Opinion
H024284.
7-22-2003
THE PEOPLE, Plaintiff and Respondent, v. MINH LUONG PHAN, Defendant and Appellant.
After trial a jury convicted defendant Minh Phan of assaulting Timothy Benoit by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a).) The jury found true that defendant personally inflicted great bodily injury on Benoit. (Pen. Code, §§ 12022.7, subd. (a), 1203, subd. (e)(3).)
After the trial court denied defendants motion for new trial, the court sentenced defendant to prison for seven years, including the upper term of four years for the assault, enhanced by three years for personal infliction of great bodily injury.
On appeal, defendant contends that the trial court erred in excluding evidence and in instructing the jury about assault and about personally inflicting great bodily injury in a group beating. Defendant also claims his trial counsel was incompetent and the prosecutor committed misconduct. For the reasons stated below, we will affirm the judgment. Defendant expands on some of these claims in a petition for writ of habeas corpus, which we will dispose of by separate order.
TRIAL EVIDENCE
The evidence at trial was that a traffic encounter escalated into a physical fight that left a man bleeding on the side of the road with a cracked skull while defendant and his passenger drove off in defendants car. Defendant did not testify at trial.
The victim, Timothy Benoit, testified at trial. He was unable to describe the fight due to memory loss. He did recall the following. On December 2, 2002, at around 4:00 p.m. he had switched cars with his wife and was driving a minivan home on Lawrence Expressway. He changed into the middle lane due to some traffic congestion. A green Geo Metro drove up along his left. Defendant, the driver, and the male passenger were looking at him with anger, pointing at him, and saying things he could not hear. One of them threw a bottle that hit his van. This angered Benoit. Benoit accelerated in front of the Metro, cut in front of it, and parked on the median of the road. The Metro parked behind him. He saw defendant getting out of the Metro, so Benoit got out of his van. He did not see the passenger get out of the car. At the time Benoit was 43 years old, five feet seven inches tall, and weighed about 155 pounds.
Defendant was 21 years old, five feet 11 inches tall, and weighed about 160 pounds.
Passersby in other vehicles described seeing an altercation between two Asian men and an older white man. According to Socorro Mollat, the van cut off the Metro and parked. Benoit got out of the van and went quickly back to defendants car. Benoit bent down to talk to defendant. Defendant got out of his car. The passenger also got out of the car. After a brief conversation, they began fighting. Benoit hit back at the two younger Asian males. They kicked him as he fell to the ground. When he was on the ground, they got into their car and drove off. She called 911 on her cell phone and reported that two guys had beaten up another guy and left him on the road. Benoits head was very bloody.
The sound of a cars brakes got the attention of Marci Jeffries. She saw Benoit run up to a car and two Asian men get out of that car. Benoit was yelling angrily. The two younger men began hitting him. Benoit did not swing first. He tucked his arms in and curled up. They punched him on both sides. He went to the ground. She saw Benoit try to get up. She told him not to, that help was on the way. A flap of skin was lifted off his skull. There was a lot of blood. Jeffries saw no weapon used.
When Robee Pilgrim saw the three men, they were already out of their vehicles and arguing. Someone pushed someone and a fight ensued in the median. The two younger Asian men were beating the older man, who was trying to block their blows and defend himself. It seemed like one guy stabbed him because he started bleeding and dropped to the ground. Pilgrim saw no weapon. Pilgrim called 911 and reported the license plate number of the Metro.
Bao "Dave" Hoang saw two people scuffling. He saw a lot of arm movements but could not tell if they were making contact. He saw a second Asian man get into the passengers side of the green car before it drove off. He saw Benoit on the ground, not moving, with a pool of blood around his head. Hoang saw no weapon used.
What Everett Ford saw was one man trying to escape across the island from two other ones. First one and then the other of the two pursuers caught him, grabbed him, and punched him. Almost immediately after the second pursuer got involved, Benoit went down hard on the island and did not move. Ford could not tell if the men kicked him or just jumped over him as they left the scene. The men drove off. Ford called 911 and reported two men beating up a third. He saw no weapon being used.
Mollat and Ford honked their horns in a vain attempt to deter the assault.
Sunnyvale Police Detective Mark Sole investigated the reported license plate number, which was one number away from defendants Geo Metro. After following defendant for a day or two, Sole spoke to him on December 15, 2001 at his place of employment. Defendant agreed to talk with Detectives Sole and Pitts. Their interview was tape-recorded and the recording was played for the jury.
According to defendant, that day he was driving with a long-time friend named John. Defendant did not know Johns last name. A man in a minivan cut them off three times and parked the van. Defendant did not throw anything at the van. He did not know if John had. The man spit at his car, so defendant gave him the finger. The man charged back to defendants car and punched him, so defendant punched back. Defendant was outside of his car when the man hit him. Defendant only punched him once. Defendant was just defending himself. Defendant denied grabbing the man. John got out of the car to protect him. John did not hit him. Neither one was wearing steel-toed boots. Defendant saw blood on the man. He thought it was from his nose. The man fell to the ground. Defendant did not know if he hit his head. He thought they had probably messed him up from punching him. When asked if he had a weapon in the car, defendant said he had a steering wheel lock called the Club.
Defendant said he was injured by the man. Sole could not see any injury.
Detective Sole searched defendants car and removed the Club and a large flashlight. He saw no blood in the car. The laboratory found no evidence on the Club or the flashlight.
Photographs of Benoits injuries were in evidence. Benoit was hospitalized for 16 days. Part of his skull was removed to relieve swelling of his brain. A titanium plate was later put in his skull. In addition to his head injury, he had a scraped and bloody right forearm and elbow. Since the fight he has had trouble speaking and remembering words. No medical expert described Benoits injuries.
EVIDENCE THAT A WEAPON WAS USED
At the preliminary examination there was some evidence that a weapon was used on Benoit. Detective Mark Sole talked to Doctor Matz, a neurosurgeon who operated on Benoit. Matz told Sole that Benoit had two skull fractures. According to Sole, Matz told him that the fractures Benoit suffered would probably not result from hitting his head on the ground or curb after falling. "It looked more like a pipe type weapon that was, that had clean lines, as he said, or possibly steel toe boot."
Sunnyvale Police Officer David Lafaver interviewed a few witnesses at the scene, including Dung Nguyen. Nguyen, who was 73 years old, was a passenger in a car driven by her daughter, Elizabeth Pochard. She saw a second Asian male join an ongoing fight in which a white male and an Asian male were punching each other. She saw the second Asian strike the white male in the head from behind with an object that she believed may have been a hammer. She did not say the second Asian was a passenger. The white man fell to the ground. Lafaver said he had some difficulty communicating with Nguyen, but he changed the words until they understood each other.
The prosecutor at the preliminary examination argued that it was interesting that Nguyen, the only witness who observed some type of weapon, was the only witness who was a passenger.
The original information filed May 25, 2001 charged defendant with assault "with a deadly weapon and instrument other than a firearm, a metal pipe/hammer, and by means of force likely to produce great bodily injury."
Nguyen was originally listed as a potential prosecution witness, as was Doctor Paul Matz. The prosecutor notified defense counsel Patricia Fox a week before trial that they would not be calling Nguyen as a witness. Neither Nguyen nor Matz was on the prosecutors final witness list. Nguyen was listed as a potential defense witness.
On Monday, October 22, 2001, at the outset of trial, the prosecutor struck the allegation of the use of a weapon and proceeded on the theory of the use of force likely to produce great bodily injury.
JURY ARGUMENT
The prosecutor argued as follows in her opening argument. "Did the defendant commit an act which would probably and directly result in physical force on another? We heard from every one of those witnesses that in fact he did. And we heard even from the defendant himself that he did. He either took one punch at him or two punches at him, depending upon where in the interview you are with the defendant. Every one of those witnesses was questioned about and told you about this fight that they saw going on, first with the defendant, and then later with the defendant and his buddy, the passenger. Every one of those witnesses described it as punches being thrown. Not just one but beaten on was one of the terms that was used or beat the hell out of was Everett Fords term."
The present ability to apply physical force was proved by the fact that "they actually did apply the physical force, the defendant and his friend." The prosecutor pointed out "that no injury is required to find an assault. You can assault someone and leave them completely unscratched, does not need to be proved. Of course its kind of a moot point in this case." The injury could be considered in determining the nature of the assault.
The great bodily injury was evident in the photographs of the victim. Also the victim described two surgeries and a titanium plate in his head.
"You can commit bodily injury, great bodily injury, with hands or fingers. Thats specifically provided for in the law. Its possible its done and it was done in this case." "We know there was enough force to produce great bodily injury because in fact that was the end result of this attack." More evidence of the force used was the shocked reaction of the eyewitnesses who called 911.
Regarding the special allegation that the defendant personally inflicted great bodily injury, the prosecutor paraphrased CALJIC No. 17.20 as it pertains to a group beating. If "its not possible to determine who inflicted a particular injury, the defendant himself may be found to have personally have [sic] inflicted that injury. If so, essentially what it says, if we cant figure out who made that injury with whatever hand, fist, kick, weapon, what have you, you cant really figure that out." "As far as not being able to determine who personally inflicted what injury to Mr. Benoit, he had more than one. He had the head injury, and he also had the injury to his elbow. Who did what? [P] Well, none of the witnesses were able to specifically pinpoint what this person did, but they all told us that both these guys were in it together and both these guys were going after Mr. Benoit together, kitty-corner, almost right next to each other . . . ." "Its not as though, you know, the defendant made one swing at Mr. Benoit then ran away and his passenger came in and finished off the job. They were in that fight together, together." "They were right next to each other, and they knew the defendant, knew the nature of the force that was being used by his passenger. His passenger knew the nature of the force that the defendant was using." All the eyewitnesses were also aware of the force being used.
The defense argument was that Benoit cut off defendant repeatedly in traffic. Benoit was the aggressor who charged up to defendant when they parked. Defendant was simply defending himself. Defendant did not know what his passenger was going to do while defendant was defending himself.
1. EXCLUSION OF NGUYENS STATEMENT
On appeal defendant contends that the trial court erred by excluding from evidence Dung Nguyens statement during her interview at the crime scene about the victim being struck from behind by a hammer-like object.
On Monday, October 29, 2001, the fourth day of trial, defense counsel sought admission of Nguyens statement to Officer Lafaver as a spontaneous statement. At an Evidence Code section 402 hearing in the jurys absence, Lafaver described Nguyen during his interview at the crime scene as "pretty articulate as best she could be. Didnt seem too agitated." She was not excited at all. He understood her pretty well, though they had to work through some language barriers. "As for her state of excitability it was really nothing more than me talking to you [defense counsel]." He spoke to her about ten minutes.
The prosecutor objected to admission of Nguyens statement. The court observed that most people would be excited to see a victim on the ground. "However, the test is not what most of us would be thinking. You have to look at what evidence is as to what that particular witness demeanor was when she was giving her statement." According to the officer, she was not excited or agitated. So the court ruled the statement inadmissible.
In light of this ruling, defense counsel Fox asked for a continuance to produce Nguyen, who lives in West Virginia. Fox explained that she had not arranged for Nguyen to be present. "I guess its my fault because I had viewed the admissibility of her statement coming in through the police officer in a different way from Your Honor, so thats where we stand right now, and perhaps that is something we can take care of in the next hour or so. Im sorry to bring it to your attention. I just expected a different ruling."
The prosecutor objected. "Its been known by the defense a week before last I had no intention of calling the witness, and its been know since Tuesday that was confirmed that I was not calling the witness, and still the witness was not here and has not been contacted or subpoenaed. Theres been plenty of time for counsel to arrange for that should the ruling go against her."
The court gave defendant until the next day to get Nguyens statement into evidence.
The following day, defense counsel made the following offer of proof. Her investigator went to the residence of Nicole Nguyen, Nguyens daughter, the previous night. Fox spoke to the daughter that morning. She did not want to testify. "And turning to what her testimony might be, I did talk with her about that. She said her mother was excited and angry. Mad was her word, when she came home, at what she had seen. I said well, how does your mother express herself when she is excited? And she said she is always very calm. And our offer of proof would be that would be her statement, that the mother appears to be outwardly very calm when shes actually excited."
The prosecutor objected to the renewed motion to admit Nguyens statement. The court ruled that the offer of proof "is too far attenuated to lay a foundation for an excited utterance."
On appeal defendant asserts, "Ms. Nguyens calm demeanor may have been a function of culture, age, or personality, nevertheless, [defendant] believes her statements met the test of Evidence Code section 1240, in that she was purporting to describe a shocking event which she had just witnessed, and she still had to be under the stress of the situation."
People v. Poggi (1988) 45 Cal.3d 306, 246 Cal. Rptr. 886, 753 P.2d 1082 (Poggi) explained at pages 318-319: "Evidence Code section 1240 provides: Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [P] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [P] (b) was made spontaneously while the declarant was under the stress of excitement caused by such perception.
"Section 1240 is the codification of an established common law exception to the hearsay rule. (People v. Washington (1969) 71 Cal.2d 1170, 1176, 81 Cal. Rptr. 5, 459 P.2d 259; Tent. Recommendation and Study Relating to the Uniform Rules of Evidence, art. VIII, Hearsay Evidence (Aug. 1962) 6 Cal. Law Revision Com. Rep. (1964), appen. pp. 465-466.) " To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it. (Showalter v. Western Pacific R.R. Co. (1940) 16 Cal.2d 460, 468, 106 P.2d 895; accord, People v. Washington, supra, 71 Cal.2d at p. 1176.) " The foundation for this exception is that if the declarations are made under the immediate influence of the occurrence to which they relate, they are deemed sufficiently trustworthy to be presented to the jury. [Citation.] [P] The basis for this circumstantial probability of trustworthiness is "that in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of ones actual impressions and belief." (Showalter v. Western Pacific R.R. Co. , supra, 16 Cal.2d at p. 468.)
"Whether the requirements of the spontaneous statement exception are satisfied in any given case is, in general, largely a question of fact. (See, e.g., People v. Washington, supra, 71 Cal.2d at pp. 1176-1177.) The determination of the question is vested in the court, not the jury. (E.g., People v. Tewksbury (1976) 15 Cal.3d 953, 966, fn. 13, 127 Cal. Rptr. 135, 544 P.2d 1335.) In performing this task, the court necessarily [exercises] some element of discretion . . . . (Showalter v. Western Pacific R.R. Co. , supra, 16 Cal.2d at p. 469.)
"Because the second requirement relates to the peculiar facts of the individual case more than the first or third does (see 6 Wigmore, Evidence (Chadbourn rev. ed. 1976) § 1750, pp. 202-222 [hereafter Wigmore]; People v. Jones (1984) 155 Cal. App. 3d 653, 662, 202 Cal. Rptr. 289, following Wigmore), the discretion of the trial court is at its broadest when it determines whether this requirement is met (see Showalter v. Western Pacific R.R. Co., supra, 16 Cal.2d at pp. 468-469). Indeed, Dean Wigmore goes so far as to urge that the issue should be left absolutely to the determination of the trial court. (6 Wigmore, supra, § 1750, p. 221, italics deleted.)"
Poggi continued: "When the statements in question were made and whether they were delivered directly or in response to a question are important factors to be considered on the issue of spontaneity. (See McClaflin v. Bayshore Equipment Rental Co. (1969) 274 Cal. App. 2d 446, 454, 79 Cal. Rptr. 337; Wiley v. Easter (1962) 203 Cal. App. 2d 845, 854-855, 21 Cal. Rptr. 905.) But as we emphasized in People v. Washington [(1969) 71 Cal.2d 1170, 81 Cal. Rptr. 5, 459 P.2d 259], Neither lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance. (71 Cal.2d at p. 1176, italics added.) [P] Under the same reasoning, the fact that the declarant has become calm enough to speak coherently also is not inconsistent with spontaneity. (People v. Jones, supra, 155 Cal. App. 3d at p. 662; People v. Francis (1982) 129 Cal. App. 3d 241, 254, 180 Cal. Rptr. 873.)" (Poggi, supra, 45 Cal.3d at p. 319.) The trial courts paramount concern is with the mental state of the declarant at the time of the statement. (People v. Roybal (1998) 19 Cal.4th 481, 516, 966 P.2d 521; People v. Farmer (1989) 47 Cal.3d 888, 903-904, 254 Cal. Rptr. 508, 765 P.2d 940, disapproved on another ground by People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6, 996 P.2d 46.)
On appeal defendant cites no circumstance surrounding Nguyens statements of which the trial court was unaware. Defendant simply invites us to disagree with the trial courts evaluation of the evidence and to hold that Nguyen must have been excited as a matter of law. We decline this invitation. Officers Lafavers testimony about Dung Nguyens lack of excitement provides substantial evidence that her statements about the assault during his interview were not made under the stress of excitement.
This conclusion is not necessarily altered by the offer of proof that Nguyens daughter would testify that Nguyen was actually mad when she got home after this incident, though she always appeared calm. There was no proffer that Nguyens daughter knew what her mental state was during her interview with Lafaver. On the record before us, we conclude that the trial court did not abuse its discretion in concluding that Nguyens interview did not qualify as spontaneous statements under Evidence Code section 1240.
Defendant also contends that the exclusion of this evidence deprived him of a number of federal constitutional rights. " As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accuseds right to present a defense. " (People v. Phillips (2000) 22 Cal.4th 226, 238, 991 P.2d 145, quoting People v. Hall (1986) 41 Cal.3d 826, 834, 226 Cal. Rptr. 112, 718 P.2d 99.) Any error in excluding this evidence did not violate the federal constitution.
Even assuming that the trial court abused its discretion, we would conclude that defendant was not prejudiced by the exclusion of Nguyens interview. As we explain more fully below (post, at p. 19), Nguyen said that an Asian man struck Benoit with a hammer-like object, but she did not say which man. We point out below (post, at p. 13) that the assault charge was not based on defendants personal use of a weapon, but on defendants personal infliction of great bodily injury by hands of fists and defendant admitted punching Benoit. Below we also explain (post, at p. 20) that the prosecutor did not rely exclusively on Benoits head injury to establish that defendant had personally inflicted great bodily injury. This evidence that someone took a weapon to Benoits head would not have exonerated defendant. It is not reasonably probable that such evidence would have yielded a better result for defendant on the assault charge or the enhancement.
2. INSTRUCTIONS
A. The assault instruction
On appeal defendant contends that he was prejudiced by the assault instruction given.
The jury here was instructed about assault in terms of CALJIC No. 9.00. "In order to prove an assault, each of the following must be proved: (1) a person willfully and unlawfully committed an act which by its nature — a person willfully and unlawfully committed an act by which — which by its nature would probably and directly result in the application of physical force on another person; and (2) at the time the act was committed, the person had the present ability to apply physical force to the person of another."
The court gave this instruction on October 30, 2001. Two months earlier, on August 23, 2001, the California Supreme Court issued its decision in People v. Williams (2001) 26 Cal.4th 779 (Williams). Prompted by People v. Smith (1997) 57 Cal.App.4th 1470 (Smith), Williams reconsidered the mental state involved in assault. Smith had concluded that "required intention for assault" was "an intended forcible and unlawful touching as a desired consequence or one that is know to be substantially certain to result." (Smith, supra, 57 Cal.App.4th at p. 1488.) Williams rejected this analysis (Williams , supra, 26 Cal.4th at p. 784) and concluded "that assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (Id. at p. 790.)
In light of this conclusion, Williams found the standard instruction "potentially ambiguous. Because the test of natural and probable consequences is an objective one (Smith, supra, 57 Cal.App. 4th at p. 1480), merely requiring the jury to find that a defendant willfully and unlawfully committed an act that by its nature would probably and directly result in physical force being applied to the person of another may permit a conviction premised on facts the defendant should have known but did not actually know. Thus, under the instruction given, a jury could conceivably convict a defendant for assault even if he [or she] did not actually know the facts sufficient to establish that his [or her] act by its nature would probably and directly result in a battery.
"Nonetheless, any instructional error is largely technical and is unlikely to affect the outcome of most assault cases, because a defendants knowledge of the relevant factual circumstances is rarely in dispute." (Williams, supra, 26 Cal.4th at p. 790 .)
In this case the parties stipulated that a Smith modification of CALJIC No. 9.00 was inapplicable to the fact pattern. This would have instructed the jury, "At the time the act was committed, the person intended to use physical force upon another person or to do an act that was substantially certain to result in the application of physical force upon another person." There was no request to modify CALJIC No. 9.00 in light of Williams.
Under the guidance of Williams, we conclude that the given instruction was potentially ambiguous and may have amounted to a technical error. The remaining question is whether defendant was prejudiced by this instruction.
Defendant contends "the most likely scenario is that [defendant] was involved in a mutual fist fight when his passenger hit the victim over the head with a metal pipe. There was no indication that [defendant] used such weapon, that he asked his passenger to do so, or that he knew his passenger intended to act in this manner. There is no evidence that [defendant] knew, even after it happened, that such weapon was used. The assault with intent to cause great bodily injury was premised on an act of which [defendant] might well have been unaware."
This argument introduces the two themes underlying many of defendants appellate contentions. One is that the prosecution theory was based on establishing that defendant personally inflicted Benoits head injury. The other is that the truth, kept from the jury, was that defendants passenger caused the head injury by striking Benoit with a hammer-like object. As we will explain, neither contention is supported by the record.
Defendant mischaracterizes the prosecutors argument to the jury. As quoted above (ante, at p. 5), the prosecutor argued that defendants assault by means of force likely to produce great bodily injury consisted of defendant repeatedly punching and beating Benoit. The prosecutor dropped the charge of assault by a dangerous or deadly weapon. The assault charged was not premised on proving that defendant struck Benoits head with a weapon.
It is well established that a person using nothing more than his or her fists can be convicted of assault by means of force likely to produce great bodily injury. Though any resulting injury is relevant to establishing the amount of force used, the crucial factual question is not whether great bodily injury actually resulted, but whether the defendant employed force likely to produce such injury. (In re Nirran W. (1989) 207 Cal. App. 3d 1157, 1161-1162, 255 Cal. Rptr. 327; People v. Rupert (1971) 20 Cal. App. 3d 961, 967-968, 98 Cal. Rptr. 203; People v. Chavez (1968) 268 Cal. App. 2d 381, 384, 73 Cal. Rptr. 865; People v. Kinman (1955) 134 Cal. App. 2d 419, 422, 286 P.2d 28; see People v. Sargent (1999) 19 Cal.4th 1206, 1221-1222, 970 P.2d 409.) The jury was so instructed in terms of CALJIC No. 9.08: "An assault by means of force likely to produce great bodily injury may be committed with hands or fists. Proof of such assault need not show that the defendant actually injured the other person. However, there must be proof that the manner of the assault was likely to produce great bodily injury on another person." The prosecutors argument tracked this instruction.
Defendant suggests that he was unaware that his punching Benoit "by its nature will probably and directly result in the application of physical force against another." (Williams, supra, 26 Cal.4th at p. 790.) Defendant claims "there is no evidence that [his] punches were capable of causing great bodily injury" or even that his blows landed. Defendant overlooks his admission to Detective Sole that he was aware they had probably "messed up" Benoit from punching him. Under these circumstances, we conclude that defendant was not prejudiced by the given assault instruction. (Williams, supra, at p. 790.)
B. The group beating instruction
On appeal defendant objects to the trial court giving a group beating instruction included in CALJIC No. 17.20. This instructs the jury how to determine whether, in a group-beating situation, a defendant has personally inflicted great bodily injury.
Section 12022.7, subdivision (a), provides: "Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years."
People v. Cole (1982) 31 Cal.3d 568, 183 Cal. Rptr. 350, 645 P.2d 1182 (Cole) construed "personally" to mean " done in person without the intervention of another; direct from one person to another. " (Id. at p. 572.) "No other expression could have more clearly and concisely expressed what we interpret to be the plain meaning of the Legislature: that the individual accused of inflicting great bodily injury must be the person who directly acted to cause the injury. The choice of the word personally necessarily excludes those who may have aided or abetted the actor directly inflicting the injury." (Ibid.)
"The purpose of the statute is to deter the infliction of great bodily injury. [Citations.] A construction limiting its scope to the person who himself inflicts the injury serves that purpose; each member of a criminal undertaking will know that, regardless of the urgings of his confederates, if he actually inflicts the injury he alone will pay the increased penalty." (Id. at pp. 572-573.) "The Legislature intended the designation personally to limit the category of persons subject to the enhancement to those who directly perform the act that causes the physical injury to the victim." (Id. at p. 579.) The enhancement did not apply to a person who merely commanded another to beat the victim.
As later explained by People v. Rodriguez (1999) 69 Cal.App.4th 341, under Cole "personal infliction and causation are not two distinct concepts but two interrelated ones. . . . To personally inflict injury, the actor must do more than take some direct action which proximately causes injury. The defendant must directly, personally, himself inflict the injury." (Id. at p. 349.)
The question arises as to how the statute applies when great bodily injury results from a group beating. In some cases the victim may sustain a great bodily injury that is traceable to a single assailant, for example, a stab wound by a particular type of knife. In other cases, it may be impossible to trace any discrete injury to any particular blow or set of blows by any particular assailant. Cole requires only that the defendant "directly acted to cause the injury" (Cole, supra, 31 Cal.3d at p. 572), not that the defendant exclusively caused the victims great bodily injury. On the other hand, the enhancement is inapplicable when there is no evidence that the defendant personally caused the victims injury.
This question was presented to the Fourth District Court of Appeal, Division One, in People v. Corona (1989) 213 Cal. App. 3d 589, 261 Cal. Rptr. 765 (Corona), a case in which a group of men repeatedly hit and kicked the victim. That court stated that Cole "makes no sense when applied to a group pummeling." (Id. at p. 594.) "Applying Cole uncritically in the context of this case does not create a deterrent effect. Rather it would lead to the insulation of individuals who engage in group beatings. Only those whose foot could be traced to a particular kick, whose fist could be patterned to a certain blow or whose weapon could be aligned with a visible injury would be punished. The more severe the beating, the more difficult would be the tracing of culpability." (Ibid.) Without setting forth a universally applicable test distinguishing accomplices from direct participants, Corona concluded "only that when a defendant participates in a group beating and when it is not possible to determine which assailant inflicted which injuries, the defendant may be punished with a great bodily injury enhancement if his conduct was of a nature that it could have caused the great bodily injury suffered." (Ibid.)
In 1999, CALJIC No. 17.20 was modified to include a group beating paragraph. The jury in this case was instructed in terms of CALJIC No. 17.20 without objection as follows. "It is alleged in Count 1 that in the commission or attempted commission of the crime therein described the defendant Phan personally inflicted great bodily injury on Timothy Benoit, not an accomplice to the crime.
"If you find the defendant guilty of the assault with force likely to produce great bodily injury, Penal Code Section 245, you must then determine whether the defendant personally inflicted great bodily injury on Timothy Benoit, not an accomplice to the crime in the commission or attempted commission of assault with force likely to produce great bodily injury, Penal Code Section 245. " Great bodily injury, as used in this instruction, means a significant or substantive physical injury. Minor, trivial or moderate just do not constitute great bodily injury.
"When a person participates in a group beating and it is not possible to determine which assailant inflicted a particular injury, he or she may be found to have personally inflicted great bodily injury upon the victim if (1) the application of unlawful physical force upon the victim was of such a nature that, by itself, it could have caused the great bodily injury suffered by the victim; or (2) that at the time the defendant personally applied unlawful physical force to the victim, the defendant knew that the other persons, as part of the same incident, had applied, were applying, or would apply enough physical force upon the victim and the defendant then knew, or reasonably should have known, that the cumulative effect of all the unlawful physical force would result in great bodily injury to the victim.
"The People have the burden of proving the truth of this allegation. If you have a reasonable doubt it is true, you must find it to be not true. Include a special finding on that question in your verdict using the form that will be supplied to you for that purpose."
On appeal defendant objects to the group beating portion of CALJIC No. 17.20, the fourth paragraph, and to Corona as an unwarranted judicial expansion of section 12022.7. Defendant contends that the instruction allows jurors to hold a defendant liable for personally inflicting great bodily injury without finding that the defendant "himself actually inflicted injury upon the victim." Defendant objects to the "could have caused" phrasing. "An instruction that the defendant can be found guilty if he could have caused the injury allows a finding of guilt without proof beyond a reasonable doubt."
The same argument was rejected in People v. Banuelos (2003) 106 Cal.App.4th 1332, review denied June 11, 2003, by the court that authored Corona. The court decided that Corona had properly construed section 12022.7. (Id. at p. 1338.) The court construed CALJIC No. 17.20 as requiring "that it be proven a defendant has personally inflicted an injury on the victim during a group attack." (Id. at p. 1337.) As so interpreted, the court concluded that the jury instruction did not lighten the Peoples burden of proof. (Ibid.)
We agree with Banuelos that CALJIC No. 17.20 does not lighten the Peoples burden of proof. We note that CALJIC No. 17.20 reminds the jury that it is the prosecutors burden to establish the allegation beyond a reasonable doubt. We believe that the fourth paragraph of CALJIC No. 17.20 required the jury to determine whether the force actually applied by defendant was sufficient "by itself" to have caused the great bodily injury suffered by Benoit. A defendant who has done so has "directly acted to cause the injury" within the meaning of Cole, supra, 31 Cal.3d at page 572. Such a finding justifies imposition of the enhancement under section 12022.7.
Even assuming the instruction is ambiguous, we conclude that defendant was not prejudiced in this case. People v. Frye (1998) 18 Cal.4th 894, 959 P.2d 183 recited at page 957: "In reviewing the purportedly erroneous instructions, we inquire "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution. (Estelle v. McGuire (1991) 502 U.S. 62, 72, 116 L. Ed. 2d 385, 112 S. Ct. 475, quoting Boyde v. California (1990) 494 U.S. 370, 380, 108 L. Ed. 2d 316, 110 S. Ct. 1190 (Boyde).) In conducting this inquiry, we are mindful that "a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." (Boyde, supra, 494 U.S. at p. 378, quoting Cupp v. Naughten (1973) 414 U.S. 141, 146-147, 38 L. Ed. 2d 368, 94 S. Ct. 396; see also People v. Burgener (1986) 41 Cal.3d 505, 538, 224 Cal. Rptr. 112, 714 P.2d 1251 (Burgener) [under California law, correctness of jury instructions determined from entire charge of the court].)"
We conclude that there is no indication that the jury in this case was misled by the "could have caused" phrase to find that defendant did something that he did not do. There was no jury note during deliberations indicating confusion about CALJIC No. 17.20. (Compare People v. Magana (1993) 17 Cal.App.4th 1371, 1379 (Magana).) The prosecutor did not invite the jury to disregard defendants actual assaultive conduct. The prosecutor focused on defendant and his passenger jointly beating Benoit.
Defendant also argues in the alternative that if the group beating instruction is valid, it does not apply to our case. "Here, there was no evidence that [defendant] ever used any force which would have resulted in injuries of the type and magnitude sustained by the victim." This argument overlooks the testimony that defendant repeatedly punched and kicked Benoit.
Defendant argues that, like Magana, this is not a case where it was impossible to establish which assailant caused which injury. In Magana there was testimony that the defendant shot at two victims with a rifle or shotgun while another man shot at them with a handgun. "As the police identified the different types of bullets and cartridges retrieved from the crime scene, the People, through expert testimony, could have opined which firearm discharged which bullet. A bullet was removed from one victim and introduced into evidence but its caliber was never identified." (Magana, supra, 17 Cal.App.4th at p. 1381.) Magana distinguished Corona on the basis that "in this action, the People could have proved which injuries defendant caused." (Ibid.) The trial court in Magana erred by giving aiding and abetting instructions pertaining to section 12022.7. (Ibid.)
Defendant contends that in this case the prosecutor could have proved that the passenger personally inflicted Benoits head injury by calling eyewitness Dung Nguyen and the treating physician, Doctor Matz, to testify to the statements they made to Detective Sole. According to defendant, Matz would have testified that "the injury was most likely caused by striking the victim in the head with a pipe, or possibly a steel tipped boot. . . . The injury could not be the result of the victim getting hit, falling, and hitting his head on the ground."
In fact, what Sole said at the preliminary examination was that, in Matzs opinion, Benoits skull fracture "probably" would not have resulted from falling and hitting his head. "It looked more like a pipe type weapon that was, that had clean lines, as he said, or possibly steel toe boot." Matz had no information about who might have struck Benoit with a metal object.
According to defendant, Nguyen was "the witness who had told the police she saw the passenger in [defendants] car use a weapon, possibly a hammer, on the victim." In fact, all that Nguyen said to Sole was that a second Asian who joined the ongoing fight hit Benoit with a hammer-like object. She did not say it was the passenger. Nguyens statement by itself did not identify whether it was defendant or his passenger who used the weapon.
Defendant also contends that Nguyens statement identifies the passenger as using a weapon when it is coupled with the testimony of other eyewitnesses, since they said that the fight began between defendant and Benoit and ended later when the passenger joined the fight. Defendant contends that it is most likely that the passenger grabbed the Club in defendants car and cracked Benoits skull with it.
This argument requires us to ignore defendants statement to Detective Sole that his passenger never hit Benoit. Apart from defendants statement to Sole that Benoit attacked him first, there was no evidence that the fight commenced between defendant and Benoit before the passenger joined in. According to the trial testimony of eyewitnesses Mollat, Jeffries, and Pilgrim, the three men were arguing together outside their vehicles before they got physical. Ford and Nguyen only saw the fight after it started. According to Ford, Benoit was trying to get away from two men and he went down hard after the second man caught up to him. There was no evidence that the second assailant seen by Ford or Nguyen was the passenger and not defendant.
Defendant suggests that the fight would have been much shorter if he had the weapon. According to all the witnesses, however, it was a short fight.
Unlike Magana, we conclude that this was not a case where the prosecutor could have proved who inflicted Benoits head injury.
Even if the prosecutor could have proved that the passenger personally cracked Benoits skull, this would not necessarily render the group beating instruction, CALJIC No. 17.20, inapplicable. While the cracked skull was Benoits greatest bodily injury, the prosecutor also relied on the abrasion of Benoits forearm as another great bodily injury resulting from the group beating. Defendant discounts this injury as a "skinned elbow," but the photograph reveals that Benoits forearm was left bloody after several inches of skin were scraped off. Defendant suggests that this injury "most likely resulted from" Benoits fall to the ground, which presumably was caused by the weapon blow. Defendant is simply speculating that this injury was not caused by a kick or by Benoit being beaten to the ground.
Based on the evidence introduced at trial, it was impossible, due partly to Benoits loss of memory, to establish which assailant caused each of the bodily injuries suffered by Benoit. Defendants speculation based on evidence at the preliminary examination does not change this conclusion. We conclude that defendant was not prejudiced by the trial court instructing the jury in terms of CALJIC No. 17.20.
3. MISCONDUCT OF COUNSEL
A. Ineffective assistance of defense counsel
On appeal defendant contends that his trial counsel rendered ineffective assistance in several ways. She failed to subpoena Dung Nguyen as a witness to testify that a second assailant had struck Benoit with a hammer-like object. She failed to call Nguyens daughter to qualify Nguyens interview as an excited utterance. She failed to call Doctor Matz to testify about the likely cause of Benoits head injury. A more likely cause was a pipe-type weapon or steel-toed boot.
People v. Pangelina (1984) 153 Cal. App. 3d 1 at page 8, 199 Cal. Rptr. 916 reiterated, " To sustain a claim of inadequate representation by reason of failure to call a witness, there must be a showing from which it can be determined whether the testimony of the alleged additional defense witness was material, necessary, or admissible, or that defense counsel did not exercise proper judgment in failing to call him. [Citation.] " At trial defense counsel virtually confessed error in failing to subpoena Nguyen because she believed the court would admit Nguyens interview with Officer Lafaver. Defendant contends, "There is no question but that Ms. Nguyens observations were critical to [defendants] case. Not only did they identify the true culprit, they exonerated [defendant]." Also, "If the jury was convinced that [defendant] was acting in self-defense, with no more force than was used by the aggressor, i.e. fists, and that unbeknownst to him, the passenger unilaterally decided to use greater force, in this case a metal pipe, hammer, or Club, then [defendant] would not be guilty of the assault with force likely to cause great bodily injury, as he was acting in self-defense, and the intentional infliction of great bodily injury enhancement would not be true as to him."
As we have explained above, Nguyen was the only witness who claimed to have seen a weapon used. But she did not purport to be able to identify which assailant used the weapon. From Nguyens interview, it was equally likely that defendant or his passenger used the weapon.
Similarly, Matzs testimony might have established that a metal weapon was used to cause Benoits head injury, but Matz could offer no information about who used the weapon. Matz acknowledged that the injury could result from a kick with a steel-toed shoe.
We have already explained that evidence that anyone cracked Benoits skull was unnecessary to convict defendant of assault by means of force likely to produce great bodily injury. Several witnesses described the violence involved in the punching and kicking by defendant and the passenger. Evidence that defendant was the one who cracked Benoits skull was also unnecessary to sustain the personal infliction enhancement. The prosecutor also relied on Benoits abraded arm as a possible great bodily injury. It is unclear whether Benoits arm was abraded by a kick or by being knocked to the ground. It was clear that defendant employed sufficient force to have directly caused the abrasion by either means. According to most eyewitnesses he repeatedly punched Benoit. According to one eyewitness he also kicked Benoit.
In our view, evidence that one of the assailants used a weapon would not exonerate defendant. It would not create a reasonable doubt that defendant personally inflicted great bodily injury, either by striking Benoit with a weapon, punching him, or kicking him. Accordingly, defendant cannot establish that he was prejudiced by his trial attorneys failure to call either of these witnesses. We conclude that there is no reasonable probability that this evidence would have affected the outcome of the trial. (People v. Rowland (1992) 4 Cal.4th 238, 274, 841 P.2d 897; People v. Hayes (1991) 229 Cal. App. 3d 1226, 1235, 280 Cal. Rptr. 578.)
Defendant also faults his trial counsel for failing to produce evidence that the Club "was recovered from a location which would have been accessible to the passenger." Yet defendant cites Detective Soles trial testimony to establish that he recovered the Club from "under the passenger seat." Defendant also complains about his trial counsel failing to argue that Benoits elbow injury was not substantial. The photograph of this injury illustrated how serious it was.
B. Prosecutorial misconduct
On appeal defendant claims prosecutorial misconduct in tailoring the case to fit the group beating instruction.
Defendant contends: "As the prosecutor prepared for trial, she clearly figured out that . . . she could not convict [defendant] of the assault because she could not show that he inflicted the blow, and she could not convict him of the intentional infliction of great bodily injury under the group beating theory because it was apparent that it was the passenger who inflicted the injury. In order to secure a conviction, the prosecutor amended the information in order to try the case as an assault with force likely to cause great bodily injury, rather than as an assault with a deadly weapon. The prosecutor chose not to put on the medical evidence which would have shown that the injury was caused by a pipe, and not by the victim falling and hitting his head. She also chose to not only not call the witness who saw the blow inflicted by the passenger, but to oppose the introduction of that evidence through a hearsay exception she had used herself . . . ." "Contrary to what she knew to be the truth, the prosecutor argued that it is not as though, you know, the defendant made one swing at Mr. Benoit then ran away and his passenger came in and finished the job. " People v. Seaton (2001) 26 Cal.4th 598 stated, "Under well-established principles of due process, the prosecution cannot present evidence it knows is false and must correct any falsity of which it is aware in the evidence it presents, even if the false evidence was not intentionally submitted." (Id. at p. 647; cf. People v. Westmoreland (1976) 58 Cal. App. 3d 32, 42, 129 Cal. Rptr. 554; In re Jackson (1992) 3 Cal.4th 578, 595, 835 P.2d 371, disapproved on another ground by In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 6, 887 P.2d 527.)
Defendant contends that "the prosecutor presented a false case, not through the use of false testimony, but through the omission of evidence which told the true facts of the case, facts which had been presented by the prosecutor in the preliminary hearing." Defendant acknowledges that "the prosecutor used true testimony," but asserts that she "knowingly presented and argued a false theory" "by omitting facts she was aware of." "The entire trial was a gross misrepresentation of the true facts of the events, twisted to result in a conviction."
People v. Diaz (1992) 3 Cal.4th 495, 834 P.2d 1171 instructs us that, " The prosecution is not required to call any particular witness, nor to put on all the evidence relating to a charge so long as all material evidence bearing thereon is fairly presented in such a manner as to accord to the defendant a fair trial. (People v. Stanley (1967) 67 Cal.2d 812, 820, 63 Cal. Rptr. 825, 433 P.2d 913.)" (Id. at p. 545.)
Here the evidence indicated that two Asian men engaged in a physical confrontation with a white man. Doctor Matz and Dung Nguyen were originally listed as prosecution witnesses. Nguyen would have testified that she saw one of the Asian men hit Benoit with a hammer-like object. She did not say it was the passenger. Doctor Matz would have testified that someone probably used a pipe-type weapon or steel-toed boot on Benoit. He could not identify the assailant. A week before trial the prosecutor notified defense counsel that Nguyen was dropped from the witness list. Neither Nguyen or Matz were on the prosecutors final witness list.
Given the vagueness of this potential testimony, the prosecutor may reasonably have decided to abandon the theory of assault with a deadly weapon and to use the theories that she could prove through most of the eyewitnesses, that defendant assaulted Benoit by means of force likely to produce great bodily injury and that defendant personally inflicted great bodily injury in the course of a group beating. We do not regard a prosecutor concentrating on the most compelling evidence as an improper "tactical decision to shape the evidence in this manner." On the record before us, we conclude that the prosecutor did not commit misconduct and that defendant was not denied a fair trial.
DISPOSITION
The judgment is affirmed.
WE CONCUR: RUSHING, P.J., PREMO, J. --------------- Notes: CALJIC No. 17.20 is quoted below beginning on page 16.