Opinion
A109795
4-30-2007
THE PEOPLE, Plaintiff and Respondent, v. TRISTAN VANRENSLAAR HARVEY, Defendant and Appellant.
NOT TO BE PUBLISHED
Following his conviction by a jury of (1) first degree robbery, (2) aggravated assault and (3) false imprisonment by violence, with findings that appellant personally inflicted great bodily injury upon the victim during the commission of each of the above offenses, appellant Tristan Vanrenslaar Harvey was sentenced to nine years in prison. He appeals, charging evidentiary and instructional errors. We affirm.
I. FACTUAL BACKGROUND
The Incident
On November 6, 2003, John Doe patronized Matteuccis bar in San Anselmo. He was new in town. He met Zephyr Carter when he went outside to smoke. Back in the bar, Doe offered to buy Carter a drink. Receiving an affirmative response, Doe bought Carter a shot of Jameson whiskey. Carter introduced Doe to Jason Voelker. Voelker asked if anyone needed "weed." Doe said hed take "a twamp." Voelker said he needed a ride and Doe offered him the keys to his rental car. Voelker declined.
Later, when Doe was trying to get a seat at the bar, he spotted Voelker, went up to him, tapped him on the shoulder and said, "Hey, nigga, let me get in here." Voelker did not think the comment was "cool" and looked at appellant, his friend, who told Doe, " `Thats not cool, you shouldnt say that. " Doe apologized. Appellant, an African-American male, was wearing a green military hat with a Bob Marley patch on the back. He had curly black hair, a goatee, and wore a black coat.
Voelker is a White male.
Approximately a half hour later Voelker asked Doe if he could borrow money for a drink. Doe gave him $5. Voelker also asked Doe for a ride home. They left around 1:30 a.m. for Voelkers apartment in San Rafael. Doe pulled into the underground garage. Voelker invited Doe to his apartment; they stepped into the elevator. The elevator stopped before Voelkers floor and appellant rushed in, spoke to Voelker, then jumped out. Doe realized he was "screwed," "set up." Doe followed Voelker into the apartment and went to the balcony to jump off, but it was "too tall." Doe went back inside but left the balcony door open.
Voelker was there. Appellant and another man rushed in and attacked Doe. Appellant was still wearing the hat with the Bob Marley patch. Appellant struck the first blow, punching Doe in the face with a closed fist, jolting his head. The third man knocked Doe down. Doe "was getting punched and kicked"; he yelled and said " `Im sorry. " Voelker put a bear hold on Doe, choking him while telling Doe to be quiet. Appellant held Does arm, stole his watch and ripped off a chain. The other assailant took his shoes and belt, looped the belt and whipped Doe in the chest, legs and feet. He also demanded Does ATM cash card, but he did not have it with him.
Doe described the third assailant as "a mulatto looking kid" who he "noticed at the end of the night at the bar" with appellant.
Doe explained that he was yelling "Im sorry" because "when I saw defendant, I noticed, like, that was the defendant from the bar and—and what took place [saying the word `n-i-g-g-a to Voelker] and just thought . . . thats whats going on, thats the reasoning for the beat down."
Appellant said "Get the knife." Doe slipped out of the hold. The third assailant stomped on his head and they ordered him to kneel. The third assailant struck Doe in the head with a Duraflame log. Doe slipped out of his shirt, ran to the third-story balcony and jumped. He cracked his chin open but remained conscious. Doe ran down a hill to the street. Dennis Boese spotted Doe, without a shirt or shoes, bleeding profusely and waving him over. Boese drove Doe home. The assailants had stolen Does keys and identification. He told his girlfriend, Melinda Swanson, to pack and they left within five minutes. They drove to a friends home in San Francisco. Doe was bleeding "a lot." Does friends convinced him to go to the hospital. Hospital personnel contacted the police. Emergency room staff stapled Does head and stitched his chin. Doe also had a broken nose and thumb, scrapes, bruises and belt marks.
After leaving the hospital Doe and Swanson drove by Voelkers apartment and then went to the police department. Doe accompanied the police to Voelkers apartment complex. The police recovered an olive green military cap on the apartment grounds. Does rental car was in the garage. Doe mentioned a Ford Explorer which was also in the garage. It was registered to Voelker. The police found other indicia of ownership in Voelkers name in a Dumpster. Doe suddenly became agitated and pointed out Voelker walking across the parking lot. The police apprehended Voelker.
The police also executed a search warrant on Voelkers apartment. They found Does chain, and identified bloodstains on the kitchen floor and a baseboard.
On November 21, 2003, Doe and Carter identified appellant out of a photographic lineup. At the same time Doe misidentified another man (Kelly, a White male) as the third (African-American) assailant.
A prosecution investigator interviewed Sarah Shelly on January 13, 2004. Shelly indicated that she remembered being at Matteuccis bar on the night in question. She knew appellant, and recalled that he was there.
II. DISCUSSION
A. Admission of Carters Testimony
1. Background
At the outset of direct examination of Carter, he admitted suffering a felony conviction for first time drug use, as well as misdemeanor convictions for domestic violence and giving false information to a peace officer, and several arrests. During cross-examination he admitted a willingness to lie to the police "when it suits [his] purpose." He also testified that he was currently on probation for "three DUIs and a domestic violence case," was on probation the night of the crimes, and had agreed to abstain from alcohol/intoxicants as a condition of probation.
For the case-in-chief Carter testified that he knew appellant for "two to three years" (he was a friend of Carters younger brother) and saw him at Matteuccis bar on the night in question, wearing a fatigue or military hat. As well, Carter positively identified appellant from the same photographic lineup that was presented to Doe.
Defense counsel attempted to cross-examine Carter on the issue of drinking as well as his complicity in the attempted sale of marijuana to Doe. Carter invoked his Fifth Amendment privilege against self-incrimination. Defense counsel moved to strike Carters direct testimony, but the court declined to do so, reasoning as follows: "In this case, we have a witness, Mr. Carter, who has quite a resume behind him. The defense has abundant opportunity to attack his credibility. . . . [¶] The defense has also demonstrated that at the time of this incident, he was on probation, he was in a bar. The defense is no doubt going to ask him whether hes been violated on his probation, and an allegation of probation [violation has] been filed and so forth. That issue of bias will go very much to the matter of his credibility, and its fertile ground for the defendant to argue. [¶] . . . I dont believe that this witnesss claim of the Fifth as to whether he was drinking that night, or his claim of the Fifth, which Im sure were going to get to, so Ill make a rare anticipatory ruling about whether he was introducing Mr. Voelker and Mr. Doe so that they could consummate an illegal drug deal, is going to add so much to impeaching his credibility or showing his bias as to vitiate the defenses right to confront and cross-examine witnesses against it. . . . [¶] . . . [¶] Nor do I believe the contention that he was so intoxicated as to be unable to recognize Mr. Harvey, someone who he knew. Weve had other witnesses testifying about Mr. Carters presence at the bar, and theres been no suggestion that he was so literally blind drunk."
Thereafter defense counsel again asked Carter about his alcohol use, whether he was addicted to drugs on the day he met Doe, and also about setting up a "weed" sale. Carter pleaded the Fifth Amendment in response to these questions. Defense counsel also elicited that the district attorney had not moved to violate Carters probation due to his purported drinking at Matteuccis bar. Carter further admitted that until recently he had participated in a drug program as a condition of probation, but took the Fifth Amendment on whether he walked away from the program without permission. Carter admitted to blacking out in the past from drinking when he was "about 21." He denied using drugs on the night in question.
At the close of the defense case, the court read to the jury a stipulation that an investigator interviewed Carter on January 27, 2005. Carter stated that within a half hour to 45 minutes after he met Doe at Matteuccis bar, Doe asked if Carter had marijuana to sell or knew where to buy some. Carter said he did not have any but could introduce him to someone who did, and subsequently introduced Doe to Voelker.
2. Analysis
Appellant urges that the trial court abused its discretion in ruling as it did, thereby violating his confrontation rights under the federal and state Constitutions. He maintains that the ruling deprived him of the ability to attack Carters ability to observe, perceive and recollect the events of November 6, 2003.
Without question it is proper to show, as affecting an eyewitnesss capacity to observe and recollect, that the witness was intoxicated at the time he or she made certain observations. (People v. Singh (1937) 19 Cal.App.2d 128, 129.)
Where a witness refuses to submit to cross-examination, or is unavailable for that purpose, the conventional remedy is to exclude that witnesss direct testimony. (Fost v. Superior Court (2000) 80 Cal.App.4th 724, 735 (Fost).) The court may strike a witnesss testimony if the witness declines to answer some or all of the questions presented. (People v. Price (1991) 1 Cal.4th 324, 421.) This rule will apply even if the refusal to answer is based on a valid claim of privilege. (Fost, supra, 80 Cal.App.4th at pp. 735-736.) However, the decision to strike the direct examination is left to the trial courts discretion, and "refusal to answer only one or two questions need not lead to the striking of the testimony." (People v. Daggett (1990) 225 Cal.App.3d 751, 760.) In other words, based on the circumstances of the case, " `the refusal or evasion of answers to one or more questions only need not lead to this result. . . . [¶] Courts treat this situation with varying degrees of strictness. It should be left to the determination of the trial judge, regard being had chiefly to the motive of the witness and the materiality of the answer. (5 Wigmore, Evidence [3d ed. 1940] p. 112.)" (People v. Robinson (1961) 196 Cal.App.2d 384, 390, italics omitted.)
It is also beyond question that a witness such as Carter can assert the Fifth Amendment privilege and refuse to answer questions that call for a clear admission against penal interest. (People v. Lucas (1995) 12 Cal.4th 415, 454.) The trial court can approve invocation of the privilege where it is evident from the implication of the question that an incriminating disclosure could result from a responsive answer to the question or an explanation why it cannot be answered. (Ibid.) Here the trial court determined that Carters was a "righteous invocation of the privilege." This determination is amply supported by the record.
Under Evidence Code section 404, a trial court may compel a witness to testify notwithstanding such witnesss invocation of the privilege against self-incrimination only where it " ` "clearly appears"" that the proposed testimony " `"cannot possibly have a tendency to incriminate the person claiming the privilege." [Citation.] [Citations.]" (People v. Lucas, supra, 12 Cal.4th at p. 454.)
The question is whether the court abused its discretion in refusing to strike Carters direct testimony in the face of his assertion of the Fifth Amendment privilege to refrain from answering questions calling for an admission of a probation violation. Appellant is adamant that the courts ruling constituted an abuse of discretion because it deprived him of answers concerning Carters consumption of "alcohol or drugs or both" that were material to his "mistaken identification defense." The implication is that Carter could have been too intoxicated or under the influence of drugs to remember whether appellant, a friend of his brother he had known for several years, was at Matteuccis bar on November 6, 2003, and what he was wearing that evening.
Striking a witnesss entire testimony is a drastic solution (People v. Reynolds (1984) 152 Cal.App.3d 42, 47), not warranted under the facts of this case. First, the jury already knew that Doe bought Carter a shot of whiskey after Carter responded positively to Does offer to buy him a drink. Carter suffered previous convictions for drug and alcoholic beverage related offenses. He had drunk to the point of blacking out when he was 21. He was at a bar that night, notwithstanding the no indulgence probation condition. All this was fertile ground for defense counsel to argue to the jury concerning Carters observation powers. Second, defense counsel could have, but did not, ask Carter direct questions about his ability or lack of ability to observe and remember details on the night in question. Third, Carter denied using drugs on that evening. Fourth, there was ample evidence generally impeaching Carter and casting him in a less than stellar light and thus appellant received the essence of what he needed for impeachment purposes. Fifth, this is not a situation where a witness voluntarily opens the door on a subject by testifying in his or her own defense, and then shuts the door by refusing to answer questions which would amplify that testimony. Rather, Carter cooperated in cross-examination, invoking the privilege against self-incrimination only as to questions which explored probation violations. Indeed he answered questions about his criminal history, probation status and conditions, enrollment in a drug treatment program, previous incidents of lying to the police, and his interaction with Doe and acquaintance of appellant.
Nor do we agree with appellant that he had an "absolute right" to cross-examine Carter about his sobriety at the time of the purported observations of Doe. "[N]ot every restriction on a defendants desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance." (People v. Frye (1998) 18 Cal.4th 894, 946, citing Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-679.)
Here, the trial court correctly honored Carters invocation of the privilege against self-incrimination. The curtailing of cross-examination was proper in this case given the obvious implications for Carters probationary status. Indeed, it was mandated under Evidence Code section 404.
In any event, a trial courts exercise of discretion in limiting cross-examination does not violate a defendants Sixth Amendment rights unless the defendant can show that a reasonable jury would have received " `a significantly different impression of [the witnesses] credibility " had the prohibited line of inquiry been allowed. (People v. Frye, supra, 18 Cal.4th at p. 946.) Carter testified that he remembered the night at Matteuccis bar when he met Doe. He frequented the bar and knew a lot of people who were there. His testimony that he met Doe having a smoke outside was consistent with Does testimony. He recalled what they talked about, as well as the length of the conversation. He remembered that the night was a weeknight and he went to work the next day. He has not had memory lapses due to alcohol consumption since he was 21. Nonetheless the jury heard that he took a shot of whiskey from Doe, and that he had a history of struggles with drugs and alcoholic beverages. With a probation condition prohibiting drinking alcoholic beverages, Carter still frequented Matteuccis, a bar. As well, defense counsel explored possible bias, asking Carter if the district attorneys office had moved to violate his probation because he was drinking at Matteuccis. Carter admitted he had met with a prosecution investigator and discussed his testimony, but there had been no action to revoke his probation. Had Carter been forced to answer whether he had anything to drink that night, how much, etc., it is unlikely that the jury would have received a significantly different impression of his credibility, sobriety, ability to observe, or bias.
Even if the court erroneously chose not to strike Carters testimony, any error was harmless beyond a reasonable doubt in light of other evidence forthcoming at trial. (Lill y v. Virginia (1999) 527 U.S. 116, 139-140; Chapman v. California (1967) 386 U.S. 18, 23-24.) Whether a confrontation right violation is harmless in a given case depends on such factors as " `the importance of the witness testimony in the prosecutions case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecutions case. " (People v. Greenberger (1997) 58 Cal.App.4th 298, 350, quoting Delaware v. Van Arsdall, supra, 475 U.S. at p. 684.)
Carter was subject to cross-examination on a variety of topics. His identification of appellant at Matteuccis bar on the night in question was corroborated by Doe, who was unequivocal in his identification. Shelly also placed appellant at Matteuccis that night. The prosecutions case was strong because of Does testimony, as well as the recovery by the police of appellants distinctive hat near the scene of the beating and robbery.
Appellant refers us People v. Singh, supra, 19 Cal.App.2d 128 for the proposition that it is prejudicial error to exclude evidence concerning the sobriety of a witness. He insists that Singh helps him, but it does not. There, the defendant was convicted of drunk driving. The defendant offered to prove that the witness was intoxicated at the time of the accident but the court would not allow that cross-examination, for what reason we do not know. (Id. at p. 129.) The reviewing court correctly ruled that "it is proper to show, as affecting his capacity to observe, recollect, and communicate, that a witness was intoxicated at the time the events narrated occurred. [Citations.] [¶] . . . [T]he testimony excluded by the trial court was admissible, and, in view of the fact that the witness had testified to a vital issue in the case, . . . this error was highly prejudicial to defendants rights . . . ." (Id. at pp. 129-130.) In contrast to the present case, in Singh, the witness whose sobriety the defendant sought to question, appears to be the only witness on the vital issue of what happened at the time of the accident. Further, there is no mention of assertion of the Fifth Amendment privilege. Finally, intoxication was central to the occurrence of the accident.
B. Misidentification of Reyes
Appellant proffered evidence that a week prior to identifying Kelly and himself as the African-American assailants, Doe identified a Hispanic male (Reyes) as one of the African-American assailants. Specifically, appellant offered to prove that in November 2003 Doe called 911 to report he was following one of the suspects. The police caught up, stopped the driver, and detained him. The police compiled a photo spread including Reyes. Doe said the attacker he thought was Reyes was Black, not Hispanic.
The prosecution sought to exclude any testimony about Does misidentification of Kelly and Reyes. Initially, the court concluded that the line of inquiry about these misidentifications lacked probative value and would confuse and distract the jury, and therefore excluded it under Evidence Code section 352. The court reasoned that Doe was never "too sure" about Kelly or Reyes and unlike his unequivocal identification of Voelker and Harvey, was candid about his inability to positively identify them. After further argument the court allowed the testimony about Kelly, explaining that "[a]t the Voelker trial, I did allow testimony about the identification of Mr. Kelly, in that that went a lot further, it was a lot clearer of an identification in a photo lineup, and Mr. Kelly was brought in and so forth." The court further explained that at the earlier trial, he did not allow testimony about Reyes "on the theory that Mr. Reyes was being followed by Mr. Doe. By the time Mr. Doe had a chance to look carefully at the photo lineup, he readily said, `No, no, no, this isnt the right fellow, and that was the end of that. I felt that that was really pretty remote, and I still do." Therefore, consistent with the Voelker trial, the court allowed the defense to explore the misidentification of Kelly, but not of Reyes.
The trial court enjoys broad discretion under Evidence Code section 352 in assessing whether the probative value of specific evidence is outweighed by concerns of undue confusion, prejudice or consumption of time. We will not disturb a discretionary evidentiary ruling " `except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Appellant challenges the trial courts ruling on several fronts. First, he accuses the court of failing to conduct the required balancing. The record must affirmatively show that the court weighed prejudice against probative value, but that is all that is required. "Certainly, the trial judge need not expressly weigh prejudice against probative value—or even expressly state that he has done so . . . ." (People v. Mickey (1991) 54 Cal.3d 612, 656.) Here, there was a healthy give and take about the proffered evidence, as well as points and authorities submitted by the People in advance of the hearing. These elements support an inference that the requisite balancing occurred. (See People v. Carter (2005) 36 Cal.4th 1114, 1151.) More importantly, the record clearly shows that the court was of a mind that the equivocal nature of Does misidentification of Reyes detracted from its probative value and would only confuse and distract the jury.
Appellant also complains that the trial courts decision to exclude the proffered testimony was an abuse of discretion. He states: "Does misidentification of other alleged perpetrators of the criminal act of which he was accused was central to Harveys mistaken identity defense." Doe misidentified Reyes from a moving car. As soon as he saw a photograph, he told the police that Reyes was not a suspect. Hence, the court did not abuse its discretion in assigning a low probative value to the proffered testimony and concluding it would only distract or confuse the jury. We cannot say that the ruling was arbitrary, capricious, or patently absurd.
Finally, appellant asserts that the courts ruling deprived him of his federal confrontation and due process rights. He cites People v. Burrell-Hart (1987) 192 Cal.App.3d 593, 599 for the proposition that Evidence Code section 352 must bow to a defendants right to a fair trial and "to present all relevant evidence of significant probative value to his defense." The court went on to recognize that "a defendants right to present his defense theory is a fundamental right and that all of his pertinent evidence should be considered by the trier of fact." (Ibid.)
We have no quarrel with these general propositions of law. However, what appellant leaves out of the equation is the concept that the proffered evidence must have significant probative value, in other words, it must "have more than slight relevancy to the issues presented." (People v. Burrell-Hart, supra, 192 Cal.App.3d at p. 599.) We repeat, the trial court did not abuse its discretion in concluding that the proffered evidence was of slight probative value. Appellant was not prevented from presenting his defense. He was allowed to probe Does misidentification of Kelly and extensively cross-examined Doe on issues of identification, recollection, perception and observation of the key people and events pertinent to the proceedings.
Appellant also calls our attention to a Florida opinion holding that the trial court erroneously applied an exclusionary rule to the detriment of the defendants due process and confrontation rights, where the rule was designed to protect those very rights. (Gardner v. Florida (Fla.App. 1988) 530 So.2d 404, 405.) Specifically, the trial court prohibited the defense from presenting evidence about an impermissibly suggestive and unreliable photographic lineup, and from cross-examining the witness subjected to that lineup. (Ibid.) The reviewing court held that these rulings "violated the defendants due process rights to present evidence in his own behalf and to cross-examine his accuser. Because the identity of the perpetrator was the crucial issue in this case, we cannot hold as a matter of law that these errors were harmless beyond a reasonable doubt." (Ibid.)
First, this case is not binding on this court. Second, Gardner concerns the exclusion of unduly suggestive and unreliable identification procedures. These concerns are not present in this case. Third, Gardner does not address the issue present here, whether exclusion of misidentification evidence under Evidence Code section 352 or under a similar Florida provision implicates the federal Constitution.
C. Shellys Taped Interview
Testifying for the prosecution, Shelly indicated appellant was a social friend she had known since middle school. In November 2003 she frequented Matteuccis bar once or twice a week. Tuesday and Thursday were college nights at the bar, and she regularly met friends there on those evenings. But when asked if she was at Matteuccis bar on the night of the incident involving Voelker, Shelly said she was "not sure." Shelly further said she remembered an incident involving Voelker, and remembered speaking with an investigator about the incident. To the best of her knowledge, she was truthful when speaking with the investigator.
The prosecutor offered, under Evidence Code section 1237 (section 1237), to play the January 13, 2004 tape recording of Shellys interview with the investigator. Defense counsel objected, arguing that the "fresh[ness]" requirement of section 1237 could not be met because the interview occurred two months and one week after the incident. The trial court allowed the prosecution to play excerpts to the jury.
Section 1237, subdivision (a) provides in part: "Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which: [¶] (1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness memory; [¶] (2) Was made . . . by some other person for the purpose of recording the witness statement at the time it was made; [¶] (3) Is offered after the witness testifies that the statement he made was a true statement of such fact . . . ."
Appellant maintains that the excerpts of Shellys tape-recorded statement to the investigator was inadmissible as past recollection recorded under section 1237. He argues that the prosecution failed to meet its burden of showing that the events were "fresh" in her mind at the time she made the statements.
It is for the trial court in its discretion to decide whether the threshold requirements of a hearsay exception have been met. (People v. Parker (1992) 8 Cal.App.4th 110, 116.) A lapse of time between the event and the report of it does not, in itself, render a statement inadmissible under section 1237. (People v. Miller (1996) 46 Cal.App.4th 412, 422, disapproved on other grounds in People v. Cortez (1998) 18 Cal.4th 1223, 1239-1240.) In Miller, a witness had overheard threats, and reported them to the police weeks later. (Miller, supra, at pp. 417, 419-420.) Notwithstanding this lapse of time, the reviewing court upheld the trial courts conclusion that the lapse did not diminish the credibility or reliability of the statements, and the section 1237 requirements had been fulfilled. (Miller, supra, at pp. 422-423.)
In this case, while Shelly was a reluctant witness, she had difficulty answering some of the investigators questions, and professed an inability to remember certain things. But she did testify that she answered the investigators questions truthfully. During the interview she stated: "I remember that it was a night that we left early and I specifically remember that we were gone early because everyone was saying, `Oh yeah, Jason was, theres this guy after you left and then people would start talking about the fact that he was arrested and thats how I remember that we werent there because once he got arrested, we were trying to figure out what had happened and why he was arrested. . . . [¶] . . . [¶] . . . Yeah[,] ___ heard that he was arrested, so that was the only night it would have been." And when asked who had left while she was still there, Shelly said: "I know Jason was still there, Trey [appellant] . . . ."
Shelly was uncertain about some things, but was able to place the night in question once she recalled that she left early. She had no trouble placing appellant there when she left. Having reviewed the transcript, we conclude the trial court did not abuse its discretion in admitting it.
D. No Cumulative Prejudice
Appellant contends that the judgment must be reversed because of the cumulative prejudice resulting from the alleged errors in the above evidentiary rulings. There is no cumulative error and hence no cumulative prejudice.
E. CALJIC No. 17.20
Accompanying each felony count was a personal infliction of great bodily injury allegation pursuant to Penal Code section 12022.7, subdivision (a). The court instructed the jury in the language of CALJIC No. 17.20, concerning the group injury aspect of the crimes, as follows: "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 have been found to have personally inflicted great bodily injury upon the victim if, one, the application of unlawful physical force upon the victim was of such a nature that by itself, it could have caused the great bodily injury suffered by the victim or, two, that at the time the defendant personally applied unlawful physical force to the victim, the defendant knew that other persons, as part of the same incident, had applied, were applying, or would apply unlawful physical force upon the victim, 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 the victim."
All further statutory references are to the Penal Code unless otherwise specified.
Appellant challenges this instruction as "directly conflict[ing] with Penal Code § 12022.7 and California Supreme Court decisions interpreting Penal Code § 12022.7 in violation of Harveys right to due process of law under the federal and state Constitutions." Recently, in People v. Modiri (2006) 39 Cal.4th 481, 492 (Modiri) our Supreme Court decided a challenge to CALJIC No. 17.20 wherein the defendant claimed prejudicial error in violation of federal and state due process rights. There, among other things, the defendant was convicted of felony assault and to enhance the sentence in any future prosecution, the jury sustained an allegation under section 1192.7, subdivision (c)(8) that in the course of the assault he personally inflicted great bodily injury upon the victim. (Modiri, supra, at p. 485.)
In particular, People v. Cole (1982) 31 Cal.3d 568 (Cole).
Concluding that no instructional error or constitutional violation occurred, the Supreme Court rejected the defendants assertion that the jury must find that he, himself, produced a particular grievous injury or wielded a particular weapon or blow causing such injury: "The term `personally, which modifies `inflicts in section 1192.7[, subdivision] (c)(8), does not mean exclusive here. This language refers to an act performed `in person, and involving `the actual or immediate presence or action of the individual person himself (as opposed to a substitute, deputy, messenger, etc). [Citation.] Such conduct is `[c]arried on or subsisting between individual persons directly. [Citations.] Framed this way, the requisite force must be one-to-one, but does not foreclose participation by others. [¶] In short, nothing in the terms `personally or `inflicts, when used in conjunction with `great bodily injury in section 1192.7[, subdivision] (c)(8), necessarily implies that the defendant must act alone in causing the victims injuries. Nor is this terminology inconsistent with a group melee in which it cannot be determined which assailant, weapon, or blow had the prohibited effect. By its own terms, the statute calls for the defendant to administer a blow or other force to the victim, for the defendant to do so directly rather than through an intermediary, and for the victim to suffer great bodily injury as a result. [¶] The challenged instruction reasonably conveys these statutory principles. CALJIC No. 17.20 requires jurors to first determine the defendants guilt of the charged crime. The instruction applies if they then decide that he `participate[d] in a group beating, and that `it is not possible to determine which assailant inflicted a particular injury. (Ibid.) Both prongs of the instruction permit a personal-infliction finding in this instance only if the defendant personally `appli[es] unlawful physical force to the victim. (Ibid.) CALJIC No. 17.20 makes clear that the physical force personally applied by the defendant must have been sufficient to produce great bodily injury either (1) by itself, or (2) in combination with other assailants. Both group beating theories exclude persons who merely assist someone else in producing injury, and who do not personally and directly inflict it themselves." (Modiri, supra, 39 Cal.4th at pp. 493-494.)
In this case a group of three, including appellant, attacked Doe. The evidence shows that appellant leveled the first blow, punching Doe in the face with a closed fist. The blow jolted his head. The second assailant knocked Doe to the ground and Doe continued to get punched and kicked. Appellant was directly involved in the attack, personally and directly inflicted a blow, and in combination with the physical force applied by the other assailants Doe suffered great bodily injury.
Modiri was not decided at the time appellant filed his opening brief. Thus he argues at length that CALJIC No. 1720 conflicts with Cole, an argument rejected by the Modiri court: "Cole stands for the modest proposition that a defendant personally inflicts great bodily harm only if there is a direct physical link between his own act and the victims injury. Under Cole, someone who does not strike or otherwise personally use force upon the victim does not qualify for enhanced punishment where the personal infliction of harm is required. As we have seen, CALJIC No. 17.20 follows this rule. However, consistent with the instruction, nothing in Cole precludes a person from receiving enhanced sentencing treatment where he joins others in actually beating and harming the victim, and where the precise manner in which he contributes to the victims injuries cannot be measured or ascertained." (Modiri, supra, 39 Cal.4th at p. 495.)
The defendant in Cole never touched the victim with a weapon or by any other means. Construing an earlier version of section 12022.7, the court in Cole held that the defendants sentence could not properly be enhanced under former section 12022.7. (Cole, supra, 31 Cal.3d at pp. 572-573, 579.)
Modiri also disposed of appellants specific concern that CALJIC No. 17.20 impermissibly allows a finding of personal infliction of great bodily injury in the absence of any finding that he personally and directly applied force capable of producing such injury: In a group attack, "the evidence is often conflicting or unclear as to which assailant caused particular injuries in whole or part. Thus, as CALJIC No. 17.20 recognizes, those who participate directly and substantially in a group beating should not be immune from a personal-infliction finding for the sole reason that the resulting confusion prevents a showing or determination of this kind." (Modiri, supra, 39 Cal.4th at pp. 496-497.)
Appellant further insists that CALJIC No. 17.20 lowers the prosecutions burden of proof and violates his due process rights because it omits the element that he himself must have directly inflicted the great bodily injury. This purported omission, he states, is particularly egregious because the great bodily injury enhancement transformed his offenses into serious felonies under the Three Strikes statute, thus making them a sentencing enhancement for any future felony. (See §§ 667, subd. (d)(1), 1170.12, subd. (b)(1), 1192.7, subd. (c)(8).)
Again, the Modiri court disagreed with this reasoning, concluding: "We have seen that section 1192.7[, subdivision] (c)(8) requires the defendant to personally inflict, or contribute to the infliction of, great bodily harm while participating in a group attack. [Citation.] The second group beating theory in CALJIC No. 17.20 follows this principle by requiring the defendant to apply physical force directly to the victim to such a significant degree that he adds to the `cumulative injurious effect. Contrary to what defendant claims, this language does not define the defendants personal infliction of great bodily harm primarily or solely in terms of the harmful acts that others in the group commit. [¶] Moreover, we have said that section 1192.7[, subdivision] (c)(8) simply requires an intent to do the act the statute proscribes. [Citation.] Instead of supplanting the personal-infliction requirement, the reference to what the defendant knew or should have known during the attack arguably imposes an additional evidentiary burden on the prosecution. We see no basis on which defendant can complain." (Modiri, supra, 39 Cal.4th at p. 501, fn. omitted.)
"Voters recently rejected an attempt to amend section 1192.7[, subdivision] (c)(8) to include a requirement that the defendant `specifically intend[] to personally inflict great bodily injury. [Citations.] The Legislature long ago removed from section 12022.7[, subdivision] (a) a similar requirement that great bodily injury be personally inflicted `with the intent to inflict the injury. [Citation.]" (Id. at p. 501, fn. 11.)
In his reply brief appellant acknowledges that Modiri is dispositive of his claim that CALJIC No. 17.20 directly conflicts with section 12022.7 Nonetheless he is certain that Modiri does not discuss "the issue of whether the instructions interpretation of [section 12022.7] was constitutionally valid." Modiri denied all of the defendants claims. These included the very constitutional claims that appellant makes. There was no lowering of the prosecutions evidentiary burden under CALJIC No. 17.20, as properly construed, but arguably a higher burden, and thus "no basis on which defendant can complain." (Modiri, supra, 39 Cal.4th at p. 501, fn. omitted.)
III. DISPOSITION
The judgment of conviction is affirmed.
We concur:
RUVOLO, P.J.
SEPULVEDA, J.