Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 060762-2
Pollak, Acting, P.J.
Defendants Ian Cook, Bradley Seibert, and Christopher Hart appeal from a judgment convicting them of, among other things, residential burglary and assault by means of force likely to produce great bodily injury with an enhancement for the personal infliction of great bodily injury. Cook contends (1) the trial court erred in admitting an extra-judicial statement made by Seibert that implicated him in the commission of an uncharged offense, and (2) the prosecutor committed discovery misconduct. Seibert contends that the jury instructions on the enhancement allegation “failed to convey the idea that [he] had to personally inflict great bodily injury.” Hart contends that his attorney provided ineffective assistance of counsel by failing to object to the amount of restitution imposed by the court. We shall affirm.
Factual and Procedural History
Defendants were charged by amended information with first degree residential robbery in concert (Pen. Code, §§ 211, 212.5, subd. (a), 213, subd. (a)(1)(A)); assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)); first degree residential burglary (§§ 459, 460, subd. (a)); and conspiracy (§ 182, subd. (a)(1)). Seibert was separately charged with forcible sexual penetration (§ 289, subd. (a)(1)). The information further alleged that all three defendants personally inflicted great bodily injury in the commission of the robbery, burglary and assault (§ 12022.7, subd. (a)) and that Seibert used a deadly weapon (§ 12022, subd. (b)(1)).
All statutory references are to the Penal Code unless otherwise noted.
The following evidence was presented at trial:
Cara Gonzales testified that she asked Hart and Cook to “beat up” B.J., the 16-year-old victim, because she had given $20 to B.J. to give to a person who was going to pierce her tongue and B.J. had kept the money. Using Gonzales’s cell phone, Cook arranged for B.J. to meet Gonzales at a nearby motel. Gonzales called Seibert, told him that Cook and Hart were going to beat B.J., and asked him to give the group a ride. By the time they arrived at the motel around 11:00 p.m., Angel Rogers and Kenneth Richards had joined the group.
Gonzales and Richards pled guilty to crimes relating to their participation in the attack and testified as prosecution witnesses at trial. Rogers testified with a grant of immunity.
Gonzales met B.J. in his motel room while the others waited in the parking lot. B.J.’s father was there when she arrived, but when he left she sent a text message to the others to come to the room. When the door to the room was opened, Hart immediately entered and punched B.J. three or four times in the face. As Gonzales was leaving the room, Seibert entered with a large bamboo stick.
Rogers testified that after Hart punched B.J., he fell to the ground and appeared to be unconscious. Seibert then hit B.J. on his back with the bamboo stick. She saw Cook jumping on B.J.’s head. Seibert and Cook were still in the room when she left.
Richards testified that when he entered the room, B.J. was lying on the floor. He saw Hart hit B.J. on his back, Seibert hit B.J. with a bamboo stick and Cook kick B.J. and jump on his head. Richards also kicked B.J. He left the room with Seibert, but Seibert turned around and said, “Fuck this. I’m going back.”
Shortly after the assault the group met at a fast food restaurant. Cook was wearing B.J.’s jacket. Richards and Gonzales testified that Seibert told the group at the restaurant, “I sodomized him [with a flashlight]. Ian [Cook] was with me; I kicked it in.”
Seibert’s statement was sanitized for admission at trial. His original statement was “I sodomized him. Ian held it while I kicked it in.”
B.J. testified that he could not remember anything that happened that night after he was hit in the face. He did not give anyone permission to take his jacket. B.J.’s father testified that he returned to the hotel that night to find B.J. on the floor. The police arrived within five minutes of his return.
Police Officer Gabriel Mauro responded to the motel to investigate a disturbance reported by a guest. B.J.’s father let him into the room, where he found B.J. still on the ground. B.J. was transported to the hospital by ambulance. B.J.’s treating doctor testified that he had suffered “significant bruising around the right eye, with a fair amount of swelling.” A CAT scan of his head showed “a small amount of blood in the... very middle of his brain.” B.J. had five to seven “slashes” and bruising on his back.
The jury found all three defendants guilty of assault, burglary, and conspiracy and found the great bodily injury enhancement true as to the assault and burglary counts. The jury found true the enhancement allegation that Seibert used a deadly weapon in the commission of the crimes. Cook was found not guilty of robbery but was convicted of the lesser included offense of theft. Both Seibert and Hart were acquitted of the robbery charge. The jury acquitted Seibert of forcible sexual penetration but convicted him of misdemeanor battery as a lesser included offense. Defendants were sentenced to prison for five years. Defendants filed timely notices of appeal.
Discussion
1. Cook’s Appeal
A. Sixth Amendment Right to Confrontation
Cook contends that the admission of Seibert’s hearsay statement that Cook was with Seibert when he sodomized B.J. implicated him in the sodomy in violation of his Sixth Amendment right to confrontation. Cook relies on Bruton v. United States (1968) 391 U.S. 123, 126-137 (Bruton) and People v. Aranda (1965) 63 Cal.2d 518, 528-530 (Aranda), in which the courts recognized that a defendant’s Sixth Amendment rights may be implicated when a hearsay statement, admissible against only one of multiple codefendants, is introduced in a joint trial and the declarant declines to testify. The Attorney General argues correctly, however, that a defendant’s constitutional right to confrontation is not implicated if the codefendant’s hearsay statement is not testimonial as defined in Crawford v. Washington (2004) 541 U.S. 36. (See People v. Garcia (2008) 168 Cal.App.4th 261, 291 [“If the statement is not testimonial, it does not implicate the confrontation clause, and the issue is simply whether the statement is admissible under state law as an exception to the hearsay rule”]; see also People v. Cage (2007) 40 Cal.4th 965, 984 [“the confrontation clause is concerned solely with hearsay statements that are testimonial”].) Cook concedes that Seibert’s statement at the restaurant was not testimonial. Thus, admission of the statement did not violate defendant’s Sixth Amendment rights.
Cook asserts without citation that “[f]or nontestimonial statements, Crawford left undisturbed the standard previously set forth in Ohio v. Roberts (1980) 448 U.S. 56.” This argument is unsupportable. In Cage, the California Supreme Court observed that “the [United States Supreme Court] has made clear that Roberts... and its progeny are overruled for all purposes, and retain no relevance to a determination whether a particular hearsay statement is admissible under the confrontation clause.” (People v. Cage, supra, 40 Cal.4th at p. 981, fn. 10.)
To the extent that Cook’s brief can be read to assert that the statement was inadmissible hearsay, Cook waived this claim by failing to object in the trial court. Although Cook initially objected to the admission of Seibert’s unsanitized statement, he did not object to admission of the modified statement that was received at trial. Failure to object to inadmissible hearsay waives the claim on appeal. (See People v. Wheeler (1992) 4 Cal.4th 284, 300.)
In any event, assuming that Seibert’s statement was inadmissible, any error in receiving the statement was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) Contrary to Cook’s assertion, Seibert’s statement that Cook was in the room does not imply that he participated in the victim’s rectal penetration. The hearsay statement that he was present in the room was not particularly significant in light of Cook’s acknowledgement at trial that he participated in the assault. Moreover, his defense that he did not personally inflict great bodily injury to B.J. was contradicted by the testimony of two eyewitnesses who saw him jumping on B.J.’s head. It is not reasonably likely that the jury would have reached a different conclusion concerning the enhancement allegations had Seibert’s statement been redacted further.
B. Prosecutorial Misconduct
During Gonzales’s direct examination, the prosecutor asked whether she remembered telling her probation officer that “[her] male friends said that they were going to take [B.J.] up north and kill him?” Gonzales answered “Yes” but she could not remember who said it and did not know if anyone was serious about the threat. None of the defendants objected when the testimony was given. Later, outside the presence of the jury, Cook’s counsel stated that he had not received a copy of the probation report containing Gonzales’s statement. He argued, “I had never received any of that and I have a legal right to have that before it’s put in. And I think it’s Brady material. I think it’s prejudicial to have this kind of statement....” Based on the discussion before the court, it appears that prior to trial the attorneys for Seibert and Cook had made a motion for production of Gonzales’s juvenile record, including her probation report, and that the prosecutor and Seibert’s attorney had received the report, but Cook’s attorney had not. The court told Cook’s attorney that copies of the report would be made available for her in the morning and that it was “not foreclosing [her] from using it or making objections or motions of one kind or another.” The materials apparently were delivered to Cook’s attorney the next day and no further motion or objection was made.
Brady v. Maryland (1963) 373 U.S. 83.
On appeal, Cook argues that “[t]he failure to disclose the irrelevant and highly inflammatory statement constituted prosecution misconduct, and interfered with [his] right to effective assistance of counsel.” Cook’s failure to object to the admission of the statement or to this alleged misconduct waives these claims on appeal. (People v. Millwee (1998) 18 Cal.4th 96, 149.) Contrary to Cook’s argument, the lack of advance notice did not “effectively prevent[] trial counsel from... making a timely objection to the highly inflammatory evidence of a plan to kill [B.J.]” The court indicated it would be receptive to a motion to strike but no such motion was made. Assuming that an objection would have been sustained, there is no basis to believe that a timely requested admonition would not have eliminated the possibility of prejudice. Nor is there any reason to believe that the testimony, which did not attribute the statement to a specific defendant and which the witness indicated may not have been meant seriously, in fact caused any prejudice to Cook.
2. Seibert’s Appeal
With regard to the great bodily injury enhancement, the jury was instructed as follows: “It is alleged in Counts 1, 2, and 3 that in the commission of a felony or attempted felony, the defendants personally inflicted great bodily injury on [B.J.] not an accomplice to the crime. [¶] If you find a defendant guilty of 1, 2, and 3, a felony, you must determine whether that defendant personally inflicted great bodily injury on [B.J.] not an accomplice to the crime in the commission or attempted commission of counts 1, 2, and 3. [¶] “Great bodily injury,” as used in this instruction, means a significant or substantial physical injury. Minor, trivial or moderate injuries do not constitute great bodily injury.[¶] When a person participates in a group beating and it is not possible to determine which assailant inflicted a particular injury, he or she may be found to have personally inflicted great bodily injury upon B.J. if 1) the application of unlawful physical force upon B.J. was of such a nature that, by itself, it could have caused the great bodily injury suffered by B.J.; or 2) that at the time the defendant personally applied unlawful physical force to B.J., the defendant knew that other persons, as part of the same incident, had applied, were applying, or would apply unlawful physical force upon B.J. and the defendant then knew, or reasonably should have known, that the cumulative effect of all the unlawful physical force would result in great bodily injury to B.J. [¶] The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true.” (CALJIC No. 17.20.)
Seibert argues that in light of the instructions given on accomplice liability and conspiracy, the trial court had a sua sponte obligation to clarify for the jurors that they could not find the enhancement true based on a theory of conspiracy or accomplice liability. We disagree. Seibert does not dispute that CALJIC No. 17.20 specifically instructs the jury to “determine whether th[e] defendant personally inflicted great bodily injury on [B.J.].” (Italics added.) Seibert did not request clarifying instructions, and absent any such request, the court had no obligation to provide any additional instructions. (People v. Bell (1989) 49 Cal.3d 502, 550 [“If defendant believed that the instruction was incomplete or needed elaboration, it was his responsibility to request an additional or clarifying instruction”].)
Moreover, in People v. Modiri (2006) 39 Cal.4th 481, 496 the court recognized that in circumstances involving a group attack, CALJIC No. 17.20 properly allows for imposition of the enhancement “where the force personally used by the defendant during a group attack was serious enough that it may, by itself, have caused great bodily injury, even though the evidence did not show for certain that the defendant’s acts alone perpetrated specific harm or that nobody else injured [B.J.]” or “where the physical force the defendant and other persons applied to B.J. at the same time combined to cause great bodily harm.” At trial, Seibert admitted that he repeatedly beat B.J. on his back with a bamboo stick and there was testimony that B.J. had five to seven “slashes” and some bruising on his back. Even if Seibert did not inflict the most serious blows to B.J.’s head, the jury could reasonably have concluded that the injuries he did inflict were significant enough to amount to great bodily injury or that “the cumulative effect of all of the unlawful physical force would result in great bodily injury” to B.J. (CALJIC No. 17.20.)
3. Hart’s Appeal
The court ordered Hart to pay restitution to B.J. in the amount of $10,702.10. The amount was calculated based on the probation officer’s statement that the medical bill totaled $10,232.10 and that B.J.’s guardian requested $470 for insurance copayments and for property and cash taken from B.J. the night of the crime. No additional documentation was introduced in support of the restitution request. Hart’s attorney did not object to the restitution order in the trial court, but argues on appeal that he “was likely doubly penalized [in that ] he was assessed the total medical bill as well as a separate restitution amount for the co-payment portion of that same bill.” Hart acknowledges that the failure to object in the trial court precludes him from challenging the restitution order on appeal. (People v. O’Neal (2004) 122 Cal.App.4th 817, 820.) Accordingly, he argues that the failure to object denied him effective assistance of counsel.
To prevail on an ineffective assistance of counsel claim, the defendant must show that (1) “counsel’s performance fell below a standard of reasonable competence” and (2) “prejudice resulted.” (People v. Anderson (2001) 25 Cal.4th 543, 569; Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Thus, “[e]ven where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., that, ‘ “ ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” ’ ” (People v. Anderson, supra, at p. 569.) In People v. Foster (1993) 14 Cal.App.4th 939, 946, superseded by statute on other grounds as stated in People v. Birkett (1999) 21 Cal.4th 226, 238-245, the court rejected a defendant’s claim that his attorney provided ineffective by failing to object to a restitution order. The court explained, “it is not enough for [defendant] merely to assert that his counsel should have requested a hearing on the amount of restitution. Rather, he had the burden of demonstrating that the value recommended in the probation report was excessive. In other words, he had to make a sufficient showing that but for his counsel’s conduct, the court was reasonably likely to have ordered a lesser amount or no restitution. [Citation.] However, [defendant] has given no hint of the nature of any showing he might have made at a valuation hearing to contest the victim’s figure. Thus, he has failed to meet his burden of demonstrating that a more favorable outcome was probable, had his counsel objected to the restitution amount and requested a hearing on the amount.” (People v. Foster, supra, at p. 947.) Hart’s showing in the present case is similarly lacking. His claim that he was “likely doubly penalized” is speculative at best.
Disposition
The judgment is affirmed.
Siggins, J., and Jenkins, J., concurred.