(Ellie Doyen/Special to S.F. Examiner)

Deputy’s conviction in alleged assault of SFGH patient overturned on appeal

Decision marks the second time the case has been sent back to lower court

A state appeals court on Monday overturned – for a second time – a San Francisco sheriff’s deputy’s conviction for assaulting a patient he was asked to remove from a San Francisco General Hospital waiting room.

A three-judge Court of Appeal panel said the jury instructions given by a San Francisco Superior Court judge at the 2015 trial of Deputy Michael Lewelling were confusing and incomplete.

The case concerned a confrontation between Lewelling and Fernando Guanill, a disabled homeless man who came to the hospital’s emergency room early in the morning of Nov. 3, 2014, to ask for pain medication while he waited for an appointment in another department of the hospital later that day.

Three nurses at the emergency room found that he became abusive and disruptive and asked Lewelling to escort him out of the room for safety reasons, as provided by hospital protocol.

When Lewelling approached, Guanill had been asleep in a chair and was starting to wake up. Prosecutors alleged that as Guanill began to get up from chair, Lewelling pushed him back into the seat and started to choke him.

Lewelling claimed that Guanill had threatened him with his cane.

Lewelling was convicted of felony assault by a police officer without legal necessity and misdemeanor simple assault. After prosecutors agreed to dismiss the misdemeanor count, Lewelling was sentenced to probation and community service for the felony assault.

In its first ruling on Lewelling’s appeal in 2017, the Court of Appeal said the jury instructions by Superior Court Judge Ellen Chaitin on the definition of assault by an officer without legal necessity were confusing and misleading.

When the case went back to Superior Court before a different judge, prosecutors from the office of District Attorney George Gascon dismissed the felony conviction and the judge reinstated the misdemeanor conviction.

In its ruling Monday on Lewelling’s second appeal, the appeals panel said the instructions on the misdemeanor charge were also confusing and failed to inform the jury that Lewelling had the right to argue he acted in self-defense.

The court said there was reason to believe the jury could have concluded Lewelling acted in self-defense, because the jury acquitted him of a charge of filing a false police report. Lewelling claimed in the report that Guanill reached for his cane in an attempt to strike him.

-Julia Cheever, Bay City News

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