Opinion
D056446
08-10-2011
THE PEOPLE, Plaintiff and Respondent, v. RUSSELL M. BROWN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCE283032)
APPEAL from a judgment of the Superior Court of San Diego County, Louis R. Hanoian, Judge. Affirmed.
Defendant Russell M. Brown appeals the judgment convicting him of battery with serious bodily injury (Pen. Code, §§ 242, 243, subd. (d)) based on his participation in a brawl outside a karaoke club. Brown contends the trial court erred in: (1) denying his request for instructions on defense of another (§ 694); (2) answering jury questions by referring the jury to existing instructions instead of providing new, pinpoint instructions; and (3) denying his motion to dismiss for excessive charging delay. We affirm.
All subsequent statutory references are to the Penal Code.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. The Incident at the Karaoke Club
On the evening of October 12, 2007, Brendan Malone and four of his friends (Dustin Peterson, Jessica Long (now Jessica Peterson), Michael Didia and Caroline Magdaleno) went to a club to perform karaoke. Brown arrived at the club later that same evening with his friend Joshua Gulyas and Joshua's brother Cole.
Because they share the same surname, we refer to the Gulyas brothers by their first names for clarity. We intend no undue familiarity or disrespect.
According to Malone's friends, Brown and the Gulyas brothers sat at the bar, stared and pointed at Long and Magdaleno, and made lewd comments about them. Brown and the Gulyas brothers denied staring at or saying anything about Long or Magdaleno.
Both groups left the club at the same time. After exiting, Cole went to the men's restroom, and Long and Magdaleno went to the women's restroom, which were located outside the club in a separate building.
While Long and Magdaleno were in the restroom, Brown and Joshua could hear them, and Joshua said to Brown, "Hey, you know, it's just like high school, remember? Give me a boost." As Brown knelt down to boost Joshua, Malone approached and asked them to show more respect to the women and not peek into the restroom. Brown got up, passed by Malone, and walked toward the parking lot. Malone and Joshua then began shouting insults at each other. Brown turned around, saw Malone and Joshua "still going at it," and "yell[ed] at Josh, 'Come on, come on, let's go.'"
Long and Magdaleno then came out of the restroom, and the entire Malone group proceeded toward the parking lot. Brown and the Gulyas brothers were ahead of them when Joshua turned around, approached Malone and his friends, and shouted more insults. Brown ran and "grabbed" Joshua, and they then left the scene with Cole.
The testimony was in sharp conflict as to whether Brown grabbed anybody else before he departed. Malone testified that Brown ran behind him, grabbed him by the neck and pulled him to the ground, shattering his right elbow. Malone also testified that Brown picked up Magdaleno, tossed her to the ground and punched Long in the face. Malone's friends confirmed his version of these events.
The orthopedic surgeon who treated Malone testified that Malone's ulna (one of the two bones of the forearm) was fractured at the elbow joint and had to be repaired surgically by insertion of a plate and screws. The surgeon also had to perform a fasciotomy to relieve excess pressure that had accumulated in one of the muscular compartments of Malone's forearm. According to the surgeon, Malone's injuries were consistent with those that would be caused by a shove to the ground.
The Brown group recounted a very different story at trial. Brown denied tackling or bumping into anyone. Joshua testified he did not see Brown tackle or knock anyone down. Cole testified he saw Brown run into a woman and knock her down, but he did not see Brown collide with or knock down a man or punch a woman.
After Brown and the Gulyas brothers left the karaoke club, San Diego County Sheriff's Deputy Michael Pepin arrived in response to a 911 call from Didia. Deputy Pepin took statements from Malone and his friends about the incident outside the women's restroom, the confrontation between Joshua and Malone on the way to the parking lot, and the fight that broke out between Brown and Malone.
Deputy Pepin contacted Brown early the next morning after Brown was arrested for driving under the influence. According to Deputy Pepin, Brown told him that he "went around the back of [Malone] and pulled him down to the ground" because Brown feared that Malone, Long and Magdaleno were going to attack the Gulyas brothers. At trial, Brown denied having made such a statement. B. Charges, Verdicts and Sentence
The People initiated this action with a felony complaint filed on August 15, 2008, which charged Brown with battery with serious bodily injury of Malone. (§§ 242, 243, subd. (d).) In an amended information filed April 2, 2009, they alleged that in the commission of this offense, Brown personally inflicted great bodily injury on Malone. (§ 1192.7, subd. (c)(8).) The People also charged Brown with assault of Peterson by means likely to produce great bodily injury. (§ 245, subd. (a)(1).)
The jury found Brown guilty on the charge of battery with serious bodily injury of Malone but found not true the allegation that Brown had personally inflicted great bodily injury. On the charge of assault of Peterson by means likely to produce great bodily injury, the jury found Brown not guilty.
The trial court suspended imposition of sentence, granted Brown formal probation for three years and ordered Brown to pay Malone $44,369.04 in restitution.
II
DISCUSSION
A. Instruction on Defense of Another
Brown contends the trial court erred in refusing his proposed instruction concerning the right to use force to defend another person. (See CALCRIM No. 3470.) He argues the instruction was required because "the evidence that [he] acted in lawful resistance to the commission of a public offense [on Joshua] was more than substantial enough to warrant the jury's consideration." After setting forth additional facts relevant to the issue of defense of another, we shall explain why jury instructions on this defense were not warranted in this case.
1. Additional Pertinent Facts
Because Brown contends the trial court was required to instruct the jury on defense of another, we shall recite additional trial testimony that bears on this defense, with an emphasis on testimony that might justify such an instruction. (See People v. King (1978) 22 Cal.3d 12, 15-16 (King)[emphasizing evidence pertinent to instruction on self-defense rather than evidence supporting judgment when central issue on appeal was right to instructions on self-defense].)
a. Prosecution Witnesses' Testimony
Malone testified that immediately before Brown pulled him to the ground, he had his arms in his jacket, "show[ed] no threat at all," and said to Joshua "in a calm voice, 'All I asked you was to respect my friends.'" Didia testified that before the attack, Joshua was acting aggressively toward Malone but not vice versa. Peterson testified that right before Brown attacked Malone, Joshua approached Malone and his friends and bullied them, and Malone had his hands in his pockets.
b. Defense Witnesses' Testimony
Joshua testified that nobody from the Malone group punched him, shoved him or had any other physical contact with him, or even tried to do so. According to Joshua, all that was happening was that he and members of the Malone group were yelling and making threats back and forth as they proceeded from the club to the parking lot. He never felt threatened enough to call the police.
Joshua's brother Cole testified that he did not see anyone advance toward or try to strike Joshua. Cole also stated that the members of the Malone group did not raise their hands or look like they were getting into a fight with Joshua; "they were just arguing in a loud tone." According to Cole, the first person to contact another person was Brown, when he ran down the hill and collided with one of the women in the Malone group.
Brown gave testimony similar to, though more equivocal than, that of the Gulyas brothers. Brown saw Joshua and Malone arguing and noticed that another member of the Malone group (apparently Didia or Peterson) had his "chest out, shoulders back, and [was] coming at a quick pace." He thought that person was going to hit Joshua, but nobody from the Malone group actually took a swing at or shoved Joshua. Brown did not see anyone with his fists up. He testified that Malone "was right in Josh's face, like three inches away, and they were yelling at each other. [He did]n't really remember, but . . . thought they were both pushing each other a little bit, you know, bumping into each other, stuff like that." According to Brown, when he saw this, he ran down the hill to remove Joshua before the situation got worse. He intended "to grab Josh, not really to help."
c. Trial Court Proceedings
During the conference to discuss jury instructions, Brown's counsel requested that the trial court instruct the jury on defense of another. Counsel argued that the testimony that Joshua was surrounded by a group of people exhibiting an aggressive demeanor warranted the instruction because a reasonable person would have believed that Joshua was about to be attacked. The prosecutor objected to giving the instruction and pointed to Brown's testimony that he never intentionally physically contacted Malone or his friends and to the testimony of the Gulyas brothers that they did not feel threatened. The trial court denied the request to instruct on defense of another, based on Brown's testimony that he did not attack anyone and the lack of evidence supporting a reasonable belief that Joshua was in imminent danger.
2. Legal Analysis
Although a trial court must give a requested instruction on a defense that is supported by substantial evidence (People v. Flannel (1979) 25 Cal.3d 668, 684-685 & fn. 12 (Flannel); People v. Rhodes (2005) 129 Cal.App.4th 1339, 1346), the court need not instruct the jury on a defense for which there is no substantial evidence, even if the defendant requests the instruction (People v. Stitely (2005) 35 Cal.4th 514, 551 (Stitely); People v. Curtis (1994) 30 Cal.App.4th 1337, 1355 (Curtis)). "Evidence is substantial if a reasonable jury could find the existence of the particular facts underlying the instruction." (People v. Lee (2005) 131 Cal.App.4th 1413, 1426 (Lee).) Any doubts about the sufficiency of the evidence to warrant instruction on a defense should be resolved in favor of the defendant. (People v. Ratliff (1986) 41 Cal.3d 675, 694.) We review a trial court's decision not to give a requested instruction de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
The defense of another, on which Brown requested instruction, provides that when a person is threatened by the "commission of a public offense," "[a]ny other person, in aid or defense of the person about to be injured, may make resistance sufficient to prevent the offense." (§§ 692, 694.) Defense of another, like the analogous self-defense, is a complete defense to a charge of battery. (People v. McKee (1968) 265 Cal.App.2d 53, 61 [defense of another]; People v. Mayes (1968) 262 Cal.App.2d 195, 198 (Mayes)[self-defense].) For these defenses to apply, "the defendant must actually and reasonably believe in the need to defend." (People v. Humphrey (1996) 13 Cal.4th 1073, 1082, italics added; accord, Lee, supra, 131 Cal.App.4th at p. 1427; People v. Jefferson (2004) 119 Cal.App.4th 508, 519.) In particular, to justify a battery, a defendant asserting defense of another must have had an honest and reasonable belief that the person he defended was in imminent danger of bodily injury. (§ 694; People v. Minifie (1996) 13 Cal.4th 1055, 1064; People v. Driscoll (1942) 53 Cal.App.2d 590, 594-595.) As to reasonableness, the question is "whether a person of ordinary and normal mental and physical capacity would have believed he was in imminent danger of bodily injury under the known circumstances." (Jefferson, at p. 520.)
The defense of self-defense authorizes a person "about to be injured" by "the commission of a public offense" to offer "[r]esistance sufficient to prevent the offense." (§§ 692, 693.) Because the defenses of self-defense and defense of another are very similar, and because cases discussing self-defense greatly outnumber those discussing defense of another, we, like the parties, rely on cases discussing self-defense. (See King, supra, 22 Cal.3d at p. 20 [Supreme Court noted that self-defense was "closely related" to defense of others and that its consideration was "relevant to" both defenses].)
One court has held that a person may resist an offensive touching, even if it inflicts no bodily harm, with such force as is reasonable under the circumstances. (People v. Myers (1998) 61 Cal.App.4th 328, 335.)
There was no substantial evidence that Brown actually believed he needed to use force against Malone to defend Joshua against imminent bodily injury. The evidence most supportive of Brown's assertion of defense of another is Deputy Pepin's hearsay testimony, which Brown contends is sufficient by itself to warrant instruction on defense of another. According to Deputy Pepin, when he contacted Brown the morning after the incident at the karaoke club, Brown told him he pulled Malone down because he feared Malone, Magdaleno and Long were going to attack Joshua and Cole. Whether this testimony constitutes substantial evidence is doubtful, for as Brown points out later in his brief, "every single witness . . . testified that . . . Deputy Pepin's police report was inaccurate or omitted material facts." Indeed, at trial Brown denied having told Deputy Pepin he pulled Malone down. Furthermore, Brown admitted at trial that he was intoxicated and had been arrested for driving under the influence when he spoke to Deputy Pepin. We have previously held that there is no need to instruct on defense of others where, as here, the only witness (Brown) whose testimony might show the person defended was in imminent danger was intoxicated and could not remember many details of the incident. (People v. Thomas (1990) 219 Cal.App.3d 134, 143-144 (Thomas).)
Other testimony pertinent to whether Brown actually believed he needed to attack Malone in order to defend Joshua came from Brown himself. He testified that he thought "one guy" from the Malone group was going to hit Joshua because he approached "at a quick pace" with "chest out" and "shoulders back." The person approaching must have been Didia or Peterson, however, because Brown testified Malone was "standing there" while arguing with Joshua. Moreover, when pressed at trial, Brown testified that he ran toward the Malone group to remove Joshua from the situation before it got worse and intended only "to grab Josh, not really to help." (Italics added.) Also, and perhaps most significantly, at trial Brown denied attacking Malone, which is entirely inconsistent with defense of another. (See People v. Sedeno (1974) 10 Cal.3d 703, 718 (Sedeno)[no need to instruct on self-defense when defendant denied intent to commit crime], disapproved on unrelated point by Flannel, supra, 25 Cal.3d at p. 684, fn. 12; Curtis, supra, 30 Cal.App.4th at p. 1357 [self-defense does not apply when defendant denies intending to do act].) Thus, the evidence that Brown actually and honestly believed he needed to attack Malone in order to prevent imminent bodily injury to Joshua was so "minimal and insubstantial" that instruction on defense of another was not warranted. (Flannel, at p. 684; Thomas, supra, 219 Cal.App.3d at pp. 143-144.)
We are not persuaded by Brown's argument that instruction on defense of another was required because he testified that he grabbed Joshua and pulled him away in order to prevent an impending fight and from that testimony the jury could conclude that Brown was mistaken and actually grabbed Malone. According to Brown, if the jury so concluded, "the doctrine of transferred intent would absolve [him] from criminal responsibility." Under that doctrine, "self-defense is available to insulate one from criminal responsibility where his act, justifiably in self-defense, inadvertently results in the injury of an innocent bystander." (People v. Mathews (1979) 91 Cal.App.3d 1018, 1024.) Extended to the context of defense of another, the doctrine of transferred intent would mean defense of another is available to insulate one from criminal responsibility where his act, justifiably in defense of another, inadvertently results in the injury of an innocent bystander. " 'The inquiry must be whether the [criminal act] would have been justifiable if the accused had [committed the act against] the person whom he intended to [commit the act against], as the unintended act derives its character from the intended.'" (Ibid.)In other words, under the doctrine of transferred intent in the context of defense of another, if a defendant would have been justified in attacking an aggressor in order to defend a victim, the defendant will not be criminally responsible if he inadvertently attacks a bystander instead. The doctrine posits at least four distinct people — defendant, aggressor, victim and bystander. It therefore cannot extend to Brown's theory that in defending Joshua he mistakenly grabbed Malone when he intended to grab Joshua, because on that theory the aggressor and the victim are the same person, namely, Joshua.
There was also no substantial evidence that Brown reasonably believed he needed to use force against Malone in order to prevent imminent bodily harm to Joshua. "There can be no reasonable ground for apprehending harm in the absence of some overt act or physical demonstration." (People v. Duchon (1958) 165 Cal.App.2d 690, 693; see also Mayes, supra, 262 Cal.App.2d at p. 197 ["no provocative act which does not amount to a threat or attempt to inflict injury . . . [is] sufficient to justify a battery"].) Here, every witness who testified on the subject, including Brown and Joshua, stated that neither Malone nor any of his friends actually struck or shoved Joshua, took a swing at him, raised a fist toward him or otherwise made any threatening show of force against him. Moreover, the same witnesses all testified that the only interaction between Joshua and Malone was verbal: they argued about the incident outside the women's restroom and exchanged insults as they walked away from the restrooms toward the parking lot. But, "[n]o conduct or words, no matter how offensive or exasperating, are sufficient to justify a battery." (People v. Martinez (1970) 3 Cal.App.3d 886, 889.) Thus, even if Brown believed he needed to attack Malone in order to defend Joshua, there is no substantial evidence to support the reasonableness of that belief.
The only arguably contrary testimony came from Brown, who stated that he "[did]n't really remember, but . . . thought they [i.e., Malone and Joshua] were both pushing each other a little bit, you know, bumping into each other, stuff like that." Such equivocal testimony does not constitute substantial evidence warranting instruction on defense of another. (Thomas, supra, 219 Cal.App.3d at p. 144.)
As support for the reasonableness of his belief, Brown also cites testimony from Cole that he thought Brown's "intentions were to protect [his] brother" when Brown ran toward the Malone group. As to reasonableness, however, Cole's subjective thoughts are irrelevant; the question is "whether a person of ordinary and normal mental and physical capacity would have believed he was in imminent danger of bodily injury under the known circumstances." (Jefferson, supra, 119 Cal.App.4th at p. 520.)
In sum, because Brown denied using any force against Malone and there was no substantial evidence Brown actually and reasonably believed he needed to use such force to prevent imminent bodily harm to Joshua, the trial court did not err in refusing to instruct the jury on defense of another. (Stitely, supra, 35 Cal.4th at p. 552; Sedeno, supra, 10 Cal.3d at p. 718; Thomas, supra, 219 Cal.App.3d at p. 144; People v. Stephens (1935) 5 Cal.App.2d 33, 35.) B. Response to Jury Questions
Brown contends that the trial court prejudicially erred when it denied his request for a pinpoint instruction in response to certain questions from the jury regarding the willfulness element of battery. We shall set forth additional pertinent facts, followed by the reasons that we reject Brown's contention.
1. Additional Pertinent Facts
During deliberations, the jury sent the court a note containing the following questions: "(1) If some of the jurors doubt that the defendant did the crime with no intent to hurt anyone, but actually ended up with someone hurt, is the defendant considered not guilty or guilty? (2) Is it a crime because he hurt him anyway? By colliding with him or it was an accident is that reasonable doubt and it would be lawful to rule him not guilty? (3) Does willfully mean with intent to hurt, deliberate[?]"
Brown's counsel inferred from these questions that the jury was "muddling up the intent requirement, because there is discussion in the instructions about no intent necessary to hurt somebody, but there is an intent necessary to physically contact somebody in a harmful or offensive manner." He therefore requested that trial court instruct the jury that if Brown accidentally touched someone in a harmful or offensive manner, he would not be guilty of battery with serious bodily injury or the lesser included offense of battery.
The prosecutor objected to the pinpoint instruction proposed by Brown's counsel. He argued that the instruction defining accident "perfectly encapsulates the issue of intent, as well as how an accident does relate to that issue."
The trial court denied Brown's counsel's request for a more specific instruction and instead reread to the jury the instructions defining battery causing serious bodily injury, reasonable doubt and accident.
As pertinent here, the trial court reinstructed the jury with a modified version of CALCRIM No. 925 as follows: "The defendant is charged in count 1 with battery causing serious bodily injury. To prove that the defendant is guilty of this charge, the People must prove that: [¶] 1. The defendant willfully touched Brendan Malone in a harmful or offensive manner; and [¶] 2. Brendan Malone suffered serious bodily injury as a result of the force used. [¶] Someone commits an act willfully when he does it willingly or on purpose. It is not required that he intend to break the law, hurt someone else, or gain any advantage. [¶] Making contact with another person, including through his or her clothing, is enough to commit a battery." (Italics added.)
As pertinent here, the trial court reinstructed the jury with a modified version of CALCRIM No. 3404 as follows: "The defendant is not guilty of Count 1, battery with serious bodily injury, . . . if he acted without the intent required for that crime, but acted instead accidentally. You may not find the defendant guilty of Count 1, battery with serious bodily injury, . . . unless you are convinced beyond a reasonable doubt that he acted with the required intent." (Italics added.)
2. Legal Analysis
Trial courts are required to instruct jurors during deliberations "if they desire to be informed on any point of law arising in the case." (§ 1138; see People v. Smithey (1999) 20 Cal.4th 936, 985.) Section 1138 "imposes a 'mandatory' duty to clear up any instructional confusion expressed by the jury." (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212 (Gonzalez).)Courts have held repeatedly that a trial court may satisfy this duty by simply rereading to the jury certain instructions it has already given if those instructions are full and complete in themselves and are adequate to answer the jury's question on the facts of the case. (See, e.g., id. at pp. 1212-1213; People v. Moore (1996) 44 Cal.App.4th 1323, 1331; People v. Hill (1992) 3 Cal.App.4th 16, 25, disapproved on unrelated point by People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5.) We review for abuse of discretion a trial court's decision as to what information is sufficient to satisfy the jury's request for information. (Smithey, at p. 985; People v. Eid (2010) 187 Cal.App.4th 859, 882.)
We find no abuse of discretion here. The jury's questions indicated uncertainty whether the law required a verdict of guilty or not guilty on the charge of battery with serious bodily injury if Brown had no intent to hurt Malone but actually did hurt him, though only accidentally. The instruction on battery with serious bodily injury (see fn. 8, ante) correctly informed the jury that it could only find Brown guilty if it found he "willingly or on purpose" touched Malone. (See §§ 242 [battery is willful and unlawful use of force or violence upon person of another], 7, subd. 1 ["willfully" implies purpose or willingness to commit act]; People v. Lara (1996) 44 Cal.App.4th 102, 107 [willfulness applies to commission of act that causes harm.) The same instruction also correctly informed the jury that to return a guilty verdict, it did not have to find that Brown intended to hurt Malone. (See § 7, subd. 1 [willfully does not require intent to injure]; People v. Hayes (2006) 142 Cal.App.4th 175, 180 [battery does not require intent to injure].) The instruction on accident (see fn. 9, ante) correctly informed the jury that it could not find Brown guilty if it found he touched Malone accidentally. (See § 26, subd. Five [no criminal liability for act committed by accident]; Lara, at p. 110 [accident negates mental state necessary to make touching a battery].)
Taken together, then, these instructions correctly advised the jury that it could return a verdict of guilty even if it found Brown did not intend to hurt Malone, but that it had to return a verdict of not guilty if it found that Brown contacted Malone accidentally even though he actually hurt Malone. "We assume the jurors are intelligent persons capable of understanding and correlating all jury instructions given them." (People v. Milosavljevic (2010) 183 Cal.App.4th 640, 649.) Accordingly, by rereading the instructions on battery with serious bodily injury, accident and reasonable doubt in response to the jury's questions, the trial court satisfied its duty under section 1138. (See Gonzalez, supra, 51 Cal.3d at pp. 1212-1213.)
Brown acknowledges that rereading instructions is "usually" sufficient to answer a jury's questions but insists rereading was not sufficient here. Brown points to the jury's "inconsistent" guilty verdict on the battery with serious bodily injury charge and not true finding on the great bodily injury allegation as indicators of the need for pinpoint, clarifying instructions on the defense of accident. According to Brown, the jury's finding that he "did not personally inflict Malone's injuries, but nevertheless found [him] guilty of willfully touching Malone in a harmful or offensive manner with sufficient force to have caused those same injuries is . . . compelling evidence that the jury simply did not understand the legal principles underlying the defense of accident." We are not persuaded.
Brown's argument proceeds from the false premise that the jury's finding of not true on the allegation that he personally inflicted great bodily injury on Malone is inconsistent with its verdict of guilty on the charge of battery with serious bodily injury. We rejected a very similar argument in People v. Taylor (2004) 118 Cal.App.4th 11, 22 (Taylor), where the People argued that conviction of battery with serious bodily injury (a moderate to severe fracture of a bone around the eye) qualified as a serious felony under section 1192.7, subdivision (c)(8), because serious bodily injury is legally equivalent to great bodily injury. There, as here, the jury convicted the defendant of battery with serious bodily injury but found not true the allegation that the defendant had personally inflicted great bodily injury. (Id. at pp. 17-18.) In rejecting the People's argument, we explained:
"Although the terms 'great bodily injury' and 'serious bodily injury' have been described as being 'essentially equivalent' [citation] or having 'substantially the same meaning' [citations], they have separate and distinct statutory definitions. Serious bodily injury is defined as 'a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement.' (§ 243, subd. (f)(4), italics added.) By contrast, great bodily injury is defined as 'a significant or substantial physical injury.' (§ 12022.7, subd. (f).) Unlike serious bodily injury, the statutory definition of great bodily injury does not include a list of qualifying injuries and makes no specific reference to bone fractures." (Taylor, at p. 24.)We further held that whether the bone fracture at issue in that case constituted a serious bodily injury or a great bodily injury was a factual question for the jury to decide; and we concluded that on the instructions given to the jury, which properly distinguished between the two types of bodily injury, the jury could find the fracture constituted a serious bodily injury but not a great bodily injury. (Id. at pp. 24-25.)
As in Taylor, supra, 118 Cal.App.4th 11, the jury here properly could conclude that Malone's broken elbow was a serious, but not a great, bodily injury based on the instructions it received. The trial court gave the standard instruction on battery with serious bodily injury, which defines serious bodily injury in terms that are virtually identical to the language of the statute defining that offense, including the specific reference to bone fracture. (Compare CALCRIM No. 925 with § 243, subd. (f)(4).) The court also gave the jury the standard instruction that great bodily injury "means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm." (See CALCRIM No. 3160.) This instruction tracks the corresponding statute and correctly states the law. (§ 12022.7, subd. (f); Taylor, at p. 24.) Given these instructions, the jury properly could have found, as it apparently did find, that: (1) Malone's broken elbow, as a bone fracture, fell within the express statutory definition of serious bodily injury for purposes of the battery charge; but (2) the broken elbow did not also constitute more than moderate harm so as to fall within the definition of great bodily injury for purposes of the special allegation. (See Taylor, at p. 25; see also People v. Nava (1989) 207 Cal.App.3d 1490, 1497 ["a bone fracture does not qualify automatically as a great bodily injury"].) The latter finding does not mean, as Brown erroneously contends, that "the jury found that [he] did not personally inflict Malone's injuries."
Accordingly, we conclude, contrary to Brown's contention, that the jury's finding on the great bodily injury allegation is not inconsistent with its verdict on the battery with serious bodily injury charge. We also conclude, again contrary to Brown's contention, that the finding and verdict do not constitute "compelling evidence" that the jury remained confused about the accident defense even after the trial court reread the applicable instructions. C. Denial of Motion to Dismiss for Excessive Charging Delay
Brown contends his conviction must be reversed because the delay between the date of the incident and the date he was charged so prejudiced his ability to defend himself at trial that he was denied due process of law. After we set forth additional pertinent facts, we will analyze Brown's contention and conclude that he has not shown delay-related prejudice sufficient to warrant dismissal of the charges against him.
1. Additional Pertinent Facts
Before the commencement of trial, Brown moved the trial court to dismiss the case on the ground that the prosecutor's "unjustifiable delay" in filing the charges prejudiced Brown's ability to defend himself. Brown contended that because the prosecutor delayed charging him, he could not locate most of the employees who worked at the karaoke club the night of the incident, and those he did locate had little or no recollection of the incident. Those employees, according to Brown, were important and would have had no bias in favor of him or Malone. Brown further contended that the prosecutor had no justification for the delay.
The trial court tentatively denied the motion but postponed a final ruling on the motion until after hearing the evidence at trial. After the close of evidence, the court concluded that Brown had not demonstrated sufficient prejudice to warrant dismissal of the charges. Specifically, the court noted that there were no witnesses to anything relevant inside the club and that every percipient witness to the offense was available and gave testimony. The court therefore denied Brown's motion to dismiss for excessive charging delay.
2. Legal Analysis
"Delay in prosecution that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions. A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay. The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay. [Citations.] A claim based upon the federal Constitution also requires a showing that the delay was undertaken to gain a tactical advantage over the defendant. [Citations.] We have observed that '[p]rejudice may be shown by loss of material witnesses due to lapse of time [citation] or loss of evidence because of fading memory attributable to the delay.'" (People v. Catlin (2001) 26 Cal.4th 81, 107 (Catlin)?)"We review for abuse of discretion a trial court's ruling on a motion to dismiss for prejudicial prearrest delay [citation], and defer to any underlying factual findings if substantial evidence supports them [citation]." (People v. Cowan (2010) 50 Cal.4th 401, 431 (Cowan).)
Brown attempts to show prejudice in the form of loss of important testimony from employees of the karaoke club about what happened inside the club before the incident and from the security guard about what other witnesses told Deputy Pepin after the incident. A defendant seeking dismissal based on precharging delay has an initial burden to prove actual prejudice from the delay. (People v. Nelson (2008) 43 Cal.4th 1242, 1250; People v. Hartman (1985) 170 Cal.App.3d 572, 579; People v. Lawson (1979) 94 Cal.App.3d 194, 198.) Brown has not met that burden.
According to notes from Brown's investigator attached to the motion to dismiss: (1) the bartender did not recall anything that happened inside the club because "there were too many people coming in and out of the bar that night," and he went outside only after the incident; (2) the manager and the other employee could not remember any details of the incident because, during that time frame, the bar was "drawing the wrong crowd" and "there were many fights and arguments"; and (3) the investigator could not locate the security guard.
What employees working at the club on the night of the incident might have observed inside the club is irrelevant. The determination of whether Brown was guilty of battery — i.e., the "willful and unlawful use of force or violence upon" Malone (§ 242) — depends entirely on events that occurred outside the club. As to those events, the trial court correctly stated that "every percipient witness to the actual offense . . . was available and did give testimony." Thus, Brown has shown neither that the testimony lost due to precharging delay was "critical" or "'of crucial significance'" (Cowan, supra, 50 Cal.4th at p. 433) nor "that any crucial defense was lost by reason of the delay" (People v. Archerd (1970) 3 Cal.3d 615, 641 (Archerd)).
Similarly, the testimony of the security guard would not have been directly relevant, for, as Brown concedes, "the security guard was not a percipient witness to the events that caused Malone's injury." Although Brown asserts the security guard heard what the percipient witnesses told Deputy Pepin and consequently would have been able to confirm or deny the accuracy of Deputy Pepin's report, he cites to nothing in the record to support this assertion. "Such unsupported conclusionary assertions based upon [speculation] are insufficient to establish actual prejudice." (People v. Reeder (1984) 152 Cal.App.3d 900, 910.)
The pages of the reporter's transcript Brown cites in his brief contain only a portion of the colloquy among the trial court and counsel concerning the court's tentative denial of Brown's motion to dismiss.
Furthermore, insofar as Brown based his motion to dismiss on his federal constitutional right to due process, his argument fails for another, independent reason. To establish that precharging delay violates the federal Constitution, the defendant must prove that the prosecutor deliberately delayed filing charges to gain a tactical advantage over the defendant. (United States v. Gouveia (1984) 467 U.S. 180, 192; Catlin, supra, 26 Cal.4th at p. 107; Archerd, supra, 3 Cal.3d at p. 640.) The record suggests no such impropriety here.
This case involved very little physical or documentary evidence and depended almost entirely on the testimony of the witnesses to the offense. Thus, as the trial court stated in response to Brown's complaints about the witnesses' fading memories, "[C]ertainly there was no greater prejudice to the defense than there was to the People, because the same process occurs for the People's witnesses as well. And as the party that bears the burden of proof, they are the ones that are actually going to suffer more prejudice by the delay than the defense would have in this case." Moreover, Brown does not even allege the prosecutor deliberately delayed filing charges; he contends only that Deputy Pepin "unreasonably and inexplicably waited more than six months to obtain [pertinent] records," and that "[t]he subsequent 10-month delay was plainly attributable to negligence." (Italics added.) Therefore, the precharging delay did not violate Brown's federal due process rights.
In sum, "where, as here, there is neither prejudice to the defendant nor a deliberate delay by the prosecution in order to hamper the defense we conclude that the defendant has not been deprived of due process." (Scherling v. Superior Court (1978) 22 Cal.3d 493, 507.) Accordingly, the trial court did not abuse its discretion in denying Brown's motion to dismiss for excessive charging delay.
DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR:
MCDONALD, Acting P. J.
MCINTYRE, J.