in the direction of the curb, and the motorcyclist tried to accelerate through the gap 

between appellant's car and the curb. Appellant tried to close the gap to prevent the 

motorcyclist from fleeing. As the motorcyclist tried to accelerate away, appellant's right 

front fender crashed into rear tire of the motorcycle causing the motorcyclist to fall off

the motorcycle. Appellant tried to straighten his car and realized the motorcycle was 

pinned under his car. After the collision, there was no damage to the side and rear of 

appellant's car, only the front of the car and side view mirror were damaged. 

Appellant turned his car off, dialed 911, grabbed his camera, and started 

documenting the scene of the collision. 

Rebuttal

Deputy Hensman spoke to appellant at the scene of the collision. Appellant told 

Hensman that the motorcyclist hit his mirror, he reacted, and his car and the motorcycle 

became entangled. Appellant said he hit the motorcycle because he wanted to prevent the

motorcyclist from getting away.

Deputy Hensman testified that he is trained in use of force to effectuate an arrest. 

Hensman stated deputies are allowed to use the reasonable force necessary to make an 

arrest and that reasonableness is based on a reasonable deputy. Hensman testified that if 

someone who he was trying to arrest had a baseball bat, he could use a gun to make an 

arrest and that would be reasonable. Though Deputy Hensman is not trained in using the 
7

precision immobilization technique ("PIT") maneuver, it can be used at speeds under 35 

miles per hour. Hensman testified that one has to be certified to use the PIT maneuver 

and that the San Bernardino Sheriff's Office does not use the maneuver on motorcyclists 

because of the "inherent vulnerability of the motorcycle rider" and because it is 

considered "lethal force."3 Lethal force is used in situations where there is a risk of a 

loss of life, and cannot be used to arrest someone for committing a misdemeanor. The 

policies regarding the implementation of the PIT maneuver vary from agency to agency.

DISCUSSION

I

SUBSTITUTION OF ALTERNATE JURORS

After the jury had deliberated for several days, the court learned that two of the 

jurors were ill. There were two alternate jurors remaining and the court excused the two 

sick jurors and replaced them with alternates. The jury was instructed to start over with 

its deliberations using CALCRIM No. 3575. 

Harris did not show up in court as ordered in the morning session when the court 

excused the first juror without objection by defense counsel. The parties were to return at 

1:30 p.m.

When court resumed, Harris was still absent. At that point the court learned it had 

to replace a second juror. The court proposed to replace the juror and read the 

appropriate instruction. At that point, with Harris still absent, defense counsel objected:

 

3 Deputy Hensman explained that lethal force is force that could result in the 

subject's death.
8

"We are losing two jurors. They (the jury) don't know why we are 

losing the jurors. They don't know they are sick today. They are 

going to know that two jurors are coming in, and they are not going 

to see Mr. Harris, and I don't want them to draw any conclusions that 

there was some contact between Mr. Harris and the jurors." 

After defense counsel was unable to explain why Harris was absent or when he might 

arrive, the court told the jury that Harris was trying to get to court, but was having some 

problems. The court then said: 

"Two of your fellow jurors have been excused and alternate

jurors . . . had been selected to join the jury. Do not consider this 

substitution for any purpose. The alternate jurors must participate 

fully in the deliberations that lead to any verdict. [¶] The People and 

the defendant have the right to a verdict reached only after full 

participation of the jurors whose votes determine that verdict. The 

rights will only be assured if you begin your deliberations again 

from the beginning. Therefore, you must set aside and disregard all 

past deliberations and begin your deliberations all over again. Each 

of you must disregard the earlier deliberations and decide this case 

as if those earlier deliberations had not taken place. [¶] Now, please 

return to the jury room and start your deliberations from the 

beginning."

The court also explained to the jury that the missing jurors suffered health problems 

which caused their absence. 

Harris contends his rights under the Fifth, Sixth and Fourteenth Amendments were 

violated when the jurors were replaced and instructed to start over in their deliberations 

when he was absent from court. Harris recognizes there was no testimony taken and no 

witnesses were called. He argues he was prejudiced because he was not able to "subject a 

psychological influence" on the jury.

We will find the Sixth Amendment inapplicable to this contention. As to his due 

process claims, we will find there was absolutely no prejudice to Harris by the 
9

substitution of jurors and instructions to start over in deliberations while Harris was 

absent from court.

A. Legal Principles

In People v. Waidla (2000) 22 Cal.4th 690, 741-742, the court discussed the rights 

of defendants to be present at the various stages of a criminal trial:

"Under the Sixth Amendment's confrontation clause, a criminal 

defendant does not have a right to be personally present at a 

particular proceeding unless his appearance is necessary to prevent 

'interference with [his] opportunity for effective cross-examination.' 

[Citation.] [¶] Similarly, under the Fourteenth Amendment's due 

process clause, a criminal defendant does not have a right to be

personally present at a particular proceeding unless he finds himself 

at a 'stage . . . that is critical to [the] outcome' and 'his presence 

would contribute to the fairness of the procedure.' [Citation.] [¶] . . . 

[¶] Lastly, under sections 977 and 1043 of the Penal Code, a

criminal defendant does not have a right to be personally present

where he does not have such a right under section 15 of article I of 

the California Constitution." 

In order to show prejudice from actions taken in a defendant's absence the person 

must demonstrate that his or her presence was required because it " 'bears a reasonable 

and substantial relation to his full opportunity to defend against the charges.' [Citation.] 

The defendant must show that any violation of this right resulted in prejudice or violated 

the defendant's right to a fair and impartial trial." (People v. Hines (1997) 15 

Cal.4th 997, 1039.)

In order to prevail on a claim that his absence from the process of replacing two 

sick jurors violated his due process right, Harris must demonstrate his absence denied 

him a fair trial. (People v. Garrison (1989) 47 Cal.3d 746, 783.) Since the question of 
10

constitutional violation in this case is not dependent on the sufficiency of the evidence, 

we review the issue de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1230.)

B. Analysis

We first observe that Harris was not excluded from the events surrounding the 

replacement of jurors. Harris repeatedly failed to appear during the deliberation period, 

however, we must still determine if there was an infringement on his fundamental rights.

We also observe there is no contention here that the jurors should not have been 

replaced. Likewise there can be no argument that the court was required to tell the 

reconstituted jury to start over with its deliberations. Thus there was nothing in the 

process subject to dispute nor was there anything that happened that would have made it 

important for Harris to be in court when the fairly ministerial actions took place.

When the first juror was replaced there was no defense objection. In the 

afternoon, when Harris again failed to appear as ordered, the defense objected. However 

the gravamen of the objection was that the jurors would not know why the others had 

been replaced and might assume Harris, who was absent, might have had contact with the 

excused jurors. However unmeritorious the stated objection was, the trial court took 

steps to prevent the alleged harm mentioned by counsel.

The court informed the jury that the missing jurors were ill and had to be excused. 

The court even went on to give a benign explanation for Harris's continued absence: car 

trouble. The proffered reasons for the objections were all addressed by the court. Thus 

we are left with the question of what possible prejudice to Harris was there by acting in 

his absence? The answer counsel provides is that Harris missed the opportunity to 
11

"subject a 'psychological influence' on them." We recognize that the right of 

confrontation of witnesses contained in the Sixth Amendment, contemplates a defendant's 

physical presence during the taking of testimony, however, such right is not applicable to 

court proceedings that do not involve the evidentiary process. As we have pointed out 

the only constitutional argument available here would be based on prejudice rising to the 

level of a denial of due process. The argument presented here that Harris was going to 

subject the jurors at this point to "psychological influence" is bizarre. 

There were no substantive instructions given to the jury. No jury questions were 

raised. The alternate jurors were present throughout the trial, argument and instructions. 

All that happened was that two sick jurors were replaced and the jury, as required, was 

told to start over again. We are at a loss as to how Harris, even if he decided to show up 

as ordered, would subject the jury to psychological pressure. The argument is inventive 

and the alleged "prejudice" is almost mystical. However, we are not persuaded by it. 

The record is devoid of any indication that Harris was prejudiced by the action taken in 

his absence.

II

ALLEGED INSTRUCTIONAL ERROR

Harris did not dispute that the encounter between himself and the victim took 

place. He did not dispute that the victim was knocked off of his motorcycle and injured 

and that Harris's car ran over the motorcycle. What Harris did contend was that he had 

been assaulted when the victim, trying to pass Harris the second time, struck the window 

of Harris's car and broke the passenger side mirror. Harris contends that he had a right to 
12

make a citizen's arrest at that point and that cutting off a moving motorcycle with his car, 

hitting the motorcycle and knocking the rider off of the vehicle was an authorized, 

reasonable use of force. Harris contends the trial court erred in the instructions given by 

failing to define what constitutes "necessary and reasonable force." We will find no error 

in the court's instructions.

A. Background

The trial court rejected a defense instruction on citizen's arrests. The court gave 

the following instruction instead:

"The defendant is not guilty of assault with a deadly weapon or 

simple assault if he was making a lawful citizen's arrest. [¶] The 

defendant was making a lawful citizen arrest -- citizen's arrest if he

-- using no more force than was necessary and reasonable, he acted 

because Jesus Padilla committed or attempted to commit 

misdemeanor vandalism or misdemeanor assault in the defendant's 

presence. [¶] This defense is not available to a person who uses

unreasonable or excessive force or deadly force. [¶] The People 

have the burden of proving beyond a reasonable doubt that the 

defendant was not making a lawful citizen's arrest. [¶] If the People 

have not met this burden, you must find the·defendant not guilty of 

assault with a deadly weapon or simple assault."

The principal dispute over the jury instruction deals with the permissible force 

available to a person making a citizen's arrest for a misdemeanor. The question relates to 

whether using his car to stop the victim from riding away amounted to excessive force. If 

so, the defense of citizen's arrest would not be available.

The main difference between the instruction offered by Harris and that used by the 

court is that the proposed defense instruction stated when the arrestee flees: 

"In that event, the person effecting the arrest may use such force as 

is reasonably necessary to accomplish the arrest and detention and to
13

defend himself. [¶] The person making an arrest is acting lawfully if 

force or means used are such as would be considered necessary by 

the ordinarily reasonable person placed in the same position and if 

from the standpoint of such a reasonable person force and means 

used was apparently necessary."

It was defense counsel's position with the jury that a civilian making an arrest had 

more latitude in deciding what force to use than would a police officer. The reason for 

such conclusion was that officers are trained and citizens are not. Thus the untrained 

citizen should be able to use a degree of force which officers could not. Naturally, Harris 

offers no authority for such a novel position. As we will discuss below, the authority of 

law enforcement to make arrests is greater than the more limited power of the citizen. 

Thus we cannot understand why the citizen would be able to lawfully use more force than 

could be used by police.

B. Legal Principles

The power of a citizen to arrest another person is contained in Penal Code section 

837: "A private person may arrest another: 1. For a public offense committed or 

attempted in his presence. [¶] 2. When the person arrested has committed a felony, 

although not in his presence. [¶] 3. When a felony has in fact been committed, and he 

has reasonable cause for believing the person arrested to have committed it."

A person who makes a citizen's arrest may use reasonable force to detain the 

arrestee and the arrestee has a duty not to resist the use of reasonable force to effect the 

arrest. (People v. Fosselman (1983) 33 Cal.3d 572, 579.) Deadly force cannot be used in 

making a citizen's arrest for a misdemeanor offense. (People v. Martin (1985) 168 

Cal.App.3d 1111, 1115-1116.) Even in the case of a citizen's arrest for the commission 
14

of a felony, deadly force may not be used unless the felony threatens life or serious 

bodily injury. (People v. Piorkowski (1974) 41 Cal.App.3d 324, 329-330.)

The arrest powers of peace officers are contained in Penal Code section 836, 

et seq. For example, peace officers can arrest on probable cause and do not have to show 

a crime has in fact been committed, whereas the citizen's power only arises where a crime 

has in fact been committed.

Harris has cited no authority for the proposition that the standard for determining 

the lawful use of force by a citizen to arrest is the "reasonable person" standard. Our 

research has not revealed any such authority. It is clear the statute authorizing citizen's 

arrests for misdemeanor offense only allows the use of reasonable and necessary force 

against a fellow citizen. 

C. Analysis

The court's instruction in this case directed the jury to the proper standard for 

assessing the validity of the use of force by Harris. He could not use deadly force, or 

excessive force to arrest for the misdemeanor committed in his presence. The force not 

only had to be necessary but reasonable.

In this case, which looks like "road rage," Harris, perhaps unwittingly, cut off the 

victim who was lane splitting and attempting to pass Harris on the left. The victim, 

angered and frustrated, attempted to then pass Harris on the right and was again blocked. 

When the victim finally passed Harris on the right side, the victim used his fist to strike 

the passenger window and broke the passenger side mirror. In his alleged effort to 

apprehend the victim for misdemeanor assault and vandalism, Harris pulled in front of 
15

the moving motorcycle causing the motorcycle to hit the car and propel the rider over the 

front causing him injury. The car then ran over the motorcycle.

Whether a "reasonable person" might have thought it appropriate to apprehend the 

victim by cutting off the moving vehicle (a concept we seriously doubt), a jury could 

reasonably conclude the force used posed a clear risk of great bodily injury, or even 

death. The instruction gave the jury the appropriate standard for assessing the defense. 

Thus there was no error.

III

EVIDENTIARY ERROR

After the defense case was concluded the prosecution offered testimony from a 

deputy sheriff regarding the propriety of using a car to cut off a "fleeing suspect." The 

term used for such process was the "PIT maneuver." The deputy explained police were 

restricted in using such maneuver because of the danger it presents. The testimony was 

that the Sheriff's Department in San Bernardino did not use the PIT maneuver, because it 

could result in fatal injury.

Harris objected to the testimony regarding law enforcement's limitations on the 

use of a moving car to cut off a moving motorcycle, contending the testimony was 

irrelevant. The trial court overruled the objection.

A. Legal Principles

When we review a trial court's decision to admit or exclude evidence, we apply the 

familiar abuse of discretion standard. Under that standard an appellant must clearly 

demonstrate the decision was so unreasonable as to be an abuse of the court's discretion. 
16

(People v. Lee (2011) 51 Cal.4th 620, 643.) Similarly where the court rules on opinion 

testimony we also apply the abuse of discretion standard. (People v. San Nicolas (2004) 

34 Cal.4th 614, 663.)

Evidence is relevant where it has a tendency in reason to prove or disprove a 

material fact in the action. (Evid. Code, § 210; People v. Cowan (2010) 50 Cal.4th 401, 

482-483.) Opinions by lay persons are admissible where the person has sufficient 

knowledge of matters that would be within the person's ordinary experience as to be 

relevant to a disputed issue. 

The trial court found the opinion testimony of the deputy was relevant to the 

question of what force would be reasonable in an effort to make an arrest for a 

misdemeanor involving moving vehicles on a roadway. The court instructed the jury on 

the use of lay opinion:

"Witnesses who were not testifying as experts gave their opinions 

during the trial. You may but are not required to accept those 

opinions as true or correct. You may give the opinions whatever 

weight you think appropriate. Consider the extent of the witness's

opportunity to perceive the matters on which his or her opinion is 

based, the reasons the witness gave for any opinion, and the facts or 

information on which the witness relied in forming that opinion. 

You must decide whether information on which the witness relied 

was true and accurate. You may disregard all or any part of an 

opinion that you find unbelievable, unreasonable, or unsupported by 

the evidence." (CALCRIM No. 333 (Opinion Testimony of Lay

Witness.)

B. Analysis

Harris argues the testimony of what limitations a law enforcement officer may

have on using force such as was used by Harris was irrelevant. His claim in trial and here 
17

is largely that evaluating the actions of a citizen is completely different than evaluating a 

law enforcement officer. He largely contends a citizen must have more "leeway" in 

deciding what force to use because they are not trained like law enforcement. In short 

that argument seems to say a citizen could use more force to effect a misdemeanor arrest 

than a law enforcement officer could in the same circumstances. We disagree.

The statute allowing citizens to arrest is more limited than that which allows peace 

officers to arrest. The authority of a citizen to use force on another citizen is limited by 

the requirement that it be both reasonable and necessary. The deputy's testimony advised 

the jurors of the risks of using a moving car to cut off and thus stop a moving motorcycle. 

We agree a jury could find that a citizen might have believed the force was necessary, but 

might have a reasonable doubt about reasonableness of the force. It could find some 

differences between what a peace officer would understand and what the citizen 

understood at the time. The instruction placed the burden of disproving a valid citizen's 

arrest on the prosecution.

While there are possible differences in the evaluation of the actions of police as 

opposed to that of a citizen, we cannot say the testimony of the deputy did not have a 

tendency in reason to prove or disprove the disputed issue of whether the force used was 

both necessary and reasonable. The trial court did not abuse its discretion in allowing the 

deputy's testimony.4

 

4 Since we have not discovered any error by the trial court, we find no basis for 

reversal based upon "cumulative error." Accordingly, we will not discuss this contention 

further.
18

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

McINTYRE, J.