Opinion
B222993
11-07-2011
THE PEOPLE, Plaintiff and Respondent, v. DAVID MOSES JASSY, Defendant and Appellant.
Marilee Marshall & Associates, Inc., and Marilee Marshall for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Carl N. Henry and Linda C. Johnson, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA349467)
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael Johnson, Judge. Affirmed.
Marilee Marshall & Associates, Inc., and Marilee Marshall for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Carl N. Henry and Linda C. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
David Moses Jassy was convicted of second degree murder, assault by means likely to produce great bodily injury and aggravated battery and sentenced to an aggregate state prison term of 15 years to life. On appeal Jassy mounts a broad ranging challenge to the proceedings in the trial court, including contentions that the evidence is insufficient to support his conviction for murder; the court committed prejudicial error in its evidentiary rulings and when instructing the jury; his counsel provided constitutionally ineffective assistance; and his sentence constitutes cruel and/or unusual punishment in violation of the United States and California Constitutions. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
Jassy was charged in an information with murder (Pen. Code, § 187, subd. (a)) (count 1), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) (count 2), assault with a deadly weapon (§ 245, subd. (a)(1)) (count 3), battery with the infliction of serious bodily injury (§ 243, subd. (d)) (count 4) and leaving the scene of an accident (Veh. Code, § 20001, subd. (a)) (count 5). It was specially alleged as to count 1 that Jassy had personally used a deadly and dangerous weapon, "to wit, an automobile," within the meaning of section 12022, subdivision (b)(1). It was also specially alleged as to counts 2 and 3 that Jassy had personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). Jassy pleaded not guilty and denied the special allegations.
Statutory references are to the Penal Code unless otherwise indicated.
2. The Trial
Jassy is a 37-year-old Swedish citizen who was on an extended business trip in Los Angeles in November 2008 when he encountered 55-year-old John Osnes. According to several witnesses at the scene, Osnes was crossing the street in a crosswalk at the intersection of Schrader Boulevard and Selma Avenue in Hollywood at 1:20 a.m. when Jassy drove his rented SUV past the stop sign and partially into the crosswalk. The SUV nearly hit Osnes before coming to a stop. Osnes, who at six feet was an inch taller than Jassy and about the same weight (162 pounds), slapped the front passenger side of the SUV with both hands just before the vehicle came to a complete stop and yelled something at Jassy. Jassy got out of the SUV and walked aggressively toward Osnes. Jassy's girlfriend, Therese Fischer, who was in the SUV's front passenger's seat, also got out of the car, but stayed close to the passenger door. As Jassy came toward him, Osnes put his hands in the air with the palms out "as if to surrender" and backed onto the sidewalk at the corner. Jassy immediately punched Osnes in the face while Osnes moved his hands defensively to block the blow. Jassy turned around and started walking back to his car, leading witnesses to believe the altercation was over. Then, when Osnes was rising from a kneeling or squatting position—he had bent down either to regain his balance or to retrieve his eyeglasses—Jassy turned to face Osnes, took a couple of steps and kicked Osnes "extremely hard" in the face like "a punter kicking a football." The kick lifted Osnes into the air in a horizontal "plank position" and appeared to render him unconscious. When he landed on his back, Osnes's head "bounced off the ground."
Jassy and Fischer returned to the SUV, and Jassy attempted to drive away. Off-duty Anaheim police officer Robert Young, who was in plainclothes, witnessed the incident. When Jassy returned to his car, Young ran to the SUV, identified himself as "Anaheim police" and screamed at Jassy to stop. Young held his badge in his hand and pressed it against the driver's side window as he attempted to open the driver's side door. The door was locked. With Young gripping the driver's door, Jassy put the car in gear and drove over Osnes, who was lying in the road. Jassy then accelerated the SUV, causing Young to lose his grip on the driver's side door. Jassy drove home, where he was arrested several hours later.
Dr. Ajay Panchal, a medical examiner with the Los Angeles County Coroner's Office, performed an autopsy on Osnes. Panchal testified Osnes had suffered blunt force trauma to his head from hitting the pavement, causing fatal hemorrhaging of the brain. Osnes also suffered severe lacerations to his liver when the SUV ran over him. Panchal opined the injury to Osnes's head and the injury to his liver were separate and independent causes of his death. Toxicology tests performed by Panchal revealed a .10 percent blood-alcohol level in Osnes's system. Other tests showed plaques in Osnes's brain possibly indicative of early Alzheimer's disease.
Jassy testified in his defense. Jassy explained he and Fischer had been driving home from a nightclub when he heard an extremely loud bang on the front of his car. The sound evoked a childhood memory of a car accident in which his mother had been killed. He looked toward Fischer's side of the car and saw a very angry Osnes continuing to slam his car hood with enough force to make the SUV move up and down. Jassy felt scared and protective of Fischer, who was visiting him from Sweden. He was in a foreign country. He did not know what was happening or why someone would be beating on his car. Jassy got out of the SUV to check the damage and confront Osnes. He yelled at Osnes, "What are you doing?" Osnes turned toward Jassy, displaying a "devilish grin." He appeared angry and drunk. Osnes put his hands up at about ear level with his palms cupped and his fingers pointed out like claws in a gesture that Jassy interpreted as dangerous and scary, not defensive. Osnes then punched Jassy in the face with his right hand. Jassy punched him back, causing Osnes to lose his balance. (Osnes's eyeglasses did not come off.) After Osnes staggered backward, Jassy immediately turned around and "took cover" in his car. Jassy insisted he never kicked Osnes. He testified "the only time" his "foot impact[ed] the man" was when Osnes grabbed for Jassy's legs during the altercation, and, even then, Jassy had not kicked him; he had jumped back to protect himself. It all happened very, very fast, in less than 15 or 20 seconds.
Jassy returned to his car and saw Officer Young running up to the SUV. Jassy was scared. He did not see Young's badge and did not know Young was a police officer. Jassy thought Young was affiliated with Osnes and was going to attack him. Young tried to open the car door and then jumped on the SUV's hood, all the while screaming at Jassy and punching at his windows to shatter them. Jassy could not hear what Young was saying. Jassy was frightened and thought he was going to be killed. He sped away, not realizing Osnes was in the street or that he had run over him with the SUV. Jassy immediately went home, believing he had escaped being killed. He did not know what had happened to Osnes, but did not believe he was dead. He was arrested the next day and became very emotional when police told him Osnes had died.
3. Voir Dire and Jury Instructions
During voir dire the defense moved to strike the entire jury panel, contending the People's use of five of its 15 peremptory challenges to excuse Hispanic jurors constituted racially motivated group bias in violation of Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69] (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in part by Johnson v. California (2005) 545 U.S. 162, 168-173 [125 S.Ct. 2410, 162 L.Ed.2d 129].) The court denied the motion, finding the defendant had failed to make a prima facie case the peremptory challenges were racially motivated.
At the close of the trial, the court instructed the jury, among other things, on first and second degree murder (CALCRIM Nos. 500, 520, 521), voluntary manslaughter (CALCRIM Nos. 570, 571, 522) and involuntary manslaughter based on a modified version of CALCRIM No. 580. During deliberations the jury asked, "Could we have a more precise definition of the difference between second degree murder and voluntary manslaughter?" The court instructed the jury to refer to CALCRIM Nos. 520, 521, 570, 571 and 522. The court did not identify the instruction it had given on involuntary manslaughter.
4. The Verdict and Sentence
The jury convicted Jassy of second degree murder, assault by means likely to produce great bodily injury and battery with serious bodily injury and found true the special allegations of great bodily injury as to the aggravated assault in count 3. The jury acquitted Jassy of assault with a deadly weapon and leaving the scene of an accident and found not true the special allegation he had used a deadly weapon in committing the murder.
The trial court denied Jassy's new trial motion and his alternative request to reduce the judgment of conviction to the lesser included offense of voluntary manslaughter. The court sentenced Jassy to a state prison term of 15 years to life for second degree murder. Imposition of sentence on the assault and battery offenses was stayed pursuant to section 654.
CONTENTIONS
Jassy contends (1) the court erred in finding he had not demonstrated a prima facie case of group bias in violation of Batson, supra, 476 U.S. 79 and Wheeler, supra, 22 Cal.3d 258; (2) the evidence was insufficient to support his murder conviction; (3) the trial court provided improper or incomplete jury instructions on causation that lessened the People's burden of proof; (4) the court's response to the jury's question on the difference between murder and voluntary manslaughter was misleading and incomplete because it did not refer to the instructions on involuntary manslaughter; (5) his trial counsel's failure to introduce a portion of his videotaped interview with police showing him becoming emotional after learning of Osnes's death constituted ineffective assistance of counsel; (6) the trial court erred in admitting into evidence gruesome autopsy photographs that were far more prejudicial than probative; (7) the trial court erred in denying his request for a mistrial based on late discovery of a witness's statement; (8) the trial court erred in denying his motion to discover Officer Young's personnel records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)and Evidence Code sections 1043 and 1045; (9) his sentence of 15 years to life constitutes cruel and/or unusual punishment in violation of the United States and California Constitutions.
DISCUSSION
1. The Trial Court Did Not Err in Rejecting Jassy's Wheeler/Batson Motion
a. Governing law
The exercise of peremptory challenges to remove prospective jurors based on group bias violates both the California and the United States Constitutions. (People v. Ward (2005) 36 Cal.4th 186, 200, citing Wheeler, supra, 22 Cal.3d at pp. 276-277 and Batson, supra, 476 U.S. at p. 89.) The procedural and substantive standards trial courts properly use when considering motions challenging peremptory strikes are well-established: "'"'First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race[; s]econd, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question[; and t]hird, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination.'"'" (People v. Hamilton (2009) 45 Cal.4th 863, 898, quoting Snyder v. Louisiana (2008) 552 U.S. 472, 476-477 [128 S.Ct. 1203, 170 L.Ed.2d 175] (Snyder).)
"[A] defendant satisfies the requirements of Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." (Johnson v. California, supra, 545 U.S. at p. 170.) "An inference is a logical conclusion based on a set of facts. [Citation.] When the trial court concludes that a defendant has failed to make a prima facie case, we review the voir dire of the challenged jurors to determine whether the totality of the relevant facts supports an inference of discrimination." (People v. Lancaster (2007) 41 Cal.4th 50, 74, citing Johnson, at p. 168 & fn. 4.)
b. Jassy failed to make a prima facie case the prosecutor's use offive
peremptory challenges against Hispanic potential jurors was racially
motivated
Jassy, who is Black, contends the People's use of five peremptory challenges against Hispanic jurors—one-third of the 15 peremptory challenges the People used—is sufficient by itself to demonstrate a prima facie case of discriminatory intent. In considering whether a prima facie case was established, "certain types of evidence may be especially relevant: '[T]he party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. He may also demonstrate that the jurors in question share only this one characteristic—their membership in the group—and that in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of his opponent to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all. Lastly, . . . the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court's attention.'" (People v. Bonilla (2007) 41 Cal.4th 313, 342.) None of that evidence is present here.
Jassy has not demonstrated the People exercised a disproportionate number of peremptory challenges against Hispanic prospective jurors. To the contrary, more of the People's peremptory challenges (seven of 15) were exercised against White jurors in this case. (Osnes was White.) Indeed, in finding a prima facie case had not been made, the trial court observed, without objection or clarification by counsel, that the five peremptory challenges directed to Hispanic potential jurors were "in no sense disproportionate to the overall percentage of [Hispanic panel members] that we have here. In fact it's quite representative and may be less than the overall percentage." Significantly, Jassy does not identify anything in the record to contradict the court's observation. (See People v. Hartsch (2010) 49 Cal.4th 472, 487 ["[i]t is the defendant's burden to make a prima facie showing [of group bias] and, to that end, the defendant should make as complete a record of the facts and circumstances as possible"].)
The record of the voir dire also shows race-neutral reasons for excusing four of the five Hispanic potential jurors. (People v. Lancaster, supra, 41 Cal.4th at p. 74; see People v. Gray (2005) 37 Cal.4th 168, 186 [when trial court denies motion to strike jury panel finding objector failed to make prima facie case of group bias, reviewing court should consider "the entire record of voir dire of the challenged jurors"].) Juror V-1531 explained in voir dire he had been treated unfairly by the Los Angeles County Sheriff's Department, which, in a case of mistaken identity, had arrested him and made him spend 10 days in jail for a domestic violence crime he did not commit. Another prospective juror, H-7306, explained that she did not trust police officers because police "plant evidence." Prospective juror R-8725, when asked about whether he had ever chased another person down due to "road rage," nodded his head affirmatively, explaining he had braked hard in front of someone who he thought was driving too closely to his rear bumper. Prospective juror number M-5452 explained she had witnessed a "very bad" accident in Hollywood involving an SUV and pedestrians in a crosswalk. She also said she would be very affected by photographs depicting the victim's injuries, but could not say for certain "how she would be affected." These revelations provide a legitimate, race-neutral basis to excuse each of the four prospective jurors. (See People v. Hartsch, supra, 49 Cal.4th at p. 489.)
It was the prosecutor's challenge to this potential juror, the fifth peremptory challenge to a Hispanic panel member, that prompted Jassy's Wheeler/Batson motion.
The court indicated in the record it was uncertain whether prospective juror M-5452 was Hispanic, but assumed she was for purposes of ruling on the motion.
Prospective juror S-5435 is a different matter. He explained his mother's boyfriend had been arrested or charged with a drug offense, but believed he could be fair to both sides in this case, which did not involve possession or sale of drugs. Nothing in the record discloses a race-neutral reason for the prosecutor's decision to excuse this prospective juror. Nonetheless, the exercise of a peremptory challenge against this prospective juror alone is not sufficient to raise the specter of group racial bias in jury selection. (See People v. Hartsch, supra, 49 Cal.4th at p. 489, fn. 16 [although "the objective factors supporting the challenge of [the juror] are unclear," "it is still the case that the challenge of a single apparently qualified prospective juror does not suggest racial discrimination, 'particularly "given the legitimate role that subjective factors may have in a prosecutor's decision" to challenge or not challenge jurors peremptorily'"]; see generally People v. Lenix (2008) 44 Cal.4th 602, 622 ["[m]yriad subtle nuances" not reflected in the record may shape an attorney's jury selection strategy, "including attitude, attention, interest, body language, facial expression and eye contact."].)
In sum, on the record before us, Jassy has failed to meet his burden of demonstrating a prima face case of discrimination in the prosecutor's use of peremptory challenges.
After Jassy made his Wheeler/Batson motion, the trial court appropriately invited the prosecutor to identify the reasons for the exercise of the peremptory challenges to the five Hispanic potential jurors. (See People v. Bonilla, supra, 41 Cal.4th at p. 343, fn. 13 [it is better for purposes of developing the appellate record for the trial court to permit the prosecutor to provide justifications for excusing minority group jurors because it assists the appellate court in evaluating the merits of the claim in the event it disagrees with trial court's conclusion on the first step of the Wheeler/Batson analysis]; People v. Hartsch, supra, 49 Cal.4th at p. 490, fn. 17 [same].) The prosecutor declined the court's invitation as to all but the potential juror whose excusal prompted the motion, believing, incorrectly, that, because Jassy is Black, the excusal of Hispanic potential jurors was "irrelevant." (See Bonilla, at p. 342 [defendant need not be member of excluded group to raise Wheeler/Batson error].) While the prosecutor would have done well to take the court up on its invitation and state her reasons for the record, the failure to do so here does not affect our review. For the reasons we have explained, the trial court's finding Jassy had failed to meet his initial burden of establishing a prima facie case for racial discrimination in jury selection is amply supported by the record.
2. Substantial Evidence Supports Jassy's Second Degree Murder Conviction
a. Standard of review
To assess a claim of insufficient evidence in a criminal case "we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
b. Governing law
Murder is the unlawful killing of a human being or a fetus "with malice aforethought." (§ 187, subd. (a); People v. Knoller (2007) 41 Cal.4th 139, 151; People v. Blakeley (2000) 23 Cal.4th 82, 87.) Malice may be express or implied. Malice is express when the defendant manifests an unlawful intent to kill. (§ 188; Blakeley, at p. 87 [malice is express "when the defendant manifests 'a deliberate intention unlawfully to take away the life of a fellow creature'"].) Malice is implied when "no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (§ 188; see Blakeley, at p. 87.)
Second degree murder "is the unlawful killing of a human being or a fetus, with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction for first degree murder." (People v. Knoller, supra, 41 Cal.4th at p. 151.)
Because the statutory definition of implied malice "has never proved of much assistance in defining the concept in concrete terms" (People v. Dellinger (1989) 49 Cal.3d 1212, 1217), the Supreme Court has held that implied malice exists "'when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.'" (People v. Taylor (2010) 48 Cal.4th 574, 623-624, accord, People v. Blakeley, supra, 23 Cal.4th at p. 87.) A finding of implied malice rests upon a determination that "the defendant actually appreciated the risk involved, i.e, a subjective standard." (People v. Watson (1981) 30 Cal.3d 290, 296-297.) It is not enough that the defendant know his or her conduct is substantially likely to result in great bodily injury. The defendant must appreciate that the conduct carries a risk of substantial danger to human life. (People v. Knoller, supra, 41 Cal.4th at p. 156 [implied malice cannot be based on defendant's awareness of the risk his or her conduct will result in serious bodily injury; "a conviction of second degree murder, based on implied malice, requires proof that defendant acted with conscious disregard of the danger to human life"].)
c. The punch and kick were substantial evidence of implied malice
Jassy contends his single punch to Osnes's face and subsequent kick to his head are insufficient evidence of implied malice to support his second degree murder conviction. However, if death "is a reasonable or probable consequence" of the punch or the kick, considered alone or in combination, and evidence was presented from which a jury may infer Jassy appreciated the risk his conduct created to human life, implied malice is established. (People v. Blakeley, supra, 23 Cal.4th at p. 88; see People v. Teixeira (1955) 136 Cal.App.2d 136, 150 ["Normally, hitting a person with the hands or feet does not constitute murder in any degree." "But if death . . . is a reasonable or probable consequence of the beating, the offense may be murder."].)
Here, five witnesses in addition to Officer Young saw the confrontation and testified Jassy punched Osnes in the face, causing him to lose his balance. Then, when Osnes was in a squatting position attempting to regain his balance, Jassy kicked his head "like a punter kicking a football." The coroner explained Jassy must have used 162 pounds of force to lift Osnes in the air and to cause Osnes's massive bruising and fractured facial bones. The jury could reasonably infer from the punch and the brutality of the kick, occurring at full force to the head while Osnes was in a defenseless squatting position on the pavement, that Jassy appreciated the risk of his conduct and acted with conscious disregard for human life.
3. The Jury Was Instructed on All Theories of the Lesser Included Offense of Voluntary Manslaughter
The trial court properly instructed the jury in accordance with CALCRIM Nos. 570 and 571 that a defendant who kills in a sudden quarrel or heat of passion (§ 192, subd. (a)) or in unreasonable self-defense—the unreasonable but good faith belief in having to act in self defense (People v. Blakeley, supra, 23 Cal.4th at p. 88)—is guilty of voluntary manslaughter. (See Blakeley, at p. 88; People v. Barton (1995) 12 Cal.4th 186, 199.) The crime is voluntary manslaughter because the provocation or unreasonable self-defense legally negates the element of malice required for murder even if, in fact, express or implied malice existed. (People v. Taylor (2004) 32 Cal.4th 863, 874; People v. Rios (2000) 23 Cal.4th 450, 463, fn. 10.)
Citing our decision in People v. Garcia (2008) 162 Cal.App.4th 18, 32-33 (Garcia), Jassy contends the trial court had a sua sponte duty to instruct the jury on what he characterizes as a "third type" of voluntary manslaughter, a killing committed without malice during the course of an inherently dangerous assaultive felony. In Garcia the defendant assaulted the victim with the butt of a gun, causing the victim to strike his head on the pavement and suffer fatal head injuries. The defendant argued at trial he had only meant to hurt the victim, not kill him. The jury, instructed on the offense of murder and the lesser included offense of voluntary manslaughter based on provocation or imperfect self-defense, convicted the defendant of voluntary manslaughter.
On appeal the defendant argued the trial court had a sua sponte duty to instruct the jury on involuntary manslaughter because there was substantial evidence the victim was killed without malice, that is, without an intent to kill or conscious disregard for human life. (Garcia, supra, 162 Cal.App.4th at p. 26.) We explained that, in most instances, when the victim is killed during the commission of an inherently dangerous felony, the defendant could be found guilty of second degree murder under the felony murder doctrine without proof of express or implied malice. (Garcia, at p. 28, see People v. Chun (2009) 45 Cal.4th 1172, 1181 ["'[a]n unlawful killing in the course of the commission of a felony that is inherently dangerous to human life but is not included among the felonies enumerated in section 189 . . .'"].) However, when the felony is an assault, application of the felony murder rule is prohibited under the Ireland merger doctrine. (Garcia, at p. 29, citing People v. Ireland (1969) 70 Cal.2d 522, 580 ["To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault—a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law."]; see Chun, at p. 1200 ["[w]hen the underlying felony is assaultive in nature . . . the felony merges with the homicide and cannot be the basis of a felony-murder instruction"].)
This prohibition of the application of the felony murder rule to underlying assaultive felonies resulting in death, identified in People v. Ireland, supra, 70 Cal.2d at page 539, is known in our jurisprudence as the Ireland merger doctrine.
If a killing during the course of an inherently dangerous assaultive felony is not felony murder, then what offense is it? In People v. Hansen (1994) 9 Cal.4th 300, 312, overruled on another ground in People v. Chun, supra, 45 Cal.4th at p. 1199, the Supreme Court observed a felonious assault committed without malice aforethought but resulting in death is "punishable as manslaughter." However, the Hansen Court did not specify whether such an offense was punishable as voluntary or involuntary manslaughter. That was the question effectively presented to us in Garcia, supra, 162 Cal.App.4th 18. Citing Hansen and other Supreme Court authority delineating the boundaries of voluntary and involuntary manslaughter, we explained that manslaughter is involuntary in three circumstances: If the killing is committed in the course of a misdemeanor or a noninherently dangerous felony (People v. Cox (2000) 23 Cal.4th 665, 676) or during the course of a lawful act committed without due caution and circumspection. (Garcia, at pp. 32-33; see People v. Benavides (2005) 35 Cal.4th 69, 102.) When the killing is committed during the commission of an inherently dangerous assaultive felony, even if unintentional and without conscious disregard for human life, the offense "is at least voluntary manslaughter." (Garcia, at p. 31.) In light of undisputed evidence the defendant had committed an assault with a deadly weapon, an inherently dangerous felony (see, e.g., Hansen, at p. 312), we held the offense was at least voluntary manslaughter; accordingly, there was no basis for the trial court to have given an involuntary manslaughter instruction. (Garcia, at p. 32.)
Extrapolating from and extending our holding in Garcia, supra, 162 Cal.App.4th 18, Jassy argues the trial court had a sua sponte duty to instruct the jury on this theory of voluntary manslaughter, particularly since there was substantial evidence (his own testimony) that he neither intended to kill Osnes nor acted in conscious disregard for human life. At least one appellate court has interpreted Garcia to require such an instruction in similar circumstances. (See, e.g., People v. Bryant (2011) 198 Cal.App.4th 134, 153-154.)
The question whether an unintentional killing without malice that occurs during the commission of a felony assault is voluntary manslaughter is currently pending in the Supreme Court. (See People v. Craven, review granted Nov. 23, 2010, S186661.)
We did not consider in Garcia whether a sua sponte instruction on this theory of voluntary manslaughter is required when the evidence would support it—the defendant had been convicted of voluntary manslaughter and was seeking reversal because no involuntary manslaughter instruction had been given—and we need not resolve that question here because Jassy's jury was, in fact, presented with a Garcia-type instruction in the form of a modified version of CALCRIM No. 580. As given to Jassy's jury the instruction provided, "[A]n unlawful killing resulting from a willful act," including "an assault and battery" that "posed a high risk of death or great bodily injury" and that was committed "without intent to kill and without conscious disregard of the risk to human life" was involuntary manslaughter. To be sure, as we explained in Garcia, supra, 162 Cal.App.4th at page 31, such an offense is voluntary manslaughter, not involuntary manslaughter. Nonetheless, the mislabeling of the instruction did not prejudice Jassy. In finding him guilty of second degree murder and not involuntary manslaughter, the jury necessarily rejected the defense theory the killing was committed during the assault and without express or implied malice. Because the Garcia theory was presented to, and rejected by, the jury, albeit under the improper label of involuntary rather than voluntary manslaughter, there was no material instructional error.
The modified instruction read, "[¶] . . . [¶] . . . An unlawful killing resulting from a willful act committed without intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter. [¶] The defendant committed involuntary manslaughter if: [¶] 1. The defendant committed a crime that posed a high risk of death or great bodily injury because of the way it was committed or committed a lawful act, but acted with criminal negligence; and [¶] 2. The defendant's acts unlawfully caused the death of another person. [¶] The following is 'a crime that posed a high risk of death or great bodily [injury]': assault and battery. . . ."
The involuntary manslaughter instruction given to the jury differs from CALCRIM No. 580, which properly does not include any reference to an inherently dangerous assault crime. (See People v. Howard (2005) 34 Cal.4th 1129, 1135 [inherently dangerous felony is one that "'by its very nature . . . cannot be committed without creating a substantial risk that someone will be killed'"].) CALCRIM No. 580 provides in part: "An unlawful killing resulting from a willful act committed without intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter. The defendant committed involuntary manslaughter if: [¶] 1. The defendant committed (a crime/[or] a lawful act in an unlawful manner); [¶] 2. The defendant committed the (crime/[or] act) with criminal negligence; [¶] AND [¶] 3. The defendant's acts unlawfully caused the death of another person. [The People allege the defendant committed the following crime[s]: _________ ."
4. The Trial Court's Instructions Were Not Improper
a. The causation instructions were not incomplete
At trial the People argued there were two separate and independent causes of death: The punch and the kick, which caused Osnes to fall to the ground and suffer a fatal brain hemorrhage; and the act of driving over Osnes's body, which caused him to suffer fatal liver lacerations. The trial court properly instructed the jury in accordance with CALCRIM No. 520, "An act 'causes death' if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death."
The People highlighted these two theories during closing argument: "[Y]ou all heard from the coroner, there are two causes of death in this case, both fatal [and] independent of the other. Mr. Osnes could have died just from the head injuries he sustained as a result of that brutal kick. He could have also died from the internal injuries, the liver lacerations, and the blood in his abdominal cavity."
Jassy contends Officer Young's manner of intervention was so unforeseeable that it caused him to fear for his life and unwittingly run over Osnes. Based on that factual premise Jassy argues the trial court erred in failing to instruct the jury sua sponte on superseding causes that relieve a defendant of responsibility for causing death. (People v. Schmies (1996) 44 Cal.App.4th 38, 49 [an independent intervening act of a third person or other force "'may be so disconnected and unforeseeable as to be a superseding cause; i.e., in such a case the defendant's act will be a remote, and not the proximate cause'"]; People v. Sanchez (2001) 26 Cal.4th 834, 848-849 [superseding cause is one that is "'so far beyond the risk the original [wrongdoer] should have foreseen that the law deems it unfair to hold him responsible'"] (conc. opn. of Kennard, J.).)
The jury was properly instructed on causation, and the court had no sua sponte obligation to provide additional instructions on supervening causes. (See People v. Fiu (2008) 165 Cal.App.4th 360, 372 [where jury was instructed with CALJIC No. 3.40's causation instruction requiring injury or death to be "'direct, natural, and probable consequence' of defendant's act," and "direct, natural and probable consequence" was defined to include one that a reasonable person would know is likely to happen if nothing unusual intervenes, trial court had no sua sponte duty to give additional instructions on supervening causes], citing People v. Roberts (1992) 2 Cal.4th 271, 321-322; see also People v. Whisenhunt (2008) 44 Cal.4th 174, 220 [trial court need not give pinpoint instruction "if it merely duplicates other instructions"].)
Indeed, even if there were a sua sponte duty to provide an additional instruction on supervening cause when the evidence supported such an instruction (see generally People v. Avila (2009) 46 Cal.4th 680, 704-705 [trial court must sua sponte instruct jury on general principles of law that are closely and openly connected with substantial evidence at trial]), no instruction was warranted in this case. Simply stated, police intervention to prevent Jassy, the perpetrator, from fleeing the crime scene is not unforeseeable. (See Enders v. Apcoa, Inc. (1976) 55 Cal.App.3d 897, 905 [after thief stole car, police intervention was foreseeable; "it was [also] foreseeable that during . . . police intervention the thief would attempt evasion from arrest"]; see generally People v. McGee (1947) 31 Cal.2d 229, 243 [if person inflicts dangerous wound on another, it is ordinarily no defense that subsequent inadequate medical treatment for that wound contributed to victim's death; negligence in medical treatment for injuries sustained by defendant's conduct is not unforeseeable and therefore, no proximate cause instruction on supervening causes need be given]; People v. Sanchez, supra, 26 Cal.4th at p. 858 [death of a bystander from a shot fired by defendant's opponent in gunfight with defendant was foreseeable consequence of defendant's actions].)
Finally, Jassy's arguments are directed to acts that occurred after the punch and the kick. Because the jury did not convict Jassy of any acts following the hit or the kick, any omission of instructions on supervening causes occurring after the kick could not have affected the jury's verdict.
b. The unanimity instruction did not lessen the People's burden of proof
The court instructed the jury with CALCRIM No. 3501, a unanimity instruction, which advised the jury it had to agree on the act causing death: "[T]he People have presented evidence of two acts to prove the defendant committed this [murder] offense: punching and kicking John Osnes, and running over John Osnes with his vehicle. You must not find the defendant guilty unless: [¶] 1. You all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed; or [¶] 2. You all agree that the People have proved that the defendant committed both of the acts alleged." (See People v. Russo (2001) 25 Cal.4th 1124, 1132 [when more than one criminal act is alleged to support offense, unanimity instruction must be given "'to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed'"].)
Jassy contends the second part of the unanimity instruction mistakenly informed the jury it could find Jassy guilty of murder if it simply found he "had committed both acts." Jassy argues his acquittal on the charge of assault with a deadly weapon means the jury concluded he did not knowingly run over Osnes. Yet, if the jury found Osnes's death was caused by the injuries from the impact of the SUV and not from the punch and kick, the unanimity instruction permitted it to convict him of murder based on a finding he had accidentally run over Osnes.
There is no reasonable likelihood the jury interpreted the instructions in the manner Jassy suggests. (See People v. Jablonski (2006) 37 Cal.4th 774, 831 ["[i]n assessing a claim of instructional error, 'we must view a challenged portion "in the context of the instructions as a whole and the trial record" to determine "'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution"'"]; People v. Reliford (2003) 29 Cal.4th 1007, 1013 [same]; Estelle v. McGuire (1991) 502 U.S. 62, 72 [112 S.Ct. 475, 116 L.Ed.2d 385].) In addition to the unanimity instruction, the jury was instructed in accordance with CALCRIM No. 520 that, to find Jassy guilty of murder, it had to find the killing—that is, whatever act caused Osnes's death—was committed with intent to kill or conscious disregard for human life. As discussed, the jury was also instructed an "act causes death only if it is a substantial factor in causing death," although it need not be the only factor that causes death. (See CALCRIM No. 520.) Considering the instructions as a whole, there is simply no reasonable likelihood the jury convicted Jassy of murder based on a finding the act causing Osnes's death was accidental.
c. The trial court's response to the jury's question was not incomplete
Section 1138 imposes on a trial court the "duty to provide the jury with information the jury desires on points of law." (People v. Smithey (1999) 20 Cal.4th 936, 985.) "The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. When the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information." (People v. Beardslee (1991) 53 Cal.3d 68, 97; accord, Smithey, at p. 985.)
Section 1138 provides, "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called."
During deliberations, the jury asked for "a more precise definition of the difference between [seco]nd degree murder and voluntary manslaughter." The trial court responded in a written memorandum, "Please see all of the instructions on homicide at pages 6 through 10 of your booklet. The discussion below is not intended to replace those instructions but to highlight the point raised in your question. [¶] Murder of the second degree occurs when: [¶] 1) the perpetrator intended unlawfully to kill a human being but the evidence is insufficient to prove deliberation and premeditation, or [¶] 2) the killing resulted from an intentional act, the nature consequences of the act were dangerous to human life, and the act was deliberately performed with conscious disregard for human life. [¶] See [CALCRIM] instructions 520 [(murder)] & 521 [(degrees of murder)]. [¶] Even if these conditions are present, the crime may be reduced to voluntary manslaughter if the perpetrator killed the victim because of a legally adequate provocation, specifically: [¶] 1) in a sudden quarrel or in the heat of passion, or [¶] 2) in imperfect self-defense. See [CALCRIM] instructions 570 [(voluntary manslaughter based on provocation)], 571 [(voluntary manslaughter based on imperfect self-defense)] [and] 522 [(provocation that is insufficient to reduce crime to manslaughter but still may reduce first degree murder to second degree)]. [¶] Please advise if you need further clarification on these or any other issues."
Without challenging the propriety of the instructions given, Jassy contends the instructions were somehow incomplete or misleading without an additional reference to involuntary manslaughter. However, the court fully responded to the jury's specific question, which neither included a request for clarification of the involuntary manslaughter instruction nor indicated confusion as to the homicide instructions generally. Moreover, the court made clear its response was "not intended to replace" the other instructions given. In fact, the court specifically referred the jury to pages 6 through 10 of the instruction booklet, which included the involuntary manslaughter instructions. The court's accurate response to the jury's question was in no way an abuse of its discretion.
The jury's question and the court's written response are included in the record. However, the proceedings apparently were not transcribed; and we cannot tell from the record whether Jassy objected to the court's response. (See People v. Roldan (2005) 35 Cal.4th 646, 729 ["[w]hen a trial court decides to respond to a jury's note, counsel's silence waives any objection under section 1138"], disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The Attorney General does not argue application of the forfeiture doctrine. Absent any indication the matter has been forfeited, we decide the issue on its merits.
5. Jassy Has Not Demonstrated Ineffective Assistance of Counsel
During opening statements and again just prior to presenting the defense case, Jassy's counsel requested to play a portion of Jassy's videotaped interview with police to show Jassy reacted with shock and grief upon learning Osnes had died. The court stated it would determine the admissibility of the videotape in the context of the defense case, indicating it would be inclined to admit the evidence at that time. Although Jassy testified he was surprised and became very emotional when informed Osnes had died, his counsel did not revisit the issue or play this excerpt from the videotape during the defense case. Jassy contends his counsel's failure to introduce the portion of the videotape showing his response to the news of Osnes's death was constitutionally ineffective. Such evidence, he argues, would have reinforced his defense that he had not acted with malice.
Jassy's counsel played a different portion of the videotape during Jassy's testimony.
To prevail on this claim, Jassy must establish his counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel's deficient performance, the result of the trial would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 686-687 [104 S.Ct. 2052, 80 L.Ed.2d 674]; People v. Williams (1997) 16 Cal.4th 153, 215.) "'The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof . . . must be a demonstrable reality and not a speculative matter.'" (People v. Karis (1988) 46 Cal.3d 612, 656.) There is a presumption the challenged action "'might be considered sound trial strategy'" under the circumstances. (Strickland, at p. 689; accord, People v. Dennis (1998) 17 Cal.4th 468, 541.)
On direct appeal a conviction will be reversed for ineffective assistance of counsel only when the record demonstrates there could have been no rational tactical purpose for counsel's challenged act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 442; see People v. Mitcham (1992) 1 Cal.4th 1027, 1058 ["'[i]f the record sheds no light on why counsel acted or failed to act in the manner challenged, "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation" [citation], the contention [that counsel provided ineffective assistance] must be rejected'"].)
The decision not to play this portion of the videotape appears to have been a tactical choice; Jassy has not identified anything in the record that would suggest otherwise. Moreover, because Jassy's testimony regarding his emotional reaction upon learning Osnes had died was unimpeached, it is not reasonably probable he would have received a more favorable verdict had counsel played that portion of the videotape. (See In re Fields (1990) 51 Cal.3d 1063, 1079 [In considering a claim of ineffective assistance of counsel, it is not necessary to determine "'whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.'"].)
"'Where the record does not illuminate the basis for the challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a petition for habeas corpus.'" (People v. Avena (1996) 13 Cal.4th 394, 419, italics omitted.)
6. The Court Did Not Commit Prejudicial Error in Admitting Autopsy Photographs into Evidence
Jassy contends the trial court erred in admitting several autopsy photographs of Osnes's body and body parts. In overruling Jassy's Evidence Code section 352 objection after extensive argument, the court ruled the photographs were relevant to Jassy's self-defense claims and to his causation arguments. They also helped explain and corroborate the coroner's testimony. While Jassy agrees some of the photographs were properly admitted, he argues others, particularly several photographs of Osnes's open skull, as well as close-up photographs of his brain and liver and photographs of Osnes's body "nude from the waist up" with various medical tubes and attachments in place, were exceedingly gruesome, cumulative and admitted solely for the purpose of inflaming the passions of the jury.
The court explained, "I know from the opening statement that there are arguments being made about self-defense and potential aggression by the decedent. The extent of his bruises, injuries and other matters related to his body is very important. . . . There are serious issues as to the cause of death, the head injuries caused by kicking and punching versus the vehicle running over the defendant. Those are not just important in terms of the usual issues of causation, but they also relate to issues of liability, because there may be arguments that some of the conduct by the defendant, particularly running over . . . the body, was more understandable or have greater issues in mitigation or justification than the issues related to the kicking and striking. I think this is an issue where there is a great deal of complexity in the coroner's testimony. I'm inclined to give the coroner considerable latitude in explaining his opinions. And the use of photographs, unfortunately, is necessary to do so."
The Supreme Court has upheld the use of autopsy photos, "including images of dissected tissue and excised organs," over a defendant's Evidence Code section 352 objections, when such evidence is relevant to establishing an element of the crime or to corroborating testimony. (People v. Stitely (2005) 35 Cal.4th 514, 545; People v. Medina (1995) 11 Cal.4th 694, 754-755.) A trial court's discretionary decision to admit photographs under Evidence Code section 352 will be upheld unless the prejudicial effect of such photographs so clearly outweighs their probative value that admission of the photographs resulted in a miscarriage of justice. (People v. Gurule (2002) 28 Cal.4th 557, 624; see People v. Barnett (1998) 17 Cal.4th 1044, 1118 [trial court's Evid. Code, § 352 rulings reviewed for abuse of discretion]; People v. Rodriguez (1999) 20 Cal.4th 1, 9-10 [trial court's Evid. Code § 352 ruling "will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner than resulted in a manifest miscarriage of justice"].)
The photographs at issue here depicted the bleeding in the brain and the lacerations in the liver that the coroner testified were independent causes of Osnes's death. They also showed the extent of Osnes's injuries, which supported the People's claim of malice and undermined Jassy's testimony that he had never kicked Osnes. The trial court carefully weighed the relevance of the photographs against their prejudicial effect and found they were not substantially more prejudicial than probative. We have considered the trial court's rationale and examined the photographs at issue and find the court's determination to have been well within its broad discretion. (See People v. Gurule, supra, 28 Cal.4th at p. 625 [trial court did not abuse its discretion in admitting into evidence autopsy photographs relevant to corroborate prosecutor's theory of execution-style, "clean" killing]; see generally People v. Karis (1988) 46 Cal.3d 612, 638 [all evidence that tends to prove guilt is damaging or prejudicial to the defendant's case; the "prejudice" referred to in Evid. Code, § 352 "applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues"].)
7. The Late Disclosure of a Witness's Statement to the Prosecutor Did Not Violate Jassy's Due Process Rights
a. Relevant proceedings
At trial the People called Janet Sadaat, one of several individuals who had witnessed Jassy's altercation with Osnes in the crosswalk. During her direct examination the prosecutor asked Sadaat whether she heard Jassy say anything to Osnes as he lay on the ground after being kicked. Sadaat initially responded "no," and then said, "I don't remember right now. I could have." The prosecutor then asked, "Do you remember talking to Detective Bynum and myself when we came to your house last week about scheduling?" Sadaat said, "yes." She was then asked, "Do you recall telling Detective Bynum and myself that you heard the driver yell at Mr. Osnes while he was lying on the ground?" Sadaat again said, "yes." Defense counsel immediately asked for a sidebar conference. The court told him to wait. The prosecutor then asked, "Do you recall what you told Detective Bynum and myself the driver said?" Sadaat answered, "He said, 'fuck you,' and he walked away in a faster way of walking."
The jury was excused shortly thereafter for the day. Before court adjourned, defense counsel informed the court he had not been told about the pretrial meeting the prior week and had not been provided with any information about Sadaat's statement. Defense counsel insisted the information was new and should have been promptly disclosed because, in her statements to on-scene detectives, Sadaat reported Jassy had said, "Fucking stupid, why did you touch my car?" not "fuck you." Moreover, the police report did not indicate whether the remarks were made before or after the kick. Defense counsel argued Sadaat's new statement to the prosecutor was material because it was Jassy's position he did not know Osnes was lying in the street at the time he drove over him. In addition, defense counsel asserted remarks made after Osnes was lying in the street could support a finding of malice.
The prosecutor insisted nothing in Sadaat's remarks to her during the pretrial scheduling meeting was new information, characterizing them as "basically the same" statements that were reflected in the police report. Although as written the report does not expressly state the timing of the remarks, the prosecutor argued it was "clear" Sadaat's statement had been written in chronological order and Jassy's comments must have been made after he had kicked Osnes. After questioning the prosecutor, the court found the information was at least a clarification of Sadaat's prior statement to police and ordered the prosecutor to provide the defense with a written statement of Sadaat's testimony so that "it is available for cross-examination."
When court reconvened following a day off for mandatory furlough, defense counsel moved for a mistrial or to strike Sadaat's testimony. At the very least, the defense argued, it was entitled to an instruction advising the jury of the defense's late discovery of this information. The court denied the motion for mistrial and the motion to strike concluding there had been no prejudice. After taking Jassy's request for an instruction on late discovery under submission, the court denied it at the close of evidence, ruling the instruction was not warranted in this case.
Jassy requested the court instruct the jury with CALCRIM No. 306: "Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [¶] An attorney for the [People/defense] failed to disclose [describe evidence that was not disclosed] [within the legal time period]. [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure. . . ."
b. Brady v. Maryland
Jassy contends reversal is required because the prosecutor failed to disclose material exculpatory evidence in violation of Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215] (Brady). "In Brady . . . the United States Supreme Court held that a defendant's right to due process is violated when 'favorable' evidence that has been 'suppressed' by the prosecution is 'material' to the issue of guilt or punishment." (In re Pratt (1999) 69 Cal.App.4th 1294, 1312.) "Under Brady, . . . a prosecutor must disclose any evidence that is favorable to the defendant and material on the issue of guilt or punishment. [Citations.] The Brady disclosure obligation encompasses both impeachment and exculpatory evidence, and exists regardless of whether the defendant makes a specific request for the information." (People v. Gutierrez (2003) 112 Cal.App.4th 1463, 1471.)
Evidence is material under Brady if there is a reasonable probability that the result of the proceeding would have been different had the evidence been disclosed. (People v. Hoyos (2007) 41 Cal.4th 872, 917; City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 7-8; see Strickler v. Greene (1999) 527 U.S. 263, 289-290 [119 S.Ct. 1936, 144 L.Ed.2d 286].) "A 'reasonable probability' of a different result is accordingly shown when the government's evidentiary suppression 'undermines confidence in the outcome of the trial.'" (Kyles v. Whitley (1995) 514 U.S. 419, 434 [115 S.Ct. 1555, 131 L.Ed.2d 490]; accord, In re Brown (1998) 17 Cal.4th 873, 886.) At the heart of a Brady violation is the denial of a fair trial. (Kyles, at p. 434.) "Because a constitutional violation occurs only if the suppressed evidence was material by these standards, a finding that Brady was not satisfied is reversible without need for further harmless-error review." (People v. Verdugo (2010) 50 Cal.4th 263, 279.)
Characterizing Sadaat's pretrial statement to the prosecutor as a material change from her statement to detectives on the night Osnes was killed, Jassy contends the late discovery of Sadaat's statement to the prosecutor requires automatic reversal under Brady. Assuming arguendo Sadaat's pretrial statement to prosecutors materially differed from her statement to on-scene investigators, and therefore was impeachment evidence of a significant prosecution witness, the information was disclosed before completion of Sadaat's direct examination and well before cross-examination, during which the defense had ample opportunity to, and did, use her statements to impeach her credibility. The People also made Sadaat available to the defense for an out-of-court interview before her examination was completed. Under the circumstances, there is no suppression of evidence that denied Sadaat a fair trial, and hence, no Brady violation. (In re Sassounian (1995) 9 Cal.4th 535, 544, citing United States v. Bagley (1985) 473 U.S. 667, 682 [105 S.Ct. 3375, 87 L.Ed.2d 481]; see People v. Wright (1985) 39 Cal.3d 576, 589 [so long as defendant had the opportunity to present evidence to jury, late disclosure of exculpatory evidence impeaching prosecution witness does not violate Brady].)
c. The trial court did not err in denying Jassy's request for a mistrial or a
jury instruction based on late discovery
In addition to their constitutional disclosure obligation under Brady, the People have a statutory duty pursuant to sections 1054.1 to disclose to the defense at least 30 days before trial, or immediately if discovered within 30 days of trial, certain categories of evidence, including all "relevant evidence" "'"in possession of the prosecuting attorney or [known by] the prosecuting attorney . . . to be in the possession of the investigating agencies."'" (People v. Verdugo, supra, 50 Cal.4th at pp. 279, 280; see §§ 1054.1 [listing disclosure requirements]; 1054.7 [setting deadlines on when such information must be disclosed].) If it is shown that any party has failed to comply with the statutory disclosure requirements, the trial court "may make any order necessary" to enforce those provisions, including, but not limited to, ordering "immediate disclosure, [initiating] contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continu[ing] the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure." (§ 1054.5, subd. (b); see Verdugo, at p. 280.)
Jassy contends the court abused its discretion in denying his request for a mistrial based on the prosecutor's violation of the discovery statutes. (See People v. Ayala (2000) 23 Cal.4th 225, 282 [trial court's ruling on request for mistrial is reviewed for abuse of discretion]; People v. Welch (1999) 20 Cal.4th 701, 749 [motion for mistrial should be granted only when "'a party's chances of receiving a fair trial have been irreparable damaged'"].) In denying the mistrial motion, the trial court concluded, whether or not there had been a violation of the discovery statutes, there was no prejudice because the evidence had been disclosed during trial, well before Sadaat's direct examination concluded. Thus, Jassy had had ample notice and opportunity to use, and did use, Sadaat's pretrial statement to impeach her credibility. That determination is fully supported by the record. (See Ayala, at p. 299 [trial court may consider a wide array of options in response to discovery violation]; cf. People v. Verdugo, supra, 50 Cal.4th at p. 280 [violation of discovery statutes does not compel reversal; "[a] violation of section 1054.1 is subject to the harmless-error standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836"].) Accordingly, it was not an abuse of discretion for the court to decline to instruct the jury with CALCRIM No. 306 based on prejudice from the delayed disclosure of evidence. (People v. Lamb (2006) 136 Cal.App.4th 575, 581 [trial court's refusal to instruct jury on late discovery subject to review for abuse of discretion].)
8. The Trial Court's In Camera Pitchess Review of Officer Young's Personnel Records, Although Incomplete, Was Harmless Error
"For approximately a quarter-century our trial courts have entertained what have become known as Pitchess motions, screening law enforcement personnel files in camera for evidence that may be relevant to a criminal defendant's defense." (People v. Mooc (2001) 26 Cal.4th 1216, 1225 (Mooc),fn. omitted; see Pitchess v. Superior Court (1974) 11 Cal.3d 531.) To balance the defendant's right to discovery of records relevant to his or her defense with the peace officer's reasonable expectation that his or her personnel records will remain confidential, the Legislature has adopted a statutory scheme requiring a defendant to meet certain prerequisites before his or her request may be considered. (See Pen. Code, §§ 832.5, 832.7, 832.8; Evid. Code, §§ 1043-1047 [statutory scheme governing Pitchess motions].) Specifically, a defendant seeking discovery of a peace officer's confidential personnel records must file a written motion describing the type of records or information sought (Evid. Code, § 1043) and include with the motion an affidavit demonstrating "good cause" for the discovery and the materiality of such evidence relative to the defense. (Mooc, at p. 1226; see also Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.) The information must be requested with "sufficient specificity to preclude the possibility of a defendant's simply casting about for any helpful information." (Mooc, at p. 1226.)
Once the trial court concludes the defendant has satisfied these prerequisites, the custodian of records is obligated to bring to court all documents "potentially relevant" to the defendant's motion. (Mooc, supra, 26 Cal.4th at p. 1226.) "The trial court 'shall examine the information in chambers,'" outside the presence of any person except the proper custodian "and any other persons as the person authorized to claim the privilege is willing to have present." (Evid. Code, §§ 915, subd. (b), 1045, subd. (b); see Warrick v. Superior Court, supra, 35 Cal.4th at p. 1019.)
Subject to certain statutory exceptions and limitations, the trial court must then disclose to the defendant "'such information [that] is relevant to the subject matter involved in the pending litigation.'" (Mooc, supra, 26 Cal.4th at p. 1226; accord, Warrick v. Superior Court, supra, 35 Cal.4th at p. 1019.) "A trial court's ruling on a motion for access to law enforcement personnel records is subject to review for abuse of discretion." (People v. Hughes (2002) 27 Cal.4th 287, 330.)
The trial court must exclude from discovery: "(b)(1) Information consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought. [¶] (2) In any criminal proceeding the conclusions of any officer investigating a complaint filed pursuant to Section 832.5 of the Penal Code. [¶] (3) Facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit." (Evid. Code, § 1045; see also Mooc, supra, 26 Cal.4th at pp. 1226-1227.)
Six months before trial Jassy filed a motion pursuant to Evidence Code sections 1043 and 1045 and Pitchess, supra, 11 Cal.3d 531 to discover Officer Young's personnel records. The Pitchess motion was directed to Young's current employer, the Anaheim Police Department, and his former employer, the Los Angeles County Sheriff's Department, seeking personnel records pertaining to use of unnecessary force or violence, acts demonstrating racial or ethnic prejudice, illegal or false arrest, dishonesty, including the filing of false police reports, and illegal search and seizure. Jassy asserted the information could be relevant to impeach Young's testimony he had showed his badge and identified himself as a police officer when he attempted to stop Jassy from driving away. The court granted the motion to the extent it sought information relating to Young's honesty and credibility and denied it in all other respects.
Following an in camera review of Officer Young's personnel records during his employment with the Anaheim Police Department from June 2005 through July 20, 2009, the trial court found there was no discoverable material to be provided to the defense. The Los Angeles County Sheriff's Department apparently did not respond to the request; and those employment records, to the extent such records existed for the relevant period, were not reviewed in the in camera proceedings.
Jassy contends the court erred in limiting his request to materials relating to Officer Young's credibility and denying his request for information on allegations of racial prejudice. In addition, he requests we review the in camera proceedings to determine whether the court properly concluded there was no discoverable material to which he was legally entitled.
The sealed transcript of the in camera hearing discloses the trial court asked the custodian of records for the Anaheim Police Department whether there were any records in Officer Young's personnel file pertaining to dishonesty. The custodian responded he had "reviewed Officer Young's permanent personnel file and in the section that does contain a record of personnel complaints" and found there were none pertaining to dishonesty or credibility. At the court's request the custodian filed a declaration attesting he had "searched every possible area a complaint might be housed" within the Department.
The trial court itself did not inspect Officer Young's personnel file or any portion of it. Instead, it relied entirely on the custodian. This is inadequate. Although "[d]ocuments clearly irrelevant to a defendant's Pitchess request need not be presented to the trial court for in camera review" (Mooc, supra, 26 Cal.4th at p. 1229), it is ultimately the trial court, not the custodian of records, that must make the decision whether potentially responsive documents should be produced to the defendant. (Id. at p. 1229; see People v. Guevara (2007) 148 Cal.App.4th 62, 69 ["[i]t is for the court to make not only the final evaluation but also a record that can be reviewed on appeal"].) To make this finding, the court must, at the very least, review the pertinent sections of the file identified by the custodian and make a record of the documents it has examined: "If the documents produced by the custodian are not voluminous, the court can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list of documents it considered, or simply state for the records what documents it examined." (Mooc, at p. 1229; see People v. Prince (2007) 40 Cal.4th 1179, 1285-1286 [trial court stated for record documents it had examined before concluding "there was not a single item that [the officer] ever had suffered discipline for any reason"].)
We are troubled by the court's incomplete review of the documents at the in camera proceeding, as well as by the absence of any response to the motion by the Los Angeles County Sheriff's Department. Nonetheless, neither of these concerns compels reversal in this case. Officer Young's testimony concerning the punch and kick was substantially identical to the testimony of several other witnesses in the case. To the extent he offered any new or additional information, it concerned what had happened following those blows: Young testified, after he saw Jassy kick Osnes, he ran to Jassy's vehicle, shouted "Police" and tried to stop him from fleeing the scene. Young also testified that, as he was holding on to Jassy's car door, he felt a bump when Jassy ran over Osnes, tending to show Jassy should have known he had run over Osnes when he left the scene. In light of the jury's verdict acquitting Jassy of assault with a deadly weapon and knowingly leaving the scene of an accident, as well as the not true findings relating to the special allegation that a deadly weapon—a vehicle—was used in the murder, it is not reasonably probable that any evidence undermining Young's credibility would have yielded a different outcome. (See People v. Memro (1985) 38 Cal.3d 658, 684 [error in failing to permit Pitchess discovery is subject to harmless error analysis], disapproved on other grounds in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2; People v. Cruz (2008) 44 Cal.4th 636, 670; see also People v. Samuels (2005) 36 Cal.4th 96, 110 [denial of Pitchess motion is harmless error where "extensive evidence" links the defendant to the crime].)
9. Jassy's Sentence of 15 Years to Life Does Not Violate the Federal or State Constitutions' Prohibitions Against Cruel and/or Unusual Punishment
Jassy contends his sentence of 15 years to life constitutes cruel and unusual punishment in violation of the Eight Amendment to the United States Constitution and cruel or unusual punishment in violation of the California Constitution. Jassy has forfeited these arguments by failing to raise them in the trial court. (See, e.g., People v. Norman (2003) 109 Cal.App.4th 221, 229 [cruel and unusual punishment arguments must be raised in trial court because they require fact-specific determinations about the offense and the offender]; accord, People v. Kelley (1997) 52 Cal.App.4th 568, 583.) In addition, they fail on their merits.
The Eighth Amendment's ban on cruel and unusual punishment prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime. (Ewing v. California (2003) 538 U.S. 11, 20-21 [123 S.Ct. 1179, 155 L.Ed.2d 108].) In Graham v. Florida (2010) _ U.S. _ [130 S.Ct. 2011, 176 L.Ed.2d 825] (Graham),the Supreme Court recognized that punishments prohibited as unconstitutionally disproportionate to the offense generally fall into two classifications: Those that are categorically prohibited, and those that are prohibited based on the facts of a particular case. (Id. at pp. 2021-2022.) Jassy contends his sentence of 15 years to life falls into the second category.
To determine whether a particular sentence is so grossly disproportionate that it violates the federal Constitution, the court considers all of the circumstances of the case, including the gravity of the offense and the severity of the penalty as well as whether more serious crimes are subject to the same penalty in other jurisdictions. (Graham, supra, 130 S.Ct. at p. 2021; Solem v. Helm (1983) 463 U.S. 277 [103 S.Ct. 3001, 77 L.Ed.2d 637].) No single criterion is dispositive. (Solem, at p. 291, fn. 17.) "'[O]utside the context of capital punishment, successful challenges to the proportionality of particular sentences [will be] exceedingly rare.'" (Id. at p. 290; quoting Rummel v. Estelle (1980) 445 U.S. 263, 271 [100 S.Ct. 1133, 63 L.Ed.2d 382].) Still, although deference is given to the Legislature's prescribed sentence for a particular crime (Solem, at p. 290), no penalty is per se constitutional. (Ibid.)
Similarly, under state law Jassy must overcome a "considerable burden" in challenging his penalty as cruel or unusual. (People v. Wingo (1975) 14 Cal.3d 169, 174.) He must demonstrate the punishment is so disproportionate to the crime for which it was imposed it "shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch).) The Lynch court identified three factors for the reviewing court to consider in assessing this constitutional claim: (1) the nature of the offense and the offender; (2) how the punishment compares with punishments for more serious crimes in the jurisdiction; and (3) how the punishment compares with the punishment for the same offense in other jurisdictions. (Id. at pp. 425-427.)
Jassy's state constitutional challenge to his sentence focuses entirely on the first prong of the Lynch analysis: A life sentence for a single punch and kick is wholly disproportionate to the offense. When considered together with the absence of any evidence of prior criminal offenses, he contends the sentence constitutes cruel or unusual punishment. His federal constitutional challenge is similar, highlighting the severity of the sentence compared to the nature of his actions.
Although there is some indication in his probation report that Jassy had been arrested in Sweden for assault with a deadly weapon and bank robbery as a juvenile, the trial court did not consider that information in imposing the prescribed statutory sentence of 15 years to life for second degree murder.
Jassy's state and federal constitutional arguments focus entirely on the number of blows inflicted—two—and ignore the evidence presented as to the nature and brutality of his actions. Several witnesses disputed Jassy's assertion he and Osnes had been in a mutually combative altercation. They testified Jassy had hit Osnes, knocking him to the ground, turned to leave, then changed his mind and brutally kicked Osnes in the head like a punter kicking a football while Osnes was in a defenseless squatting position attempting to retrieve his eyeglasses. Indeed, as the trial court observed in its denial of Jassy's new trial motion, "the autopsy revealed just how powerful the kick was. The defendant's kick split open Osnes's mouth, produced massive bruising, fractured the bones behind his eyes and nose, and left a permanent imprint of the defendant's shoe on Osnes's face. The defendant's kick threw back Osnes's head with such force that the base of his skull where it joins with his vertebrae fractured from the impact. Osnes . . . toppled over into the street like a felled tree." Jassy's "single punch and kick" might have been swift, but they were brutal, inflicted with conscious disregard for human life. Considering the totality of the circumstances, Jassy has not demonstrated his sentence was so grossly disproportionate to his offense as to violate either the United States or California Constitutions.
DISPOSITION
The judgment is affirmed.
PERLUSS, P. J. We concur:
ZELON, J.
JACKSON, J.