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Battery by Gassing, 243.9: Preserving Evidence Duty?

If one has not been to jail or prison, one may not know what “gassing” someone is.  The following summary of a recent California Court of Appeal ruling from the Fourth Appellate District will tell you more than you need to know.

At the West Valley Detention Center in Rancho Cucamonga, inmates receive their meals on Styrofoam trays delivered through a foot-wide “tray slot” in the center of their cell door.  The jail employs a tray-for-tray mealtime policy, for sanitary reasons.  To receive the current meal, inmates must pass their spent tray from their previous meal to they may be disposed of and do not remain in the cells for an extended period of time.
Brief Synopsis: In a battery by gassing (Penal Code § 243.9) case, the government does not have a duty to preserve evidence and test it to confirm the substance thrown at a police officer contains bodily fluids.           
On August 17, 2018, San Bernardino County Sheriff’s Deputy Jenna Van Leer was on lunch duty in the unit housing Chelsea Taylor Giddens and other female inmates.  Van Leer was tasked with delivering trays of food.

When she reached Gidden’s cell, Van Leer could see that Giddens had taken off her pants and was wearing only her shirt and that she had multiple spent trays in her cell.

Deputy Van Leer opened the tray slot in Giddens’ door and asked for her spent trays.  Giddens refused to hand them over, so Van Leer finished serving the rest of the unit before returning to Giddens’ cell.

As Van Leer served the others, Giddens started throwing her spent trays out her tray slot.

When Van Leer returned to Giddens’ cell, Giddens pushed her hands through the slot and demanded her lunch.  Van Leer instructed Giddens to remove her hands from the slot and Giddens refused.  Van Leer then told Giddens she would give her lunch if Giddens removed her hands and Giddens complied.

As Van Leer bent down to insert the lunch tray into Giddens’ cell tray slot, Giddens ran to the back of her cell and grabbed an eight ounce milk carton opened at the top so it resembled a square cup.  It was filled with Giddens’ urine.  Giddens then hurled the carton at Van Leer.  Some of the urine splashed through the tray slot and contacted Van Leer’s face and hair. 

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:
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