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People v. Barr

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Feb 17, 2012
A129846 (Cal. Ct. App. Feb. 17, 2012)

Opinion

A129846 A130330

02-17-2012

THE PEOPLE, Plaintiff and Respondent, v. ALLYSON BARR, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. MATTHEW JON KOSTER, Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Solano County Super. Ct. No. FCR272689)


(Solano County Super. Ct. Nos. FCR221485 & FCR272125)

Defendants Allyson Barr (Barr) and her fiancé Matthew Jon Koster (Koster) appeal from their convictions arising out of a barroom brawl at the Buckhorn Bar. Barr was convicted of misdemeanor assault, and Koster was convicted of felony assault likely to produce great bodily injury. Barr claims the court erred in not instructing the jury sua sponte on defense of another and accident, and that her trial counsel was ineffective in not requesting those instructions. Koster's appellate counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to him, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) We ordered the appeals consolidated, and now affirm both convictions.

BACKGROUND

The charges against both defendants arose out of a barroom brawl in the early morning hours of November 22, 2009. Barr and Koster were at the Buckhorn Bar in Dixon with a group of friends including Matthew Muller and Tiffany Martel. Another group at the bar that night included the victims Lisa and William Melton, and their friend Sean Montgomery (Montgomery). Barr and Koster had ongoing "problems" with Montgomery.

The jury found Muller guilty of felony assault of William Melton by means likely to produce great bodily injury. He is not a party to this appeal.

We refer to William Melton and Lisa Melton, brother and sister, by their first names for clarity. (See Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)

When Koster saw Montgomery, he "started pointing [him] out to all his friends." Montgomery was on the deck of the bar near a sliding glass door. Montgomery saw Koster and his friends "converging on me, and I was trying to get off the deck as quickly as possible to go get help." As Montgomery walked inside, someone kicked him. Montgomery continued inside "straight to the bouncers," telling them to call the police because there was " 'about to be a big problem.' " When he turned around, the bar had erupted in "absolute chaos" with "a lot of people fighting." Montgomery described it as "like a barroom brawl you see on the movies."

William saw Koster and Muller following Montgomery as he headed toward the bouncers. William went to the patio and "tried to get the attention" of the bar owner. William "grabbed his arm and asked him to stay by, that there might be a problem." He and Lisa walked back inside the bar together. Koster "stepped in front of the sliding glass door to the rear entrance, and stood in front of [him], and then he punched [him] in the face." William was then "struck from behind . . . in the back of the head and upper body, and thrown to the ground" by someone he did not see. While he was on the ground, Koster, Muller, and at least one other person William could not identify kicked him repeatedly.

Lisa "started yelling for them to get off of him" and tried to intervene, but was "knocked" over by Barr and Tiffany Martel (Martel). As Lisa attempted to help her brother get up, Barr "attacked [her] from behind, knocked [her] down, and had [her] hair and was punching [her] in the head from behind" multiple times. Bouncers pulled people off Lisa and William. Lisa's tooth went through her lip, and she had a bump on her head "like an egg," as well as bruising.

Barr testified she did not "remember the incident at all . . . I don't even remember arriving." Barr's attorney played the Buckhorn Bar's surveillance videotape of a portion of the incident, at some points frame by frame, and questioned her about what it showed. Barr testified she was trying to help Koster, who was on the ground with "[p]eople . . . piling up on top of him." She admitted trying to hit a man who had Koster by the neck. Barr explained Lisa was "[s]ide by side" with her, on top of Koster and Muller. Barr testified she never hit or kicked Lisa, nor pulled her hair. She testified, and the videotape showed, Martel punched Lisa in the face.

Barr admitted to a police officer at the scene "she was swinging at a girl." At trial, Barr denied making this statement, and testified she did not remember talking to the officer at all. The officer testified she was uncooperative and had "a strong odor of an alcoholic beverage on her breath."

Both defendants were charged with assault likely to produce great bodily injury, Barr as to Lisa, and Koster as to both Lisa and William. (Pen. Code, § 245, subd. (a)(1).) Prior to trial, the assault count against Koster naming Lisa as the victim was dismissed.

Following a jury trial, Koster was found guilty of assaulting William under section 245, subdivision (a)(1). Based on this verdict, the court found Koster in violation of his probation in case No. FCR221485. The jury found Barr guilty only of misdemeanor assault. The court sentenced Koster to the midterm of three years on the assault conviction and eight months on the probation violation, to run consecutively. Koster was awarded 676 days of credit. As to Barr, the court suspended imposition of sentence and ordered three years of probation, with one of the conditions being she serve 30 days in county jail. These timely appeals followed.

Barr's appeal is properly before this court because she was charged with a felony but "convicted of only a lesser offense." (Cal. Rules of Court, rule 8.304(a)(2)(B).)

DISCUSSION

A. Trial Court's Duty to Instruct

Barr maintains the trial court erred in failing to instruct, sua sponte, on the defenses of accident and defense of another. "In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case. [Citation.] 'A trial court's duty to instruct, sua sponte, on particular defenses arises " 'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' " ' " (People v. Martinez (2010) 47 Cal.4th 911, 953, quoting People v. Maury (2003) 30 Cal.4th 342, 424.) "But ' "when a defendant presents evidence to attempt to negate or rebut the prosecution's proof of an element of the offense, a defendant is not presenting a special defense invoking sua sponte instructional duties. While a court may well have a duty to give a 'pinpoint' instruction relating such evidence to the elements of the offense and to the jury's duty to acquit if the evidence produces a reasonable doubt, such 'pinpoint' instructions are not required to be given sua sponte and must be given only upon request." ' " (People v. Anderson (2011) 51 Cal.4th 989, 996997, quoting People v. Saille (1991) 54 Cal.3d 1103, 1117.)

B. Failure to Instruct on Accident

Barr asserts the court erred in not instructing, sua sponte, on the defense of accident because there was substantial evidence supportive of that defense. She also claims not only was accident not inconsistent with her theory of defense, but she "clearly relied upon accident as an explanation for any contact . . . she had with Lisa . . . ."

Barr avers she "join[ed] the fray . . . to rescue her fiancé Koster and incidentally wound up next to Lisa," which was "substantial evidence that any touching was accidental. The evidence at trial, however, did not suggest any touching by Barr was accidental. Lisa testified she was bending over to help her brother William when she was "knocked to the ground" by Barr. As Lisa attempted to help her brother get up, Barr "attacked [her] from behind, knocked [her] down, and had [her] hair and was punching [her] in the head from behind" multiple times.

Barr claims she "made no denial" at trial regarding "whether she may have made a 'slight' rude touching on Lisa." But Barr was never asked that question. Instead, Barr was asked whether she pulled Lisa's hair, hit her or kicked her, all of which she denied.

Barr also testified she remembered nothing about the incident. Barr had, however, watched the videotape of the brawl "countless times" and testified she could identify individuals in the videotape. Thus, her attorney questioned her about the videotape of the incident, at times going through it with her frame by frame to establish the videotape did not show Barr ever touching Lisa. Instead, Barr testified the videotape showed Lisa was punched by Tiffany Martel.

Barr's trial strategy of establishing misidentification culminated in her trial counsel's closing argument. Barr's attorney argued: "View the evidence, and I submit to you . . . that there is no evidence that Ms. Allyson Barr did anything to Ms. Lisa Melton. [¶] . . . [¶] . . . Ms. Lisa Melton has misidentified Ms. Allyson Barr for whatever reason . . . there is no evidence that my client has hit . . . [or] pulled [Lisa's] hair at all." Barr's counsel concluded the district attorney "has not proven" his case so "you can only find that my client is not guilty."

The record demonstrates Barr did not rely on the defense of accident. Indeed, that defense was contrary to the defense on which she did rely: misidentification. The defense of misidentification was based on the premise Barr never touched Lisa. The defense of accident, however, is premised on the occurrence of some kind of harmful or offensive touching that was simply accidental. And, the record reveals no substantial evidence supporting the defense of accident. Accordingly, the court did not err in failing to give the instruction sua sponte.

Relying on our Supreme Court's recent decisions in People v. Anderson, supra, 51 Cal.4th 989 and People v. Jennings (2010) 50 Cal.4th 616, respondent asserts an instruction on accident is a pinpoint instruction that must be specifically requested. The California Supreme Court held, after Barr's opening brief was filed, that trial courts have no duty "to instruct on accident, sua sponte, when the issue is raised by the evidence." (People v. Anderson, supra, 51 Cal.4th at p. 996.) In People v. Jennings, supra, 50 Cal.4th 616 the court likewise held the trial court had no duty to give sua sponte instruction on accident: "A claim of accident in response to a charge of murder, however, is not an affirmative defense that can trigger a duty to instruct on the court's own motion." (Id. at p. 674.) Barr acknowledges the holding of Jennings, but claims that rule is limited to murder cases, and should only apply prospectively to trials occurring after the date of the decision. We need not resolve these issues, however, because we conclude the defense of accident was neither supported by the evidence nor relied on by Barr at trial, and was in fact inconsistent with her theory of defense.
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C. Instruction on Defense of Another

Barr also asserts the court erred in failing to provide sua sponte instruction on defense of another. She claims her testimony "both established that a touching had occurred and asserted that [she] had done it for the purpose of protecting her fiancé, Mr. Koster."

As with the claimed defense of accident, defense of another was neither supported by the evidence nor relied on by Barr at trial. Contrary to Barr's assertion, her testimony did not establish that she touched Lisa. As discussed ante, Barr denied hitting or kicking Lisa, or pulling her hair. Barr did not testify she touched Lisa in any way, nor did she testify she did so in defense of Koster. And, again, defense of another conflicted with her defense of misidentification. The court did not err in not giving a sua sponte instruction on defense of another.

D. Ineffective Assistance of Counsel

Barr maintains that, even if the trial court had no sua sponte duty to instruct on accident or defense of another, her counsel was ineffective in failing to request those instructions.

In order to demonstrate ineffective assistance of counsel, " 'a defendant must show both that his counsel's performance was deficient when measured against the standard of a reasonably competent attorney, and that counsel's deficient performance resulted in prejudice to defendant in the sense that it "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." ' " (People v. Thompson (2010) 49 Cal.4th 79, 122, quoting People v. Kipp (1998) 18 Cal.4th 349, 366.) "Defendant's burden is difficult to carry on direct appeal. We reverse on the ground of inadequate assistance on appeal only if the record affirmatively discloses no rational tactical purpose for counsel's act or omission." (People v. Montoya (2007) 149 Cal.App.4th 1139, 1148.) " 'In some cases, . . . the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged. In such circumstances, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal. . . .' [Citation.]" (People v. Avena (1996) 13 Cal.4th 394, 418-419.) " 'A reviewing court will not second-guess trial counsel's reasonable tactical decisions.' " (People v. Riel (2000) 22 Cal.4th 1153, 1185, quoting People v. Kelly (1992) 1 Cal.4th 495, 520.) When defense counsel's reasons are not readily apparent from the record, we will not assume he or she was ineffective unless the challenged conduct could have had no conceivable tactical purpose. (People v. Dickey (2005) 35 Cal.4th 884, 926-927.)

At trial, Barr's counsel relied solely on the defense of misidentification. The tactical reason for this was apparent: there was a videotape of a portion of the brawl showing Lisa being punched by Martel but not by Barr. And, Lisa did not immediately name Barr as her attacker, though they were acquaintances. Instead, Lisa identified Barr in a photo lineup a number of days after the incident. Based on this set of circumstances, Barr's counsel sought a complete acquittal on the grounds Lisa misidentified her assailant as Barr. Pursuing the alternate theories of accident or self-defense, which required Barr to suggest or argue some kind of touching occurred, may well have undermined her stronger defense. This is the type of "rational tactical purpose" that should not be second-guessed by this court. (People v. Montoya, supra, 149 Cal.App.4th at p. 1148.) Barr has failed to demonstrate she did not receive the effective assistance of counsel.

E. Koster's Appeal Pursuant to People v. Wende

We have conducted an independent review of the record, and find no arguable issues. Koster was ably represented by counsel at all times. Substantial evidence supports the jury's verdict. There was no error in sentencing. Koster was notified of his right to file a supplemental brief, but has not done so.

DISPOSITION

The judgments in case Nos. FCR272689, FCR272125 and FCR221485 are affirmed.

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Banke, J.
We concur:

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Margulies, Acting P. J.

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Dondero, J.


Summaries of

People v. Barr

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Feb 17, 2012
A129846 (Cal. Ct. App. Feb. 17, 2012)
Case details for

People v. Barr

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ALLYSON BARR, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

Date published: Feb 17, 2012

Citations

A129846 (Cal. Ct. App. Feb. 17, 2012)