Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County Super. Ct. No. 05CM7640. Peter M. Schultz, Judge.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, J.
INTRODUCTION
Appellant Benjamin Washington is an inmate at Corcoran State Prison (Corcoran). He was convicted after jury trial of battering correctional officers Kevin Edmonds, Michael Sharp and Michael Jorden in violation of Penal Code section 4501.5; two prior strikes were found true. Prior to trial, the court conducted an in camera review of five correctional officers’ employment records for evidence relating to use of excessive force pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). During the sentencing hearing, appellant orally motioned for dismissal of one of the prior strikes in the interests of justice. The motion was denied and appellant was sentenced to three concurrent terms of 25 years to life imprisonment, to be served consecutive to the term appellant currently is serving for an unrelated attempted murder conviction.
Appellant argues that the court erred by limiting the scope of its Pitchess review to material relating to use of excessive force and he asks this court to review the in camera proceeding that was conducted to determine if the trial court abused its discretion by concluding there was not any discoverable material. Next, appellant contends that count 3 is not supported by substantial evidence because appellant did not directly strike Jorden, the named victim of this count. Appellant also argues that the jury was erroneously instructed on the elements of battery and on causation. Additionally, appellant contends that the court did not comply with California Rules of Court, rule 2.1031 (rule 2.1031), and argues the court’s cautionary instruction improperly discouraged the jurors from taking notes. Finally, appellant claims that denial of his request to dismiss one of the strikes constitutes an abuse of discretion. None of these arguments is persuasive; we will affirm.
The sufficiency of the evidence supporting counts 1 and 2 (the batteries on Edmunds and Sharp) is not challenged. It is undisputed that appellant did not directly strike Jorden, who is the victim of the third count. Therefore, only a general summary of the factual circumstances of the offense is necessary for resolution of the issues presented in this appeal.
Appellant shared a cell with Dwayne Lucas on May 23, 2005. This cell is located on an upper tier, adjacent to a stairwell. Correctional Sergeant Francisco Munoz smelled the odor of inmate-made alcohol. He and another officer opened the cell door. A physical altercation between Lucas and Munoz occurred. Appellant was not a participant.
About an hour later, Correctional Officer Michael Sharp was directed to remove appellant from the cell and take him to the program office. Acting Correctional Sergeant Ignacio Valdez was standing in the hallway outside the cell with Correctional Officers Sharp, Edmonds, Jorden and Pasco. Sharp told appellant he needed to go to the program office. Appellant responded affirmatively and turned around as if to prepare for handcuffing. The cell door was unlocked. When Sharp stepped up to handcuff appellant, appellant spun around and lunged forward toward the officers. He struck Sharp in the face. Appellant’s momentum drove Sharp and the other officers back toward the tier railing. Jorden hit the railing, dislocating his shoulder. Edmunds sprayed appellant with pepper spray; some of the officers were hit with the fan pattern of the spray. Edmunds wrapped his arm around appellant’s waist but appellant pushed Edwards back to the tier railing outside the cell. Appellant’s head was going back and forth and he was swinging his arms, throwing punches wherever he could. Appellant hit Edwards with his head. Jorden, Sharp and Pascoe used their batons on appellant and Sharp struck appellant with his fist. Appellant wrestled with Valdez, who got appellant into a headlock. Appellant continued to flail his arms and attempt to fight. Jorden repeatedly hit appellant’s shoulder area. Appellant stopped resisting and said, “It’s over. It’s over.” As appellant was being removed from the area, he yelled, “Piru, Mother-Fucker’s” or “Piru Bloods.” Sharp injured his knee, his right hand and right eye. Edwards suffered facial injuries.
Piru is “part of the Blood organization.” Munoz testified that if a gang member gets in an altercation with a rival gang member or a correctional officer, nearby fellow gang members are supposed to assist him. If a gang member does not do so, he could be assaulted by members of his own gang.
Ardis Burns is a state prison inmate and he socializes with Blood gang members. He testified for the defense. Burns saw five to seven officers go to appellant’s cell. Appellant stepped out of the cell with his hands behind his back. One of the officers grabbed appellant and the rest of the officers hit him with batons and beat him with their fists. Pascoe kicked appellant in the head.
DISCUSSION
I. The court did not err in ruling on the Pitchess motion when it limited the scope of the in camera review to allegations of excessive force and did not abuse its discretion when it concluded that the records did not contain any discoverable material.
A. Facts
On January 27, 2006, appellant’s trial counsel, Rex Payne, filed a Pitchess motion, which was denied.
Appellant successfully moved to substitute counsel and Donna Tarter was appointed as trial counsel on August 21, 2006.
On November 21, 2006, Tarter filed a new Pitchess motion and a supporting declaration seeking disclosure of personnel records, investigative documents and citizen complaints for the preceding five years involving “acts of unnecessary or excessive force, acts demonstrating racial or ethnic prejudice, and acts of dishonesty, retaliation, false arrest, illegal fabrication of charges and/or evidence and acts demonstrating moral turpitude” by Valdez, Edmonds, Sharp, Jorden and Pascoe. In relevant part, Tarter averred:
“The material sought is necessary in order to properly prepare the case for trial and is material and relevant for the follows [sic]:
“The defendant is charged with three (3) counts of … battery upon a non-confined person …. The prosecution alleges that the defendant was in his cell and four (4) correctional officers, namely, Officer Kevin Edmonds, Michael Sharp & Michael Jorden & Officer Pascoe, approached his cell and ordered the defendant to turn around and prepare[] to be handcuffed. The defendant did as ordered, however when the cell door was opened the defendant turned around and attacked the officers.
“It is the position of the defense that the defendant followed the orders of the officers and submitted to being cuffed up. When the correctional officers entered his cell he was attacked with pepper spray and batons. At no time did the defendant strike any of the officers.”
Tarter also averred:
“The material sought may contain complaints of like nature made by other prisoners against this officer. Such information would be used by the defense to locate and call witnesses to testify that this officer[] has a character trait, habit and custom for engaging in fabrication of evidence, retaliation against prison inmates, racial discrimination and prejudice, false arrest, acts of aggressive behavior and any other act amounting to moral turpitude.”
Hearing was held on December 20, 2006. The Attorney General argued that there was nothing in Tarter’s declaration indicating dishonesty or racial prejudice. The court agreed with the Attorney General on this point. Yet, the court also determined that sufficient allegation of excessive force had been made. Therefore, it conducted an in camera review of the named officers’ personnel records for evidence of prior use of excessive force. After conducting the in camera review, the court determined that the records did not contain any discoverable information.
B. The trial court did not abuse its discretion by limiting the in camera review to evidence of prior use of excessive force.
The statutory scheme for Pitchess motions is contained in Evidence Code sections 1043 through 1047 and Penal Code sections 832.5, 832.7 and 832.8. When a defendant seeks discovery from a peace officer’s personnel records, he or she must file a written motion that satisfies certain prerequisites and makes a preliminary showing of good cause. Supporting affidavits may be made on information and belief. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 86.) While the good cause requirement encompasses a relatively low threshold for discovery (id. at p. 83), the defendant must “‘establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officer’s version of events.’ [Citation.]” (Garcia v. Superior Court (2007) 42 Cal.4th 63, 71.) If the trial court determines that good cause has been established, the custodian of records brings to court all documents that are “‘potentially relevant’ to the defendant’s motion.” (People v. Mooc (2001)26 Cal.4th 1216, 1226 (Mooc).) The trial court examines these documents in camera and, subject to certain limitations, discloses to the defendant “‘such information [that] is relevant to the subject matter involved in the pending litigation.’ [Citations.]” (Ibid.) The ruling on a Pitchess motion is reviewed for an abuse of discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330 (Hughes).)
Appellant argues that Tarter’s declaration established good cause to examine the personnel records for evidence relating to “fabrication of evidence or charges, retaliation against prison inmates, false arrest, improper tactics, aggressive behavior, acts of dishonesty, and possib[ly] racial prejudice.” We disagree. Tarter’s declaration did not allege that appellant would proffer a defense of retaliation, fabrication of evidence or racial prejudice. Tarter did not set forth facts related to the earlier incident involving appellant’s cellmate and she did not declare that appellant would proffer a defense based on this earlier incident. Tarter’s declaration also did not allege that the officers had a reason to falsely claim that appellant assaulted them. Tarter’s declaration did not allege that the officers were motivated by racial animus. In fact, it does not even set forth the ethnic and racial backgrounds of appellant or the officers. Tarter’s declaration did no more than allege that the officers used excessive force when appellant exited his cell. Therefore, we conclude that the trial court did not abuse its discretion by limiting the examination of the records to materials relating to allegations of excessive force.
In any event, it appears that the entire personnel and supervisory records of the named officers were filed under seal in this court. We have independently reviewed these records. They do not include any complaints or other materials that are relevant to allegations of dishonesty, retaliation, fabrication of evidence or racial prejudice.
C. The trial court’s determination that there were no discoverable records was not an abuse of discretion.
The record in this case is adequate to permit meaningful appellate review. The confidential clerk’s transcript contains a copy of the records that were actually examined by the trial court. (People v. Prince (2007) 40 Cal.4th 1179, 1285 (Prince); Hughes, supra, 27 Cal.4th at p. 330.) Having independently reviewed the records that were examined by the trial court and submitted under seal, we conclude that the trial court did not abuse its discretion in determining that none of the records were relevant. Accordingly, we uphold the ruling on the Pitchess motion. (Prince, supra, 40 Cal.4th at p. 1286; Hughes, supra, 27 Cal.4th at p. 330.)
II. Count III is supported by substantial evidence.
Appellant argues that count 3 (the assault on Jorden) is not supported by substantial evidence because there is no evidence that Jorden directly touched appellant. Appellant contends that the crime of battery requires a direct touching of the victim by the defendant. Appellant is incorrect. A defendant can commit a battery indirectly by intentionally causing the force to be applied to another object or person. (People v. Hayes (1996) 142 Cal.App.4th 175, 180 [defendant committed battery when he intentionally knocked over concrete ashtray that fell on victim]; People v. Wright (1996) 52 Cal.App.4th 203, 210, fn. 17 [“A defendant can commit a battery indirectly by causing the force to be applied to the person of another ….”]; 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against the Person, § 13, p. 646.) Also, battery does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. (People v. Hayes, supra, 142 Cal.App.4th at p. 180.) Logically, just as an inanimate object can be used to indirectly commit a battery, so too can another person be used to indirectly cause a battery.
In this case, a reasonable trier of fact could find beyond a reasonable doubt that Jorden’s injury was the direct and probable result of appellant’s acts of intentionally lunging out of the cell toward the group of officers and striking Sharp. In response to appellant’s lunge towards the officers, the officers predictably surged toward appellant, causing Jorden to be shoved into the railing and to dislocate his shoulder. A reasonable trier of fact could conclude beyond a reasonable doubt that appellant intentionally caused the other officers to touch Jorden when he lunged toward them and struck Sharp. Therefore, appellant’s challenge to the sufficiency of the evidence fails.
We also reject appellant’s related contention that the jury was incorrectly instructed that battery may be committed by causing another object to touch the other person in a harmful or offensive way. The touching may be direct or indirect. (People v. Hayes, supra, 142 Cal.App.4th at p. 180; People v. Wright, supra, 52 Cal.App.4th at p. 210, fn. 17; 1 Witkin & Epstein, Cal. Criminal Law, supra, Crimes Against the Person, § 13, p. 646.) The court correctly responded to the jury’s question whether appellant had to directly touch a person to commit a battery.
III. The jury was correctly instructed.
A. It is not reasonably likely that the jury was misled by the wording of CALCRIM No. 2723.
Both sides requested CALCRIM No. 2723, which sets forth the elements of the crime of battery by a prisoner on a nonprisoner. As given, this instruction first named the victim for each count. Then it set forth the elements of the offense. In relevant part, it stated that the People must prove that “[t]he defendant willfully touched another person in a harmful or offensive manner[.]” During the jurors’ deliberations they asked the court the following question: “[I]f injuries are an indirect result of an incident, but the injured party was not physically touched, what category does the action fall under?” The court responded by giving a modified version of CALCRIM No. 240 on causation.
Appellant argues CALCRIM No. 2723 is misleading because it did not specifically direct the jury that “for each of the counts defendant must have harmfully or offensively touched the named victim.” As a result, the jury could have found appellant guilty of all three counts based only on a finding that he willfully touched one of the five correctional officers present during the incident. We are not convinced.
Challenges to the wording of an instruction are resolved by determining whether there is a reasonable likelihood that the jury misapplied or misconstrued the instruction. (People v. Clair (1992) 2 Cal.4th 629, 662-663.) In conducting this inquiry, individual instructions must be viewed in the context of the overall jury charge and not judged in artificial isolation. (People v. Burgener (1986) 41 Cal.3d 505, 538.) In this case, it is not reasonably likely that the jury misconstrued CALCRIM No. 2723 in the manner suggested by appellant. Reasonably intelligent jurors would understand that the People must prove that appellant touched the victim named in each count. Furthermore, the jury’s question during deliberations demonstrates that it did not interpret CALCRIM No. 2723 in the manner suggested by appellant. The instruction was not erroneous under state law and did not infringe any of appellant’s constitutional rights.
B. The jury was adequately instructed on self-defense.
Next, appellant contends that the court erroneously failed to modify CALCRIM No. 2723 to state that the People are required to prove that he did not act in self defense. We summarily reject this contention because the jury was given a modified version of CALCRIM No. 2671 as follows, in relevant part: “The people have the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense.” The jury charge must be considered as a whole and the order of instructions is immaterial. (People v. Sanders (1990) 51 Cal.3d 471, 519.) The jury charge was not confusing. Considering the charge in its entirety, it was clear to a jury composed of reasonably intelligent people that if they believed appellant acted in self-defense, then they must return a not guilty verdict.
Consequently, it is immaterial that the jury was instructed the People bore the burden of proving beyond a reasonable doubt that appellant did not act in self-defense as part of CALCRIM No. 2671 rather than as part of CALCRIM No. 2723. Neither state law error nor infringement of any constitutional right appears.
These determinations renders moot respondent’s contention that appellant waived these instructional challenges.
IV. The court substantially complied with rule 2.1031 and appellant’s due process right was not infringed by the cautionary instruction on the subject of note taking or by the failure to automatically provide the jurors with writing materials.
A. Facts
The court instructed on note taking during its preliminary instructions as follows:
“If any of you want to take notes during the trial, that is permitted, and we’ll make available to anyone who wants them a note pad and something to write with. I am, however, required by law to give you a word of caution about note-taking. Don’t permit your note-taking to distract you from the ongoing proceedings.
“Remember that you’re the judges of the believability of the witnesses and one of the ways you do that is by observing the witnesses up here at the witness stand.
“Notes are only an aid to your memory and should not take precedence over your recollection, and a juror who does not take notes should rely on his or her recollection of the evidence and not be influenced by the fact that another juror may have taken notes. Notes are for the note-taker’s own personal use in refreshing his or her recollection of the evidence.
“You do have the right to request that the court reporter read back to you any of the testimony in this case. She’s making a word-for-word record of everything that’s said in court. If there were a difference between the court reporter’s record and someone’s notes, you would have to follow the court reporter’s record.”
After the court completed its preliminary instructions, it asked, “Did any of the jurors think you’d like to take notes during the trial? If so, just raise your hand and we’ll give you something to write with.” When none of the jurors responded, the court said, “Apparently nobody at present. [¶] If you change your mind later on let us know and we’ll be happy to make something available to you.”
B. The court substantially complied with rule 2.1031 and its cautionary instruction was legally correct. Appellant was not prejudiced by the failure to automatically provide the jurors with writing material.
Appellant argues that the court infringed his due process right by offering writing materials to the jurors. He asserts that rule 2.1031 requires the court to automatically provide all jurors with writing materials, regardless whether the jurors indicate to the court that they want to take notes. Appellant also challenges the correctness of the instruction on note taking, arguing that it improperly implied that the jurors’ recollections or notes are per se less accurate than those of the court reporter. Furthermore, he asserts that jurors should be free to rely on their own recollection of the testimony, even if it conflicts with the reporter’s notes. None of these arguments is persuasive.
Appellant incorrectly refers to this rule in his opening brief as “Rule 2.2031.”
Rule 2.1031 provides: “Jurors must be permitted to take written notes in all civil and criminal trials. At the beginning of a trial, a trial judge must inform jurors that they may take written notes during the trial. The court must provide materials suitable for this purpose.” This rule was adopted by the Judicial Council on December 1, 2006, and became effective on January 1, 2007. ( [as of Mar. 19, 2008].) Prior to adoption of this rule it was within the court’s discretion to decide whether the jurors would be allowed to take notes. (See, generally, People v. Ruiloba (2005) 131 Cal.App.4th 674, 691.)
Here, the court substantially complied with the requirements of rule 2.1031. The record establishes that the court informed the jurors that they would be permitted to take notes. It asked the jurors if any of them would like to do so and told them that if they wanted to take notes, writing material would be provided to them. This is sufficient. Furthermore, even if we were to broadly interpret rule 2.1031 in a manner requiring courts to automatically provide jurors with writing materials, no prejudice appears in this case because none of the jurors wanted to take notes. No juror responded affirmatively to the court’s query whether they wanted to take notes. Immediately thereafter, the court stated that if any of them changed their minds during the trial and wanted to take notes, the court would “be happy” to provide writing materials. No juror indicated to the court during trial that he/she wanted to take notes during the trial. There is no indication in the record that the jurors were intimidated and did not feel free to express a desire for writing materials. Consequently, appellant was not prejudiced by the court’s failure to automatically provide the jurors with writing materials. We reject appellant’s constitutional claim on this basis.
No published authority has interpreted rule 2.1031 and the minutes of the December 1, 2006, meeting of the Judicial Council are not helpful.
Appellant’s challenge to the cautionary instruction that was given also fails. There is no sua sponte duty to instruct on the dangers of note taking. (People v. Avena (1996) 13 Cal.4th 394, 423.) However, “the better practice is to give such an instruction.” (People v. Whitt (1984) 36 Cal.3d 724, 747 (Whitt). In this case, the content of the cautionary instruction that was given is substantially identical to CALJIC No. 1.05 and CALCRIM No. 202. Both CALJIC No. 1.05 and CALCRIM No. 202 state that if there is a discrepancy between the court reporter’s transcript and a juror’s notes, the reporter’s transcript must prevail and guide the jury’s deliberations. Appellant’s challenge to the legality of this statement is unconvincing. In Whitt, supra, 36 Cal.3d at page 747, our Supreme Court quoted with approval a cautionary instruction that was deemed mandatory in a New York state case, People v. DiLuca (1982) 85 App.Div.2d 439 (DiLuca) [448 N.Y.S.2d 730]. In relevant part, the DiLuca court held that the cautionary instruction must remind the jurors “‘that should any discrepancy exist between their recollection of the evidence and their notes, they should request that the record of the proceedings be read back and that it is the transcript that must prevail over their notes.’ [Citation.]” (Whitt, supra, 36 Cal.3d at p. 747.) More recently, in People v. Dennis (1998) 17 Cal.4th 468, our High Court upheld as sufficient a cautionary instruction that told the jurors that their “notes ‘are your own personal notes and not for the use of any other juror,’ and that if a juror’s notes and memory differ, ‘the reporter’s notes must prevail.’” (Id. at p. 538.) In this case, the cautionary instruction that was given by the court contains the content suggested in Whitt, supra, 36 Cal.3d at pages 746 to 748 and accurately warns the jurors of the risks inherent in juror note taking. The instruction was legally correct and did not infringe appellant’s due process right.
V. Refusal to dismiss one of the strikes was not an abuse of discretion.
A. Facts
Appellant was born in 1974. When he committed the current crimes, he was serving a 13-year term of imprisonment resulting from a 1995 conviction for attempted murder with a firearm use enhancement. In 1991, appellant suffered a juvenile adjudication for armed robbery and served a term in the Department of Corrections and Rehabilitation, Juvenile Justice (CYA).
The “STATE PRISON REPORT” recommended consecutive sentencing for each of the three counts because the crimes involved three separate acts of violence.
During the sentencing hearing, defense counsel orally motioned for dismissal of the strike arising from appellant’s 1991 juvenile adjudication for armed robbery pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (the Romero motion). She argued that this adjudication was remote, having occurred 16 years ago. The prosecutor opposed the request, arguing that appellant’s serious criminality has not abated since the 1991 adjudication. Defense counsel also requested concurrent sentencing for the three counts. The court granted the concurrent sentencing request but denied the Romero motion, as follows:
“With regard to the issue of the prior serious felony convictions, the Court does not believe that it would be appropriate to strike either of those allegations.
“It is true that the robbery was in 1991. That was followed by a 1995 arrest and conviction for attempted murder with use of a weapon. The robbery charge was apparently an armed robbery, and Mr. Washington is here convicted of three [violent] crimes while still in custody.
“The Court believes that based on his prior record he presents a significant danger to society and it would not be appropriate to strike … either of the prior serious felonies.”
B. The court understood its discretionary authority and reached a reasonable conclusion.
Appellant argues that denial of the Romero motion constitutes an abuse of discretion because the court did not formulate an individualized and equitable sentence that is commensurate with his level of culpability. He asserts that the court improperly focused on his criminal history and failed to take into account his age, the fact that his strikes were remote and “the fact that the current offenses were significantly less serious than appellant’s most recent prior strike.” Furthermore, appellant argues that he “was in part a victim of his circumstances” and that he had to assault the officers or subject himself to retaliation by his fellow gang members.
We are not persuaded. Essentially, appellant is asking this court to reweigh the evidence and substitute our judgment for that of the trial court. This we will not do. (People v. Myers (1999) 69 Cal.App.4th 305, 310.) The record in this case affirmatively shows that the court understood its discretionary authority and it weighed all of the competing facts to reach a reasoned and reasonable conclusion. Appellant offers no authority holding that the court is required to expressly articulate every one of the facts it considered when ruling on a Romero motion. On the contrary, “[t]he court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary.” (Ibid.) Therefore, the fact that the court focused its comments on appellant’s criminal history does not mean that it considered only this factor. (Ibid.) Appellant ignores the significance of the court’s decision to reject the recommendation contained in the State Prison Report in favor of consecutive sentencing and to sentence him to concurrent terms for the three assaults. This unequivocally demonstrates that the court formulated an individualized sentence that was commensurate with his level of culpability. Furthermore, while the 1991 robbery adjudication is remote, appellant did not live a life that was substantially free of crime after his release from the CYA. Relatively soon thereafter, he committed the more serious crime of attempted murder with a firearm. The current batteries were committed while he was still imprisoned for the attempted murder. We reject appellant’s attempt to minimize the injuries suffered by the officers. Given the entirety of the circumstances, we conclude that the trial court did not abuse its discretion in denying the Romero motion. (People v. Carmony (2004) 33 Cal.4th 367, 378-380; People v. Myers, supra, 69 Cal.App.4th at p. 310.)
DISPOSITION
The judgment is affirmed.
WE CONCUR:
Wiseman, Acting P.J., Kane, J.