Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCS226071, Ana L. Espana, Judge.
HALLER, J.
John Stewart appeals from a judgment convicting him of battery by a prisoner. He argues the judgment must be reversed because: (1) the trial court violated his constitutional right to a jury determination on each element of the offense by taking judicial notice of the order confining him to prison; (2) there was insufficient evidence to support the existence of a confinement order; and (3) the court erred in failing to instruct the jury on the lesser included offense of assault. We reject these contentions of reversible error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
George Reid, a correctional officer at Donovan State Prison, testified that on August 7, 2008, Stewart approached Reid while Reid was at a desk supervising showers for the inmates. Stewart asked Reid for a bar of soap, and Reid placed a half bar of soap on the desk. Stewart, sounding agitated, told Reid he wanted a whole bar of soap. Reid showed Stewart that he only had half bars. Stewart again demanded a full bar. When Reid indicated that was all they had, Stewart picked up the half bar of soap, took a few steps toward the shower, and then turned and threw the bar of soap at Reid. The soap hit Reid just above his right eye. The impact hurt, but did not leave any injuries. Reid ordered Stewart to lay down; Stewart complied and Reid handcuffed him.
Testifying on his own behalf, Stewart stated that when Officer Reid showed him there were only half bars of soap available, he merely told Reid he did not want the soap and he put it back down on the desk. When he started walking away, Reid told him to lay down and he complied. Stewart testified he never became angry or upset at Reid, never yelled at him, and never threw the soap at him.
The jury found Stewart guilty of battery by a prisoner, and the court sentenced him to two additional years in prison.
DISCUSSION
I. Judicial Notice of Confinement Order and Sufficiency of Evidence for Confinement Order
Penal Code section 4501.5 defines the offense of battery by a prisoner on a nonprisoner as follows: "Every person confined in a state prison of this state who commits a battery upon a person of any individual who is not himself a person confined therein shall be guilty of a felony...." (Italics added.) Section 4504 defines the element of "confined in a state prison" as follows: "A person is deemed confined in a 'state prison' if he is confined in any of the prisons and institutions specified in Section 5003 by order made pursuant to law... regardless of the purpose of such confinement and regardless of the validity of the order directing such confinement, until a judgment of a competent court setting aside such order becomes final." (§ 4504, subd. (a), italics added.)
Subsequent unspecified references are to the Penal Code.
Stewart contends the trial court violated his constitutional right to a jury determination of each element of the offense because it took judicial notice of the order committing him to prison, and then instructed the jury that it must accept as true that his presence at the prison was a result of this order. He also asserts there is insufficient evidence to support the jury's guilty verdict because, apart from the improper judicial notice, there was no evidence presented to the jury showing a confinement order.
A. Background
At the conclusion of the prosecution's case-in-chief, outside the presence of the jury, defense counsel moved for dismissal, arguing the prosecution had not established all the elements of the offense. Defense counsel asserted that although the evidence showed Stewart was at the prison, there was no evidence that he was placed there by an order made pursuant to law. The prosecutor responded that the evidence showing Stewart was a prison inmate sufficed to establish the confinement element. However, if the court concluded otherwise, the prosecutor asked to reopen the prosecution's case to submit Stewart's certified prison package into evidence. The package included an abstract of judgment showing Stewart was sentenced to four years in prison for robbery and burglary convictions. The court denied the defense motion to dismiss, finding the officer's testimony describing Stewart as an inmate was sufficient to satisfy the confinement element.
Before the commencement of the defense case, the issue of the confinement order was revisited during a discussion of jury instructions. Defense counsel reiterated his contention that there was no evidence showing a confinement order, and requested that the court include the portion of the standard CALCRIM instruction (CALCRIM No. 2723) that defines the confinement element as meaning confined "by an order made according to law." Defense counsel acknowledged that it was "obvious" Stewart was committed to prison, but asserted the prosecution was required to prove the confinement order as a statutory element of the offense. The prosecutor argued the actual confinement order did not need to be presented. However, the prosecutor stated if the court instructed the jury regarding a confinement order, the prosecution case needed to be reopened to either submit the prison package into evidence or (in anticipation that Stewart intended to testify) to question Stewart about his confinement.
The court decided to give the portion of CALCRIM No. 2723 referring to the confinement order. The court noted that "anyone would surmise if he's an inmate, he's been committed by court there, " but concluded the order should be presented. Over defense objection, the trial court ruled the prosecutor could reopen its case to prove the existence of the confinement order. The prosecutor initially proffered the prison package to prove the order, but in response to a defense objection to these documents, later retrieved and proffered certified copies from the court file showing the minute order and abstract of judgment committing Stewart to prison.
During these discussions, the court inquired whether defense counsel wanted to stipulate to the existence of the confinement order to avoid providing the jury with the documents reflecting Stewart's convictions for robbery and burglary. Defense counsel declined to stipulate. The parties engaged in a lengthy discussion about whether the documents reflecting the confinement order had to be submitted to the jury, or whether the trial court could take judicial notice of the order and instruct the jury that the order existed. At one point, defense counsel stated the court should be "very wary" of taking judicial notice of questions that are for the jury to decide. Similarly, the prosecutor stated his view that the existence of the confinement order was a factual issue that had to be proven, and the documents either had to be submitted to the jury, or the defense had to stipulate to the existence of the order. The prosecutor repeatedly stated that he was prepared to submit the documents to the jury.
However, during the course of the discussions, both the prosecutor and defense counsel also made statements reflecting that they thought the judicial notice route was permissible. At one point defense counsel explicitly stated that if the prosecutor requested judicial notice, the court could grant the request and the documents would not need to be submitted into evidence. The court ultimately concluded this was the approach it would take. The prosecutor also eventually agreed this was the better approach, and defense counsel made no objection. The court and the prosecutor agreed on the language the court would use to instruct the jury on the issue, and again defense counsel made no objection.
After concluding these discussions, the proceedings resumed in the presence of the jury. The prosecutor reopened the prosecution's case, and requested judicial notice of the court documents. Defense counsel stated he was objecting "for the record." The court granted the judicial notice request, and instructed the jury as follows: "[T]he court has taken judicial notice of court files and determined that Mr. Stewart's presence at Donovan State Prison on August 7th, 2008, was, in fact, the result of a judicial commitment made according to law. Again, you must consider this fact as true."
When the trial court instructed the jury on the elements of the charged battery offense that must be proven by the prosecution, it used the standard CALCRIM language stating: (1) the defendant must have been "serving a sentence" in prison when he acted, and (2) a "person is serving a sentence in state prison if he is confined to the... [f]acility by an order made according to law." (See CALCRIM No. 2723.) In closing argument, the prosecutor referred to the confinement and order issues, arguing: "When the defendant acted, he was serving a sentence in the California State prison. Obviously he was. He didn't walk himself into the prison. [¶] You heard a judicial - you heard - the Judge told you, don't speculate as to why he was there, as to whether or not he was even there by lawful order or not. The Judge told you that's not a consideration for you. [¶] He was - the element... is met. He was an inmate. Officer Reid told you that, the defendant told you that. He was an inmate in the state prison."
B. Analysis
1. Jury Trial Right on Confinement Order
A defendant has a constitutional right to have the jury determine every element of the charged offense. (People v. Kobrin (1995) 11 Cal.4th 416, 423.) An instruction telling the jury that an element of the offense has been conclusively established violates the defendant's constitutional right to trial by jury. (Id. at p. 423, & fn. 4.) The requirement that all the elements of the offense be submitted to the jury applies no matter how overwhelming the prosecution's evidence may be. (Id. at p. 423.) When the law mandates jury resolution of a fact, the trial court may not remove the issue from the jury's consideration by taking judicial notice of a matter establishing the fact. (People v. Barre (1992) 11 Cal.App.4th 961, 965-966.)
In contrast, a court may judicially notice, and instruct the jury on the truth of, matters that are not mandatory jury issues. (See, e.g., People v. Brown (1988) 46 Cal.3d 432, 443-444; People v. Moore (1997) 59 Cal.App.4th 168, 186-187; Evid. Code, § 457; see also People v. Wiley (1995) 9 Cal.4th 580, 594.)
Here, at defense counsel's urging, the court identified two distinct matters that needed to be proven to establish Stewart's guilt: (1) that he was confined in prison, and (2) that his confinement was pursuant to a court order. After much discussion with the parties, the court decided the existence of a confinement order should be resolved by the court by means of judicial notice. Accordingly, the jury was told that it needed to find that Stewart was serving a prison sentence, which meant that he was confined under a court order. The jury was also told it should accept as true that his presence at the prison was the result of a judicial commitment. Taken together, the instructions told the jury that if it found the defendant was serving a prison sentence, it should accept as true that there was a confinement order.
To establish battery by a prisoner, section 4501.5 sets forth the element of confinement, and section 4504 defines confinement as meaning confined by an order. We agree with Stewart that both the actual confinement and the existence of the order were matters for the jury to resolve because they are "part and parcel" of the statutory element of confinement in state prison by order made pursuant to law.
However, the record reflects that defense counsel in effect agreed the trial court, rather than the jury, should resolve the issue of the existence of a confinement order, apparently for the tactical purpose of keeping from the jury the nature of Stewart's convictions. When defense counsel makes a deliberate tactical choice to remove an issue from the jury's consideration, the defendant cannot complain on appeal that he has been deprived of his jury trial right on the issue. (See People v. Moore, supra, 59 Cal.App.4th at pp. 185-186, fn. 18 [jury trial right not implicated when defendant stipulates to a fact]; People v. Catlin (2001) 26 Cal.4th 81, 150 [counsel's tactical decision not to have jury instructed on definition of element barred claim of error under invited error doctrine].) The record shows the prosecutor was fully prepared to submit the minute order and abstract of judgment to the jury to prove the confinement order. After a lengthy discussion with counsel, rather than submitting the documents to the jury, the court decided to take judicial notice of the order and instruct the jury to accept its existence as true. Although defense counsel did not request the judicial notice and formally objected on the record, at the conclusion of the discussions with the court he agreed this was a permissible means of presenting the order to the jury and did not object to the procedure.
In pretrial motions defense counsel obtained a ruling that Stewart's prior convictions (admissible for impeachment during his testimony) would be sanitized to remove references to robbery and burglary. Accordingly, when Stewart testified, he acknowledged he had been convicted of felonies involving moral turpitude, but no evidence was presented showing the nature of his convictions.
Alternatively, even if defense counsel did not effectively agree to the trial court's resolution of the order's existence, any error in removing the issue from the jury's consideration was harmless beyond a reasonable doubt. (People v. Sakarias (2000) 22 Cal.4th 596, 625.) Contrary to Stewart's contention, the alleged error is not structural error requiring automatic reversal. Although there may be cases "in which a trial court's instruction removing an issue from the jury's consideration will be the equivalent of failing to submit the entire case to the jury" so as to create structural error, this is not such a case. (People v. Flood (1998)18 Cal.4th 470, 503.) The jury was instructed to resolve the elements of battery by a prisoner, including the element that the defendant was "serving a sentence" in prison. The only issue resolved by the judge was the existence of a commitment order. "Omission or removal of a single element from the jury is not... 'a structural defect in the trial mechanism that defies harmless error review or automatically requires reversal....' " (People v. Sakarias, supra, 22 Cal.4th at p. 625.) The verdict may be affirmed "despite the error if the jury that rendered the verdict at issue could not rationally have found the omitted element unproven; the error is harmless, that is, if the record contains no substantial evidence supporting a factual theory under which the elements submitted to the jury were proven but the omitted element was not." (Ibid.)
Based on the instructions given to the jury, the jury found that Stewart was serving a sentence in prison. A person cannot be serving a prison sentence without a court order imposing the sentence. During the discussions with the court, Stewart did not suggest that he was confined pursuant to a fraudulent order that was not issued by a court; to the contrary, defense counsel stated that he was not making a claim that Stewart was unlawfully confined. Absent some indication of fraud, no rational jury could conclude a person who was serving a prison sentence was not in prison pursuant to an order issued by a court. Under these circumstances, there is no possibility that the removal of the issue of the order's existence contributed to the jury's verdict. (People v. Flood, supra, 18 Cal.4th at p. 504.)
2. Sufficiency of the Evidence of Confinement Order
Stewart concedes that Officer Reid's testimony established that Stewart was an inmate, but asserts there was no evidence that he was an inmate pursuant to an order. He bases this assertion on the fact that it was the trial court, not the jury, that reviewed the documents and made a finding that there was a confinement order. As stated, any error arising from the failure to submit the issue of the confinement order to the jury was harmless beyond a reasonable doubt. The possible error arising from the trial court's resolution of this issue does not translate into a deficiency in the evidence. Except for the jury trial issue, Stewart has not challenged the propriety of the court's rulings reopening the case and taking judicial notice of the court documents. The judicially-noticed court records support the existence of the confinement order. (People v. Moore, supra, 59 Cal.App.4th at p. 185 [judicial notice is substitute for formal proof of fact]; Evid. Code, § 452, subd. (d) [court records may be judicially noticed]; People v. Wiley, supra, 9 Cal.4th at p. 594 [same].)
Additionally, even without the actual court records showing the confinement order, the record supports the existence of the order. The testimony that Stewart was a prison inmate supports an inference that he was sentenced to prison, which in turn supports (and indeed compels) a finding that a sentence was imposed pursuant to a court order. (See People v. Zamudio (2008)43 Cal.4th 327, 357 [appellate court presumes in support of judgment all facts that trier of fact could reasonably deduce from evidence].) Stewart's challenge to the sufficiency of the evidence is unavailing.
II. Instruction on Lesser Included Offense
Stewart asserts the trial court should have instructed the jury on the lesser included offense of assault because the evidence could support an assault conviction.
A trial court has a sua sponte duty to instruct on a lesser included offense when there is evidence from which the jury could conclude that the lesser, but not the greater, offense was committed. (People v. Manriquez (2005)37 Cal.4th 547, 584.) The duty to instruct on a lesser included offense applies even when the lesser offense theory conflicts with the defendant's theory of defense. (See People v. Moye (2009) 47 Cal.4th 537, 548-549.) To determine whether the evidence warrants instruction on a lesser included offense, the trial court should not evaluate the credibility of witnesses and should resolve doubts in favor of giving the instruction. (People v. Manriquez, supra, 37 Cal.4th at p. 585; People v. Strozier (1993) 20 Cal.App.4th 55, 63.)
However, there is no duty to instruct "when there is no evidence the offense was less than that charged." (People v. Moye, supra, 47 Cal.4th at p. 548.) To trigger the sua sponte duty to instruct, the evidence in support of the lesser offense must be substantial enough to merit consideration by the jury. (Id. at p.553.) The instruction should not be given when the "defendant, if guilty at all, could only be guilty of the greater offense, i.e., when the evidence, even when construed most favorably to the defendant, would not support a finding of guilt of the lesser included offense but would support a finding of guilt of the offense charged." (People v. Stewart (2000) 77 Cal.App.4th 785, 796.) On appeal we independently determine whether a lesser included offense instruction should have been given. (People v. Manriquez, supra, 37 Cal.4th at p. 584.)
A lesser offense is necessarily included within a greater offense if the greater offense cannot be committed without also committing the lesser offense. (People v. Reed (2006) 38 Cal.4th 1224, 1227.) Simple assault is a lesser included offense of battery because an assault is "nothing more than an attempted battery." (People v. Fuller (1975) 53 Cal.App.3d 417, 421.) Battery requires a touching of the victim; the least touching suffices and infliction of injury is not necessary. (People v. Marshall (1997)15 Cal.4th 1, 38; People v. Colantuono (1994)7 Cal.4th 206, 214, fn. 4.) Assault is complete upon the initiation of force towards the victim when the next movement will likely cause a battery, even if no touching occurs. (People v. Colantuono, supra, 7 Cal.4th at pp. 216-217; People v. Page (2004) 123 Cal.App.4th 1466, 1473.)
There was insufficient evidence to support a finding that an assault, but not a battery, was committed. Officer Reid testified that when Stewart threw the soap, the soap hit him just above his eye. Stewart testified he never threw the soap but simply placed the soap on the desk and started walking away. On cross-examination, the prosecutor presented Stewart's preliminary hearing testimony in which he stated he set the soap down " 'real hard.' "
The only evidence in the record was that Stewart either touched Reid when he threw the soap, thereby committing a battery, or that he did not initiate any force towards Reid with the soap. Even if he placed the soap down forcefully on the desk, this did not alone suggest he was trying to direct the soap at Officer Reid. The evidence shows he was either guilty of battery or not guilty at all. Because there was no evidence that could support an assault finding, the trial court properly did not instruct on this lesser offense.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., IRION, J.