Opinion
A128200
08-18-2011
THE PEOPLE, Plaintiff and Respondent, v. TERRY WAYNE LINDSEY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. VCR203938)
I. INTRODUCTION
A jury found Terry Lindsey guilty of assault with a deadly weapon. After the trial court found that Lindsey suffered a prior strike conviction and two prior felonies for which he served prison terms, Lindsey was sentenced to a total term of six years in state prison.
On appeal, Lindsey contends the trial court committed multiple errors at trial which cumulatively, if not individually, require a reversal of the judgment. The People concede that the trial court made several of the errors alleged by Lindsey, but contend that none were prejudicial. We disagree with the People about that and, therefore, reverse the judgment.
Because we reverse the judgment, we need not address Lindsey's contention that the trial court miscalculated his pre-sentence custody credits. We note for the record, however, that the People also concede this sentencing error.
II. STATEMENT OF FACTS
The case against Lindsey was based on an incident that occurred on the evening of July 9, 2009, outside Amigo's Liquor Store and Market in Vallejo (hereafter, the market). A. The Prosecution Case
All references to July 9 are to the 2009 calendar year.
1. Courtney Ross
Courtney Ross testified that she went to the market to buy cigarettes on July 9 some time between 10:00 and 10:30 p.m. A man named Sunny Virk was standing outside and the market owner's young children were also there, playing outside their father's store. Ross stopped to talk with Virk, who she knew because he was often at the market, making sure everything was "okay outside."
Ross testified that, while she was talking with Virk, Lindsey pulled up to the market front in a gold Jaguar, got out of his car and told the market owner's children to "Go put oil in my car." Ross thought Lindsey was rude and told him "You are a grown man. You can put your own oil in your car." Lindsey told Ross he had been coming there for years and to mind her own business. The two began to argue and swear at one another. Ross testified that Virk tried to "be the mediator," but she and Lindsey continued to argue. Lindsey went in the market to complain to the owner. Then he left, telling Ross that she "better be gone by the time he got back."
The prosecutor asked whether Lindsey directed this comment at Virk as well and Ross testified that the comment was directed only at her. However, during cross-examination, Ross testified that Lindsey said "you both better be gone by the time I get back."
Ross conceded at trial that, when the police interviewed her on July 9, she may not have told them that Lindsey issued this warning before he left the market. However, she told the jury, "that's what I remember."
Approximately five minutes later, Lindsey returned to the market on foot, "rushed" toward Ross in a threatening manner and called her a "stupid bitch." Then Virk told Lindsey to leave, saying words to the effect that "I'll kick your ass. You need to get out of here." Under cross-examination, Ross reluctantly admitted that Virk also called Lindsey a "Nigger."
When asked what happened next, Ross testified as follows: "And then from that point on, I just know there was an attack because I seen the two of them kind of tussling around with each other . . . ." When the prosecutor asked Ross whether she saw Lindsey hit Virk, Ross stated: "I seen the defendant hit Sunny, but I could not see what he hit him with, because it was dark outside." Under cross-examination, Ross testified that, when the "tussle" began, both men had their hands on each other. Ross also added that she saw Lindsey hit Virk with "something that looked lighter" but that she could not tell what it was.
Ross testified that the altercation between Lindsey and Virk happened very fast and admitted that she had not seen or could not recall many details. For example, she did not know how many times Lindsey hit Virk. She was not aware if Virk hit Lindsey, but if he did, she "was not paying attention." She did not see Virk fall down during the altercation, but he may have.
Ross testified that after Lindsey hit Virk, Lindsey left the parking lot and she and Virk went inside the market. At that point, they realized that Virk had been injured. Someone pointed out that a police car was down the street, so she and Virk went to make a report. Ross testified that she told one of the officers that Lindsey hit Virk with a "light" or "white" object. Subsequently, the police showed her a cane, but she could not identify it as the object that Lindsey used to hit Virk.
2. Sunny Virk
Sunny Virk testified that he spent a couple of hours at the market on the evening of July 9. Virk, who was 17 at the time, often "hung out" or visited with friends at the market, including the owner's teenaged son.
Virk testified that he was standing outside the market talking with Ross when Lindsey parked in front, and called out for someone to change the oil in his car. Ross got mad at that comment and told Lindsey not to talk to the children. Lindsey told her he knew the children and the family. The two argued and swore at each other. The market owner tried but failed to break up the argument. At that point, Virk decided to intervene.
Virk testified that he tried to calm Lindsey and Ross and told them both to leave. But Lindsay thought Virk was just trying to help Ross and started to swear at Virk. Virk swore back and "accidentally" called Lindsey a "Nigger." At trial, Virk admitted that he argued with Lindsey, but testified that he never threatened him. After approximately three minutes of purely verbal argument, Lindsey left. Then, Virk and Ross walked out into the parking lot to talk.
A couple of minutes later, Lindsey returned to the parking lot. He was yelling and swearing at Virk and had a cane in his hand. Virk testified that Lindsey swung the cane at him three times. The first time he hit Virk's knee, causing Virk to fall down. At that point, Virk realized the cane was made of heavy steel. He yelled at Lindsey to leave, but Lindsey took another swing at his ribs and missed. The third time, Lindsey hit Virk behind his ear. Virk testified that the attack lasted less than one minute and that he did not hit, try to hit or make any threatening physical gestures toward Lindsey.
Virk testified that, after Lindsey hit him the third time, Virk went into the market and Lindsey left the parking lot. The market owner told Virk that the police were nearby so he went and reported the incident. Virk was taken to a nearby location where he identified Lindsey as his assailant. The officers showed Virk a cane which he identified as the weapon that Lindsey used to hit him. Later, Virk went to the emergency room, where a cut above his ear was closed with a staple, but his leg was not treated and he was not given any medication. Virk testified that his head and leg felt "pretty hurt" at the time, that his knee hurt for two days and that he took three days off work.
During cross-examination, Virk acknowledged that he may have testified at the preliminary hearing that Lindsey's second swing of the bat was directed at his leg, not his ribs. However, at trial Virk was "pretty sure" that Lindsey attempted to hit him on his "upper body."
3. Officer Jerad Jaksch
On the evening of July 9, Vallejo Police Officer Jerad Jaksch was making a traffic stop near the market when he was approached by Virk and Ross at around 10:45 p.m. They reported that Virk, whose head was bleeding, had just been attacked at the market. Virk described his assailant and said he was driving a gold Jaguar. Jaksch realized he had just seen that car in front of the market a few minutes earlier and commenced a search.
Approximately 15 seconds later, Jaksch found Lindsey standing near his Jaguar in an alley near the market. Jaksch testified that he "verbally detained" Lindsey, waited for assistance and then conducted an in-field line-up pursuant to which Virk and Ross identified Lindsey as Virk's assailant. After Lindsey was placed under arrest, Jaksch found a cane in the back of the Jaguar which was taken into evidence.
Jaksch testified that Lindsey was not uncooperative, but he was not extremely cooperative either. He was agitated and appeared to be under the influence of alcohol. After Lindsey was booked at the police station, Jaksch informed him of his Miranda rights and then asked him about the incident. Jaksch testified that Lindsey "was very upset at being called names; derogatory, racist statements . . . ." When asked if he had been in a fight, Lindsey told the officer that he had not done anything to anyone. B. The Defense Case
Miranda v. Arizona (1966) 384 U.S. 436.
1. Lindsey
Lindsey testified that he drove to the market on July 9 at around 10:00 or 10:30 p.m. and parked in front. Lindsey, who was 49 at the time of trial, described the owner of the market as his friend and testified that he has known the owner's family for nine years.
Salf Ahmed Ali, the market owner, testified at trial, although it appeared he had some trouble understanding or responding to many of the questions he was asked. In any event, Ali described Lindsey as a friend and a regular customer who has never caused any trouble at the market. He also confirmed that Lindsey has known him and his children for several years.
Lindsey testified that when he arrived at the market on July 9, Virk and Ross were standing outside, embracing. Two adult men, who appeared to be with Virk, and two children were also outside. One of the children, who was around seven, asked Lindsey what was wrong with his car which made a noise because of an exhaust leak. Lindsey said not worry about it and said "[y]ou just help me change the oil." Lindsey testified that he was joking and that the child laughed and said "We don't know how to change the oil, Mendocino."
Lindsey testified that Ross approached him and told him not to tell the kids to change his oil. Lindsey responded that he knew the kids and it was okay. But Ross was rude and told him to "Blow it out your ass." Then Virk came over to Lindsey and said: "I'll beat your ass, Nigger." At that point, Lindsey got in his car and drove to a nearby alley where he charged his car battery, which took approximately 15 minutes. When he was done, Lindsey looked down the street, saw that Ross and Virk were no longer standing outside the market and decided to walk over and make a purchase. Lindsey was not carrying a cane but he probably had a white t-shirt in his hand. He had grabbed it thinking it was a towel because he needed to wipe his hands.
Lindsey testified that when he came out of the market and was walking toward a trash can in the parking lot, somebody threw a bottle in his direction. He turned to see who it was and Virk rushed toward him from behind a green bin that was next to a taco truck. Virk grabbed him by the collar of his jacket and tried to pull him in between the bin and the truck. Lindsey heard some guys saying "Yeah. Get him. Get him. Get him," and then he just "took" Virk and "pushed" him off. Virk was strong, but Lindsey planted his feet and threw Virk off of him. He heard Virk hit the truck, then left the parking lot and returned to the alley and his parked car, where he drank some alcohol. The police arrived several minutes later.
Virk confirmed that the physical altercation happened right next to the taco truck that was parked in the lot.
Lindsey testified that he pushed Virk off of him because Virk was being belligerent, had a friend with him, and had already threatened that he was going to beat Lindsey's ass. Lindsey was adamant that he did not hit Virk with the cane that the police later found in his car. He testified that the cane belonged to a friend named Sherman Dunn, that he did not take the cane out of the car that night, did not swing it at Virk, and that he had not even touched the cane since it had been left in his car.
During cross-examination, Lindsey admitted that he may have raised his voice during the verbal argument with Ross, but he denied that he swore at her. He also testified that he did not say anything to Virk during the initial encounter with Ross. Further, Lindsey was unequivocal that Virk initiated the physical altercation, telling the prosecutor: "Virk was already on his way to carry out his threat or whatever; I don't now, but Mr. Virk, he actually put hands on me, okay? And Mr. Virk was trying to drag me over here."
When asked why he did not tell Officer Jaksch that Virk had attacked him, Lindsey testified that it was his understanding at the time that he was being arrested for drinking in public, not for assault. Lindsey acknowledged that the officer did subsequently ask him about the incident with Virk, but denied having said that "nothing happened." Rather, Lindsey told the police that he did not do anything to anybody.
2. Officer Robert Herndon
Vallejo Police Officer Robert Herndon interviewed Ross and Virk on the evening of July 9, shortly after the incident. Herndon testified that Ross told him that she knew that Virk had been injured by Lindsey but that she did not know by what means. Ross did not tell the officer that she saw Lindsey with a cane or anything of that nature.
Herndon also testified that Virk did not report that Lindsey returned to the market a few minutes after he left, but rather that he returned to the market about 30 minutes after the initial altercation with Ross. Virk did not tell the officer that he had argued with Lindsey or that he had called Lindsey a racial slur. Herndon testified that Virk told him that Lindsey struck him with a baseball bat or a silver club. C. Trial Court Proceedings
Lindsey was charged with felony assault with a deadly weapon and by means likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).) The information also contained allegations that Lindsey inflicted great bodily injury during the commission of the charged assault (§ 12022.7), suffered a prior strike conviction (§ 1170.12, 667) and suffered five additional felony convictions for which he served prison terms (§ 667.5).
All statutory references are to the Penal Code, unless otherwise indicated.
At the commencement of the jury trial, the court granted a prosecution motion to delete language from the charging allegation in the information that the assault was committed "by means likely to produce great bodily injury."
The jury returned a verdict finding Lindsey guilty of the felony assault with a deadly weapon but also found that the enhancement allegation for personal infliction of great bodily injury was not true. Thereafter, the trial court found true the prior strike allegation and two of the prior felony allegations, denied several post-trial defense motions, and sentenced Lindsey to a six-year prison term.
III. DISCUSSION
A. Self-Defense
Lindsey contends that the trial court erred by denying a defense request to instruct the jury regarding the law of self defense.
"It is well settled that a defendant has a right to have the trial court, on its own initiative, give a jury instruction on any affirmative defense for which the record contains substantial evidence [citation]—evidence sufficient for a reasonable jury to find in favor of the defendant [citation]—unless the defense is inconsistent with the defendant's theory of the case [citation]. In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether 'there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.' [Citations.]" (People v. Salas (2006) 37 Cal.4th 967, 982-983.)
In the present case, the trial court refused to give a self defense instruction because it concluded that there was insufficient evidence that Lindsey struck Virk with the metal cane in self defense. The trial court stated, "I don't believe there is evidence, substantial evidence in this case that the defendant assaulted [the victim] with this cane in self-defense. He either assaulted him with a weapon, or, like he testified from—Ms. Ross testified, there was no weapon involved. [¶] If there was no weapon involved, he's not guilty of the felony assault." This ruling is based on a misconception about the trial evidence and the self defense theory it supported. Lindsey never argued or attempted to establish that he used the cane in self defense, but rather that he pushed or threw Virk into the Taco Truck in self defense.
The record before us establishes that there was substantial evidence from which the jury could have found that Lindsey acted in self defense. Lindsey testified that Virk attacked him, that he defended himself by throwing Virk into the Taco Truck and that he did not have or use a cane during the incident. Furthermore, it appears that a reasonable jury could have concluded that some parts of Ross's testimony were more consistent with Lindsey's version of the incident than they were with Virk's. Although Ross testified that Lindsey hit Virk, her trial testimony about the circumstances surrounding the physical altercation was vague, parts of it were inconsistent with prior statements she made to the police, and, ultimately, she admitted that she did not see a cane in Lindsey's hand that night. In any event, as the People concede on appeal, Lindsey's testimony by itself "supported instructions on self defense." B. Lesser Included Offenses
Lindsey contends that the trial court also erred by refusing to instruct the jury on simple assault and simple battery as lesser included offenses of the felony assault charge.
"[A] trial court must, sua sponte, or on its own initiative, instruct the jury on lesser included offenses 'when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.' [Citation.]" (People v. Barton (1995) 12 Cal.4th 186, 194-195.) In other words, "[a] criminal defendant is entitled to an instruction on a lesser included offense only if [citation] 'there is evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense' [citation] but not the lesser. [Citations.]" (People v. Memro (1995) 11 Cal.4th 786, 871.)
When there is substantial evidence to support an instruction on a lesser included offense, the trial court must give the instruction regardless of the theories of the case proffered by the parties. (People v. Breverman (1998) 19 Cal.4th 142, 159-162.) "[T]he sua sponte duty to instruct on lesser included offenses, unlike the duty to instruct on mere defenses, arises even against the defendant's wishes, and regardless of the trial theories or tactics the defendant has actually pursued. Hence, substantial evidence to support instructions on a lesser included offense may exist even in the face of inconsistencies presented by the defense itself." (Id. at pp. 162-163.)
Applying these rules, we find the trial court erred by refusing to instruct on simple assault. As we have already explained, there was evidence from which the jury could have found that Lindsey did not commit any assault at all because he acted in self defense. However, it was also possible the jury could have credited some of the prosecution evidence and some of the defense evidence and thereby found Lindsey guilty of simple assault. (See People v. Barton, supra, 12 Cal.4th at p. 202 [lesser included offense instruction was supported by "substantial evidence, some of it offered by the prosecution and some by the defense . . . ."].) Indeed, the evidence in this record could have supported more than one alternative lesser included offense scenario. For example, the jury could have been persuaded by the prosecution evidence that Lindsey was the initial aggressor, but nevertheless believed that he did not use any weapon during the assault. Alternatively, the jury could have believed that Lindsey did assault Virk with the cane but that he did not use it as a deadly weapon.
The People concede there was substantial evidence from which the "jury could have convicted appellant of simple assault." However, they dispute Lindsey's related contention that the trial court should also have instructed the jury on simple battery. The People reason that simple battery is not a lesser included offense of felony assault, but rather a lesser related offense, and that the court could not properly have given a lesser related offense instruction over the prosecutor's objection. (Citing People v. Lathus (1973) 35 Cal.App.3d 466, 471-472 & People v. Birks (1998) 19 Cal.4th 108, 136.)
Lindsey does not dispute the People's authority, but argues that simple battery is a lesser included offense of assault with a deadly weapon when, as here, the information also alleges an enhancement for personal infliction of great bodily injury. He reasons that a person cannot inflict great bodily injury without also necessarily committing a battery. Lindsey's theory fails, however, in light of the "longstanding rule that enhancements may not be considered as part of an accusatory pleading for purposes of identifying lesser included offenses."(People v. Sloan (2007) 42 Cal.4th 110, 114, citing People v. Wolcott (1983) 34 Cal.3d 92, 96.)
Therefore, we find that the trial court erred by failing to instruct the jury on the law of simple assault as a lesser included offense of the charged felony assault. C. Flight
Lindsey contends that the trial court erred by overruling his objection to the prosecutor's request for an instruction on flight as evidence of consciousness of guilt. The People contend that the flight instruction was properly given.
The court instructed the jury with CALCRIM No. 372, which states: "If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself."
" 'In general, a flight instruction "is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt." [Citations.] Evidence that a defendant left the scene is not alone sufficient; instead, the circumstances of departure must suggest 'a purpose to avoid being observed or arrested.' [Citations.] To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence. [Citation.]" (People v. Bonilla (2007) 41 Cal.4th 313, 328-329.)
The record before us does not contain any evidence to support a flight instruction. The three percipient witnesses testified that, after the physical altercation, they all "left" the parking lot. Indeed, Virk testified that he and Ross went into the market before Lindsey even left the parking lot. Furthermore, Officer Jaksch testified that he found Lindsay a short distance from the market approximately "15 seconds" after Virk made his complaint, and that he "verbally detained" Lindsay while he waited for backup. Under these circumstances, the trial court erred by overruling the defense objection to this flight instruction.
The People argue otherwise, but their analysis is perplexing, conclusory and unpersuasive. They point out that (1) Ross testified that Lindsey "left" the parking lot after the physical altercation with Virk, (2) when Virk made his report to Jaksch, he said that Lindsey "left" on foot, and (3) that the prosecutor argued to the jury that, after the altercation, Lindsey "left" and "fled." As we have already explained, there was no dispute in the evidence that Lindsey left the parking lot. That fact, by itself, does not support an inference of a consciousness of guilt. (People v. Bonilla, supra, 41 Cal.4th at pp. 328-329.) Furthermore, the prosecutor's argument was not evidence at all and the People's decision to rely on it reinforces our conclusion that there was absolutely no evidence to warrant a flight instruction in this case.
The People rely on People v. Bradford (1997) 14 Cal.4th 1005 (Bradford), a case which undermines their position on appeal. The Bradford court observed that flight does not require evidence of running away or of reaching a " ' "far-away haven," ' " but it also cautioned that flight does " ' "manifestly" ' " require " ' "a purpose to avoid being observed or arrested," ' " and that " '[m]ere return to familiar environs from the scene of an alleged crime does not warrant an inference of consciousness of guilt . . . ." (Id. at p. 1055.) In the present case, there was no evidence that Lindsey left the parking lot in order to avoid being observed or arrested. Rather, he simply walked a short distance away, and returned to " 'familiar environs' " where he had parked his car. D. Cross-Examination of Ross
Lindsey contends that the trial court erred by precluding his defense counsel from impeaching Ross with statements she made to a defense investigator and then erred again by making a disparaging comment about defense counsel.
1. Background
As reflected in our factual summary, Ross testified on direct examination that she saw Lindsey hit Virk but that she "could not see what he hit him with because it was dark outside." During cross-examination, Lindsey's trial counsel attempted to clarify what Ross did see. Counsel asked whether Ross recalled telling the investigating officer that she did not see any object and that Virk was injured by some unknown means. Ross testified that she recalled telling the officer that she saw something in Lindsey's hand that was lighter in color, but she could not tell what color or its size or shape. Defense counsel then inquired whether Ross recalled an interview she gave to a defense investigator a few months after the incident. After Ross confirmed that she gave the telephone interview, the following exchange occurred:
"[PROSECUTOR]: I have an objection please. I don't think I have any report on this.
"THE COURT: This, um, Ms. Lee, surely you have disclosed discovery on this matter to the People?
"[DEFENSE COUNSEL]: Well, I believe impeachment material of the prosecution witness is not necessary, depending on the—
"THE COURT: Strong disagreement on that.
"[DEFENSE COUNSEL]: But I can provide—
"THE COURT: No, I'm not going to allow you to ask that question or call that witness. Move on.
"[DEFENSE COUNSEL]: Well, Your Honor, I believe that—
"THE COURT: I'm not interested in the gamesmanship of hiding discovery.
"Next question.
"[DEFENSE COUNSEL]: Well, Your Honor, if I can comment on this, I think the law is . . . that impeachment evidence of a prosecution witness, there need not . . . be disclosure unless the witness denies a statement, and then I'm forced to call the person who took that statement. I believe that is the law.
"And it's misconduct, actually, for the prosecutor to infer that this is not disclosing evidence.
"THE COURT: I'm not the prosecutor, I'm the one who is telling you, you should have disclosed it, and I'm the Judge here making the ruling, so you want to make anything further on the record on this?
"[DEFENSE COUNSEL]: I just want to state that for the record, that is the law, that as a defense attorney, I do not have to disclose impeachment material unless it's denied by the witness, and then I proceed to take the next step; and it's misconduct otherwise to not let that in.
"THE COURT: So noted.
"Next question."
2. Analysis
The People concede that the trial court erred by precluding Lindsey's defense counsel from questioning Ross about statements she made to the defense investigator. "[T]he defense is not required to disclose any statements it obtains from prosecution witnesses that it may use to refute the prosecution's case during cross-examination." (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 377, fn. 14.) Nor is a prosecutor "entitled to discover notes prepared by a defense investigator that relate to an interview of a 'prosecution' witness unless and until the defense announces an intent to call the defense investigator as a witness." (Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1165.) Therefore, Lindsey's defense counsel was entitled to cross-examine Ross regarding statements she made to the defense investigator and the trial court erred by blocking that inquiry.
Lindsey contends the trial court exacerbated its erroneous legal ruling and committed misconduct by accusing defense counsel of "gamesmanship" and "hiding discovery." The People concede the court's comments "appear to have been inappropriate." There is no doubt about it; a trial court's "comments implying that defense counsel was behaving unethically or in an underhanded fashion constitute[] misconduct." (People v. Sturm (2006) 37 Cal.4th 1218, 1240-1241.) As the Sturm court explained, " '[i]t is completely improper for a judge to advise the jury of negative personal views concerning the competence, honesty, or ethics of the attorneys in a trial . . . . When the court embarks on a personal attack on an attorney, it is not the lawyer who pays the price, but the client.' [Citation.]" (Id. at p. 1240.) To emphasize the impropriety of such a comment, the Sturm court advised that even if the trial court's evidentiary ruling is correct, " 'that would not justify reprimanding defense counsel before the jury.' [Citations.]" (Ibid.) Here, the trial court's ruling was not only legally incorrect, it was also improper. E. The Jury's Question
Lindsey contends that the trial court gave an erroneous instruction in response to a question posed by the jury during deliberations.
1. Background
The jury asked three questions during deliberations. First, it made a request to see the police reports, which was denied. Then, it made a request to hear a read-back of Ross's testimony regarding the nature of the weapon that was used, which was granted. Finally, the jury asked the court whether a juror "would" or "could" vote guilty if he or she "believe[d] there was a weapon used, but not the cane in evidence."
The trial court discussed the question with counsel, stating "I believe the answer is yes, if [the juror] believe[d] it was a deadly weapon he used." Defense counsel disagreed, arguing that the prosecutor had expressly alleged that the deadly weapon was a metal cane and that the case had been tried on that specific theory. The trial court rejected defense counsel's argument, stating that the nature of the deadly weapon was not an element of the charged crime and so the jury did not have to unanimously agree that the deadly weapon was the metal cane.
After further discussion, the court stated: "Thus, the response to them, over your objection, will be yes, if you believe a deadly weapon was used."
2. Analysis
Lindsey contends the trial court's last minute instruction that the jury did not have to agree that the deadly weapon that was used to commit the assault was the metal cane was improper for several reasons.
Lindsey's primary complaint is that the trial court's instruction resulted in a denial of due process by depriving him of notice of the charged offense. The amended information alleged: "On or about July 9, 2009, [Lindsey] did commit a felony namely: ASSAULT WITH DEADLY WEAPON, a violation of Section 245(a)(1) of the Penal Code . . ., in that said defendant did willfully and unlawfully commit an assault upon [Virk] with a deadly weapon, to wit, Metal Cane." Therefore, Lindsey contends he was denied constitutionally adequate notice that he was being charged with assaulting Virk with a deadly weapon other than the metal cane.
To support this due process theory, Lindsey mistakenly relies on this court's decision in People v. Burnett (1999) 71 Cal.App.4th 151. In that case, the trial court erred by permitting the jury to convict the defendant of the charged offense of felony possession of a firearm based on an incident that was both (a) different from the incident that was alleged in the information and (b) not discussed or even mentioned by witnesses at the preliminary hearing. (Id. at p. 173.) In the present case, by contrast, Lindsey was charged with committing felony assault with a deadly weapon against Virk on July 9 and all of the evidence at the preliminary hearing and at trial pertained exclusively to that July 9 incident. Thus, there is no possibility in this case that the jury convicted Lindsey of anything but the offense that was alleged in the information and the subject of proof at the preliminary hearing.
Lindsey's due process argument rests on the unsupported premise that he was entitled to notice of the specific weapon he allegedly used to commit the charged offense. However, an information that charges a defendant with assault with a deadly weapon need not identify or describe the deadly weapon that was allegedly used. (People v. DeLaRoi (1944) 23 Cal.2d 692, 697; People v. Butterfield (1960) 177 Cal.App.2d 553, 557; People v. Jackson (1959) 53 Cal.2d 89, 94.) Thus, there is authority that words in an information describing the type of deadly weapon used are mere surplusage and do "not limit the People's proof of the instrumentality used as the deadly or dangerous weapon so long as some deadly or dangerous weapon was used," at least absent a showing that the defendant was misled to his detriment. (People v. Godwin (1996) 50 Cal.App.4th 1562, 1572, fn.4.)
Lindsey contends that he was misled to his detriment because he was "at all times led to believe that he was being prosecuted for assaulting [Sunny] Virk with a metal cane." First, Lindsey was never misled about the charge against him, which was that he assaulted Virk with a deadly weapon during the July 9 incident. Second, Lindsey was not misled about the prosecutor's theory, which was always that Lindsey used the metal cane to commit the assault with a deadly weapon. Third, the record before us confirms that both the prosecution and the defense were aware from the outset of this case that there was conflicting evidence about what, if anything, Lindsey had in his hand when Virk was injured.
Lindsey contends there was no evidence to support a finding that Lindsey used any weapon other than a metal cane. Again we must disagree. Virk told the police that Lindsey hit him with a bat or stick, but then testified at trial that he saw Lindsey hit him with the metal cane. Ross told the police that she did not see anything in Lindsey's hand, but then testified at trial that she did see something but could not say what. Lindsey testified he did not have anything in his hand during the physical altercation. However, he did testify that someone threw a bottle at him just before Virk rushed at him in the parking lot. Furthermore, under cross-examination Lindsey testified that he purchased liquor at the market before he walked into the parking lot where he was allegedly attacked by Virk. From this evidence, the jury could have reached any number of conclusions regarding what, if anything, Lindsey had in his hand during the July 9 altercation with Virk.
Finally, Lindsey contends that the trial court's last minute instruction deprived him of a unanimous verdict. However, the unanimity rule requires that when there is evidence of more than one discrete crime, the jury must agree on the same criminal act, but when there is evidence of only a single discrete crime, the jury need not unanimously agree as to exactly how that crime was committed. (See People v. Russo (2001) 25 Cal.4th 1124, 1132.) This was not a case in which the verdict of guilt could have rested on more than one criminal act; all of the evidence pertained to a single incident that occurred between three specific individuals, at a specific time, and a specific place.
Although Lindsey has failed to establish that the trial court's answer to the jury's question deprived him of a fair trial, we do have a concern about this jury question and answer that the parties do not address. As noted above, the trial transcript reflects that the court told trial counsel that the jury had asked whether a juror "would" or "could" "vote guilty" if he or she believed a weapon other than the cane was used and the court expressed its intention to answer "yes, if you believe a deadly weapon was used." The trial court stated that there would be a written record of the jury's question and the court's answer, but we find none in the appellate record. Without that documentation, we are concerned that the trial court's answer may have been incomplete or misleading. Although the court was technically correct that the deadly weapon did not have to be the metal cane, the jury's inquiry raised a legal question that was not otherwise covered by the court's instructions. The brief answer that the court proposed to give may have misled the jury to believe that it could convict Lindsey if it believed he used a deadly weapon, notwithstanding the other elements of the charge, or even more troubling, that it "should" do so. We need not pursue this issue, however, in light of the multiple errors discussed above. F. Prejudice
To summarize our conclusions thus far, the trial court erred by (1) failing to instruct the jury regarding the law of self defense; (2) failing to instruct the jury regarding simple assault; (3) limiting the defense cross-examination of a material witness; (4) making a disparaging comment about defense counsel in front of the jury; and (5) giving a flight instruction that was not supported by the evidence.
We conclude that the cumulative effect of these errors requires a reversal of the judgment under either the Chapman or Watson standards of review. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) There is at least a reasonable probability that the outcome of this case would have been different if these errors had not been made. In reaching this conclusion, we have considered and rejected the error-specific harmless error theories advanced in the People's appellate brief, which we will summarize here.
Our Supreme Court has suggested that some of these errors may be subject to review under the more rigorous Chapman test, which requires the State to prove that the error is harmless beyond a reasonable doubt. (People v. Salas, supra, 37 Cal.4th at p. 984 [failure to instruct on an affirmative defense supported by the evidence]; People v. Sturm, supra, 37 Cal.4th at p. 1244 [disparaging comments about defense counsel].)
Analyzing the two "instructional omissions" together, the People contend that the failure to instruct on self defense and simple assault was not prejudicial because the instruction regarding the felony assault charge, a version of CALCRIM No. 875, was both accurate and sufficient by itself to insure that the jury considered all the material issues. The People underscore that the jury could not have found Lindsey guilty under that instruction unless it believed that he "willfully" committed an act with a deadly weapon which "would directly and probably result in the application of force to a person."
However, the People simply ignore the fact that the jury could have believed that Lindsey both intentionally assaulted Virk and that he used a deadly weapon, but still have believed that Lindsey acted in self defense. The assault instruction did not advise the jury of this relevant fact. As noted above, the jury was instructed with a version of CALCRIM No. 875. A bench note for that instruction states: "If there is sufficient evidence of self-defense . . ., the court has a sua sponte duty to instruct on the defense." Not only did the court fail to give a self defense instruction in this case, it also deleted bracketed "element 5" from the standard instruction, which would have required that the People "prove" that the "defendant did not act []in self-defense[]." (CALCRIM No. 875, p. 667.)
The People's theory regarding the sufficiency of the felony assault instruction is further undermined by their failure to address its polarizing effect. On this record, the jury could have believed that Lindsey did commit a crime by intentionally attacking Virk, but also believed that he did not use a deadly weapon or any weapon at all in so doing. However, because their only option was to convict of felony assault or of nothing at all, the jury may have felt compelled to return a guilty verdict.
As our Supreme Court has advised, ". . . the jury must be allowed to 'consider the full range of possible verdicts—not limited by the strategy, ignorance, or mistakes of the parties,' so as to 'ensure that the verdict is no harsher or more lenient than the evidence merits.' " (People v. Breverman, supra, 19 Cal.4th at p. 160.) Here, the instructional omissions prevented the jury from doing its job. It forced them to make an all-or-nothing choice between convicting Lindsey of felony assault with a deadly weapon or of nothing at all, and then it tipped the scales in favor of conviction by failing to enlighten the jury regarding the law of self defense.
The second prong of the People's prejudice analysis is weaker than the first. They contend that it is not reasonably likely that a self defense or simple assault instruction would have made any difference because this case was essentially a credibility contest and "[u]nfortunately for appellant, the prosecution evidence was strong, while the defense evidence was weak." Of course, the People have already conceded that there was substantial evidence that Lindsey acted in self defense and that he committed a simple assault as opposed to the charged felony assault with a deadly weapon. Beyond that, we are not persuaded by the People's subjective assessment of the strength of the prosecution evidence.
The evidence at trial raised significant questions about the circumstances surrounding the physical altercation during which Virk sustained his injuries. Perhaps the most relevant example pertains to the evidence of what, if anything, Lindsey had in his hand during that altercation. The prosecution consistently maintained that it was the metal cane while the defense claimed that Lindsey had nothing in his hand. The defense theory was supported by Lindsey's testimony, but it was also consistent with statements that Ross made prior to trial. The prosecutor's theory was supported by Virk's trial testimony, although the jury could have questioned Virk's credibility since he had previously told the investigating officer that he was hit with a bat or club but then testified at trial that he actually saw the metal cane in Lindsey's hand. Furthermore, contrary to the People's contention on appeal, Ross's testimony did not necessarily support the prosecution theory in this case. Even if the jury was untroubled by the fact that Ross changed her story at trial and testified she did see something in Lindsey's hand, Ross expressly acknowledged that she did not see a metal cane.
The conflicting evidence pertaining to the deadly weapon element of the charged offense, though not the only example of a material conflict that the jury had to resolve, is particularly relevant to our prejudice analysis for two additional reasons. First, this record strongly suggests that the jury struggled with the deadly weapon element of the charged offense. During deliberations the jury asked for a read-back of Ross's testimony on that subject and then asked whether it could find Lindsey guilty if he used some weapon other than a cane. Furthermore, although the jury ultimately returned a verdict of guilt, it also made an express finding that Lindsey did not inflict great bodily injury on Virk.
The jury's conclusions that Lindsey used some object as a deadly weapon but did not inflict great bodily injury, though not necessarily inconsistent, deepen our concern that the jury may have been confused about what constitutes a deadly weapon. The only instruction the jury received about that was included in the felony assault instruction which defined a deadly weapon as "any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that its capable of causing and likely to cause death or great bodily injury."
Second, two other errors that occurred at trial directly implicated the deadly weapon element of the charged offense. The trial court erroneously precluded defense counsel from impeaching Ross with prior statements about what she saw in Lindsey's hand during the physical altercation, and then wrongly accused defense counsel of gamesmanship. The People understate the gravity of these errors, suggesting that there is no reason to assume that Ross's interview with the defense investigator was materially different from the trial evidence and that the trial court's improper comment was brief and not part of a continuing pattern of abuse. The People simply ignore that these errors pertained to a material issue in this case and they could well have improperly influenced the jury in favor of the prosecution by distracting them from the difficult job of assessing Ross's credibility and by preventing the defense from fully exploring what Ross actually saw.
Any residual doubt about the cumulative prejudicial effect of these errors disappears when we consider the court's decision to give a flight instruction which was not supported by the trial evidence. That instruction, combined with the court's refusal to let the jury hear what Ross told the defense investigator, and the improper accusation of defense "gamesmanship," could have been interpreted by the jury as a message that the trial judge was privy to information that was not presented at trial and that he believed that the defendant was guilty. The possibility that the trial court influenced the jury in this way is not tolerable, particularly in a case in which the jury was denied the opportunity to consider the full range of possible verdicts that were supported by the evidence presented at trial.
IV. DISPOSITION
The judgment is reversed and this case is remanded to the trial court.
Haerle, J. We concur: Kline, P.J. Lambden, J.