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By PORAC | February 1, 2018 | Posted in PORAC LDF News

Ag Agrees Livingston Cop Was Wrongfully Convicted

Principal Attorney
Berry Wilkinson Law Group

During a criminal appeal, the prosecution generally advocates that a jury’s verdict should be upheld, and the defense argues that it should be reversed. But in a surprise move, the California attorney general, the chief law enforcement officer for the state of California, joined the Berry Wilkinson Law Group in seeking the reversal of former Livingston Police Sergeant Tyson Perry’s felony conviction on the grounds that his conduct did not violate Penal Code section 149. The attorney general conceded that “[N]o section 149 conviction was proper” because Perry “had lawful necessity to invoke color of authority when he responded to a request to assist enforcing a child custody order.”

This is not the first surprising development in the Perry case. It was a surprise when the Merced County District Attorney’s Office filed felony charges almost three years after Perry arrested Dwight Larks for a child custody order violation. It was a further surprise when the district attorney claimed that Larks had suffered a concussion during the course of his arrest, and thus charged Perry with battery causing serious bodily injury, a felony under Penal Code section 243(d), in addition to a § 149 assault under color of authority charge. It was also a surprise when the jury returned a verdict after nearly three days of deadlock, acquitting Perry of the § 243(d) charge but convicting him on the § 149 charge. The only thing that was not a surprise about this case was that immediately following the verdict, the Livingston Police Department moved to terminate Perry’s employment because the felony conviction disqualified him from holding his law enforcement position.

This case began around noon on May 21, 2012, when Ayda Garcia arrived at the Livingston Police Department to complain that the father of her child, Dwight Larks, had refused to return custody of their daughter despite the plain terms of their child custody order. Sergeant Perry, along with Officer Michael Baker, reviewed the child custody order on file at the police department, confirming that it had been signed by a judge of the Merced County Superior Court as well as served on Larks, and that the court gave Garcia custody beginning that day at 8 a.m. They also reviewed the text message exchanges between Garcia and Larks, where she requested that he return their daughter but he refused. After that preliminary investigation, Perry accompanied Garcia to the Larks residence to keep the peace when she again demanded that custody be returned. Perry was assigned this duty because another officer had to temporarily assume dispatch duties to relieve the dispatcher to take her lunch break, and was thus unavailable.

Once they arrived at the residence, Larks again told Garcia that he would not return their daughter to her, while approaching her with his hand raised toward her face. At that point, Perry intervened, cut off his approach, requested that the daughter be returned and notified him that he would be arrested if he did not comply. Larks again refused. After making multiple unsuccessful efforts to persuade Larks to turn over the child, Perry placed Larks under arrest for a violation of Penal Code section 166(a)(4), because the custody order both mandated that law enforcement assist in enforcement of the order and advised that “violation of this order is a crime.” Standard handcuffing techniques were used during Larks’ arrest. When Larks began twisting and pulling away from the handcuffs to escape arrest, he and Perry both fell to the ground. During that fall, Perry suffered a puncture wound to his hand because he clasped the handcuffs to gain control while the handcuff key was still protruding from the cuffs. Larks claimed that his head hit the concrete, resulting in a traumatic brain injury. That claim was easily disproven. As the attorney general noted: “there was evidence [Larks] had mental health issues, but neither a concussion nor handcuffing injuries.”

Although there has been a noticeable spike in Penal Code section 149 filings against police officers in California over the last few years, there remains relatively little guidance from the courts concerning the necessary elements of such a charge. As the First District Court of Appeals recently noted: “As best we can determine, in the 145 years that [Penal Code] section 149 has been on the books, there have been a total of four published opinions addressing it. Not one of them deals with any instruction issue. And not one with the phrase ‘without lawful necessity’” (People v. Lewelling [2017] 16 Cal. App. 5th 276, 284 [reversing a conviction under PC § 149]). In Lewelling, the first case to address the elements of a section 149 charge, the court held that a conviction must be based on proof beyond a reasonable doubt that the defendant violated the objective reasonableness standard established in Graham v. Conner (1989) 490 U.S. 386.

The attorney general in this case is advocating not only that the felony conviction must be reversed, but also that the Court of Appeal should endorse a § 149 standard that is much more favorable to law enforcement than that articulated in Lewelling. Under the attorney general’s proposed standard, a reasonable, good-faith — albeit mistaken — conclusion that there is a lawful basis for the use of force or threatened use of force is a complete defense to a § 149 charge, even if an officer “incompetently or unreasonably” uses force.

If adopted, that standard would mean that criminal liability for excessive force by police officers would no longer be addressed under Penal Code section 149, but under the battery standards that apply to all persons; e.g., Penal Code sections 242, 243 and/or 245. In that context, the officer would certainly be entitled to raise the reasonableness of the force used as a defense to the battery charge, since an officer is permitted by Penal Code section 835a to use reasonable force to effect an arrest, prevent escape or overcome resistance.

If that standard is adopted, the number of Penal Code section 149 charges filed would likely plummet, as most involve an officer lawfully detaining or arresting an individual but using more force than the district attorney deems was reasonable or necessary.
This case has, to date, taken unique and unusual turns. Tyson Perry is grateful to the PORAC Legal Defense Fund for authorizing him to compile a strong trial and appellate team consisting of attorneys Alison Berry Wilkinson, William Rapoport, Renee Berenson and Courtney Shevelson, as well as authorizing many experts and investigators to assist his defense attorneys. While it remains to be seen what the Fifth Appellate District will do, it most definitely is a victory that the strong trial record and his defense team’s effective advocacy have persuaded the California attorney general that Tyson Perry was wrongfully convicted.

About the Author

With nearly 30 years of service to the PORAC Legal Defense Fund, Alison Berry Wilkinson is dedicated to providing effective, quality representation to public safety employees in civil, criminal, disciplinary and collective bargaining matters. Formerly a partner at Rains, Lucia & Wilkinson, she continues to actively and aggressively advocate on behalf of peace officers statewide for the Berry Wilkinson Law Group.