Opinion
A144824
03-17-2017
THE PEOPLE, Plaintiff and Respondent, v. GEORGE BJURBERG, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC079158A)
George Bjurberg appeals from his convictions, following a jury trial, relating to a physical altercation with correctional officers while he was an inmate in county jail. He contends he was impermissibly convicted of attempted assault and was prejudiced by a Brady violation. We affirm.
Brady v. Maryland (1963) 373 U.S. 83 (Brady).
BACKGROUND
The evidence at trial, as relevant to this appeal, was as follows. On May 14, 2013, appellant was an inmate in the San Mateo County jail. He was housed in an administrative segregation unit cell which had no light switch inside it. Correctional Officer Sean Kellie saw that the light in appellant's cell was covered in wet toilet paper, a violation of jail rules. Kellie asked appellant to remove the toilet paper, repeating the request twice over the next two hours, but appellant did not do so.
Kellie and a second correctional officer, Joseph Loschiavo, entered appellant's cell. Kellie approached appellant and told him to remove the paper from the light. Appellant refused and, after some additional exchange, Kellie and Loschiavo began to remove appellant's property from the cell as a form of discipline. As the officers were exiting the cell, appellant charged Kellie; pursued the officers out of the cell; and punched, scratched, and kicked them. Eventually the officers were able to restrain appellant. Kellie had abrasions on two fingers, scratches on his nose and neck, and swelling below his eye.
Appellant represented himself at trial and testified in his own defense. He testified he had covered the light in his cell so he could sleep. Kellie and Loschiavo entered his cell and Kellie, yelling and cursing, demanded he remove the paper from his light. Appellant had been asleep and did not respond, and the two officers began repeatedly hitting him. The assault continued as appellant tried to flee, and only stopped when additional officers arrived.
Other witnesses testified in appellant's defense, including doctors who treated him and another inmate at the San Mateo County jail.
The jury acquitted appellant of willfully and unlawfully using force and violence against a custodial officer engaged in the performance of his duties (Pen. Code, § 243, subd. (c)(1); count 1). The jury convicted appellant of the remaining counts: willfully and unlawfully attempting to commit a violent injury on a custodial officer engaged in the performance of his duties (§ 241.1; counts 2 and 4), and resisting, by use of force or violence, a custodial officer engaged in the performance of duties (§ 69; counts 3 and 5).
All undesignated section references are to the Penal Code.
DISCUSSION
I. Attempted Assault
Appellant first contends he was convicted of attempted assault in counts 2 and 4 and, because there is no crime of attempted assault in California, those convictions should be reversed. Because appellant was not convicted of attempted assault, we reject the challenge.
Section 241.1 penalizes "an assault . . . committed against the person of a custodial officer . . . ." Section 240 provides: "An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." In In re James M. (1973) 9 Cal.3d 517, our Supreme Court concluded there was no crime of attempted assault in California.
In its entirety, section 241.1 provides: "When an assault is committed against the person of a custodial officer as defined in Section 831 or 831.5, and the person committing the offense knows or reasonably should know that the victim is a custodial officer engaged in the performance of his or her duties, the offense shall be punished by imprisonment in the county jail not exceeding one year or by imprisonment pursuant to subdivision (h) of Section 1170."
Counts 2 and 4 of the information alleged that appellant "did willfully and unlawfully, having the present ability to do so, attempt to commit a violent injury on" Officers Kellie and Loschiavo, respectively. The jury was instructed on the crime of assault on a correctional officer pursuant to CALCRIM No. 901. The verdict forms for counts 2 and 4 found appellant guilty of "willful and unlawful attempt to commit a violent injury upon" Kellie and Loschiavo, respectively.
The jury was charged, in relevant part: "The defendant is charged in Counts 2 [&] 4 with assault on a custodial officer in violation of Penal Code Section 241.1. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant did an act that by its nature would directly and probably result in the application of force to a person; [¶] 2. The defendant did the act willfully; [¶] 3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; [¶] 4. When the defendant acted, he had the present ability to apply force to a person . . . ."
Appellant appears to argue that because the information and verdict forms used the word "attempt," but section 241.1 penalizes assault and the jury was instructed on the crime of assault, he was in fact convicted of attempted assault. We disagree. The information and verdict forms simply used language from section 240, which defines assault as an attempt to commit a violent injury. The jury was properly instructed on assault and appellant points to no improper argument or jury questions indicating any confusion on this matter.
In closing arguments, the prosecutor argued: "Counts 2 and 4, . . . this is an assault on Officers Kellie and Loschiavo. . . . Battery is where there is actual contact with a person. . . . An assault, in the legal world, is actually the threat of contact."
In his reply brief, appellant contends section 241.1 is not a substantive crime and he was never charged with or convicted of assault. Section 241.1 is the substantive crime of assault on a correctional officer. (See People v. Ahmed (2011) 53 Cal.4th 156, 163 ["Provisions describing substantive crimes . . . generally define criminal acts."].) Although the information and verdict forms did not use the word "assault," they used the definition of assault contained in section 240 and applicable to section 241.1. Appellant was not convicted of attempted assault.
II. Brady Claim
Appellant next argues he was denied access to material, favorable evidence in violation of his Brady rights. We disagree.
A. Background
Prior to trial, appellant sought the San Mateo County Sheriff's Office Policy and Procedure Manual (the Manual). Appellant argued the Manual was relevant because an element of the charged crimes was that the correctional officer victim was engaged in the performance of his or her duties at the time of the offense. (See §§ 69, 241.1, 243, subd. (c)(1).) The issue was discussed over several days.
County counsel represented that the Manual was 584 pages long and "contains a lot of sensitive information that, if released to an inmate, could jeopardize officer safety," such as "where officers are going to on any particular times." Appellant was provided with redacted versions of the Manual's sections on administrative segregation, maximum security, housing area inspections, and inmate discipline. Appellant was also provided with the unredacted job description for correctional officers and a separate manual governing officer use of force. Eventually, appellant was provided with a version of the entire Manual, which he claimed was heavily redacted.
Appellant argued he should be provided with the entire, unredacted Manual, or at least the unredacted table of contents and index. When asked which additional duties he wanted to see policies on, he responded: "I can't just know what their duties are without having seen these duties. If I can prove in any way that they were derelict in their duties, it negates the whole process." The prosecutor disagreed that further disclosure was required: "[T]he question is, as to the facts in this case, were they acting in performance of their duties when they were taking out his property? When they were ordering him to remove the paper? When they were defending themselves from his attack? [¶] Those are the specific ideas that matter." The trial court refused to order further disclosure of the Manual.
B. Analysis
Appellant contends his Brady rights were violated by the denial of the relevant portions of the Manual. We disagree.
" '[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.' . . . Such 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." ' " (People v. Salazar (2005) 35 Cal.4th 1031, 1042.)
As the People argue, appellant's bare speculation that something in the undisclosed portions of the Manual might have shown the officers were not acting in the performance of their duties is entirely insufficient to establish materiality. (See People v. Ashraf (2007) 151 Cal.App.4th 1205, 1214 ["mere speculation that there might have been something useful for impeachment purposes in those reports is not sufficient to demonstrate a Brady violation"].)
Appellant argues that he cannot determine materiality without full access to the Manual in the first place. As an initial matter, while appellant argues the prosecutor failed to seek in camera review of the Manual and the trial court failed to perform it sua sponte, he did not seek in camera review either below or in this court. In any event, the record shows that all arguably relevant portions of the Manual were provided to appellant: those governing administrative segregation, housing area inspections, and inmate discipline. Although appellant argues he was not provided the portions of the Manual dealing with use of force, the record is clear that use of force procedures were set forth in a separate document that was provided to appellant. Appellant cites no evidence that any other job duties were relevant in this case.
Appellant does not dispute county counsel's representation that the Manual contained sensitive information. --------
DISPOSITION
The judgment is affirmed.
/s/_________
SIMONS, Acting P.J. We concur. /s/_________
NEEDHAM, J. /s/_________
BRUINIERS, J.