Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F09904088, Edward Sarkisian, Jr., Judge.
Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Maggy Krell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
Defendant Stephen Lee Barnes was convicted of assault with a knife causing great bodily injury. Due to enhancements based on prior offenses and other factors, he was sentenced to 17 years in prison.
In his opening brief, Barnes asked us to review sealed police reports about a witness’s pending drug-sale charge to determine whether the trial court erred when it denied Barnes’s motion to compel discovery of the reports. We did so, ordered the reports to be unsealed, and asked the parties for additional briefing. We now conclude that the trial court erred and that the error was not harmless. It turns out that the police reports contained information about other people who could have been present when the stabbing took place, information that could have been of material help to the defense. We reverse the conviction.
Barnes also claims that (1) there was insufficient evidence to support the finding that the stabbing caused great bodily injury; (2) the court erred by failing to make an inquiry, on its own motion, into a joking comment made by a juror; and (3) the court abused its discretion in sentencing him, and the sentence is cruel and unusual punishment. We will decide the first issue because of its implications for retrial. The evidence was sufficient to support the finding. It is unnecessary to address the remaining issues.
FACTUAL AND PROCEDURAL HISTORIES
The district attorney filed an information on August 10, 2009, alleging that Barnes assaulted Chris Darrell Thompson with a knife. The information charged Barnes with one count of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) For sentence-enhancement purposes, the information alleged that Barnes used the deadly weapon personally (§§ 667, subd. (a)(4), 1192.7, subd. (c)(23)) and personally inflicted great bodily injury on Thompson (§§ 667.5, subd. (c)(8), 1192.7, subd. (c)(8), 12022.7, subd. (a)). The information also alleged that Barnes had prior convictions, including a strike, that could be a basis for sentence enhancements.
Subsequent statutory references are to the Penal Code unless noted otherwise.
At trial, Fresno Police Officer Richard Fitzgerald testified that he went to a trailer park on Clinton Avenue near Vassar Avenue at 10:33 p.m. on June 29, 2009, in response to a reported stabbing. There he met Thompson, shirtless and bloody, standing behind a tent. Thompson had a puncture wound on his right side near his armpit, a deep scratch on his back, and numerous small scratches on his upper body, forehead, and finger. Fitzgerald administered first aid, applying gauze to the puncture wound to stop the bleeding, until an ambulance arrived. He was not able to converse with Thompson much while this was going on, and then the emergency services personnel took Thompson to a hospital. Before leaving, however, Fitzgerald asked Thompson who stabbed him, and Thompson said he did not see or know who did it.
Fitzgerald followed the ambulance to the hospital and there interviewed Thompson. Now Thompson said he did see the assailant and gave a description: a White man 32 or 33 years old, 5 feet 10 inches tall, about 170 pounds, with tattoos on both arms. Thompson later identified Barnes in a photographic lineup. Thompson also told Fitzgerald he had been drinking with the man and Mary Miles in Miles’s trailer for about two hours before the stabbing. He had four beers with them. As Thompson was getting up to leave, the man said, “‘You don’t disrespect Mary like that, ’” or something similar. Thompson left and returned half an hour later to ask what Barnes had meant by that, and the confrontation ensued. Barnes said either that he would “‘get’” Thompson or “‘kill’” him. They fought, and then Thompson walked away toward his trailer and Barnes went back into Miles’s trailer. About 10 minutes later, Barnes came back out holding a small knife. He approached Thompson, stabbed him, and fled.
Fitzgerald spoke with Miles. She described the man she and Thompson had been drinking with as a White man in his 30’s, 5 feet 10 inches tall, 145 pounds, with shaved brown hair. The same night, Miles told another officer, Detective Art Rodriguez, that she had no knowledge of the incident, was not there when it happened, and did not know who besides Thompson had been in her trailer. After Rodriguez told Miles he thought she was lying and she would be investigated as a “possible involved party, ” however, Miles named Barnes. She said she saw Barnes and Thompson fighting but did not say she saw the stabbing.
Thompson testified at trial that he lived in the trailer park and often went to Miles’s trailer. He met Barnes for the first time at Miles’s trailer on the night of the stabbing. After spending about 45 minutes there, he decided he had had too much to drink and would go home to bed. As Thompson was leaving, Barnes said something. Thompson opened the door, looked back in, and asked what Barnes had said. Barnes responded by coming out and pushing Thompson off the porch. The two had an altercation-“fighting, scuffling, throwing each other around”-and then Thompson walked away toward his trailer. Barnes walked toward Thompson, extended his hand, and said “‘sorry, homeboy.’” As Thompson reached to shake hands, Barnes stabbed him with something. Thompson dropped to the ground bleeding.
Thompson testified that there was “a lot of bleeding” from the stab wound. Paramedics arrived and took him to a hospital. He was in the hospital for about six hours and it took three staples to close the stab wound. Thompson still had a scar from the wound at the time of trial, about three months after the incident. Photographs of the injuries, taken while Thompson was in the hospital, were shown to the jury and admitted into evidence.
Miles testified that she, Thompson, and Barnes were drinking together in her trailer for four or five hours. She and Thompson both got drunk. They went to the store several times for more beer and had a 12-pack or a case. Miles, who said she was an alcoholic, had half of a fifth of bourbon. Before any conflict arose between Thompson and Barnes, Miles went into the bathroom. While in the bathroom, she heard noise outside. When she came out, Thompson and Barnes had left and plants and other items on her porch had been knocked over and broken. Miles saw Thompson walking back to his trailer. Barnes was gone. Miles did not know what had happened. She picked up some of the items that had been knocked over and then got her purse and went to the store.
The jury found Barnes guilty of assault with a deadly weapon and found that he personally inflicted great bodily injury on Thompson within the meaning of section 12022.7, subdivision (a). Barnes admitted the prior offenses.
The court imposed the 17-year sentence recommended by the probation officer. This consisted of the upper term of four years for the offense (§ 245, subd. (a)(1)), doubled to eight years for the prior strike (§ 667, subd. (e)(1)), plus three years for personal infliction of great bodily injury (§ 12022.7), five years for a prior serious felony (§ 667, subd. (a)(1)), and one year for a prior prison term (§ 667.5, subd. (b)). A one-year term for another prior prison term was stayed pursuant to section 654.
DISCUSSION
I. Undisclosed evidence
Defense counsel filed a motion in limine to “compel production of any information and documents pertaining to any pending criminal or civil charges against all prosecution witnesses.” Section 1054.1 requires the prosecution to disclose to the defense “[a]ny exculpatory evidence, ” among other things. (§ 1054.1, subd. (e).) The prosecution also has a constitutional duty to disclose evidence favorable to the defense and material on the issue of guilt or punishment, including impeachment evidence. (Brady v. Maryland (1963) 373 U.S. 83, 87; People v. Gutierrez (2003) 112 Cal.App.4th 1463, 1471-1472.) Evidence is material “‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’” (City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 7-8.) Erroneous denial of discovery is reversible error if it is reasonably probable that discovery would have led to admissible evidence that would have affected the outcome. (People v. Memro (1985) 38 Cal.3d 658, 685, overruled on other grounds by People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.)
At the hearing on the motion, defense counsel explained that she was aware of a heroin-sale charge pending against Mary Miles and believed that if the sale took place at Miles’s trailer, then the details of the alleged offense could point the way to other people who could be involved in the stabbing of Thompson. The trailer might be “a place that has a lot of people coming in and out of it, ” she said. The specific material defense counsel wanted to discover was the police reports.
The prosecutor confirmed that there was a pending heroin-sale case against Miles. He provided the case number and stated that the incident had taken place in April 2009. He volunteered to inquire further and report back. The next day, the prosecutor had obtained the police reports and confirmed that Miles was arrested at her trailer, but he said the police reports contained no exculpatory information helpful to Barnes. He took the position that he was not obligated to turn the reports over and the court had no authority to order him to turn them over. The court reviewed the reports in camera and found that they contained no exculpatory evidence that would benefit the defense. The court disclosed that the report said Miles was on probation, but did not say for what offense. It pointed out that if Miles was on probation for a crime of moral turpitude, that would be relevant to impeach her credibility; but the pending charge would not be admissible for impeachment purposes. Then it ordered the report sealed and designated it “Court Exhibit 1.” The parties included the sealed report in the appellate record.
Barnes argues that the court erred in denying his motion to compel production of the police reports. He says he made a prima facie showing that the reports could lead to exculpatory evidence and, since no privilege was asserted, there was no reason not to require production of the reports. He says his counsel, not the court, should have decided whether the report contained exculpatory information helpful to the defense. In his opening brief, he asked us to “conduct a de novo review of the in camera proceeding analogous to Pitchess [v. Superior Court (1974) 11 Cal.3d 531] to determine if the trial court exercised proper discretion in denying” his motion. The People argue that the police reports contained no discoverable information and that the trial court correctly denied the motion.
We reviewed the police reports. On January 25, 2011, we sent the parties a letter summarizing the contents of the reports and inviting the parties to submit supplemental briefs. In their responses, both sides requested access to the reports. We sent copies of the reports to the Attorney General (since the People had supplied the reports to the court in the first place, there was no breach of confidentiality in this) and notified the parties of our intention to unseal the reports on our own motion. Receiving no opposition, we ordered the reports unsealed on February 25, 2011.
The police reports indicate that Miles was arrested at her trailer on April 9, 2009, on suspicion of possessing heroin for sale, possessing methadone without a prescription, possessing a syringe and other drug paraphernalia, and violating probation. A man who lived with Miles was arrested also. Officers had seen people coming to the trailer on foot and in cars for brief visits. The officers found evidence of drug sales inside the trailer. A search of a neighboring trailer, which was inhabited by a parolee, yielded nothing.
The man arrested in Miles’s trailer, Charles Boe, physically resembled Barnes, and Miles had a motive to protect him. The reports describe Boe as 55 years old, 160 pounds, 5 feet 10 inches tall, with blond hair, blue eyes, and tattoos on both arms. He had a beard and his haircut was a mullet. Miles told officers that Boe had lived with her in the trailer for five years and was her “boyfriend”; Boe told officers Miles was his “wife.” Barnes is described in his probation report as 30 years old, 140 pounds, 5 feet 10 inches tall, with blue eyes and brown hair and tattoos on both arms. In his lineup photo, Barnes’s hair and beard appear light brown. His haircut appears to be a mullet.
The parolee in the neighboring trailer apparently was a frequenter of Miles’s trailer and looked like Boe. One of the police reports describes a follow-up investigation in which the officer approached Miles’s trailer and saw, through the open front door, “a male who resembled” the parolee sitting on the couch. The officer knew from previous contacts that the parolee was friends with Miles and Boe and often visited them. When the officer got closer, he saw that the man on the couch was really Boe.
When Thompson first spoke to the officer who responded to the report of a stabbing, he said he did not see the assailant. At the hospital, he changed his story and said the attacker was 32 or 33 years old, 5 feet 10 inches tall, about 170 pounds, with tattoos on both arms. Miles first told an officer the man she and Thompson had been drinking with was in his 30’s, 5 feet 10 inches tall, 145 pounds, with shaved brown hair. She told another officer she did not remember who had been in the trailer with her and Thompson. She did not name Barnes until an officer said she might be investigated herself.
These facts could have led to admissible evidence supporting two defense arguments. First, the defense might have claimed that Thompson was mistaken about the identity of the man who came out into the dark and stabbed him after he had been drinking with Miles. Second, the defense might have claimed that Thompson and Miles both were not telling the whole truth when they said their drinking companion that evening was Barnes-maybe Boe was there too, and was Thompson’s assailant. Miles and Thompson might have decided to inculpate Barnes in order to protect Boe. A desire to protect Boe would explain their initial unwillingness, when first questioned by the police, to name the assailant.
Other features of Thompson’s and Miles’s testimony could have lent support to one or both of these potential defense theories by undermining Thompson’s and Miles’s credibility. Thompson and Miles both stated that they had had a great deal to drink. Their testimony on some facts was inconsistent: Thompson testified that he only finished his evening of drinking in Miles’s trailer, spending only about 45 minutes there before deciding to depart, while Miles testified that Thompson stayed for four or five hours. Miles never testified that she saw Barnes stabbing Thompson; she only said that Barnes was in the trailer drinking with them, that she heard noise while in the bathroom, and that she came out to find the two of them gone and things broken on the porch. Thompson admitted to convictions for three misdemeanor petty thefts. There were discrepancies between the statements Thompson and Miles gave the police and their testimony at trial.
We cannot say the contents of the police reports were not material and helpful to the defense. There is a reasonable probability that if the reports had been disclosed, the defense could have obtained a more favorable result. It was error not to order the prosecutor to provide the police reports to the defense, and the error was prejudicial.
II. Sufficient evidence of great bodily injury
Barnes argues that there was insufficient evidence to support the jury’s finding that great bodily injury was inflicted on Thompson. When the sufficiency of the evidence is challenged on appeal, “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d. 557, 578; see also People v. Carter (2005) 36 Cal.4th 1114, 1156.)
Our Supreme Court has stated:
“It is well settled that the determination of great bodily injury is essentially a question of fact, not of law. ‘“Whether the harm resulting to the victim … constitutes great bodily injury is a question of fact for the jury. [Citation.] If there is sufficient evidence to sustain the jury’s finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.”’ [Citations.]” (People v. Escobar (1992) 3 Cal.4th 740, 750.)
Section 12022.7, the enhancement statute under which Barnes was charged, defines a great bodily injury as “a significant or substantial physical injury.” (§ 12022.7, subd. (f).) In this case, the jury was instructed with CALCRIM No. 3160: “Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.” Barnes does not question the correctness of this instruction.
The jury heard that Thompson was stabbed in the side with a small knife, causing Thompson to fall to the ground bleeding. There was a lot of blood. Thompson had to be taken to a hospital, where three staples were required to close the wound. The jury saw photographs of the wound as it appeared when Thompson was at the hospital. Since the term “‘great bodily injury’” is “not a technical term that requires further elaboration” (People v. La Fargue (1983) 147 Cal.App.3d 878, 887), a reasonable jury could apply its common sense and general background knowledge and reasonably find beyond a reasonable doubt that this injury was significant or substantial, not moderate or minor. We would have to reweigh the evidence to reach a different conclusion. Doing so is not our role. (People v. Culver (1973) 10 Cal.3d 542, 548.)
DISPOSITION
The judgment is reversed.
WE CONCUR: Cornell, J., Franson, J.