Opinion
B226693
10-04-2011
THE PEOPLE, Plaintiff and Respondent, v. DARRYL WINSTON, Defendant and Appellant.
Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA110804)
APPEAL from a judgment of the Superior Court of Los Angeles County. Rose Hom, Judge. Affirmed as modified.
Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Darryl Winston of assault upon a peace officer or firefighter (Pen. Code, § 245, subd. (c)) (count 1); resisting an executive officer (§ 69) (count 2); misdemeanor resisting, delaying, or obstructing an officer (§ 148) (counts 3, 4); and battery (§ 243, subd. (c)(4)) (count 5).
All further references to statutes are to the Penal Code unless stated otherwise.
This offense was a lesser included offense of the charged violation of section 69 in counts 3 and 4.
The trial court sentenced appellant to four years in state prison. The sentence consisted of the midterm of four years in count 1, a concurrent midterm of two years in count 2, and a stayed term in count 5 pursuant to section 654. The trial court imposed a term of one year for each misdemeanor count, to be served concurrently to count 1.
Appellant appeals on the grounds that: (1) there was insufficient evidence establishing that the force used in the assault in count 1 was likely to produce great bodily injury; (2) the trial court erred by failing to instruct the jury with CALCRIM Nos. 200, 201, and 223; and (3) the trial court erred when it imposed the DNA penalty assessment under Government Code section 76104.7. Appellant also requests this court to conduct an independent review of the in camera hearing on his Pitchess motion.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
FACTS
On February 10, 2010, at approximately 8:00 p.m., Officer Lisa Forsberg of the Los Angeles Police Department and her partner, Officer Brian Albonetti, were conducting surveillance on foot in the Nickerson Gardens Housing Development. The officers were wearing their full uniforms and their badges. Narcotics sales were common in that area.
The officers were watching a home on East 115th Street for possible narcotics activity. Officers Albonetti and Forsberg saw appellant come out of the home through the back door and engage in a "hand-to-hand" transaction in which he exchanged a small object for money with a person and then went back inside the home. Officer Albonetti believed he saw 50 to 60 such transactions within a two-hour period, and each transaction took less than a minute.
Officers Albonetti and Forsberg eventually approached appellant's back door with the intent of detaining him for a narcotics investigation. Officer Albonetti saw that the outer screen door was slightly open, and a Hispanic man was standing outside the door as appellant stood in the doorway. As the Hispanic man was leaving, he saw Officer Albonetti and ran away. Officer Albonetti yelled, "Stop, police," to appellant. Appellant grabbed the door to close it. Officer Albonetti placed his hand on the door to stop it from closing and grabbed appellant by the left arm. Appellant quickly turned and hit officer Albonetti on the bridge of the nose with a closed right fist.
Officer Albonetti knew that his nose was bleeding. He had blurred vision and was disoriented. The punch stunned him at first, and his nose hurt. Officer Albonetti was later transported to a hospital where he was treated for a half-inch cut across the bridge of the nose and released. He suffered from pain for "[j]ust that week."
Officer Forsberg tried to detain appellant but was unable to do so. Appellant went inside and slammed and locked the inner door. Officer Forsberg called for assistance, and Officers Carlos Coronel and Jesus Garcia responded from a nearby location. Officer Garcia kicked the rear door open after he heard people running around inside and the sound of a toilet being flushed. Officers Coronel and Garcia, who were also in uniform, entered with Officer Forsberg, who saw four to six people inside the home. Appellant was lying face down on the floor of the living room. When Officer Garcia ordered everyone to the ground, appellant jumped to his feet and ran toward the front door. Appellant tried to hit Officer Garcia with his free elbow when Officer Garcia grabbed appellant's arm. All three officers had to grapple with appellant and use physical force in order to detain him. Appellant ignored the officers' commands to stop resisting. Eventually, a hobble restraint was used to control appellant. Once appellant was handcuffed, he was carried out of the home.
Officer Coronel found money in multiple denominations inside a hat in the bathroom sink and in a purse. He found a gram scale with an off-white substance resembling cocaine on its top surface. The money and scale were booked into evidence. Defense Evidence
Since the jury found that the gang allegations in this case were not true, the gang expert's testimony is not summarized.
Appellant did not present any evidence on his behalf.
DISCUSSION
I. Sufficiency of the Evidence
A. Appellant's Argument
Appellant contends that there was insufficient evidence to support his conviction in count 1 because it was not established beyond a reasonable doubt that the force used in the assault was likely to produce great bodily injury.
B. Relevant Authority
"The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must 'review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.]" (People v. Ceja (1993) 4 Cal.4th 1134, 1138.) "[A]n appellate court may not substitute its judgment for that of the jury. If the circumstances reasonably justify the jury's findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding." (Id. at p. 1139.) Before a conviction may be set aside, "it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support it." (People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1765.) "[T]he question of whether or not the force used was such as to have been likely to produce great bodily injury, is one of fact for the determination of the jury based on all the evidence, including but not limited to the injury inflicted." (People v. Muir (1966) 244 Cal.App.2d 598, 604.)
C. Evidence Sufficient
Section 245, subdivision (c), provides in pertinent part that "[a]ny person who commits an assault . . . by any means likely to produce great bodily injury upon the person of a peace officer . . . and who knows or reasonably should know that the victim is a peace officer . . . engaged in the performance of his or her duties, when the peace officer . . . is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for three, four, or five years." As the jury was instructed, section 245, subdivision (c), requires an assault with "force likely to produce great bodily injury." (CALCRIM No. 860.) CALCRIM No. 860 told the jury that "great bodily injury" means "significant or substantial physical injury," and that it was "an injury that is greater than minor or moderate harm."
Appellant asserts that the blow he struck was merely a distraction to provide him with the opportunity to close the door; it was not an attempt to inflict great bodily injury. Appellant points out that Officer Albonetti testified that he did not know how he sustained the half-inch cut across the bridge of his nose, and his nose hurt for only a few days. Appellant cites People v. Wells (1971) 14 Cal.App.3d 348, 358, for the proposition that the nature and extent of the injury is a relevant and controlling factor in determining whether the force used was likely to cause great bodily injury. He also complains that the prosecution failed to put forth evidence as to the force of the punch; the height, weight, and build of appellant and Officer Albonetti; and the cause of the cut.
We believe there was sufficient evidence to show appellant committed an assault with force likely to inflict great bodily injury. The force used need not actually produce any injury to be found sufficient to constitute such an assault. (People v. Fierro (1991) 1 Cal.4th 173, 251.) When addressing the issue of great bodily injury with respect to what is currently section 245, subdivision (a)(1), People v. Wingo stated that the statute proscribes a wide spectrum of conduct ranging from great violence against the victim to mere attempts to seriously injure that are completely futile. (People v. Wingo (1975) 14 Cal.3d 169, 176-177, 178.) The focus is on the force employed by the perpetrator; whether or not an injury occurred at all is immaterial. (People v. Parrish (1985) 170 Cal.App.3d 336, 343.) Although the extent of the actual injury inflicted is relevant, "an injury is not an element of the crime, and the extent of any injury is not determinative." (People v. Covino (1980) 100 Cal.App.3d 660, 667.)
In this case, appellant hit Officer Albonetti with his right closed fist on the bridge of the officer's nose. Officer Albonetti immediately experienced blurred vision. He was stunned and his injury hurt. He knew he was bleeding. The record contains a photograph of Officer Albonetti that was seen by the jury, and it shows the officer bleeding profusely from the bridge of his nose and from the inside of his nose. The officer testified that there was a half-inch laceration across the bridge of his nose. When the officer said he did not know how the cut occurred, he clearly was referring only to the fact that he did not know if it was caused by something appellant wore, as he stated, or just by the punch. Officer Albonetti's treating physician said the nose possibly sustained a small fracture. The jury was entitled to believe that, had the officer's nose been slightly more fragile, he would have suffered an obviously fractured nose. Officer Albonetti said he suffered pain for the rest of the week. Although appellant posits that, since the incident occurred on a Wednesday, the pain lasted only several days, we are not persuaded by this argument. Four days of pain are not so negligible as to negate the likelihood of appellant's punch being capable of causing great bodily injury. As for the respective physical builds of Officer Albonetti and appellant, both men were visible to the jury. There was no evidence either man had changed significantly in the four months that had elapsed since the incident.
We conclude, after an examination of the record as a whole, and viewing the facts in the light most favorable to the prosecution, that a rational trier of fact could have found all of the elements of the offense of assault by means likely to produce great bodily injury upon a peace officer beyond a reasonable doubt. (§ 245, subd. (c); Jackson v. Virginia (1979) 443 U.S. 307, 319.) The blow inflicted by appellant was likely to produce great bodily injury and did inflict the injury described ante. Because sufficient evidence supports the verdict, appellant was not deprived of his constitutional right to due process of law.
II. Missing Jury Instructions
A. Appellant's Argument
Appellant contends the trial court prejudicially erred when it failed to read sua sponte three predeliberation instructions, i.e., CALCRIM Nos. 200, 201, and 223. The instructions were also omitted from the written instructions that the jury consulted in the jury room. Therefore, the jury was not instructed as to its duties, its conduct, and the definition of direct and circumstantial evidence. Appellant asserts that the omission resulted in a violation of appellant's due process right to have a fair and impartial jury determine every material issue presented by the evidence and of his fundamental right to trial by jury.
CALCRIM No. 200 provides: "Members of the jury, I will now instruct you on the law that applies to this case. [I will give you a copy of the instructions to use in the jury room.] [Each of you has a copy of these instructions to use in the jury room.] [The instructions that you receive may be printed, typed, or written by hand. Certain sections may have been crossed out or added. Disregard any deleted sections and do not try to guess what they might have been. Only consider the final version of the instructions in your deliberations.] [¶] You must decide what the facts are. It is up to all of you, and you alone, to decide what happened, based only on the evidence that has been presented to you in this trial. [¶] Do not let bias, sympathy, prejudice, or public opinion influence your decision. Bias includes, but is not limited to, bias for or against the witnesses, attorneys, defendant[s] or alleged victim[s], based on disability, gender, nationality, national origin, race or ethnicity, religion, gender identity, sexual orientation, age, [or] socioeconomic status (./,) [or ______ <insert any other impermissible basis for bias as appropriate>.][¶] You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions. [¶] Pay careful attention to all of these instructions and consider them together. If I repeat any instruction or idea, do not conclude that it is more important than any other instruction or idea just because I repeated it. [¶] Some words or phrases used during this trial have legal meanings that are different from their meanings in everyday use. These words and phrases will be specifically defined in these instructions. Please be sure to listen carefully and follow the definitions that I give you. Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings. [¶] Some of these instructions may not apply, depending on your findings about the facts of the case. [Do not assume just because I give a particular instruction that I am suggesting anything about the facts.] After you have decided what the facts are, follow the instructions that do apply to the facts as you find them."
CALCRIM No. 201 provides: "Do not do any research on your own or as a group. Do not use a dictionary, the Internet, or other reference materials. Do not investigate the facts or law. Do not conduct any experiments, or visit the scene of any event involved in this case. If you happen to pass by the scene, do not stop or investigate." CALCRIM No. 223 provides: "Facts may be proved by direct or circumstantial evidence or by a combination of both. Direct evidence can prove a fact by itself. For example, if a witness testifies he saw it raining outside before he came into the courthouse, that testimony is direct evidence that it was raining. Circumstantial evidence also may be called indirect evidence. Circumstantial evidence does not directly prove the fact to be decided, but is evidence of another fact or group of facts from which you may logically and reasonably conclude the truth of the fact in question. For example, if a witness testifies that he saw someone come inside wearing a raincoat covered with drops of water, that testimony is circumstantial evidence because it may support a conclusion that it was raining outside. [¶] Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence."
B. Relevant Authority
In criminal cases "'[a] trial court has a duty to instruct the jury "sua sponte on general principles which are closely and openly connected with the facts before the court."'" (People v. Gutierrez (2009) 45 Cal.4th 789, 824; see People v. Breverman (1998) 19 Cal.4th 142, 154.) We review de novo a claim that the trial court failed to properly instruct the jury on the applicable principles of law. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) "In determining the correctness of jury instructions, we consider the instructions as a whole. [Citation.]" (People v. Campos (2007) 156 Cal.App.4th 1228, 1237.)
C. Harmless Error
As the bench notes to CALCRIM No. 200 state, the trial court has a sua sponte duty to instruct the jurors that they are the exclusive judges of the facts and that they are entitled to a copy of the jury instructions in the deliberation room. There is, however, no sua sponte duty to instruct on the other information contained in the instruction. (See §§ 1093, subd. (f), 1127.)
In this case, the jurors did not need to be told they were entitled to a copy of the jury instructions, since the record shows they did indeed receive copies. The jury was told in another instruction that they "must decide what the facts are in this case" and "must use only the evidence that was presented in this courtroom . . . ." (CALCRIM No. 222.) Also, prior to opening statements, the trial court instructed the jury that "only the witnesses' answers are evidence." Before argument commenced, the trial court told the jury, "Please understand that, as before, what counsel say in their argument is not evidence. The only thing that is evidence is exhibits presented to you in the jury room, when you go into the jury room, also testimony under oath." Finally, much of CALCRIM No. 200 was read prior to opening statements on Thursday, July 15, 2010.Closing argument and the reading of final instructions occurred after a relatively short period of time had elapsed, i.e., on the following Monday, July 19, 2010. Considering all of these circumstances, we believe no prejudice resulted from the trial court's failure to read CALCRIM No. 200 immediately before deliberations began.
The trial court read during its pre-instruction the following instructions that form part of CALCRIM No. 200: "Some words or phrases that may be used during the trial have legal meanings that are different from their meanings in everyday use. These words and phrases will be specifically defined in the instructions. Please be sure to listen carefully and follow the definitions that I give you. Words and phrases not specifically defined in the instructions are to be applied using their ordinary everyday meanings." The trial court stated: "Do not let bias, sympathy, prejudice or public opinion influence your decision." The trial court also stated: "You must decide what the facts are in this case. You must use only the evidence that is presented in the courtroom . . . ."
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CALCRIM No. 201 tells the jury members not to investigate or do their own research. Prior to opening statements, the trial court read CALCRIM No. 201 to the jury. As noted, the trial was a short one, lasting only three days with a weekend before the final day. We believe the admonishment contained in CALCRIM No. 201 was still present in the jurors' minds, and it is presumed that jurors understand and follow instructions. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)
CALCRIM No. 223 explains the difference between direct and circumstantial evidence and tells the jury that neither type of evidence is entitled to more weight than the other. The trial court has a sua sponte duty to read these definitions to the jury if the prosecution's case rests substantially on circumstantial evidence. (People v. Heishman (1988) 45 Cal.3d 147, 167.) The record shows that the prosecution's case did not rest substantially on circumstantial evidence, but rather on the testimony of the police officers. As the prosecutor urged in closing argument, if the jury believed the officers, there was proof beyond a reasonable doubt. Defense counsel argued that the police were not in the lawful performance of their duties, and their accounts of the incident were not credible. Counsel also argued a theory of mistaken identity.
It is true that, since the trial court read CALCRIM Nos. 224 and 225 on the use of circumstantial evidence to conclude that a fact has been proved and to show the requisite intent or mental state, respectively, CALCRIM No. 223 should have also been given. We believe, however, that no miscarriage of justice resulted from a failure to do so in a case such as this one, which turned on the credibility of the victim officers. We note that the jury found the gang allegations to be "not true," thus rejecting the portions of the evidence that may have relied on circumstantial evidence, i.e., where "'guilt must be inferred from a pattern of incriminating circumstances.'" (People v. Heishman, supra, 45 Cal.3d at p. 167.) Moreover, when the jury is properly instructed on reasonable doubt, as here, the federal Constitution does not require the trial court to instruct on the evaluation of circumstantial evidence. (Holland v. United States (1954) 348 U.S. 121, 139-140.)
Under the circumstances of this case, it is not reasonably probable that appellant would have obtained a more favorable result had the trial court instructed the jury on the definition of circumstantial evidence by reading CALCRIM No. 223. We reach the same conclusion with respect to the failure to read, or re-read, CALCRIM Nos. 200 and 201. (People v. Watson (1956) 46 Cal.2d 818, 836; see also People v. Carpenter (1997) 15 Cal.4th 312, 393 ["Mere instructional error under state law regarding how the jury should consider evidence does not violate the United States Constitution"].) In any event, any federal constitutional error would be harmless beyond a reasonable doubt for the reason we have expressed ante. III. Pitchess Hearing
Appellant filed a Pitchess motion, which the People opposed. The trial court granted the motion as to the areas of false arrest, false reports, dishonesty, and excessive force with respect to Officers Albonetti, Forsberg, Coronel, and Garcia. At the in camera hearing, the trial court found that some of the complaints constituted discoverable material. The trial court ordered the information disclosed to the defense.
Appellant requests this court to conduct an independent review of the reporter's transcript of the in camera hearing in order to determine whether any police personnel records were incorrectly withheld. It is well established that trial courts are granted wide discretion when ruling on motions to discover police officer personnel records. (People v. Samayoa (1997) 15 Cal.4th 795, 827; People v. Memro (1995) 11 Cal.4th 786, 832.) We have reviewed the transcript of the May 14, 2010 in camera hearing and have determined that it constitutes an adequate record of the trial court's review of the documents provided to the court. We have determined that the trial court did not fail to disclose discoverable information from the officers' personnel files and did not abuse its discretion. (See People v. Mooc (2001) 26 Cal.4th 1216, 1228-1230, 1232.)
IV. DNA Penalty Assessment
Appellant contends that the trial court erred when it imposed a DNA penalty assessment under Government Code section 76104.7. Respondent concedes that appellant is correct and that the DNA penalty assessment should be stricken.
Government Code section 76104.7, subdivision (a), provides in pertinent part: "Except as otherwise provided in this section, in addition to the penalty levied pursuant to Section 76104.6, there shall be levied an additional state-only penalty of three dollars ($3) for every ten dollars ($10), . . . in each county upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses . . . ." In this case, the trial court did not impose an assessment under Government Code section 76104.6. Consequently, an assessment under Government Code section 76104.7 cannot be imposed.
Moreover, there was no fine, penalty, or forfeiture imposed that supported a DNA penalty assessment under either Government Code section 76104.6 or Government Code section 76104.7. The trial court imposed a restitution fine of $200 pursuant to section 1202.4 and a parole revocation restitution fine in the same amount pursuant to section 1202.45. By its express terms, the DNA penalty assessment does not apply to any restitution fine. (Gov. Code, § 76104.7, subd. (c)(1).) The DNA penalty assessment does not apply to the court security fee imposed under section 1465.8. (See § 1465.8, subd. (b) ["The penalties authorized by Chapter 12 (commencing with Section 76000) of Title 8 of the Government Code, and the state surcharge authorized by Section 1465.7, do not apply to this fee"]; see also People v. Valencia (2008) 166 Cal.App.4th 1392, 1396.) Finally, the criminal conviction assessment for court facilities imposed under Government Code 70373 does not carry a DNA penalty assessment. (Gov. Code, § 70373, subd. (b).) Thus, the $20 DNA penalty assessment must be stricken, and we shall order the abstract of judgment corrected accordingly.
DISPOSITION
The judgment is modified to strike the $20 DNA penalty assessment under Government Code section 76104.7. The clerk of the superior court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment reflecting this modification. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J. We concur:
DOI TODD, J.
ASHMANN-GERST, J.