Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD 189576, Peter C. Deddeh, Judge. Affirmed.
AARON, J.
I.
INTRODUCTION
The People charged Bennie Dixon with assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) (count 1), resisting an executive officer (§ 69) (count 2), resisting an officer (§ 148, subd. (a)(1)) (count 3), and exhibiting a deadly weapon other than a firearm (§ 417, subd. (a)(1)) (count 4). In addition, with respect to count 1, the People alleged that Dixon personally used a deadly weapon, within the meaning of section 1192.7, subdivision (c)(23). The People also alleged that Dixon had suffered a prior serious felony conviction (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) and a prior strike conviction (§§ 667, subds. (b)-(i), 668, 1170.12), stemming from a conviction for assault with a deadly weapon by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)).
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
A jury found Dixon guilty of counts 1, 2, and 3, and also found true the weapon allegation with respect to count 1. The jury found Dixon not guilty of count 4. The jury also found that Dixon had suffered a prior serious felony conviction for assault with a deadly weapon by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). The trial court sentenced Dixon to a total term of 12 years four months in prison.
Dixon raises a number of claims on appeal pertaining to the pretrial termination of the services of a legal runner and investigator who had been assisting him with his pro. per. representation, the trial court's denial of his request for discovery pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), the sufficiency of the evidence with respect to count 1, the trial court's limitations on his cross-examination of the victim of the assault, the jury instructions, the trial court's failure to provide the jury with verdict forms for lesser include offenses with respect to count 1, the trial court's response to a question from the jury, his conviction on both a greater offense and purportedly lesser included offense in counts 2 and 3, and certain issues concerning the prior conviction allegations. We affirm the judgment.
Dixon also filed a petition for habeas corpus, which we summarily deny by way of a separate order filed simultaneously with this opinion.
II.
FACTUAL BACKGROUND
A. The People's evidence
1. Count 1
On March 9, 2005, at approximately 6:30 a.m., Larry Hernandez, a building service supervisor at Freese Elementary School, saw a man, later identified as Dixon, standing on the school grounds, moving leaves around on the ground with a piece of wood. Hernandez approached Dixon and asked Dixon if Hernandez could be of assistance. Dixon mumbled something, directed a couple of expletives at Hernandez, and hit Hernandez twice in the torso with the one-inch by four-foot piece of wood. Hernandez ran to the school office and called 911. The blows caused significant bruising. Hernandez missed two weeks of work as a result of his injuries.
3. Count 4
At approximately 6:50 a.m. that same morning, Julia Pacheco, a community assistant and volunteer coordinator at Freese Elementary School, drove her car into the school's parking lot. Pachecho testified that while she was still in the driver's seat of her car, Dixon approached her car, stood next to her driver's side window, and mumbled something while holding a stick over his head. Pachecho testified that Dixon shook the stick several times and continued to walk in the area around her car for three to five minutes.
2. Counts 2 and 3
At approximately 8:30 a.m. that same morning, San Diego Police Officer Michelle Johnson spotted a man sitting on a curb with a stick next to him in the 6400 block of Imperial Avenue. The man fit the description of the suspect who committed the assault at Freese Elementary School. Officer Johnson told the man, who was later determined to be Dixon, that she wanted to speak with him, and directed him to put his hands up in he air. Instead of complying with Officer Johnson's request, Dixon grabbed the stick. Officer Johnson kicked the stick out of Dixon's hands and attempted to grab his arm. Dixon tried to punch Johnson several times.
Within seconds, San Diego Police Officers Brandy Sorbie and Mark Taylor arrived at the scene. All three officers attempted to arrest Dixon, who struggled with the officers. Shortly thereafter, Officer Patrick Sullivan arrived at the scene and saw Dixon punching and kicking the officers. After the officers were able to tackle Dixon to the ground, Dixon complied with their orders, and put his hands behind his back. The officers placed handcuffs on Dixon and arrested him.
B. Defense evidence
Dixon testified that prior to going on the school grounds on the morning in question, he had been chased by a group of Hispanic gang members. He ran into a parking lot with a piece of lumber in his right hand. Dixon said that he noticed Hernandez approaching him, and that Hernandez spit at him and waved a knife at him. Dixon swung at Hernandez to fend him off, then left the parking lot. Dixon denied ever having been near Pacheco's car.
Dixon testified that after he walked for a while, he sat down next to a building. Several police officers approached him and committed an unprovoked assault on him, striking him with their batons. Dixon denied that he had resisted arrest.
III.
DISCUSSION
A. Any error in restricting Dixon's pro. per. privileges was harmless
Dixon claims that the trial court erred in terminating the services of an investigator and legal runner that the court had previously appointed to assist him in his pro. per. representation of his case. Assuming the trial court improperly terminated these services, we conclude that any error in doing so was harmless.
1. Factual and procedural background
At Dixon's arraignment on March 11, 2005, two days after the incident in question, the trial court granted Dixon's request to represent himself. After granting Dixon's request the court stated, "With regard to that, you want an investigator and a runner?" Dixon responded in the affirmative. The court stated, "All right. Court will order P.C.C. [Private Conflicts Counsel] to provide an investigator and a runner for Mr. Dixon."
During a pretrial hearing on June 16 ─ the day before voir dire in Dixon's jury trial commenced ─ Dixon informed the court that he had a discovery issue he wanted to discuss with the court. Dixon stated that he had not received the 911 tape or the police dispatch tape of the incident, despite having made repeated requests for the tapes. The prosecutor said that the tapes had been delivered to Dixon on May 27. Dixon suggested that the prison law library might have the tapes. The court informed the parties that it would play the tapes in court during the hearing so that all the parties could listen to them. Dixon agreed to the proposed procedure, but said that he wanted to play the tapes for the jury, and that he wanted the tapes to be transcribed.
Throughout the proceedings, the parties referred to a single "tape." However, it appears that the parties were referring to the tape of Hernandez's 911 telephone call, and also to the police dispatch tapes, which have been lodged with this court as exhibits in two cassette tapes. We refer to the "tapes" in the plural throughout this opinion, for purposes of clarity.
The court played approximately 35 minutes of the tapes in court. After stopping the tapes, the court noted that the tapes contained "a lot of radio traffic" that had nothing to do with this case. However, the court stated that the court and the parties would continue to listen to the tapes, "and if we have to listen to some tomorrow we'll listen to some tomorrow."
Dixon again requested that the tapes be transcribed. The court responded: "As a practical matter, since PC[C] is not working with you anymore, who's going to transcribe the tape? The DA?" The court told Dixon that it would order the district attorney to transcribe the tapes, but noted that doing so would require continuing Dixon's trial. Dixon stated, "No, I do not want to do that." The court then stated that the court would not play the tapes in front of the jury without a transcript.
The following day at a pretrial hearing, the court again asked Dixon whether he wanted to continue the trial so that the tapes could be transcribed. Dixon responded "Oh, no. No, no, no. I'm ready to proceed forward." The court then played the remainder of the tapes for the parties. Later during the hearing, Dixon stated that he needed a private investigator. The court informed Dixon that he should direct this request to the judge in Superior Court Department 11. Dixon also stated that he did not have a complete transcript of the preliminary hearing, and noted that he was missing the portion of the transcript that contained his testimony. The prosecutor stated that he would provide Dixon with the relevant portion of the preliminary hearing transcript.
On June 23, during the trial, outside the presence of the jury, Dixon made a motion for a mistrial on the ground that he had just received certain discovery that jail personnel at the jail law library had improperly withheld. In response, apparently having reviewed the discovery provided to Dixon, the court stated:
"I have 10 subpoenas, CALJIC form, another document. Looks like a PCC document dated 4-6-05. The polaroids and color photos. Looks like you got the photos because you introduced several of them. And that's ─ that's another document here. And then another PCC document. And the PCC documents are ─ looks like receipts that show that you made requests for a variety of discovery through PCC, and apparently PCC got you those things because you have them."
Dixon stated that he had not received a copy of the preliminary hearing transcript until June 21, and that as a result, he had not been able to file a motion to dismiss pursuant to section 995.
The court denied the motion for a mistrial, noting that Dixon had been present at the preliminary hearing, and that "if [he] felt it was so necessary to bring a [section 995 motion], then you should have raised that issue sooner. You haven't raised it until now. So, I'm going to find it's not timely." The court also stated:
"And I know that you've had a lot of problems with PCC, and PCC finally dropped you because you were being disrespectful and not acting appropriately toward . . . the legal runner for PCC. So that could be part of your problem. [¶] So I'm not going to allow you to set up your own mistrial because you have misbehaved in your relationship with PCC."
After the jury returned its verdict, Dixon filed a motion for a new trial. During a hearing on the motion, Dixon argued that because he had been denied a private investigator, he had not received police dispatch tapes that could have exonerated him. The following colloquy then occurred:
"The court: Well, PCC ─ Again, we've been over this many times, but PCC denied you a private investigator because you got unprofessional and surly with PCC, and so they decided not to work with you.
"[Dixon]: That was your viewpoint. Do I have a viewpoint to say about his?
"The court: No. Because we had a hearing on that, and [the PCC legal runner] came to Department 11 and told us that.
"[Dixon]: Was I present?
"The court: Yeah. You were present.
"[Dixon]: No, I was not."
While Dixon's appeal was pending, this court denied Dixon's application for an order directing the trial court to set a hearing for the purpose of developing a settled statement outlining the circumstances under which Dixon's pro. per. privileges were restricted.
2. Governing law
In People v. Blair (2005) 36 Cal.4th 686, 733-734 (Blair), the Supreme Court discussed the contours of a self-represented defendant's right to ancillary services necessary to present a defense:
"[W]e have recognized that depriving a self-represented defendant of 'all means of presenting a defense' violates the right of self-representation. [Citation.] Thus, 'a defendant who is representing himself or herself may not be placed in the position of presenting a defense without access to a telephone, law library, runner, investigator, advisory counsel, or any other means of developing a defense.' [Citation.] Yet, as we have observed, '[i]nstitutional and security concerns of pretrial detention facilities may be considered in determining what means will be accorded to the defendant to prepare his or her defense. [Citations.]' . . . In the final analysis, the Sixth Amendment requires only that a self-represented defendant's access to the resources necessary to present a defense be reasonable under all the circumstances. [Citation.] [¶] Thus, the crucial question underlying all of defendant's constitutional claims is whether he had reasonable access to the ancillary services that were reasonably necessary for his defense."
In Wilson v. Superior Court (1978) 21 Cal.3d 816, 820 (Wilson), a trial court had granted the defendant pro. per. privileges pursuant to a Los Angeles Superior Court Policy Memorandum (Policy Memorandum). The trial court also granted the defendant's motion for other ancillary services, including appointment of an investigator, and funds for telephone calls and for a legal runner. Approximately 20 days after the court awarded these privileges, the sheriff's office unilaterally restricted the defendant's privileges due to his alleged involvement in a "fracas" at the jail. (Ibid.) The defendant appeared in court to seek reinstatement of the privileges, or in the alternative, a hearing on the restrictions. (Id. at pp. 820-821.) The trial court upheld some of the restrictions on the privileges without an evidentiary hearing. (Ibid.) The defendant then sought a writ of mandate in the Supreme Court seeking relief from the trial court's orders restricting his privileges. (Id. at p. 821.)
The Wilson court stated, "The term 'pro. per. privileges' refers to out-of-court privileges afforded an incarcerated defendant proceeding in propria persona for the purpose of facilitating preparation of a defense." (Wilson, supra, 21 Cal.3d at p. 820, fn. 1.) The privileges included "use of the law library and telephones for seven hours a day on weekdays, the opportunity to interview witnesses for extended periods of time, and the use of and conferences with legal runners and investigators." (Id. at p. 822.)
In considering whether to grant the petition, the Wilson court stated, "Even if a defendant has no constitutional right to pro. per. privileges, once they are given he may nevertheless have an interest in them which is protected by the due process clause of the Constitution." (Wilson, supra, 21 Cal.3d at p. 823.) The Wilson court held that the Policy Memorandum pursuant to which the defendant's privileges had been granted created such a protected interest. In determining how this interest could be sufficiently protected, the Wilson court held, "A pro. per. inmate's due process right in determination of the existence of cause for restriction of pro. per. privileges is, in our view, afforded by a jail administrative evidentiary hearing so long as some provision is made for court review of the matter and for the defendant to appear before the court." (Id. at p. 827.) The Wilson court explained that "[t]he purpose of the defendant's appearance is to allow him an opportunity to voice any objection he has regarding the administrative proceeding and decision." (Id. at p. 828.)
3. Assuming the trial court improperly terminated Dixon's pro. per. privileges, any error was harmless
The trial court's comments suggest that, at some time prior to trial, the court terminated the services of an investigator and legal runner who the court had previously appointed to assist Dixon. Despite Dixon's attempts to perfect the record to determine whether the court terminated these services and if so, under what circumstances, the record does not contain a minute order or transcript indicating that the court in fact took such action. However, assuming that the trial court did improperly terminate Dixon's pro. per. privileges at a hearing at which Dixon was not present, we conclude that any such error was harmless.
a. Any error in terminating the services of the investigator and legal runner did not constitute structural error requiring reversal of the judgment without regard to prejudice
Dixon claims that the trial court's error in terminating the services of the investigator and legal runner constituted structural error. We disagree.
Structural errors involve the failure of " 'basic protections, [without which] a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.' [Citation.]" (Arizona v. Fulminante (1991) 499 U.S. 279, 310.) A structural error requires reversal without regard to the strength of the evidence or other circumstances. (Ibid.)
Dixon has cited no case that suggests that a violation of a defendant's procedural due process right to be present at an adversarial hearing concerning the restriction of pro. per. privileges, constitutes per se reversible error. Any such holding would be in conflict with California Supreme Court authority that an improper denial of ancillary services necessary to prepare a defense does not constitute structural error. (Blair, supra, 36 Cal.4th at p. 736 ["To the extent defendant may have been denied access to any [ancillary] resources [to prepare a defense], the denial was minimal and defendant has failed to demonstrate any resulting prejudice"].)
Given that the Wilson court granted a pretrial petition for a writ of mandate ordering the trial court to vacate its orders limiting the defendant's pro. per. privileges (Wilson, supra, 21 Cal.3d at p. 828), the Wilson court did not have occasion to consider the standard of prejudice to apply on appeal to the improper restriction of such services.
We reject Dixon's contention that any error in terminating the services of a legal runner and investigator requires per se reversal because the termination resulted in Dixon being deprived of his right to counsel at a "critical stage" in the proceedings. (U.S. v. Cronic (1984) 466 U.S. 648, 659 ["a trial is unfair if the accused is denied counsel at a critical stage of his trial"].) The pretrial hearing at which the services apparently were terminated was not a critical stage in the proceedings such that it is impossible for this court to determine the extent of any prejudice stemming from the error. We also reject Dixon's argument that any error in terminating the services requires reversal because he was not present at the hearing. (See People v. Perry (2006) 38 Cal.4th 302, 312 ["Erroneous exclusion of the defendant is not structural error that is reversible per se, but trial error that is reversible only if the defendant proves prejudice"]; People v. Santos (2007) 147 Cal.App.4th 965, 974 ["assuming there was a violation of the right to be present at a critical stage of the proceedings, defendant erroneously argues that the absence of a defendant from a critical stage of the proceedings is structural error requiring reversal"].)
We conclude that any error the court committed in terminating Dixon's legal runner and investigator services does not require per se reversal.
b. Any error in terminating the services of the runner and investigator was harmless, under any standard of prejudice
It is abundantly clear that Dixon was not deprived of "all means of presenting a defense." (Blair, supra, 36 Cal.4th at p. 733.) The record indicates that prior to trial, Dixon had received a large quantity of discovery. This discovery included various police department reports, such as a victim's statement, Officer Johnson's narrative report documenting Dixon's arrest, a San Diego Police Department force effectiveness form documenting the types of force that officers used to effectuate Dixon's arrest, Officer Sullivan's incident report, and Officer Sullivan's narrative report documenting the investigation of Hernandez's assault and Dixon's arrest. The trial court's comments in denying Dixon's motion for a mistrial on the ground of delayed discovery describe additional discovery Dixon obtained in this case, as well.
During the trial, while conducting cross-examination, Dixon used additional discovery, including the preliminary hearing transcript, the computer-assisted dispatch report of the incident, and photographs of the scene of his assault on Hernandez. In addition, Dixon asked Hernandez during cross-examination whether Hernandez had spoken "at length" about "the incident" with a defense investigator. Hernandez responded in the affirmative.
We reject Dixon's argument that he suffered prejudice from the court's termination of the runner and investigator services because he could have used a runner or investigator to have the 911 tape and dispatch tapes transcribed and played to the jury. Assuming Dixon did not forfeit this claim by rejecting the court's offer to order the district attorney to transcribe the tapes, Dixon identifies nothing on the tapes that could have affected the jury's verdict. We similarly reject Dixon's argument that he is entitled to reversal of the judgment because, if he had had a runner, he might have received the preliminary hearing transcript in time to file a motion to dismiss. Assuming for the sake of argument that this is so, Dixon has made no showing that a motion to dismiss would have been granted.
Finally, the evidence against Dixon on counts 1-3 was considerable. With respect to count 1, Hernandez's testimony and the physical evidence presented as to his injuries constituted strong evidence of Dixon's guilt. With respect to counts 2 and 3, the officers' testimony regarding Dixon's actions in resisting arrest, outlined in part III.F, post, was also highly incriminating.
In short, the record indicates that Dixon "had reasonable access to the ancillary services that were reasonably necessary for his defense." (Blair, supra, 36 Cal.4th at p. 734.) Further, the record indicates that any error the court may have committed in terminating the services of Dixon's legal runner and investigator was harmless, under any standard of prejudice.
B. Pitchess
1. The trial court did not abuse its discretion in denying Dixon discovery he requested in his Pitchess motion
Dixon requests that this court review the trial court's denial of any discovery pursuant to his Pitchess motion.
In the trial court, Dixon filed a Pitchess motion in which he sought discovery of Officer Sorbie's personnel records, including records indicating her prior use of excessive force. In a declaration in support of his motion, Dixon claimed that Officer Sorbie used a baton on him at a time when he was handcuffed and not resisting arrest. The city attorney opposed the release of the personnel records of Officers Johnson, Sullivan, Sorbie, and Taylor.
The trial court conducted a hearing on the motion. At the hearing, Dixon clarified that he was seeking personnel records of Officers Johnson, Sullivan, Sorbie, and Taylor. The court ruled that it would review the personnel files of Officers Johnson, Sullivan, and Sorbie, but that Dixon had failed to set forth any reason for the court to review Officer Taylor's file. The court subsequently conducted an in camera review of the personnel records of Officers Johnson, Sullivan, Sorbie. (See Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 ["If the trial court finds good cause for the discovery, it reviews the pertinent documents in chambers and discloses only that information falling within the statutorily defined standards of relevance"].) After reviewing the personnel records in camera, the court ruled that there were no records in the file that were discoverable.
On appeal, this court is required to examine the materials in camera and determine whether the trial court abused its discretion in refusing to disclose the contents of the officers' personnel files. (People v. Hughes (2002) 27 Cal.4th 287, 330; People v. Mooc (2001) 26 Cal.4th 1216, 1229.) We have examined the available personnel records in camera and conclude that the trial court did not abuse its discretion in denying discovery of the records.
There was no request in the trial court that the trial court preserve the personnel records. While Dixon's appeal was pending, this court issued an order directing the trial court to transmit under seal the documents it reviewed at the June 13 Pitchess hearing. In response, the custodian of records of the San Diego Police Department provided a declaration and attached "all records that may have been reviewed by the trial court during the Pitchess motion in this case." The declaration noted that one internal investigation document that the trial court had reviewed had been purged by virtue of the Department's five-year document retention policy pursuant to Penal Code section 832.5. Accordingly, we have not been able to review this document.
C. There is sufficient evidence that Dixon committed an assault with force likely to produce great bodily injury
Dixon claims there is insufficient evidence that he committed an assault with force likely to produce greatly bodily injury. Specifically, Dixon argues that there was insufficient evidence that the force he applied to Hernandez was likely to cause great bodily injury. Dixon contends that the fact that the injuries Hernandez suffered do not constitute great bodily injury indicates that the force Dixon applied was not likely to produce great bodily injury.
In determining the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "[T]he 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.)
Section 245, subdivision (a)(1) provides, "Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment."
"Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate." (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) "'Likely means probable or . . . more probable than not.' [Citation.]" (People v. Russell (2005) 129 Cal.App.4th 776, 787.)
"One may commit an assault without making actual physical contact with the person of the victim; because the statute focuses on use of a deadly weapon or instrument or, alternatively, on force likely to produce great bodily injury . . . ." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) "'The statute [§ 245, subd. (a)(1)] prohibits an assault by means of force likely to produce great bodily injury, not the use of force which does in fact produce such injury. While . . . the results of an assault are often highly probative of the amount of force used, they cannot be conclusive.' [Citation.] '[T]he question of whether or not the force used was such as to have been likely to produce great bodily injury, is one of fact for the determination of the jury based on all the evidence, including but not limited to the injury inflicted. [Citations.]' [Citation.]" (People v. Armstrong, supra, 8 Cal.App.4th at pp. 1065 -1066.)
Hernandez testified that Dixon hit him twice in his left lower back side with a piece of wood that resembled a one-inch by four-foot fence post. The People introduced in evidence a photograph of the piece of wood. The wood appears to be a broken piece of lumber shaped, by virtue of the break, like a baseball bat, narrower at one end and thicker and wider at the other.
In addition to this photograph, photographs of Hernandez's injuries were admitted in evidence at Dixon's trial. Notwithstanding Dixon's claim that Hernandez's injuries demonstrate that the force used was insufficient to sustain Dixon's conviction, Dixon did not request that these photographs be transmitted to this court. (See Cal. Rules of Court, rules 8.320, 8.224.) However, we directed the trial court to send us the relevant exhibits, and we have reviewed the photographs. (See Cal. Rules of Court, rule 8.224 (d) ["At any time the reviewing court may direct the superior court or a party to send it an exhibit"].)
When asked by the prosecutor to describe how hard he was hit, Hernandez replied, "It was pretty hard. It stung me. The first one I felt more than the second." In describing on cross-examination the manner in which Dixon used the piece of wood, Hernandez testified that Dixon placed both hands on the piece of wood and swung it at Hernandez. Hernandez demonstrated to the jury the motion that Dixon used to strike him with the wood, a motion that resembled the motion a person would use while swinging a baseball bat.
With respect to his injuries, Hernandez described a photograph that was taken on the day of the beating, which showed a welt on his torso. Hernandez went to urgent care and saw a doctor that day. Hernandez missed about two weeks of work due to his injuries. On the day after he returned to work, Hernandez had additional pictures taken of his injuries because he was "more bruised" at that time.
The jury could reasonably have found that Dixon swung a one-inch by four-foot piece of wood at Hernandez's torso in a motion that resembled that of a person swinging a baseball bat. The jury could also have reasonably found that Dixon struck Hernandez with enough force to cause substantial bruising. This evidence was sufficient to support the jury's finding that Dixon employed "force likely to produce great bodily injury." (Compare People v. Armstrong, supra, 8 Cal.App.4th at p. 1066 [concluding evidence sufficient to support assault by means of force likely to produce great bodily injury where defendant pinched both sides of victim's mouth, held her jaw tightly, and shoved his whole hand down her throat so she would not scream] and In re Nirran W. (1989) 207 Cal.App.3d 1157, 1162 [concluding evidence was "clearly" sufficient to support assault by means of force likely to produce great bodily injury where defendant punched the victim in the face with sufficient force to knock her down, victim felt "jaw pop out and then back in," and victim's "teeth still did not meet," two months after the attack] with People v. Duke (1985) 174 Cal.App.3d 296, 303 [concluding evidence insufficient to support finding that defendant used force likely to produce great bodily injury where defendant used "headlock" on victim that made her feel "'choked'" but did not cut off victim's breathing, and victim's only injury was a laceration to her ear lobe caused by movement of earring during assault].)
D. The court did not deny Dixon his right to present a defense by limiting his cross-examination of Hernandez
Dixon claims that the trial court violated his right to present a defense by limiting his cross-examination of Hernandez.
1. Factual and procedural background
During Dixon's cross-examination of Hernandez, the trial court sustained the People's objections to the following questions:
"[Dixon]: On the day you . . . left the doctor's office, did he give you any paperwork concerning your injury?
"[The prosecutor]: Objection, your honor. Irrelevant.
"The court: All right. Sustained. Ask another question.
"[Dixon]: You stated that ─ do you recall what the doctor gave you ─ did he give you a diagnosis?
"[The prosecutor]: Same objection, your honor. Calling for hearsay.
"The court: Sustained.
"[Dixon]: Do you have any of the paperwork from the doctor?
"[The prosecutor]: Same objection.
"The court: I already sustained that objection, Mr. Dixon. Ask another question.
"[Dixon]: Do you recall how long you was [sic] in the doctor's office?
"[The prosecutor]: Objection, your honor. Irrelevant.
"The court: All right. Sustained.
"[Dixon]: Did you stop anywhere else before you arrived to the doctor?
"[The prosecutor]: Absent a showing of proof, objection, irrelevant.
"The court: Irrelevant. Sustained.
"[Dixon]: Did you talk to the paramedics, sir?
"[The prosecutor]: Same objection.
"The court: Sustained."
The court refused to require Hernandez to pull up his shirt to show the jury the site of his injuries. The court reasoned that the photographs of Hernandez's torso that were taken on the day of the event, and that had been admitted in evidence, constituted better evidence of the nature of Hernandez's injuries than Hernandez's present condition, since the trial was taking place three to four months after the event.
Dixon asked Hernandez who had taken the photographs near the time of the injury. Hernandez testified that the audio-visual person at his school had taken photographs of his injury. Dixon then asked, "Is it computer enhancement? Those could be computer enhanced─." The prosecutor interrupted, "That's argumentative." The court sustained the prosecutor's objection.
2. Governing law
"'The state and federal Constitutions guarantee the defendant a meaningful opportunity to present a defense.' [Citation.]" (People v. Woods (2004) 120 Cal.App.4th 929, 936.) However, "[a]pplication of the ordinary rules of evidence . . . .does not impermissibly infringe on a defendant's right to present a defense. [Citation.]" (People v. Mincey (1992) 2 Cal.4th 408, 440.) Included among these rules of evidence are rules that preclude the introduction of hearsay evidence (Evid. Code, § 1200) and irrelevant evidence (Evid. Code, § 210). In addition, a trial court may preclude a party from asking argumentative questions at trial. (See People v. Chatman (2006) 38 Cal.4th 344, 384 ["An argumentative question that essentially talks past the witness, and makes an argument to the jury, is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all"].)
Error in excluding defense evidence on a minor point does not constitute a deprivation of a defendant's constitutional right to present a defense:
"'As a general matter, the "[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense." [Citations.] Although completely excluding evidence of an accused's defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense. [Citation.] If the trial court misstepped, "[t]he trial court's ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense." [Citation.]' [Citations.]"(People v. Boyette (2002) 29 Cal.4th 381, 427-428.)
We review a trial court's evidentiary rulings under the abuse of discretion standard of review. (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)
3. The trial court did not violate Dixon's right to present a defense
The trial court did not abuse its discretion in sustaining the People's relevancy objection to Hernandez's broad questions regarding "paperwork" Hernandez may have received from his doctor. Similarly, the court did not err in sustaining the People's hearsay objection to Dixon's query regarding the diagnosis offered by Hernandez's doctor. Further, the trial court did not abuse its discretion in determining that questions regarding the length of time Hernandez had spent in the doctor's office, and whether he had stopped anywhere en route to the doctor's office, were irrelevant. Nor did the court abuse its discretion in refusing to require Hernandez to show the jury his torso. Further, the court properly ruled that Dixon's statement that the photographs of Hernandez's injuries "could be computer enhanced" was argumentative.
The only arguably erroneous ruling was the trial court's sustaining of the People's relevancy objection to Dixon's question regarding statements Hernandez made to the paramedics. However, assuming for the sake of argument that the court erred in sustaining any of the People's objections, any such error did not rise to the level of denying Dixon his right to present a defense, and did not amount to reversible error. Moreover, the record belies any suggestion that the trial court's limitation on Dixon's cross-examination deprived Dixon of his right to present a defense. In fact, the trial court afforded Dixon wide latitude in cross-examining Hernandez.
Hernandez testified on direct examination that he spoke to paramedics shortly after the event. Hernandez stated that the paramedics "checked [him] out," and asked him whether he wanted to go in an ambulance or drive to urgent care. Hernandez told the paramedics that he would "go to urgent care."
We reject Dixon's contention that the trial court abused its discretion under Evidence Code section 352 in limiting Dixon's own testimony regarding his "fasting" as a means of explaining his "health" on the day of the assault. Dixon has also failed to demonstrate that the trial court erred in limiting his cross-examination of Officer Johnson regarding Dixon's mental state after his arrest.
Accordingly, we conclude that the trial court did not violate Dixon's right to present a defense.
E. The trial court was not required to instruct the jury sua sponte pursuant to CALJIC No. 4.35 on the defense of mistake of fact
Dixon claims the trial court erred by failing to instruct the jury sua sponte pursuant to CALJIC No. 4.35 regarding mistake of fact. CALJIC No. 4.35 provides:
"An act committed or an omission made in ignorance or by reason of a mistake of fact which disproves any criminal intent is not a crime. [¶] Thus a person is not guilty of a crime if [he] [she] commits an act or omits to act under an actual [and reasonable] belief in the existence of certain facts and circumstances which, if true, would make the act or omission lawful."
Dixon contends that the trial court was required to give this instruction because there was evidence that Dixon "was startled by Mr. Hernandez after being chased by gang members and he lashed out at him with the stick, thinking Hernandez was a threat to his safety." We apply the de novo standard of review to this claim. (See People v. Posey (2004) 32 Cal.4th 193, 218 ["The independent or de novo standard of review is applicable in assessing whether instructions correctly state the law"]; People v. Guiuan (1998) 18 Cal.4th 558, 569 [determination of whether the trial court has a duty to give a particular jury instruction sua sponte is reviewed de novo].)
The trial court instructed the jury regarding self-defense pursuant to CALJIC Nos. 5.30, 5.31, 5.50, 5.51, 5.52, 5.53, 5.54, 5.55, 5.56. The court instructed the jury pursuant CALJIC No 5.51 as follows:
"Actual danger is not necessary to justify self-defense. If one is confronted by the appearance of danger which arouses in his or her mind[,] as a reasonable person[,] an actual belief and fear that he or she is about to suffer bodily injury, and if a reasonable person in a like situation, seeing and knowing the same facts would be justified in believing himself or herself in like danger, and if that individual so confronted acts in self-defense upon these appearances and from that fear and actual beliefs, the person's right of self-defense is the same whether the danger is real or merely apparent."
"[I]n a criminal case the trial court must instruct on the 'principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty "to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues." [Citation.]' [Citation.]" (People v. Barker (2001) 91 Cal.App.4th 1166, 1172.)
"[Jury] instructions are not considered in isolation. Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury. [Citation.]" (People v. Holt (1997) 15 Cal.4th 619, 677.) In People v. Watie (2002) 100 Cal.App.4th 866 (Watie), the court considered a defendant's claim that the trial court should have instructed the jury pursuant to CALJIC No. 4.35. The Watie court rejected this claim, stating:
"The instructions given to the jury in connection with the murder charge and the instructions on self-defense and imperfect self-defense required the jury to consider and resolve defendant's claims of mistake of fact. The impact of the defendant's actual and reasonable belief, even if it was mistaken, was fully described by CALJIC Nos. 5.12, 5.13, 5.30, and 5.51. The jury rejected defendant's proffered 'reasonable' mistake concerning his need to defend himself." (Watie, supra, 100 Cal.App.4th at p. 883.)
The same reasoning applies here. The trial court's self-defense instructions, and in particular CALJIC No. 5.51, fully described Dixon's "mistake of fact" defense. We reject the contention Dixon raises in his reply brief that CALJIC No. 5.51 did not adequately cover his defense of reasonable mistake of fact, because CALJIC No. 5.51 purportedly "sets forth the defense of unreasonable fear of harm." (Italics added.) CALJIC No. 5.51 states that the right of self-defense arises where "one is confronted by the appearance of danger which arouses in [his or her] mind, as a reasonable person, an actual belief and fear that [he or she] is about to suffer bodily injury." (Italics added.)
Accordingly, we conclude that the trial court did not err in failing to instruct the jury pursuant to CALJIC No. 4.35.
F. The trial court did not err in failing to instruct the jury that it had to be unanimous in deciding which officer was the victim of the charges in counts 2 and 3
Dixon claims the trial court erred in failing to instruct the jury that it had to unanimously determine which officer was the victim of the charge of resisting an executive officer, in count 2, and the charge of resisting an officer, in count 3. We apply the de novo standard of review to Dixon's claim. (People v. Guiuan, supra, 18 Cal.4th at p. 569.)
1. Factual and procedural background
The charges against Dixon in counts 2 and 3 stemmed from his arrest on March 9, 2005. The information did not allege a specific officer as being the victim of either of these offenses.
Officers Johnson, Sorbie, Taylor, and Sullivan all testified that Dixon engaged in a physical struggle in an attempt to resist arrest. In describing the circumstances of Dixon's arrest, Officer Johnson testified that Dixon continuously struggled with the officers until the officers were able to physically overpower him and place him in handcuffs. Officer Johnson initially approached Dixon, who was sitting on a curb, told him that she needed to speak with him, and directed him to put his hands in the air. Dixon asked "why" and grabbed a stick. Officer Johnson kicked the stick from Dixon's hand and attempted to grab his arm. Dixon tried to punch Officer Johnson several times. Officer Johnson began to strike Dixon in the arm with her baton. Within seconds, additional officers arrived at the scene and assisted in the arrest.
Officer Sorbie testified that she arrived on the scene as Officer Johnson was kicking the stick out of Dixon's hand. In describing the arrest, Officer Sorbie testified that Dixon "continu[ed] to be aggressive and not comply[] with our orders." Officer Taylor's description of the events was similar. Officer Taylor estimated that only 50 seconds elapsed between the time Officer Johnson initially observed Dixon and the time Officer Taylor contacted Dixon. Officer Taylor testified that Dixon was "resisting the entire time."
Officer Sullivan testified that when he arrived at the scene of Dixon's arrest, Dixon was actively resisting Officers Johnson, Sorbie, and Taylor:
"[The prosecutor]: What was going on when you saw these four people?
"[Officer Sullivan]: Mr. Dixon was actively resisting, throwing punches at the office[rs]. The office[rs] went back and threw department techniques at him with their pr-24's [batons], and once they got him the ground, I was []able to get there and he was ─ they were able to cuff him.
"[The prosecutor]: "Were you on foot or in [a] car when you were observing these particular events that you just described?"
"[Officer Sullivan]: "I pulled up, I was in my car, and I could see them fighting, and when I pulled up in my car and jumped out, they were still actively fighting, he was still actively fighting the office[rs]."
"[The prosecutor]: By the word fighting, could you describe for the jury in particular what activities Mr. Dixon was doing that constituted fighting in your mind?
"[Officer Sullivan]: Well, he was throwing punches. And when they got him on the ground, he was kicking, trying to get ─ keep on getting up, when they were yelling to him to stay down . . . ."
Dixon testified that the police officers committed an unprovoked attack on him. Dixon stated that Officers Johnson and Sorbie hit him with their batons, and that Officer Sullivan punched him while he was on the ground and punched him in the kidney while he was in handcuffs. Dixon testified that he did not resist arrest.
During closing argument, the prosecutor stated:
"Now, with regard to instructions that come to the police officers . . . the next one that you have is going to be for the crime of Penal Code section 148 or delaying, obstructing a police officer in the course of their duties. [¶] . . . [¶] Of course Officer Johnson had a rational reason for contacting him. . . . [¶] . . . [¶] Once that happened, all she needs is that this guy willfully delayed or resisted or obstructed her at a time he knew she was engaged in her duties. And isn't that the reason that he did obstruct her? And that the person was a peace officer. She was. And she was engaged in the performance of her duties. [¶] Well, instead of asking the questions where were you, were you over by the school, whatever she was about to ask, because she never did get it out, when she's backing up, as fists are swinging by her, well by that point you've delayed and obstructed.
"Then with regard to the final decision that you have to make and that pertains to the Penal Code section 69, with regard to this, you have to show that he was trying to deter a police officer from the performance of her duties. And this actually pertains to all three of them. But you just need to decide on one person that this could be. And this is ─ Ms. Johnson was certainly the first one that it was. And that this person was prevented from using her duties, prevented from fulfilling her duties by a result of force or resistance or violence by Mr. Dixon."
2. Governing law
The jury's verdict in a criminal case must be unanimous. (Cal. Const., art. I, § 16; People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) From this constitutional principle, courts have derived the general rule that if one criminal act is charged, but the evidence tends to show the commission of more than one such act, "either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (Ibid.) "This requirement of unanimity as to the criminal act 'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.'" (Ibid., quoting People v. Sutherland (1993) 17 Cal.App.4th 602, 612.)
Notwithstanding this principle, "[N]o unanimity instruction is required when the acts alleged are so closely connected as to form part of one continuing transaction or course of criminal conduct." (People v. Dieguez (2001) 89 Cal.App.4th 266, 275 (Dieguez).) "'A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.' [Citations.] '[W]here the acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place, the instruction is not necessary to the jury's understanding of the case.' [Citation.]" (People v. Beardslee (1991) 53 Cal.3d 68, 93.) Thus, a trial court is not required to give CALJIC No. 17.01 if there is no basis for disagreement among the jurors as to the act constituting the charged offense. (People v. Riel (2000) 22 Cal.4th 1153, 1199-1200 (Riel).)
3. The trial court did not err in failing to give an unanimity instruction
Dixon's actions in resisting arrest all took place at the same location and within a short time frame. Dixon's actions were "closely connected as to form part of one continuing transaction or course of criminal conduct." (Dieguez, supra, 89 Cal.App.4th at p. 275.)
Dixon claims that, in light of the prosecutor's closing argument to the jury that "you just need to decide on one person that this could be," the trial court was required to instruct the jury that it had to be unanimous in its decision as to whom the victim was in the charges alleged in counts 2 and 3. Despite the prosecutor's isolated comment, there was no basis for disagreement among the jurors as to the facts constituting the offenses. Dixon engaged in a continuous course of conduct for which a unanimity instruction was not required. The jury could reasonably have believed only one version of the arrest ─ either the officers' version or Dixon's. The verdict indicates that the jury believed the officers' version. As in Riel, in which the Supreme Court concluded that no unanimity instruction was required, "[T]his is 'a case where the jury's verdict implies that it did not believe the only defense offered.'" (Riel, supra, 22 Cal.4th at p. 1200, quoting People v. Diedrich (1982) 31 Cal.3d 263, 283.)
Accordingly, we conclude that the trial court did not err in failing to instruct the jury that it had to be unanimous in deciding which officer was the victim of the charges alleged in counts 2 and 3.
G. Any error the trial court may have committed in instructing the jury regarding the intent necessary to commit count 2 was harmless
Dixon claims that the trial court erred in instructing the jury that resisting an executive officer (§ 69) (count 2) is a general intent crime rather than a specific intent crime. Dixon contends that under the circumstances of this case ─ in which the court instructed the jury solely on the "attempt" portion of section 69 ─ the trial court had a sua sponte duty to instruct the jury pursuant to CALJIC No. 3.31 that section 69 is a specific intent crime.
The court instructed the jury regarding the elements of section 69 pursuant to a modified version of CALJIC No. 7.50, which provided in relevant part as follows:
"In order to prove this crime, each of the following elements must be proved;
"One, the person willfully and unlawfully attempted to deter or prevent an executive officer from performing any duty imposed upon the officer by law; and
"Two, the attempt was accomplished by means of any threat or violence."
The court also instructed the jury pursuant to CALJIC No. 3.30 as follows:
"In the crimes and allegation charged in Counts 1, 2, 3, and 4, namely assault with a deadly weapon by means of force likely to produce great bodily injury, resisting an executive officer, resisting an officer[,] and exhibiting a deadly weapon other than a firearm, and the allegation, there must exist a union or joint operation of act or conduct and general criminal intent.
"General criminal intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he's acting with general criminal intent even though he may not know that his act or conduct is unlawful."
CALJIC No. 3.31 provides:
"In the [crime[s]] [and] [allegation[s]] charged in Count[s] _____, and _____ [or which [is a] [are] lesser crime[s] thereto], [namely,] _____, and _____, there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. Unless this specific intent exists the [crime] [or] [allegation] to which it relates [is not committed] [or] [is not true].
"[The specific intent required is included in the definition[s] of the [crime[s]] [or] [allegation[s]] set forth elsewhere in these instructions.]
"[The crime of _____ requires the specific intent to ___.]
"[And the crime of _____ requires the specific intent to ____.]
"[And the allegation of _____ requires the specific intent to ____.]"
The Use Note to CALJIC No 3.31 states in relevant part: "Strike the last three bracketed paragraphs if other instructions are to be given which include a statement of the specific intent required for each alleged crime. Otherwise, strike the second bracketed paragraph and set forth the specific intent of the alleged crimes in the last two bracketed paragraphs."
In People v. Hering (1999) 20 Cal.4th 440, 447 (Hering), the defendants contended that in addition to providing instructions to the jury that tracked the statutory language regarding the elements of two offenses (Bus. & Prof. Code, § 650 and Ins. Code, § 750), the trial court should also have instructed the jury regarding the concept of specific intent, and should have refrained from instructing the jury on the concept of general intent as to these offenses. The Hering court rejected this claim, noting that the trial court's instructions regarding the elements of the offenses adequately conveyed the necessary intent to commit the offenses. (Hering, supra, 20 Cal.4th at p. 447.)
The Hering court stated, "We also find no prejudice in giving the general intent instruction, which states that "'[w]hen a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent . . . .' [Citation.]" (Hering, supra, 20 Cal.4th at p. 447.) The Hering court reasoned, "With respect to Business and Professions Code section 650 and Insurance Code section 750, that which the law declares to be a crime is offering 'any . . . consideration . . . as . . . inducement' for referring patients, i.e., making such an offer for the purpose of inducing referrals." (Ibid.) The Hering court reasoned that since the trial court had instructed the jury pursuant to instructions that tracked this statutory language, the jury could not have been misled. (Ibid.)
Similarly, in this case, the trial court's instruction pertaining to count 2 adequately described the intent necessary to commit the offense of resisting an executive officer. The court instructed the jury that the People had to prove that Dixon "willfully and unlawfully attempted to deter or prevent an executive officer from performing . . . ." (Italics added.) CALJIC No. 3.31, as appropriately modified for this case, would merely have reminded the jury that "the specific intent required is included in the definition of count 2 set forth elsewhere in these instructions."
Further, the trial court's general intent instruction that, "[w]hen a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent," could not have misled the jury. With respect to section 69, that which the law declares to be a crime is the willful and unlawful attempt to deter or prevent an executive officer from performing his duty. Thus, by its terms, section 69 describes the requisite intent. As in Hering, the jury could not have been misled by the general intent instruction.
Accordingly, we conclude that any error the trial court may have committed in instructing the jury regarding the intent required to find Dixon guilty of the offense charged in count 2 was harmless, under any standard of prejudice.
H. The trial court committed harmless error in failing to provide the jury with verdict forms on the lesser included offenses of count 1
Dixon claims the trial court committed reversible error in failing to provide the jury with verdict forms on the lesser included offenses on count 1.
With respect to count 1, the court instructed the jury regarding the lesser included offenses of battery (§ 242) and assault (§ 240). Just prior to releasing the jury to allow it to begin its deliberations, the trial court reviewed the verdict forms with the jury. During its review, the court stated:
"Now if you find the defendant not guilty of ─ only if you find the defendant not guilty of a violation of Penal Code section 245, then you consider the other two lesser offenses. [¶] All right. If you find him not guilty of the lesser offenses or not guilty ─ if you find him guilty of one of the lesser offenses, you write guilty. If you find him not guilty of everything, then you write not guilty on all three forms."
However, the verdict forms for the lesser included offenses for count 1 do not appear in the record or in the Superior Court file.
While the trial court's comments suggest that the court may have given the jury the verdict forms for the lesser included offenses, because the forms are not in the record or the superior court file, we assume for purposes of this decision that the trial court failed to provide the jury with the verdict forms. We assume further that a trial court has a sua sponte duty to provide verdict forms for lesser included offenses on which it instructs the jury. (SeePeople v. Webster (1991) 54 Cal.3d 411, 443 [concluding "[n]o more was required" from trial court that had both instructed jury on lesser included offenses and provided verdict forms for each lesser included offense]; People v. Ortega (1998) 19 Cal.4th 686, 701 (conc. op. of Werdegar, J.), overruled on another point in People v. Reed (2006) 38 Cal.4th 1224 ["The trial court has a sua sponte duty to give instructions and verdict forms on [lesser included offenses] . . . if warranted by the evidence].)
In People v. Osband (1996) 13 Cal.4th 622, 689 (Osband), the trial court failed to read the not guilty verdict forms of the charged offenses, first degree murder and rape, while instructing the jury. In addition, the trial court failed to provide the jury with a not guilty verdict form for first degree murder, or with any forms at all as to second degree murder, even though the court had promised the defendant that it would do so.
The Osband court concluded that any error in failing to read, or to provide, the verdict forms to the jury was harmless in light of the fact that the trial court had properly instructed the jury, and the fact that the jury found the defendant guilty beyond a reasonable doubt of first degree murder. (Id. at pp. 689-690.) The court reasoned:
"The jury was instructed that to find Osband guilty of first degree murder and rape it would have to decide that he committed these crimes beyond a reasonable doubt. Thus, just as was true of the error in misreading certain instructions to the jury citation, the errors in failing to properly read the verdict forms were harmless.
"The parties do not raise, and we do not address, the question whether the court has any duty to provide the jury with verdict forms. But any failure to provide a form, if error it is, results in no prejudice when the jury has been properly instructed on the legal issue the trial presented. When 'the jury has been properly instructed as to the different degrees of the offense, it must be presumed that if [the jurors'] conclusion called for a form of verdict with which they were not furnished, they would either ask for it or write one for themselves. It certainly could have no necessary tendency to preclude them from finding such verdict. [¶] We discover no reversible error in the record. . . .' [Citations.]" (Ibid.)
In this case, the jury found Dixon guilty of the charged offense in count 1 and Dixon has not identified any error with respect to the court's instructions pertaining to count 1. Accordingly, under Osband, the court's error in failing to provide the jury with lesser included offense verdict forms on count 1 was harmless. While Dixon questions whether Osband was correctly decided on this issue, that is not for this court to determine. (See Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455.)
We conclude that the trial court committed harmless error in failing to provide verdict forms on the lesser included offenses of count 1.
I. The trial court did not err in answering the jury's question regarding the use of self-defense by referring the jury to the court's instructions regarding that topic
Dixon claims the trial court erred under section 1138 by failing to answer the jury's question regarding the use of self-defense with a "simple 'Yes' answer," rather than by referring the jury to the instructions the court had given on that topic. "An appellate court applies the abuse of discretion standard of review to any decision by a trial court to instruct, or not to instruct, in its exercise of its supervision over a deliberating jury." (People v. Waidla (2000) 22 Cal.4th 690, 745-746.)
1. Factual and procedural background
During deliberations, the jury sent the court a note that read: "Can someone be justified in using a deadly weapon in self-defense if they feel threatened by a verbal altercation or physical mannerisms; but with no physical contact?"
The court provided copies of the note to Dixon and to the prosecutor. After the court finished reading the note in open court, outside the presence of the jury, Dixon stated, "Obviously I know you can. Self-defense applies. That's why it's written in the doctrine."
After referring to the various self-defense instructions it had previously provided to the jury, the court stated that it intended to respond by sending a note to the jury that stated "Please refer to CALJIC [Nos.] 5.51 or 5.52 for guidance." The court asked, "Do you have any problem with that, Mr. Dixon." Dixon replied, "No, I do not, your honor. As well as I would ─ to the original 5.30 ─ 5.30 ─ ."
The prosecutor requested that the court also refer the jury to CALJIC No. 5.31. The court asked Dixon whether he would have any problem with the court including a reference to CALJIC No. 5.31 in the it's answer to the jury. Dixon stated, "No problem with including that. . . ."
In response to the jury's note, the court sent the jury a note that stated, "Please refer to CALJIC [Nos.] 5.30, 5.31, 5.51, and 5.52 for guidance."
2. Governing law
Section 1138 provides:
"After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called."
In People v. Smithey (1999) 20 Cal.4th 936, 985, the Supreme Court discussed a trial court's duty under section 1138:
"Section 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law. [Fn. omitted.] [Citation.] If, however, '"the original instructions are themselves full and complete, the court has discretion under . . . section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information."' [Citations.]"
In People v. Moore (1996) 44 Cal.App.4th 1323, 1331, the court noted that a trial court has discretion as to whether to elaborate on full and complete standard jury instructions in responding to a deliberating jury's question:
"[Section 1138] does not require trial court elaboration on the standard instructions in every instance. When the original instructions are full and complete, the trial court has discretion to determine what additional explanations are sufficient to satisfy the jury's request for information. [Citation.] Jury questions can present a court with particularly vexing challenges. The urgency to respond with alacrity must be weighed against the need for precision in drafting replies that are accurate, responsive, and balanced. When a question shows the jury has focused on a particular issue, or is leaning in a certain direction, the court must not appear to be an advocate, either endorsing or redirecting the jury's inclination. Although comments diverging from the standard should be embarked on with care, a trial court must do more than figuratively throw up its hands and tell the jury it cannot help. It must consider how it can best aid the jury and decide whether further explanation is desirable, or whether the reiteration of previously given instructions will suffice. [Citation.]"
3. The trial court did not abuse its discretion in answering the jury's question
The trial court's self-defense instructions were full and complete, and adequately apprised the jury of the law necessary to resolve its question. Further, each of the four CALJIC instructions to which the trial court referred were responsive to the jury's question. CALJIC No. 5.51 was directly relevant to the jury's question in that it informs the jury that "actual danger" is not necessary to justify self-defense, and that a "reasonable" fear of an apparent danger will suffice. CALJIC No. 5.30 was also directly relevant in instructing the jury that a person who is being "assaulted" and who believes "bodily injury is about to be inflicted upon him," may lawfully act in self-defense. CALJIC No. 5.31 was also relevant in that it provides a specific example of a circumstance under which one may use a deadly weapon in self-defense. CALJIC No. 5.52, while less directly relevant, informed the jury that the right of self-defense exists only as long as the real or apparent danger continues to exist. The trial court could have reasonably determined that reference to the temporal limitations on the use of self-defense would be useful in aiding a deliberating jury that was considering the circumstances under which a defendant may lawfully act in self-defense.
The simple "yes" response Dixon claims the court should have given would have been legally correct to the extent it indicated that it is possible for a person to be justified in using a deadly weapon if he feels threatened by a "a verbal altercation " or "physical mannerisms." However, the jury could have misinterpreted this response as suggesting that a defendant acting in such a fashion is justified, irrespective of the reasonableness of the defendant's fears. Under these circumstances, the trial court did not abuse its discretion in responding to the jury's question by referring the jury to the relevant CALJIC instructions that it had previously given.
In light of our rejection of Dixon's claim on the merits, we need not consider the People's claim that Dixon forfeited this issue by failing to object to the trial court's proposed answer to the jury's question.
J. Dixon was properly convicted of both section 148 and section 69 because section 148 is not a lesser included offense of section 69
Dixon claims that section 148 (count 2) is a lesser included offense of section 69 (count 3), and that he cannot be convicted of both offenses. Dixon further contends that because the trial court failed to instruct the jury with CALJIC Nos. 17.03 and 17.10 regarding the jury's consideration of the greater and lesser included offense with respect to these counts, this court must reverse his conviction on count 3. Whether section 148 is a lesser included offense of section 69 raises a question of law, which we review de novo. (E.g., People v. Butler (2003) 31 Cal.4th 1119, 1127.)
A defendant may not be convicted of both a greater and a lesser included offense. (E.g., People v. Reed, supra, 38 Cal.4th at p. 1227.) " '[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.' [Citation]." (Ibid.) Where "the statutory elements of the greater offense include all of the statutory elements of the lesser offense," a defendant may not be convicted of both the greater and the lesser offense. (Ibid.)
Section 148, subdivision (a)(1) provides:
"Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment."
"'"The legal elements of a violation of section [148(a)(1)] are as follows: (1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties. [Citations.]" [Citation.] The offense is a general intent crime, proscribing only the particular act (resist, delay, obstruct) without reference to an intent to do a further act or achieve a future consequence. [Citation.]' [Citation.]" (People v. Christopher (2006) 137 Cal.App.4th 418, 431, italics omitted.)
Section 69 provides:
"Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment."
"[Section 69] sets forth two separate ways in which an offense can be committed. The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty. [Citation.]" (In re Manuel G. (1997) 16 Cal.4th 805, 814.) With respect to the portion of section 69 that refers to the use of "threats or violence to deter," the In re Manual G. court held that "the statute encompasses attempts to deter either an officer's immediate performance of a duty imposed by law or the officer's performance of such a duty at some time in the future." (In re Manuel G., supra, 16 Cal.4th at p. 817.)
In People v. Belmares (2003) 106 Cal.App.4th 19 (Belmares) overruled on another ground by People v. Reed, supra, 38 Cal.4th 1224, the court considered whether section 148 is a lesser included offense of section 69. The Belmares court concluded, "We hold resisting [(§ 148)] is not a lesser included offense of deterring [(§ 69)] since one can deter an officer's duty in the future (§ 69) without resisting the officer's discharge or attempted discharge of a duty at that time (§ 148, subd. (a)(1))." (Belmares, supra, 106 Cal.App.4th at p. 24; accord People v. Lopez (2005) 129 Cal.App.4th 1508, 1532 ["We agree with [Belmares, supra, 106 Cal.App.4th 19] that section 148 is not a lesser included offense of section 69, because section 69 can involve a present attempt to deter an officer's future duty"].)
We reject Dixon's contention that Belmares was improperly decided. Dixon argues that section 148 may apply when a defendant deters an officer from performing his duties in the future. However, it is well established that section 148 applies only when the officer is "engaged in the performance of his or her duties . . . ." (People v. Christopher, supra, 137 Cal.App.4th at p. 431.)
We conclude that section 148 is not a lesser included offense of section 69. Accordingly, Dixon was properly convicted of both offenses, and the trial court did not err in failing to instruct the jury pursuant to CALJIC Nos. 17.03 and 17.10 as to these offenses.
K. The trial court did not violate Dixon's federal constitutional right to a jury trial on the existence of his prior conviction and his identity as the person who suffered the prior conviction
Dixon claims that the trial court violated his federal constitutional right to a jury trial as to the existence of his prior conviction and as to his identity as the person who suffered the prior conviction. Dixon concedes that this claim is foreclosed by People v. Epps (2001) 25 Cal.4th 19, 23 [stating defendant has no federal constitutional right to a jury trial on prior conviction allegations, citing Apprendi v. New Jersey (2000) 530 U.S. 466, 490].) We agree with the concession, and on this basis, we reject Dixon's claim.
L. The trial court did not commit reversible error in imposing a sentence enhancement pursuant to section 667, subdivision (a)(1)
The People alleged that Dixon suffered a serious felony prior (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) and a strike prior (§§ 667, subds. (b) -(i), 668, 1170.12) stemming from a July 27, 1989 conviction in case number CR 103609. !(CT 1-3)!
Section 667, subdivision (a)(1) provides, "In compliance with subdivision (b) of Section 1385, any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively."
Dixon requested a jury trial on the prior conviction allegations. After trial of the substantive offenses, the court held a jury trial on the prior conviction allegations. !(RT 863-870)! The jury returned its verdict on a verdict form that states, in relevant part, the following:
"We, the jury in the above-entitled cause, find the allegation in the Information that the defendant, Bennie Willie Dixon, was on or about July 27, 1989, in the Superior Court of the State of California, for the County of San Diego, convicted of a serious felony, to wit: Assault with a Deadly Weapon by Means of Force Likely to Produce Great Bodily Injury, in violation of Penal Code section 245(a)(1), CR103609, within the meaning of Penal Code section 667 (b) through (i) and Penal Code section 1170.12, to be True."!(Sup. CT 2)!
The verdict form did not contain a reference to section 667, subdivision (a)(1). However, in sentencing Dixon, the trial court imposed a five year serious felony sentence enhancement pursuant to section 667, subdivision (a)(1). !(Sup CT 31)!
We requested that the parties submit supplemental briefs regarding whether the trial court imposed an unauthorized sentence in imposing the serious felony sentence enhancement. Dixon claims the sentence is unauthorized. The People argue that the trial court did not err in imposing the sentence enhancement because determining whether a prior conviction is a serious or violent felony is a legal question for the court. However, neither party cited the dispositive case on this issue.
In People v. Williams (2002) 99 Cal.App.4th 696, 699-700, the court faced the same situation as is presented in this case:
"The information charged defendant with two prior serious felony conviction enhancements under section 667, subdivision (a). One of the enhancements was based upon the same felony conviction alleged as the basis for a strike under section 1170.12, namely, a 1992 burglary conviction suffered in the Superior Court of California, County of Nevada, Case No. 47240. The jury returned a verdict which found true the prior serious felony allegation alleged under section 1170.12, but failed to return a verdict form for the enhancement alleged under section 667. The trial court nevertheless imposed a five-year enhancement pursuant to section 667, subdivision (a) for the 1992 burglary."
In considering whether the jury's verdict was sufficient to support the imposition of a section 667, subdivision (a) enhancement, the Williams court observed, "Legal questions, such as whether multiple prior convictions were separately brought and tried or whether a prior or present felony conviction qualifies as a 'serious felony' under the Three Strikes law, are matters to be determined by the court. [Citations.]" (Williams, supra, 99 Cal.App.4th at pp. 700-701.) The Williams court further noted that the strike prior enhancement and the serious felony enhancement in that case were premised on the same conviction. (Id. at p. 701.) "Therefore, although the jury's finding was made in a verdict form which designated it as an enhancement pursuant to section 1170.12, it nevertheless encompassed the requisite fact necessary to support the enhancement under section 667, subdivision (a)(1)." (Ibid.) The Williams court held that the trial court had properly imposed the serious felony enhancement, reasoning:
"The additional finding required by section 667, subdivision (a), that the felony is a serious felony, is a legal question to be decided by the trial court. [Citations.] The trial court impliedly made that finding when it imposed a five-year term of imprisonment pursuant to section 667, subdivision (a)." (Ibid.)
In this case, as in Williams, the strike prior and the serious felony prior were premised on the same prior conviction. The absence of a jury verdict finding that Dixon had suffered a prior conviction within the meaning of section 667, subdivision (a)(1) thus does not preclude the trial court from imposing the serious felony enhancement. Pursuant to Williams, the trial court in this case impliedly found that the 1989 prior conviction was a serious felony for purposes of section 667, subdivision (a)(1) in light of its imposition of the section 667, subdivision (a)(1) enhancement. (See also People v. Wiley (1995) 9 Cal.4th 580, 584, 592 [stating that trial court made "implied finding" that prior convictions arose from charges "brought and tried separately" within the meaning of section 667, subdivision (a)(1) even though "[t]he trial court did not expressly state that the two prior burglary convictions had been brought and tried separately"].)
Any error the trial court may have committed in failing to expressly find that Dixon's 1989 conviction was a serious felony within the meaning of section 667, subdivision (a)(1) is harmless under any standard of prejudice. The People presented evidence that Dixon's sentence for his 1989 conviction included a sentence enhancement pursuant to section 12022.7. Section 12022.7, subdivision (a) provides a sentence enhancement for, "Any person who personally inflicts great bodily injury on any person other than an accomplice . . . ."!(CT 158, 159)! Thus, Dixon's 1989 prior conviction was a serious felony pursuant to section 1192.7, subdivision (c)(8), which defines a serious felony as including "any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice . . . ."
Section 667, subdivision (a)(4) provides, "As used in this subdivision, 'serious felony' means a serious felony listed in subdivision (c) of Section 1192.7."
Accordingly, we conclude that the trial court did not commit reversible error in imposing the section 667, subdivision (a)(1) serious felony sentence enhancement.
M. The cumulative error doctrine does not require reversal of the judgment
Dixon claims that to the extent this court concludes that no individual error merits reversal, the cumulative error doctrine requires reversal of the judgment.
"Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.)
We have concluded that most of Dixon's claims of error are without merit, and we conclude further that any assumed errors were not prejudicial, whether considered individually or together. Accordingly, we conclude that there was no cumulative error that requires reversal of the judgment.
IV.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, Acting P. J., McINTYRE, J.