1

Filed 9/26/13

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yuba)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JASON EDWARD SIEVERT,

Defendant and Appellant.

C072168

(Super. Ct. No. CRF12225)

APPEAL from a judgment of the Superior Court of Yuba County, Scrogin, Judge. 

Affirmed.

Bradley A. Bristow, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Senior Assistant Attorney General, Eric L. Christoffersen, 

Deputy Attorney General, John G. McLean, Deputy Attorney General, for Plaintiff and 

Respondent.

 

*

 Pursuant to California Rules of Court, rule 8.110, this opinion is certified for 

publication with the exception of part II of the Discussion.
2

Defendant Jason Edward Sievert was found guilty of resisting a police officer. He 

appeals the judgment based on the absence of a sua sponte jury instruction on the defense 

of unconsciousness and ineffective assistance of counsel relating to evidence of some of 

defendant‟s prior convictions. Finding no merit in either argument we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2012 police responded to a report made by defendant‟s mother of a 

disturbance involving defendant. Because defendant failed to comply with the officers‟ 

demands, the officers “tased” him. Upon being tased, defendant fell “directly backwards, 

stiff as a board.” Following the tasing, the officers attempted to restrain defendant, but he 

punched, kicked, and whipped back and forth. Once defendant was restrained, the 

officers discovered that defendant had sustained a head wound. He was taken to the 

hospital where he received several staples in his head.

Defendant was charged with two counts of resisting an executive officer and one 

count of resisting a peace officer. His defense was that he “was knocked out” and 

therefore did not possess the will or knowledge necessary to commit the crimes. 

Defendant neither requested nor received an instruction on the defense of 

unconsciousness from the trial court.1

 

1 Because the trial court used CALJIC instructions, the relevant instructions for 

unconsciousness would have been CALJIC Nos. 4.30 (unconsciousness) and 4.31 

(presumption of consciousness). CALJIC No. 4.30 provides that “[a] person who while 

unconscious commits what would otherwise be a criminal act, is not guilty of a crime. 

[¶] This rule of law applies to persons who are not conscious of acting but who perform 

acts while asleep or while suffering from a delirium of fever, or because of an attack of 

[psychomotor] epilepsy, a blow on the head, the involuntary taking of drugs or the 

involuntary consumption of intoxicating liquor, or any similar cause. [¶]

Unconsciousness does not require that a person be incapable of movement. [¶] Evidence 

has been received which may tend to show that the defendant was unconscious at the 

time and place of the commission of the alleged crime for which [he] [she] is here on 

trial. If, after a consideration of all the evidence, you have a reasonable doubt that the 

defendant was conscious at the time the alleged crime was committed, [he] [she] must be 

found not guilty.”
3

One issue before trial concerned use of defendant‟s prior convictions to impeach 

him should he testify. Although the trial court was “inclined to allow” the evidence, it 

deferred a final decision until a later date due to confusion about specific aspects of the 

convictions. At no time before or during trial did defense counsel make a motion to 

exclude or sanitize the evidence. In fact, defense counsel elicited the information herself 

from defendant on the stand. 

On August 8, 2012, the jury returned a verdict finding defendant guilty of all three 

counts.

Defendant timely appealed the judgment. 

DISCUSSION

I

Defendant Was Not Entitled To A Sua Sponte Instruction On Unconsciousness

Defendant contends the trial court erred in failing to instruct the jury on the 

defense of unconsciousness. We disagree.

“[T]he sua sponte duty to instruct on all material issues presented by the evidence 

extends to defenses as well as to lesser included offenses . . . . In the case of defenses, 

. . . a sua sponte instructional duty arises „only if it appears that the defendant is relying 

on such a defense, or if there is substantial evidence supportive of such a defense and the 

defense is not inconsistent with the defendant‟s theory of the case.‟ ” (People v. 

Breverman (1998) 19 Cal.4th 142, 157, italics deleted.) This rule does not apply to all 

types of defenses, however. Where a trial court has given complete and accurate 

instructions on the mental element of the crime charged, it does not have a sua sponte 

 

CALJIC No. 4.31 provides that “[i]f the evidence establishes beyond a reasonable 

doubt that at the time of the commission of the alleged crime the defendant acted as if 

[he] [she] were conscious, you should find that [he] [she] was conscious, unless from all 

the evidence you have a reasonable doubt that the defendant was in fact conscious at the 

time of the alleged crime. [¶] If the evidence raises a reasonable doubt that the defendant 

was in fact conscious, you must find that [he] [she] was then unconscious.”
4

duty to instruct on defenses that, unlike true affirmative defenses, operate only to negate 

the mental state element of the crime. (People v. Lawson (2013) 215 Cal.App.4th 108, 

117; People v. Anderson (2011) 51 Cal.4th 989, 996-999.) We review contentions of 

failure to instruct de novo. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.)

“Unconsciousness . . . is a complete defense to a criminal charge” (People v. 

Halvorsen (2007) 42 Cal.4th 379, 417; Pen. Code, § 26, par. Five), but not an affirmative 

defense in the sense that it operates independently of the elements of the crime. Rather, 

unconsciousness “negates the elements of voluntariness and intent.” (People v. Babbitt

(1988) 45 Cal.3d 660, 693.) As such, unconsciousness, like the defense of accident 

addressed in Anderson and mistake of fact addressed in Lawson, does not necessitate sua 

sponte instruction from the court even if the traditional standard for sua sponte instruction 

is met.

Here, it is undisputed that defendant failed to request an instruction on 

unconsciousness. It is also undisputed that the trial court‟s instructions on the mental 

element of the crime charged were complete and accurate. As a result, despite his 

testimony that he was “knocked out” after sustaining a head wound that sent him to the 

hospital, the trial court was not required to give the unconsciousness instruction sua 

sponte.

II

Ineffective Assistance Of Counsel

Defendant states two bases for his ineffective assistance of counsel claim. First, 

he claims defense counsel‟s failure to object to the introduction of the prior conviction 

evidence for impeachment constituted ineffective assistance. Second, he claims defense 

counsel was deficient for eliciting the prior conviction evidence from him on the stand at 

trial. We disagree. 

To demonstrate ineffective assistance of counsel, “ „a defendant must show that 

counsel's performance was inadequate when measured against the standard of a 
5

reasonably competent attorney, and that counsel's performance prejudiced [the] 

defendant's case in such a manner that his representation “so undermined the proper 

functioning of the adversarial process that the trial cannot be relied on as having 

produced a just result.” ‟ ” (People v. Brodit (1998) 61 Cal.App.4th 1312, 1333.) “ „In 

determining whether counsel's performance was deficient, a court must in general 

exercise deferential scrutiny [citation]‟ . . . . ” “ „Although deference is not abdication 

. . . courts should not second-guess reasonable, if difficult, tactical decisions in the harsh 

light of hindsight.‟ ” (Id. at p. 1335.)

Here, defendant first asserts, “there is no satisfactory explanation for defense 

counsel‟s failure to object. There is no reasonable tactical decision counsel [sic] in not 

objecting to the prosecution‟s announced intent to impeach [defendant] with his unduly 

prejudicial prior misdemeanor convictions.” We disagree. The record clearly shows that 

there was confusion concerning the specifics of the priors. Contrary to defendant‟s 

assertion, it was reasonable for defense counsel to wait until the relevant facts about the 

prior convictions were known before objecting.

Defendant also maintains that “[t]here is no satisfactory explanation for why 

defense counsel would voluntarily elicit prior convictions that should have been kept out 

or sanitized because they were unduly prejudicial.” In response, the People argue that the 

record is insufficient to determine with certainty whether defense counsel‟s actions were 

deficient for having no possible tactical basis. We agree with the People. 

As the People point out in their brief, there are a number of possible explanations 

for defense counsel‟s elicitation of defendant‟s priors. One possibility is that the issue of 

the prior misdemeanors, having been brought up but not resolved pre-trial on the record, 

was addressed later off the record. At that point defense counsel might have objected 

pursuant to Evidence Code section 352 that the evidence would unduly prejudice 
6

defendant.2 The prosecution might have countered that not allowing the evidence would 

cloak defendant in a “false aura of veracity.” (People v. Beagle (1972) 6 Cal.3d 441, 

453.) Knowing that People v. Wheeler (1992) 4 Cal.4th 284 only allows use of prior 

misdemeanor conduct and not the conviction itself, the trial court might have concluded 

that there could be no meaningful sanitation of the evidence. At the same time the court 

might have also concluded that wholesale exclusion of the priors would indeed cloak 

defendant in a “false aura of veracity.” (People v. Beagle, supra, 6 Cal.3d at p. 453.) 

Weighing the arguments the trial court might reasonably have allowed introduction of the 

priors as impeachment evidence. As a result, defense counsel might reasonably have 

concluded her best option was to introduce the evidence before the prosecution to better 

control the manner of its introduction. Thus, the record as it stands is inadequate for 

determining what defense counsel‟s motivations were at trial. 

DISPOSITION

The judgment is affirmed.

 ROBIE , Acting P. J.

We concur:

 DUARTE , J.

 HOCH , J.

 

2 Evidence Code section 352 provides: “The court in its discretion may exclude 

evidence if its probative value is substantially outweighed by the probability that its 

admission will (a) necessitate undue consumption of time or (b) create substantial danger 

of undue prejudice, of confusing the issues, or of misleading the jury.”