Battery by Gassing, Penal Code 243.9, Enough Evidence?

In 2017, Carl Steven Tice, Jr., was arrested and charged with committing a felony offense. While confined at the Cois Byrd Detention Center (CBDC) in Riverside and awaiting trial on this charge, he allegedly engaged in four separate altercations, resulting in additional charges.

Specifically, he was charged with three counts of battery on a custodial officer (Penal Code § 243.1) and one count of battery on a detention facility employee by gassing (Penal Code § 243.9(a). The information also alleged that Mr. Tice had previously been convicted of two prior strike offenses within the meaning of section 667(c) and (e).

Penal Code § 243.9(b) defines gassing as “intentionally placing or throwing, or causing to be placed or thrown, upon the person of another, any human excrement or other bodily fluids or bodily substances or any mixture containing human excrement or other bodily fluids or bodily substances that results in actual contact with the person’s skin or membranes.”

As to the gassing incident, this involved an employee of the jail named C.P., a recreational therapist at CBDC employed by Riverside County. Prior to the incident, C.P. had worked with Mr. Tice for about six months at CBDC, seeing him three or four times per week.

During a portion of this six months, Mr. Tice had been declared incompetent to stand trial under Penal Code § 1368, but had later regained competency.

During this time, she witnessed Mr. Tice masturbate at least once per week, but clarified that she never directly saw Mr. Tice’s penis.

Instead, Mr. Tice would use a picture or cardboard to cover his hands or she would see him with his hands down his pants, shaking his hands in his groin area. When this happened, she would ask Mr. Tice to either place his hands on the cell door or in another location where she could see them.

On August 3, 2000, she approached Mr. Tice’s cell to check on him. She again saw Mr. Tice engaging in what she thought was masturbation, so she asked him to place his hands on the cell door. Mr. Tice cursed at C.P. C.P. then walked away to speak with another inmate at the neighboring cell.

The cell doors were sliding doors and there was a small gap measuring about a half inch between the cell door and the wall when the cell door was closed.

While C.P. was talking with the other inmate, she was sprayed by a substance coming from Mr. Tice’s cell. According to C.P., the amount of the substance, she estimated, was less than a cup of water, but drips came in contact with her glasses, face, face mask and arm.

C.P. described the substance as a “clear, light white liquidy substance.” She also stated that the substance was sticky and stuck to her glasses, such that she was required to physically soak her glasses in water to wash away the substance. C.P. testified that she had experience in seeing both semen and milk and in her opinion, the substance thrown on her by Mr. Tice was semen.

Mr. Tice testified at his trial that C.P. was harassing him and that he threw his lunchtime milk at her. He denied the substance was semen.

Another officer also testified at trial that he was standing about five feet away from C.P. when she was hit with the “liquidy substance” thrown by Mr. Tice. He testified that he believed the substance was semen, not milk.

A third officer testified that he cleaned up the floor where part of the substance fell to after the incident. He testified that the substance did not have the consistency of milk and “didn’t look like it was hundred percent milk.”

The jury convicted Mr. Tice of gassing (Penal Code § 243.9(a)) and was sentenced to six years, representing the middle term of three years doubled for a prior strike.

Mr. Tice then appealed the verdict to the Fourth Appellate District in Riverside, arguing that there was insufficient evidence to establish that the substance he threw on C.P. was a bodily fluid, bodily substance, or a mixture containing a bodily fluid or bodily substance.

The Fourth Appellate District then recited the evidentiary standard applicable: “In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence – evidence that is reasonable, credible and of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation] The appellate court presumes in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence.” People v. Ochoa (2009) 179 Cal. App. 4th 650, 656-657.

“’Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.” People v. Grant (2020) 57 Cal. App. 5th 330; People v. Polk (2019) 36 Cal. App. 5th 340, 348 (substantial evidence includes . . ‘all reasonable inferences to be drawn” from the evidence’).

In this case, C.P. testified that she was personally familiar with what semen looked like and believed the substance thrown on her was semen. The deputy who saw the substance on C.P.’s face testified that he thought it was semen and the deputy who cleaned up the liquid on the floor testified that he believed it was semen.

Therefore, applying the sufficiency of the evidence standards above, the Fourth Appellate District found that there was substantial evidence to support the conviction by gassing and denied Mr. Tice’s appeal.