ALISON BERRY WILKINSON
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  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.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.
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- Russell Wise Alameda POA
- Christopher Connally Assn of LEA
To whom it may concern: Let me start by saying how much I appreciate the opportunity to join the PORAC Legal Defense Fund. This is a great benefit for our membership. During the past twelve months I was fortunate to have access to the Legal Defense Fund through MPCA. Earlier this year I was both surprise, and disappointed, when realized that I needed to provide counsel to mediate pending litigation. In accessing the Legal Defense Fund I found your staff to be very professional and reassuring. The staff felt that [my representative]., would be the best ft for the situation. I would like to take the opportunity to express my appreciation for being represented by [Rick Barry]. Not only was he a good fit for the circumstances, at times it seemed as if he was the only attorney out of several involved that really had a grasp on the issues. Again, I would like to thank the PORAC staff, and know that I could not have been better served than by what was provided by [my representative].
- Kenneth S. Blonski East Bay Regional Parks PMA
I was very pleased with my representative.
- Greg Gladson LA Airport POA
[My representative] was very professional and helpful. She kept me informed with my options and the direction of the investigation.
- Linda Mendez Imperial Co Prob and Corr
I'm very pleased with the services offered by the LDF. I feel so fortunate to enjoy the benefits of having the membership. The services provided by LDF to its members is simply 110% professional, supportive, great!! LDF care for its members is reflected by the quality of Best Law Firm offered, simply the best!
- John M. Laser Oceanside POA
[My representative] always took my calls or returned them within hours. Put my mind at ease and kept me well informed. LDF is well served by this law firm!
- Jaime Kim Oakland POA
My rep did a good job. First we met and he explained that there might be culpability on my part but not nothing close to the allegations. I appreciated his honesty as we have all done things that can be taken out of context so it was important he told me to realize that.
- Larry Fitch Shasta Co DSA
My LDF rep was great, always returned my calls quickly and kept me up to date with what was going on with the case. Thank you.
- Evelyn Hooks Shasta CO PPOA
Thank God for the L.D.F.
- James F. Beland Lake County SDA
- James Beckman Miracosta College POA
Highly recommend this program for any LEO!
- Michael Kan Palo Alto POA
I have always been and will continue to be a strong supporter of LDF and would not work as a police officer without it. I am extremely happy with the service I have received both from LDF and [my representative].
- Shandon Murphy San Mateo POA
Great work! Thank you so much!
- Jason Kearsing Elk Grove POA
Very happy with LDF.
- Robert Hartman Contra Costa Co DSA
Quick response, experienced and knowledgeable attorney which assisted in every step. [My representative] kept me apprised through the process. Thank you.
- Phillip Flores Oxnard POA
My attorney was excellent. I would use her again.
- Brendan Dolan Milwaukee PA
Everything went very smooth and they handled everything! Thank you.
- Nestor Hernandez San Diego POA
This is a great program designed to protect LEO’s in need
- Alvaro Ancheta Glendora POA
I felt I was represented in a thorough and professional manner.
- Derwin Longmire Oakland POA
Outstanding [law firm] - incredible firm. And, LDF was easy to work and correspond with.
- Chad Sakamoto National City POA
Although this incident was unfounded, it's still stressful. My LDF rep kept me informed and kept "work" at work.
- Toinie Lee Jackson Madera Co DSA
Unfortunately, I have been placed in the position to use LDF several times in my career. Without their valued services, I would not be here to write this. I and my family thank you.
- Jonathan Smith San Diego D.A. Investigators
I couldn't be happier or more satisfied with my LDF Representative, the process and the outcome of my case.
- Michael Shephard Suisun City POA
LDF is a very valuable resource. I would not do this job without it.
- James Hika Border Patrol Supervisors Association
They did a great job!
- Marshall Henderson Vancouver Police Officers Guild
I have used LDF in 3 OIS's. Each time I have been very well taken care of. I highly recommend [ representative ] and the PORAC system. Well done and thank you.
- Jason Boust Sanger POA
My rep was very helpful in explaining the processes and stayed in contact throughout the ordeal.
- Christine Farmer Tehama Co DSA
Mine was a fairly simple situation and I may not have needed representative. I am glad I called for help, it gave me peace of mind and reassurance.
- Tai Pena-Hornung Oakland POA
Those who foolishly feel LDF is not a valuable resource, do so only because they have not yet needed legal representation.
- Steven Moorehouse Redding POA
Thank you for your help.
- Richard Salcido Brea PA
LDF is a great organization that not only helps their clients but many of those around them such as coworkers and family members.
- Patricia Goss San Anselmo POA
[My Representative] is fabulous! Thanks for all the exra work she did for me!
- Oliver Sansen Concord POA
In 14 years I have never had to deal with an "IA." [My representative] was wonderful & put my mind at ease throughout the entire process. Thank you!
- Carl Miller Clearlake POA
- Keith Braden Los Angeles School Police Mgmt Assn
Great work, no complaints.
- Katie Angermiller Tuolumne Co DSA
I was very satisfied with the work the LDF performed. The lawyers and clerical staff at [law firm] were all very kind, professional and they always assisted me when I called and never made me feel like I was a burden. Thank you LDF!
- Kelly K. Roe San Joaquin Co Corr Officers
[My representative] did a fantastic job at returning my phone calls and keeping me informed of any and all information pertaining to my case. I would recommend him to anyone.
- Daniel Smock Ventura County PPOA
Everything went smooth. I think the current system works very well.
- Nancy Page Aurora PA
I didn't end up needing his service but he was awesome in what conversations we had before the matter was resolved. Very valuable - LDF!
- Kristen Patterson Contra Costa Co Prob. Assn.
[My representative] was helpful and made me feel supported. I got the results I desired. Very pleased with the process.
- Doug Plumhoff Ridgecrest PEA
Great job by all! Always great to know LDF is there when needed.
- Wendy Morrow Chico Public Safety Association
I had never been through an I.A. in my 21 years. I was scared and ashamed and humiliated. ( My attorney ) was excellent. He helped me through one of the worst times of my life. Had great outcome and I am grateful.
- Alfredo Hernandez El Centro POA
[My representative] was very attentive, [informative] and knowledgeable. He spoke very clearly and explained things in ways easy to understand. [He] made me feel like he truly cared about what was going on with this case and me. Not to mention [he] was funny and witty, traits which made him trustworthy and someone who would stand by me and other police officers.
- Juan Espinoza Fresno DSA
[My representative] did a great job. He is both thorough and well educated. I would use him again.
- Brian Markert Lakewood Police Indp Guild
I feel that I was very well represented by the LDF regarding a fatal officer involved shooting. Both attorneys assigned to assist me - our guild attorney plus a criminal defense attorney - were very aggressive and helpful. Their work was instrumental in helping me to navigate the criminal and internal investigations so that I could return to full duty status.
- Cherie Rye Lyon Co SEA
I am very happy with the service I received from LDF. I am grateful that our association includes LDF as part of our dues.
- Yvonne Heuston ERS/SPPOA Supervisors
My representative was outstanding and knew what to lookout for and how to handle situations as they appeared. He told me what to expect and how he proposed to handle the hurdles. Just telling what to expect helped put me at ease as the situation was so foreign to me, and intimidating.
- Sherri Coral Riverside Community College
He was very professional. I trusted him to defend and he did! I am very thankful he was here for me.
- Scott Hamilton San Bernardino Co SEBA
Don't go to work without LDF!
- Patrick Beggs Fresno Co DSA
Good service. Thank you.
- Ernest Marugg San Diego Deputy DA Association
The LDF responded immediately upon my request for counsel. LDF provided the best representative I could receive! When I called LDF for advice, I was given advice again immediately. Thank you LDF for your concern.
- Nicholas Ward Antioch POA
[ Representative ] did a great job. My case was extremely complicated and difficult. She did a great job.
- Stephen Woodward Palm Springs POA
Great job by my LDF lawyer. I have had to use them several times over my 20 year career and their service is invaluable.
- Rachael Van Sloten Oakland POA
LDF is absolutely essential to help make a system that is somewhat broken work more effectively. [My Representative] is excellent and takes a great deal of time to lisen and represent.
- Steven Moorehouse Redding POA
You guys are Great! Very professional and well informed. THANK YOU!
- Brian Schopf Elk Grove POA
Keep up the good work.
- Kim Prout Upland Firefighters Assoc
It was great comfort to know somebody would be there for me in this matter. I was able to finally sleep @ night & wake up with confidence that I would be ok. Thanks.
- Scott Cox Tulare Co DSA
I just want to say [my representative] did a great job! Thank you.
- Gina Reyes Broadmoor POA
[My representative] was wonderful! Even though my situation didn't end in my favor, he was very supportive, informative & patient. He always answered every email in a timely fashion and was very accessible. I appreciated everything he was able to do for me.