Battery by Gassing, 243.9: Preserving Evidence Duty?

Van Leer immediately tried to wipe off the urine from her face. Giddens could see she had succeeded in “gassing” Van Leer and said angrily, “You should have given me my tray the first time, cunt” and laughed. The incident was recorded by one of the jail’s security cameras.

Van Leer was then taken to the hospital where she received blood tests to determine whether she had contracted any infections from the incident.

As a result of the incident the San Bernardino County District Attorney’s Office charged Giddens with one count of “gassing” a police officer, a violation of Penal Code § 243.9, an aggravated form of battery. This occurs when an inmate intentionally causes “any mixture of containing human excrement or other bodily fluids” to make contact with the officer’s “skin or membranes.”

At trial, the prosecution played the surveillance footage of Van Leer delivering lunch to the unit. The video showed Van Leer bending down to deliver food into Giddens’ cell and then jumping back and wiping off her face with her sleeve.

Van Leer testified that as soon as the liquid dripped into her mouth, she knew it was urine. She testified it was warm, salty, and clear. It did not taste like any of the beverages served to inmates, such as milk, water, coffee and Kool-Aid. She further testified that she had been an EMT prior to becoming a deputy and that as an EMT, she had been peed on multiple times, so she knew what urine tasted like and its temperature.

Giddens’ defense was that she did not throw anything at Van Leer and that if anything were in fact thrown at Van Leer, the prosecution could not prove what was thrown at Van Leer was urine.

The jury convicted Giddens of one count of violating Penal Code § 243.9 and the judge sentenced her to one year in state prison.

Giddens appealed to the Fourth Appellate District, claiming that Penal Code § 243.9(c) imposes a mandatory duty on the correctional facility where suspected gassing incidents occur to test the suspected substance to ensure it meets the definition of a gas, i.e., it contains bodily fluids. Second, she said the failure to test the fluid was evidence of bad faith to preserve “potentially exculpatory evidence” in violation of her constitutional due process rights.

The Fourth Appellate District acknowledged that 243.9(c) requires that all instances of gassing shall be immediately investigated by the local detention facility using every means available, including forensic preservation and testing of any suspected gassing substance, and that the chief medical officer of the facility may order examinations for testing for tuberculosis and hepatitis to ensure transmission of the diseases does not occur. However, the detention facility was under no obligation to preserve or test the suspected gassing substance, nor would it have been able to because Van Leer immediately wiped it off her face and Giddens immediately flooded her cell after the incident by intentionally backing up her cell’s toilet.

While the evidentiary argument Giddens made seems mildly clever, the Fourth Appellate District seemed to impose a reasonableness standard on the detention facility’s obligation to investigate and determined that in this case, it was not reasonable to require preservation under the conditions.

The citation for the Fourth Appellate District Court ruling discussed above is People v. Chelsea Taylor Giddens (4th App. Dist., 2021) 72 Cal. App. 5th 145, 286 Cal. Rptr. 3d 910.

For more information about preservation of evidence issues, please click on the following articles: