Opinion
H029906
4-27-2007
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL MADAYAG, Defendant and Appellant.
NOT TO BE PUBLISHED
By way of an amended information, the Monterey County District Attorney charged appellant Michael Madayag with one count of battery by a prisoner on a non-prisoner (Pen. Code, § 4501.5, count one), and one count of battery with serious bodily injury (§ 243, subd. (d)2, count two). The information alleged that appellant had suffered two prior serious felony convictions within the meaning of the three strikes law (a 1995 attempted murder and a 1996 assault with a firearm). (§ 1170.12, subd. (c)(1).)
Unless noted, all statutory references are to the Penal Code.
The information alleged a third count, for assault with great bodily injury. Later the prosecutor dismissed this count.
On January 25, 2005, a jury convicted appellant as charged in counts one and two. Appellant waived jury trial on the prior conviction allegations. The trial court found the allegations to be true.
On May 11, 2005, the trial court sentenced appellant to two concurrent terms of 25 years to life on counts one and two. The court ordered that these terms run consecutive to the sentence appellant was serving on his prior convictions. In addition to a restitution fund fine of $5000, the court ordered appellant to pay victim restitution "in an amount and manner to be established by the Department of Corrections."
Appellant filed a timely notice of appeal on May 11, 2005.
On appeal, appellant raises six issues. First, he requests that this court conduct an in-camera review to determine if the trial court erred in finding no discoverable documents in connection with a Pitchess motion concerning Officer Ralstons records. Second, he contends that he was deprived of the effective assistance of counsel because his trial counsel failed to object to the admission into evidence of prosecution exhibit 9; failed to object to Mahe testifying in shackles; and failed to include Officer Yocum in his Pitchess motion. Third, the prosecutors misconduct during argument to the jury requires reversal of his conviction. Fourth, the trial court erred in failing to instruct on defense of others. Fifth, the trial courts order regarding victim restitution was unauthorized and in violation of appellants Fifth and Fourteenth Amendment rights to due process. Finally, this court must order the judgment modified to stay execution of sentence on count two pursuant to section 654. Respondent does not oppose this court conducting an independent review of Officer Ralstons file. Further, respondent concedes the sixth issue. We agree with respondents concession. We find, however that there are problems with the Pitchess hearing, but determine that appellants other issues lack merit. Accordingly, we reverse the judgment conditionally and remand for a new Pitchess hearing.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
In an accompanying petition for writ of habeas corpus, which this court ordered considered with the appeal, Madayag asserts a litany of ineffective assistance of counsel claims. Specifically, he asserts that trial counsel was ineffective for failing to make a Pitchess motion concerning Officer Yocum; for failing to object to the admission into evidence of prosecution exhibit 9; for failing to object to Mahe being shackled while testifying; for failing to present testimony from two inmates, Lavea and Townsend; for failing to request a defense of others instruction; and for failing to object to prosecutorial misconduct. We have disposed of the habeas petition by separate order filed this day. (See Cal. Rules of Court, rule 8.264(b)(2)(A).)
Facts and Proceedings Below
Before trial, appellants trial counsel requested discovery of the personnel records of Officer Ralston. Counsel filed two Pitchess motions. One motion was filed on November 6, 2003, the second on November 20, 2003. The trial court granted the motions pursuant to Pitchess v. Superior Court, supra, 11 Cal.3d 531 and Evidence Code sections 1043 through 1047. The court held an in camera review and found no discoverable documents.
In all relevant respects, the two motions are identical.
Prosecution Case
On the afternoon of August 30, 2001, Randall Ralston was working as a guard at Salinas Valley State Prison. At approximately 6:00 p.m., some of the inmates, including appellant and his cellmate, Daniel Mahe, were in the common area of the prison. The yard officer told Ralston to move the inmates into their cells. Ralston approached Mahe and told him to "lock up." Mahe acted as if he did not hear, accordingly, Ralston walked closer to him. As he approached Mahe, Ralston saw a brown paper bag in Mahes hand. Ralston asked Mahe what was in the bag. According to Ralston, Mahe replied, "none of [your] business." Ralston tried to grab the bag, but Mahe "spun to his left towards the stairs." A plastic bag containing liquid fell out of the paper bag. Mahe picked it up. Ralston suspected the plastic bag contained "pruno"—inmate-made alcohol. Ralston ordered Mahe to give him the bag of pruno. Mahe refused and backed away. Ralston followed him. Eventually, Mahe stopped, raised his hand, and stepped toward Ralston. Ralston started to pepper-spray Mahe in the face. Immediately thereafter, appellant tackled him from the side. Ralston fell to the floor, hitting his head. Ralston lost consciousness for a brief time. For the next several months, Ralston suffered from headaches, dizziness, and pain in the neck and shoulders. At the time of trial, Ralston was still suffering from headaches and neck pain.
It appears Mahes name is spelled in various ways in the reporters transcript. However, the correct spelling is Mahe.
On cross-examination, Ralston admitted that a report he prepared shortly after the incident occurred was lost, so later he prepared a supplemental report.
Charles Yocum was working as a "Control Duty Officer" at the prison on the day of this incident. While monitoring the inmates from an enclosed guard station, Yocum observed Mahe trying to push a brown paper bag into one of the cells. Yocum saw Officer Ralston approach the cell and Mahe walked away. Then, Yocum saw Ralston try to grab the paper bag, but Mahe "attempted to pull away" from Ralston. Ralston started to pepper-spray Mahe. Appellant ran toward Ralston and tackled him. Yocum testified, "The best I could describe it is when a football player tackles a practice dummy, with a full body tackle." Ralston fell "back at the floor, head bounced off of the floor" "like a rubber ball."
Immediately, appellant "proned out," lying face down on the floor with his arms and legs stretched out. Mahe poured the contents of the paper bag into a nearby sink. Then, he "proned out." Within a few minutes, other officers responded to the alarm. Officer Yocum kept "a constant visual of the officer on the ground" until other officers responded.
Prison guards Jason Butikofer and Christopher Salobek responded to Yocums alarm. As they entered the common area of the prison, they observed Ralston sitting on the floor, motioning toward appellant and Mahe who were lying nearby. Salobek believed Ralston appeared "slightly disoriented." Ralston had blood in his mouth. According to Butikofer, Ralston had blood on the hand that had been holding the back of his head. Salobek acknowledged on cross-examination that some of the records of the incident (i.e., one page of a two-page report and photographs showing Ralstons injuries) were lost before trial.
Shortly after the incident, James Krossa, a prison nurse, examined appellant. Appellant had some blood on his shirt and an abrasion on his left thumb.
Dr. Elbidio Resendez treated Ralston immediately after the incident. Dr. Resendez saw cuts and bruises on the back of Ralstons head, and he believed Ralston had suffered a concussion. Dr. Gerald Wahl treated Ralston in the ensuing weeks for headaches, neck pain, nausea, and "fluctuation of vision."
Defense Case
Mahe testified that he was appellants cellmate at the prison. On the day of the incident, Mahe was delivering a paper bag containing "cosmetics"—including lotions, deodorant, and shampoo—to a new inmate. On arriving at the inmates cell, Mahe called out to Officer Yocum and asked him to open the cell door electronically. Yocum opened the door slightly, but then closed it. Mahe was walking back to his cell when Ralston approached him. Mahe testified that when Ralston demanded to know what was in the paper bag, he replied, "Cosmetics." Ralston got angry and grabbed him by the arm. Frustrated with what he considered Ralstons inappropriate behavior, Mahe pulled away and threw the contents of the bag into a nearby urinal. Thereafter, Ralston pepper-sprayed him from a distance of about 12 inches. The spray blinded Mahe, so he could not see who tackled Ralston. Mahe testified, "the whole time Im just sprayed in the face. I cant see nothing." Mahe believed appellant was on the top tier of the prison shortly before the incident occurred. Mahe admitted that he was in prison for a murder he had committed in 1997.
Discussion
Pitchess Motion
Appellant requests that this court conduct an in camera review to determine if the trial court erred in finding no discoverable documents in connection with his Pitchess motion regarding Officer Ralston.
Background
As noted, before trial, defense counsel filed two Pitchess motions. Defense counsel sought "[a]ny and all documents or complaint records that record or reflect any acts of misconduct, including, but not limited to, lying and preparing false police reports, as well as the dates of the filing of such complaints, which took place incident to the detention of any inmate made or participated in by the above-named officers in the above-named department." In support of each motion, defense counsel attached a declaration in which he stated, "Defendant Madayag in this matter was attempting to come to the aid of inmate MAHE when defendant saw that CO Ralston assaulted inmate MAHE for no apparent reason by spraying him with pepper spray. Defendant was coming to the defense of fellow inmate MAHE and was exercising defense of others when CO Ralston assaulted inmate MAHE. The force used by defendant was reasonable and necessary to prevent further injury to another inmate."
At the hearing on appellants discovery requests, the court noted that it had read "both sides moving papers." Deputy Attorney General Raymond Hamilton, appearing on behalf of the Department of Corrections, opposed the discovery request. Mr. Hamilton pointed out to the court, "Its very important to getting records regarding lying and false police reports is you have to at least show how the officer lied this time in his police report, and without showing how he did, counsel has not satisfied the good cause requirement for this motion."
Appellants counsel clarified that he was "not asking for credibility issues with respect to just false reports." Then, the following colloquy occurred.
"THE COURT: What are you asking for?
[DEFENSE COUNSEL]: Just with respect to excessive force.
THE COURT: So with respect to any issues of fabricating police reports, lying, things of that nature, youre not asking for that?
[DEFENSE COUNSEL]: Im not asking for that.
THE COURT: All youre asking for is the Court to consider your request with respect to excessive force?
[DEFENSE COUNSEL]: Right, and I would point out to the Court the report of Officer Yocum. His report essentially points out, Judge, that the way the incident happened was that Correctional Officer Ralston saw inmate Mah[e], the other inmate involved in this incident, with a paper bag, asked him originally to give it to him. He refused to give it to him, and apparently C.O. Ralston then proceeded to grab the bag. [¶] According to Correctional Officer Yocums report, essentially my client was not involved until after Correctional Officer Ralston began to pull the bag away from Inmate Mah[e], and then Officer Ralston pulled out his O.C. and sprayed Inmate Mah[e]. Then Officer Yocum states that it was then that my client, you know, allegedly rushed him. So the police reports, the correctional officers reports by themselves establish some basis for the allegations that Ive made in my declaration, and I think thats enough of a prima facie showing.
THE COURT: With respect to the issue of making false statements, youre not asking, and the court doesnt have to rule on that?
[DEFENSE COUNEL]: Correct.
THE COURT: I just want to make it clear for the record. [¶] And then also with respect to your request for any reports regarding complaints of excessive force . . . if this is the length of the incident — and it appeared to be a short matter — the Court did read the attached incident reports by the correctional officers, and it appears to be a brief incident. There are some facts that show some force was used by the spray, use of the O.C. spray, so the Court will go ahead and conduct an in camera to see if there are complaints of excessive force."
Thereafter, the court held an in camera hearing where the court "inquired as to whether the Department of Corrections has any documents involving the correctional officers that have to do with excessive force or violence, and the response from the Department of Corrections is?"
Mr. Hamilton questioned the custodian of records of personnel files for the Department of Corrections as to whether there was anything in Officer Ralstons personnel file to do with excessive force. The custodian stated there was not. Then, Mr. Hamilton questioned the litigation coordinator at Salinas Valley Prison as to whether he had looked at other types of complaint files to determine if there were any complaints involving excessive force against Officer Ralston. He stated that he had, but found nothing to do with the use of excessive force.
Based on this information, the court determined that there was nothing discoverable with respect to excessive force.
"When a trial court concludes a defendants Pitchess motion shows good cause for discovery of relevant evidence contained in a law enforcement officers personnel files, the custodian of the records is obligated to bring to the trial court all potentially relevant documents to permit the trial court to examine them for itself. [Citation.] [An officers] personnel record will commonly contain many documents that would, in the normal case, be irrelevant to a Pitchess motion, including those describing marital status and identifying family members, employment applications, letters of recommendation, promotion records, and health records. [Citation.] Documents clearly irrelevant to a defendants Pitchess request need not be presented to the trial court for in camera review." (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229.)
The California Supreme Court explained that the custodian of records "should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendants Pitchess motion." (People v. Mooc, supra, 26 Cal.4th at p. 1229.) We note that this did not happen in this case. In addition, we note that the court did not place the custodians of records under oath while responding to questions concerning the existence of any responsive material. (See People v. Mooc, supra, 26 Cal.4th at p. 1229-1230, fn. 4.)
Although the custodian of records was required to submit for review only those documents that were potentially responsive to the discovery request, "in cases such as this where the custodian of records does not produce the entire personnel file for the courts review, he or she must establish on the record what documents or category of documents were included in the complete personnel file. In addition, if it is not readily apparent from the nature of the documents that they are nonresponsive or irrelevant to the discovery request, the custodian must explain his or her decision to withhold them." (People v. Guevara (2007) 148 Cal.App.4th 62, 69.)
"Absent this information, the court cannot adequately assess the completeness of the custodians review of the personnel files, nor can it establish the legitimacy of the custodians decision to withhold documents contained therein. Such a procedure is necessary to satisfy the Supreme Courts pronouncement that the locus of decisionmaking at a Pitchess hearing is to be the trial court, not the prosecution or custodian of records. [Citation.] It is for the court to make not only the final evaluation but to make a record that can be reviewed on appeal." (People v. Guevara, supra, 148 Cal.App.4th at p. 69.)
Since there is no record for this court to review on appeal, we are compelled to reverse the judgment conditionally and remand for a new Pitchess hearing in which the proper procedure is followed. (People v. Guevara, supra, 148 Cal.App.4th at p. 69.)
Ineffective Assistance of Counsel
Appellant contends that his trial attorney rendered ineffective assistance in a number of ways. First, he contends that counsel was ineffective in allowing into evidence prosecution exhibit 9, records of his prior convictions—the so-called 969(b) package, instead of stipulating to the fact of his prior convictions. Second, trial counsel was ineffective in failing to object to Mahe testifying in shackles. Finally, trial counsel was ineffective in failing to include Officer Yocum in his Pitchess motion.
To prevail on a claim of ineffective assistance of counsel, first, appellant must establish that " counsels representation fell below an objective standard of reasonableness . . . under prevailing professional norms. [Citation.]" (People v. Ledesma (1987) 43 Cal.3d 171, 216, quoting Strickland v. Washington (1984) 466 U.S. 668, 688.) However, "[a] reviewing court will indulge in a presumption that counsels performance fell within the wide range of professional competence and that counsels actions and inactions can be explained as a matter of sound trial strategy." (People v. Carter (2003) 30 Cal.4th 1166, 1211.) On direct appeal, where the record "does not show the reason for counsels challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation." (People v. Anderson (2001) 25 Cal.4th 543, 569.) Second, appellant must show prejudice. Specifically, appellant must show "there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Staten (2000) 24 Cal.4th 434, 450-451.)
Moreover, " " a court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. [Citation.]" [Citation.]" (People v. Holt (1997) 15 Cal.4th 619, 703.)
Exhibit 9
Appellant contends that his trial attorney was ineffective in allowing into evidence prosecution exhibit 9, records of his prior convictions for attempted murder and assault with a firearm. Appellant argues that a competent attorney would have stipulated to the fact of the prior convictions to prevent the jury from learning that his prior crimes, like the charged crimes, involved serious assaultive conduct.
Even if we were to assume for the sake of argument that counsel was deficient in failing to object to the admission into evidence of exhibit 9, we would not find prejudice on this record. As appellant notes, the jurors were aware that he was a convicted felon given that his crime was committed while he was a prison inmate. More importantly, however, it is not reasonably probable that the result of the proceeding would have been different. Contrary to appellants assertion, this was not a close case. Officer Ralston testified that appellant had tackled him. Officer Yocum saw appellant tackle Ralston. When Officers Butikofer and Salobek arrived shortly after Officer Yocums alarm sounded, they observed Ralston sitting on the prison floor dazed and bleeding from the head. Appellant and Mahe were lying prone on the floor nearby. Mahe claimed not to have seen who tackled Ralston. Furthermore, when the prison nurse examined appellant he found blood on appellants shirt. Under these circumstances, it is not reasonably probable that the jurys verdict would have been affected by the knowledge of the substance of appellants prior convictions.
Shackling of Mahe
Appellant contends his trial counsel was ineffective in failing to object to Mahe testifying while shackled.
Again, even if we were to assume for the sake of argument that counsel was deficient in failing to object to Mahe testifying while in shackles, we would not find prejudice on this record. Given the testimony of Officers Ralston, Yocum, Butikofer and Salobek and the prison nurse noted ante, it is not reasonably probable that the result of the proceeding would have been different. Further, Mahes testimony was only minimally helpful to appellant. Mahe could not (or would not) say who tackled Ralston. Under these circumstances, it is not reasonably probable that the jurys verdict would have been affected by the knowledge that Mahe was testifying while shackled.
Appellant cites to People v. Allen (1986) 42 Cal.3d 1222, 1264 (Allen), for the proposition that the prejudice resulting from the shackling of a key defense witness is similar to that resulting from shackling a defendant. In fact, Allen emphasized that "although the limitation on physical restraints applies to defense witnesses as well as defendants, the prejudicial effect of shackling defense witnesses is less consequential since "the shackled witness . . . [does] not directly affect the presumption of innocence." [Citation.]" (Id. at pp. 1264-1265.)
Furthermore, contrary to appellants assertion, Mahe was not "the key . . . defense witness" whose testimony was "critical to [his] case." As noted, Mahes testimony was minimally helpful to appellant because Mahe claimed not to have seen who tackled Ralston.
Pitchess Motion
As noted, before trial, defense counsel requested discovery of the personnel records of Officer Ralston to determine whether anyone had accused him of the use of excessive force. Appellant contends that his trial counsel was ineffective for failing to include in his Pitchess motion a request for discovery of the personnel files of Officer Yocum. Appellant offers no suggestions that Yocum has ever been the subject of complaints from witnesses, criminal defendants or prison inmates. Instead, appellant argues that given the fact that "Officer Yocum was a percipient witness to the incident and thus a key prosecution witness . . . there can be no rational tactical basis not to seek his personnel records for incidents of lying which would have reflected on his credibility in this case."
Implicitly, appellant posits that had counsel made a Pitchess motion regarding Yocum, relevant discovery concerning Officer Yocum might have been discovered and by failing to make such motion, counsel was ineffective. A similar argument was made to, and rejected by the California Supreme Court in In re Avena (1996) 12 Cal 4th 694.
In In re Avena, supra, 12 Cal.4th 694, 730, the petitioner alleged that counsel was ineffective for failing to make a Pitchess motion. He claimed he was beaten and forced to make a confession during an interrogation. However, he had no evidence to show, other than his own assertion, that his claim was true. Along with his writ of habeas corpus, petitioner filed a declaration stating that he had told his counsel of the beating and counsel advised him it would be difficult to prove. Petitioner had testified during an Evidence Code section 402 hearing that he was beaten and forced to confess. Among other claims, he contended that his counsel was ineffective for failing to file a Pitchess motion. The California Supreme Court held there was no showing of possible prejudice and rejected petitioners claim. Our Supreme Court rejected the claim on the ground that it was the defendants burden to establish that his counsels alleged ineffectiveness was prejudicial. (Id. at p. 730.) Specifically, the court said, "[w]e reject, however, the implicit suggestion that we should overturn a long-final criminal judgment without evidence that counsels alleged ineffectiveness had some effect on the judgment." (Ibid.)
We do not know what appellants trial counsel knew was in Officer Yocums personnel records, if he knew anything. If counsel believed a Pitchess motion was a waste of time, there would be no point in bringing the motion. As we have no facts that bear on whether appellants counsel should have filed a Pitchess motion, we cannot speculate what would have been a reasonable standard of effectiveness in this case or whether what was there would have had some influence on the judgment. Obviously, without first establishing a case specific standard, it is impossible to determine prejudice to appellant. Simply put, appellant cannot show prejudice from counsels failure to file a motion to discover Yocums personnel records absent a showing of what counsel would have discovered had he made the motion. As a result, appellant cannot prevail on this issue.
Accordingly, we reject all of appellants claims of ineffective assistance of counsel.
Claim of Prosecutorial Misconduct
Appellant contends that the prosecutor committed misconduct by urging the jury to consider Mahes prior murder conviction for improper purposes.
During argument, the prosecutor asserted that the evidence as a whole, including the eyewitness testimony of Officers Ralston and Yocum, proved appellants guilt beyond a reasonable doubt. The prosecutor noted that Mahe was the only defense witness and that his testimony, even if true, was immaterial because he claimed not to have seen who attacked Ralston. In addition, the prosecutor argued that Mahes testimony, concerning Ralston being abusive towards him immediately before the incident, was dubious on its face. At one point, the prosecutor commented on Mahes suggestion that Ralston had no reason to look at the paper bag as follows. "What did the victim see that day? And I wont go through every single detail. You were here, and sitting here listening. He saw inmate Mahe—who came up here, who is convicted of murder, convicted of murder, he killed someone—hes standing in front of Cell 102 with a brown paper bag, and he says he had soap and various sundry items, and cosmetics they called it, and according to the victim says—he didnt know what it was, so he wanted to see it, and he ordered him to give him the bag."
A short time later, the prosecutor mentioned Mahes murder conviction in discussing Officer Yocums testimony. Specifically, the prosecutor mentioned Yocums testimony that he saw Mahe trying to push the paper bag into a cell, and that Yocum refused to open the cell door for Mahe. The prosecutor argued, "As you remember his testimony, Mahe goes to the cell door, wants it open, and Officer Yocum says hes not going to do that, its not procedure. I mean—what kind of person, a correctional officer, just using their—their common sense is going to allow a prisoner convicted of murder to handle a brown bag, and you cant see anything inside of the bag, and let him give it to another prisoner?"
Appellant contends these comments constituted misconduct, in that they referred to Mahes murder conviction for an improper purpose. That is, "to urge the jurors to use the fact of said conviction as evidence of Mahes bad character or criminal disposition."
At the outset, we note that the defense attorney did not object to either of the prosecutors comments about Mahe. An allegation of misconduct may not be raised on appeal unless a timely objection was raised and a request was made to admonish the jury. (People v. Brown (2003) 31 Cal.4th 518, 553.) "There are two exceptions to the general rule of forfeiture . . . ." (People v. Boyette (2002) 29 Cal.4th 381, 432.) " A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if " an admonition would not have cured the harm caused by the misconduct. " [Citations.] Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if "the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request." [Citations.] [Citation.]" (Ibid.)
If the prosecutors comments about Mahe had been improper, an objection and admonition would have cured any prejudice. We presume that jurors follow admonitions given to them. (People v. Delgado (1993) 5 Cal.4th 312, 331 [crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions].)
Predictably, appellant advances a more familiar reason why we should find he preserved the issue of the prosecutors alleged misconduct for appeal. Appellant claims his counsel was constitutionally ineffective for failing to have made timely objections and requests for admonitions. As the California Supreme Court has noted repeatedly, the mere failure to object rarely rises to a level implicating ones constitutional right to effective legal counsel. (People v. Williams (1997) 16 Cal.4th 153, 221.) However, we will address this issue based on the alleged ineffective assistance of counsel.
We repeat that in order to prevail on a claim of ineffective assistance of counsel, first, appellant must establish that " counsels representation fell below an objective standard of reasonableness . . . under prevailing professional norms. [Citation.]" (People v. Ledesma, supra, 43 Cal.3d 171, 216, quoting Strickland v. Washington, supra, 466 U.S. 668, 688.) Second, appellant must show prejudice. Specifically, appellant must show "there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Staten, supra, 24 Cal.4th at pp. 450-451.)
Moreover, " " a court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. [Citation.]" [Citation.]" (People v. Holt, supra, 15 Cal.4th at p. 703.)
We conclude that, even if we were to assume that the prosecutors argument regarding Mahe being a murderer constituted misconduct, the prosecutors conduct did not prejudice appellant. As respondent points out, Mahe was not a critical witness for the defense because he claimed not to have seen who tackled Ralston. Given the testimony of Officers Ralston, Yocum, Butikofer and Salobek and the prison nurse noted ante it is not reasonably probable that the result of the proceeding would have been different.
Defense of Others
Appellant contends that the trial court erred in failing to instruct sua sponte on defense of others. Alternatively, defense counsels failure to request such an instruction constitutes ineffective assistance of counsel.
A sua sponte instructional duty arises " only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendants theory of the case. [Citation.]" (People v. Breverman (1998) 19 Cal.4th 142, 157.) Moreover, there is no sua sponte duty to instruct on a defense if the evidence of that defense is minimal or insubstantial. (People v. Barnett (1998) 17 Cal.4th 1044, 1145.)
To begin with, we note that appellants defense at trial was that the evidence was insufficient to prove that he tacked Ralston. The evidence of defense of others was at best minimal, at worst non-existent. Further, a claim of defense of others would have been inconsistent with appellants theory of the case.
The substantial evidence which is necessary to support a jury instruction is " evidence sufficient to deserve consideration by the jury, i.e., evidence from which a jury composed of reasonable [people] could have concluded that the particular facts underlying the instruction did exist. [Citation.] " (People v. Strozier (1993) 20 Cal.App.4th 55, 63 (Strozier ); see also People v. Marshall (1997) 15 Cal.4th 1, 39-40 (Marshall ); People v. Williams (1992) 4 Cal.4th 354, 361.) By contrast, a jury instruction "need not be given whenever any evidence is presented, no matter how weak." (Strozier, supra, at p. 63, italics in original.) The California Supreme Court has stressed that " unsupported theories should not be presented to the jury. [Citation.]" (Marshall, supra, at p. 40.)
In the present case, there was insufficient evidence to justify the giving of a defense of others instruction.
Accordingly, we reject appellants contention that the trial court should have instructed sua sponte with a defense of others instruction.
In addition, we reject appellants assertion that defense counsels failure to request such an instruction constitutes ineffective assistance of counsel.
Appellant suggests that trial counsel should have realized a defense of others might have been a wiser defense than a complete denial of guilt because Mahe testified that Officer Ralston "pepper sprayed him without provocation" and "Yocum testified that he saw Appellant tackle Ralston immediately after this."
We need not pause to weigh the relative strengths and weaknesses of the "I did not do it defense" against those of the possible "defense of others" argument in this case. "Because the two were inconsistent, defense counsel was put to an unavoidable but difficult choice. We will not employ the advantage of hindsight to condemn his chosen path . . . ." (People v. Haskett (1982) 30 Cal.3d 841, 853.)
It appears that counsels decision not to pursue a "defense of others" defense was based on a sound tactical decision. A claim of defense of others would have been dependent on showing that Officer Ralston used excessive force against inmate Mahe. (See People v. Mooc, supra, 26 Cal.4th at pp. 1221-1222.) Mahes testimony that he was delivering "cosmetics" was dubious at best. Further, Officer Yocums testimony directly contradicted Mahes testimony because Yocum saw him "pour" into the sink whatever was in the bag.
Restitution Fine
Appellant contends that the trial courts imposition of victim restitution "in an amount and manner to be determined by the Department of Corrections" violates both statutory and constitutional law. Specifically, appellant asserts that the order violated his Fifth and Fourteenth Amendment rights to due process and section 1202.4, subdivision (f).
Relevant here, section 1202.4 states that "in every case in which a victim has suffered economic loss as a result of the defendants conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court." (§ 1202.4, subd. (f).)
Appellant argues that this code section defines a narrow circumstance under which the trial court can delegate the responsibility for setting the amount of restitution to an agency other than the court. Appellant contends that the only circumstance allowing the court to do this is when the amount of the victims loss cannot be determined at the time of sentencing.
Thus, appellant asserts that because there was no evidence presented that the amount of Officer Ralstons loss could not be determined at the time of sentencing, the trial courts delegation of the determination of the amount of victim restitution to the Department of Corrections was unauthorized by statute.
We note that appellant did not object at the time of sentencing to the trial courts order.
First, we note that although the court said that victim restitution was "to be determined by the Department of Corrections," both the minute order and abstract of judgment make no mention of this delegation. The minute order reflects that appellant was ordered to "Pay victim restitution in a manner and amount to be determined (PC 1202.4)." The abstract of judgment reflects "Restitution per PC 1202.4(f): [¶] Case A: $____ X Amount to be determined to X victim." Neither of these documents contains any reference to the Department of Corrections determining the amount.
Nevertheless, assuming arguendo that somehow the Department of Corrections will find out that it is supposed to determine the amount of victim restitution, we point out, as does respondent, that People v. Lunsford (1998) 67 Cal.App.4th 901, 903-904 (Lunsford) explicitly recognized the validity of this practice, and the practice is authorized by the statute itself.
We agree with respondent and the reasoning in Lunsford that the trial court may delegate determination of the amount of restitution to another body and that appellant has a right to judicial review of that determination. (Lunsford, supra, 67 Cal.App.4th at pp. 903-904.)
In Lunsford, 67 Cal.App.4th 901, a murder case, the trial court stated at sentencing that it did not know if there were actual restitution costs such as medical bills or burial expenses. If there were such costs, the court stated, " I do assess those and order restitution to be paid by the defendant in an amount to be determined by the Office of Revenue Reimbursement . . . . " (Id. at p. 903.)
On appeal, the Lunsford court held that "when the amount of loss cannot be ascertained at the time of sentencing, the trial court may order the defendant to pay restitution in an amount to be determined by the agency that administers the victim restitution program." (Lunsford, supra, 67 Cal.App.4th at p. 902.) The court went on to state that the defendant could obtain judicial review of the agencys determination pursuant to section 1202.4, subdivision (f)(1) if he disputed the restitution amount. (Id. at pp. 902-903, 904.)
It appears the trial court in the present case was unable to determine the amount of restitution because Officer Ralston was still suffering from head and neck pain up to the time of trial. Thus, it remained possible that Officer Ralston would incur additional medical expenses in the future.
Directing the Department of Corrections rather than the Office of Revenue Reimbursement to determine the amount is in keeping with the requirements of section 1202.4, subdivision (f)(1). Appellant will have the opportunity to contest the amount of restitution in accordance with section 1202.4, subdivision (f)(1). This section gives him the right to a hearing to dispute the determination of the amount of restitution. (Lunsford, supra, 67 Cal.App.4th at p. 904, see also People v. Bernal (2002) 101 Cal.App.4th 155, 164.)
Furthermore, with respect to appellants argument that his due process rights were violated, his due process rights are "satisfied if appellant is given notice of the amount sought and a hearing to contest that amount." (People v. Thygesen (1999) 69 Cal.App.4th 988, 993.) Since there is no evidence that an amount has been set, appellants due process argument is not ripe.
Accordingly, we conclude that appellants arguments on this issue are to no avail.
Section 654The trial court ordered the sentence of 25 years to life as to count two (battery with serious bodily injury) to run concurrent with a 25-years-to-life sentence on count one (battery by a prisoner on a non-prisoner).
Appellant contends that the trial court erred in imposing concurrent prison sentences for these two crimes. Respondent concedes the issue. We agree.
Section 654, subdivision (a) provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
"Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct." (People v. Deloza (1998) 18 Cal.4th 585, 591.) The defendants intent and objective determine whether the course of conduct is indivisible. (People v. Hicks (1993) 6 Cal.4th 784, 789.) Accordingly, " [i]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. " (People v. Palmore (2000) 79 Cal.App.4th 1290, 1297.)
Here appellants convictions for battery with serious bodily injury and battery by a prisoner on a non-prisoner were both based on his attack on Ralston. For that reason, the trial court should have stayed the sentence on count two. "When a defendant suffers multiple convictions, sentencing for some of which is precluded by operation of section 654, an acceptable procedure is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable. Such stay is to be effective pending the successful service of sentence for the more serious conviction, at which time the stay is to become permanent." (People v. Miller (1977) 18 Cal.3d 873, 886, overruled on another ground as stated in People v. Oates (2004) 32 Cal.4th 1048, 1067, fn. 8.) Accordingly, we will stay execution of sentence on count two.
Disposition
The judgment is reversed conditionally. The cause is remanded to the trial court with directions to hold a new in camera hearing on appellants Pitchess motion in conformance with the procedures described in this opinion. If the trial court finds there are discoverable records, they shall be produced and the court shall conduct such further proceedings as are necessary and appropriate. If the court finds there are no discoverable records, or that there is discoverable information but appellant cannot establish that he was prejudiced by the denial of discovery, the judgment shall be affirmed as of that date. (People v. Hustead (1999) 74 Cal.App.4th 410, 423; People v. Guevara, supra, 148 Cal.App.4th 62.) If the judgment is affirmed, the sentence on count two shall be stayed pursuant to Penal Code section 654.
We concur:
RUSHING, P. J.
PREMO, J.