P. v. Campbell
Filed 5/2/08 P. v. Campbell CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, Plaintiff and Respondent, v. MARTIN ANTHONY CAMPBELL, Defendant and Appellant. | A118123 (Napa County Super. Ct. No. CR130390) |
A jury convicted appellant Martin Anthony Campbell of assault by means of force likely to produce great bodily injury (Pen. Code,[1] 245, subd. (a)(1)). In connection with that count, it also found true an enhancement of personal infliction of great bodily injury ( 12022.7, subd. (a)). However, it found him not guilty of battery with serious bodily injury ( 243, subd. (d)). The trial court suspended imposition of sentence and granted formal probation for a period of three years, which included various conditions, including that appellant serve a 90-day county jail term.
Appellant appeals, contending the trial court prejudicially erred by failing to instruct the jury with CALCRIM No. 240 (Causation). He also contends the court committed reversible error when it instructed the jury with CALCRIM No. 359 (Corpus Delicti) and CALCRIM No. 362 (Consciousness of Guilt). We affirm.
I. FACTS
A. Prosecutions Case
1. The Attack
During the early morning hours of May 14, 2006, Jeffrey Reno attended a party at a residence in the City of Napa. Prior to arriving at the party, Reno had been drinking at a local bar. Once at the party, Reno had words with appellant inside the house. Later, a scuffle between appellant and Reno occurred in the front yard of the house. Reno took off his shirt, and asked, Hey, wheres the fight? Reno saw appellant, along with two other men, who were later identified only as Campo and Critter, come out onto the street. Realizing that he was outnumbered, Reno decided to run. As Reno began running down the street, he heard appellant say, lets get him.
Reno testified that as he ran, appellant ran up and punched him and somebody else tackled him from behind. Reno fell to the ground. While Reno was lying on the ground, he was attacked by all three men. The men kicked him and stomped on his legs. Reno tried to get up and run, but he fell to the ground. Reno was uncertain about how far he made it down the street, but he knew it was [n]ot too far. As Reno was on the ground the second time, he saw appellant, but could not remember if he saw Campo and Critter. Reno was screaming out in pain. At that time, no one kicked, punched, or hit Reno. He testified, My leg was already broken. . . . [] It got hurt somehow the first time when I was on the ground. When I tried to get back up it was killingit was hurting. Then it just collapsed on me when I tried to get up and run.
2. Eyewitness Accounts
Bryon Slay, a neighbor who lived a few blocks from the party and who had known Reno since middle school, saw the attack. He said he saw four men swinging as Reno lay on the ground. Bryon did not notice whether Reno was also kicked and/or stomped on while he was on the ground. He identified appellant as one of the people hitting Reno. When asked on cross-examination whether he saw appellant actually hit Reno, Bryon responded that [e]verything was pretty much in a blur when that had happened . . . . According to Bryon, once Reno was on the ground, he did not get up until an ambulance came and he was put on a gurney.
Karla Slay, who was Bryons wife and a friend of Reno, also witnessed the attack. She remembered Reno running away before getting jumped. Karla saw Reno fall once when the men who were chasing him caught up to him and jumped him. Karla said the group was going crazy on Reno, using their hands and feet to strike him. She saw appellant kick Reno and try to punch him. She saw Reno get up and try to run away, but he did not get very far before he fell to the ground a second time. Karla did not remember Reno limping before the second fall. She described Renos running as [j]ust regular running. When further questioned, Karla admitted she had been guessing and that she could not remember whether Reno was running, walking, or limping after he fell down the first time.
Kim Peck, who had dated appellants brother and who was then dating Renos brother, remembered seeing appellant, Campo, and Critter out on the street. She also remembered pushing appellant away from Reno as he was lying on the ground. However, she did not remember telling the police that appellant, Campo, and Critter ran down the street and jumped appellant.
Brandy Bruha saw appellant and two other men chasing Reno down the street. She said Reno fell, but she did not know if he had been pushed to ground. Bruha saw appellant kicking Reno. She heard Reno screaming that his leg was broken.
3. Investigation
Officer Heath Morrison arrived at the scene at approximately 3:00 a.m. Officer Morrison took statements from several witnesses, including Kim Peck. According to his report, Peck told him that she saw three subjects, appellant, Campo, and Critter, jump Reno. Officer Morrison explained that Reno was in pain and moaning at the scene, which prevented Officer Morrison from getting a statement at that time. Several weeks later, Reno provided a written statement to the police.
Officer Morrison contacted appellant by telephone. Appellant told Officer Morrison that he had been at the fight, but he denied hitting Reno.
4. Expert testimony
Adam Freedhand, M.D., an orthopedic surgeon, was qualified as an expert at trial. Dr. Freedhand treated Reno for bone injuries. Reno sustained a comminuted fracture of the tibia and fibula. He explained that in a comminuted fracture there is no clean break. Rather, the bone breaks into multiple fragments. Dr. Freehand further explained that comminution was indicative of a blunt force trauma.
Dr. Freedhand testified that a comminuted fracture is not typically caused from simply falling down while running. He described the tibula and fibula as fairly stout bones, which take more than a simple fall to break. He explained that injuries of this nature typically occur from falls from significant heights, such as from the tops of ladders, six, eight feet or higher. Additionally, these types of injuries could be caused in a high speed motor vehicle accident or something of that nature. Dr. Freehand further stated that [a] simple . . . trip and fall while running does not usually do this.
Dr. Freedhand explained that Renos injuries could be caused by kicking and stomping. However, he clarified that a mere kick to the shin would not cause a comminuted fracture. Rather, for this type of fracture to occur, the leg would have had to been pinned down to the curb or against the pavement.
Dr. Freedhand stated that a person with Renos injury would be unable to successfully stand or run. On cross-examination, Dr. Freedhand further opined that someone with Renos injury would be unable to run even 20 or 30 yards.
B. Befense Case
Appellant testified on his own behalf. He explained that on the night of the incident, he had been drinking at a local bar and eventually met up with Peck and Bruha. Thereafter, appellant, Peck and Bruha left for a party at the home of Michael Swank. They arrived at the party at approximately 2:00 a.m. At some point, appellant became pretty friendly with Peck in the laundry room. While engaged with Peck in the laundry room, appellant heard a commotion outside in the front yard. Appellant said there had been argument with Renos friend, Jose, and that Reno had told Jose to leave. According to appellant, Reno then got pretty perturbed about it. He ripped off his shirt and he actually called [appellant] out into the middle of the street to fight him. Appellant declined the invitation to fight and stayed where he was. Appellant then told his friend Campo to handle it. Reno squared up with Campo and took a swing. Campo struck Reno and Reno fell to the ground. At this point, appellant ran to get Swank. When appellant returned with Swank, the fight was over and Reno was screaming that his leg was broken.
Appellant testified that he never touched Reno. He denied punching and kicking Reno. Appellant did not see anyone kick Reno. Swank testified that he did not see anyone strike Reno. Appellant and Swank left the scene before the paramedics and police arrived. Appellant later spoke with Officer Morrison and told him that he had nothing to do with the fight.
II. DISCUSSSION
A. Standard of Review
In reviewing a claim of error in jury instructions in a criminal case, this court must first consider the jury instructions as a whole to determine whether error has been committed. [Citations.] We may not judge a single jury instruction in artificial isolation, but must view it in the context of the charge and the entire trial record. [Citation.] An appellate court cannot set aside a judgment on the basis of instructional error unless, after an examination of the entire record, the court concludes that the error has resulted in a miscarriage of justice. (Cal. Const., art. VI, 13.) A miscarriage of justice occurs only when it is reasonably probable that the jury would have reached a result more favorable to the appellant absent the error. [Citations.] (People v. Moore (1996) 44 Cal.App.4th 1323, 1330-1331; People v. Flood (1998) 18 Cal.4th 470, 490 [the prejudicial effect of instructional error is determined by asking whether a reasonable probability exists the outcome would have been different but for the error].)
B. CALCRIM No. 240
In connection with the charge of assault with force likely to produce great bodily injury ( 245, subd. (a)(1)), the trial court instructed the jury with CALCRIM No. 875: The defendant is charged in Count TWO with assault with force likely to produce great bodily injury. [] To prove that the defendant is guilty of this crime, the People must prove that: [] 1A. The defendant did an act that by its nature would directly and probably result in the application of force to a person, and [] 1B. the force used was likely to produce great bodily injury; [] 2. The defendant did that act willfully; [] 3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; [] AND [] 4. When the defendant acted, he had the present ability to apply force likely to produce great bodily injury to a person. [] Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. [] The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind. [] The People are not required to prove that the defendant actually intended to use force against someone when he acted. [] No one needs to actually have been injured by defendants act. But if someone was injured, you may consider that fact, along with other evidence, in deciding whether the defendant committed an assault, and if so, what kind of assault it was. [] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. (Italics omitted.)
The trial court also instructed the jury with CALCRIM No. 3160: If you find the defendant guilty of the crime charged in Count TWO, you must then decide whether the People have proved the additional allegation that the defendant personally inflicted great bodily injury on Jeffrey Reno during the commission of that crime. [] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [] If you conclude that more than one person assaulted Jeffrey Reno and you cannot decide which person caused which injury, you may, but are not required to, conclude that the defendant personally inflicted great bodily injury on Jeffrey Reno if the People have proved that: [] 1. Two or more people, acting at the same time, assaulted Jeffrey Reno and inflicted great bodily injury on him; [] 2. The defendant personally used physical force on Jeffrey Reno during the group assault; [] AND [] 3. The amount or type of physical force the defendant used on Jeffrey Reno was enough that it alone could have caused Jeffrey Reno to suffer great bodily injury. [] The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved. (Italics omitted.)
Appellant contends the trial court erroneously denied his request to further instruct the jury on causation pursuant to CALCRIM No. 240,[2]which provides that where there are multiple causes of an injury, the defendants conduct causes the injury only if it is a substantial factor in causing the injury. The trial court denied the request, finding that causation had been adequately addressed in CALCRIM No. 875 and CALCRIM No. 3160.
Appellant contends that the other instructions (CALCRIM Nos. 875 & 3160) did not address whether his conduct was a substantial factor in causing Renos broken leg. According to appellant, CALCRIM No. 240 should have been given at trial because Renos broken leg may have been caused during a group beating in which appellant directly participated by kicking Reno, after appellant told others to take care of Reno, or when Reno fell while running from away from the beating. Appellant claims that CALCRIM No. 240 was relevant to the great bodily injury enhancement. He complains that in the absence of this instruction, the jury was free to impose the great bodily injury enhancement despite the fact that he may have only precipitated the fight by telling his friend to take care of it. In support of these claims of error, appellant finds particular significance in the fact that the jury acquitted him of battery while convicting him of assault. According to appellant, these seemingly inconsistent verdicts establish that the jury did not feel he was responsible for the actual touching that caused the injury.
These contentions are without merit. Compelling evidence was presented that Renos comminuted fracture of the tibula and fibula was not the type of injury caused from a mere fall while running or from a simple kick to the shin. Rather, according to the expert medical testimony presented at trial, this type of injury requires a blunt force trauma, such as a fall from a significant height (i.e., from the top of a ladder) or from a high speed motor vehicle accident. Clearly, if the jury believed appellants theory that Reno caused his own injury when he fell while running, it would not have found that defendant personally inflicted Renos injury.
[I]n enacting section 12022.7, 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. (People v. Cole (1982) 31 Cal.3d 568, 579.) By its plain language, CALCRIM No. 3160 instructs that a defendant must personally inflict the great bodily injury. CALCRIM No. 3160 is not materially different from CALJIC No. 17.20 (People v. Dunkerson (2007) 155 Cal.App.4th 1413, 1414), which our Supreme Court upheld as a correct statement of the law in People v. Modiri (2006) 39 Cal.4th 481, 492-501 (Modiri). The issue presented in Modiri was whether CALJIC No. 17.20 satisfied the personal infliction requirement in section 1192.7, subdivision (c)(8).[3]Modiri disposed of the notion that CALJIC No. 17.20 impermissibly allowed a finding of personal infliction of great bodily injury in the absence of any finding that the defendant personally and directly applied force capable of producing such injury: CALJIC No. 17.20 makes clear that the physical force personally applied by the defendant must have been sufficient to produce great bodily injury either (1) by itself, or (2) in combination with other assailants. Both group beating theories exclude persons who merely assist someone else in producing injury, and who do not personally and directly inflict it themselves. [] It bears emphasis that CALJIC No. 17.20 contemplates acts that contribute substantially to the victims injured state. By definition, force involves power, violence, compulsion, or constraint exerted upon or against a person. (Websters 3d New Internat. Dict. [(2002)] p. 887; accord, 6 Oxford English Dict. [(2d ed. 1989)] p. 33; American Heritage Dict. (4th ed. 2000) p. 686.) Also, the instructions group beating theories preclude a section 1192.7[, subdivision] (c)(8) finding where the defendants conduct could [not] have, or would [not have], caused or contributed to the requisite harm. (CALJIC No. 17.20.) In light of these qualifications, the defendants role in both the physical attack and the infliction of great bodily injury cannot be minor, trivial, or insubstantial. (Modiri, supra, 39 Cal.4th at p. 494, italics added.) Accordingly, the absence of CALCRIM No. 240 did not allow the jury to impose a great bodily injury enhancement in the manner appellant suggests.
Moreover, CALCRIM No. 240 would have injected an improper theory of liability into the great bodily injury issue. That instruction, although not expressly stated, addresses proximate causation. Case law, however, establishes that a defendant must do more than proximately cause an injury under section 12022.7, subdivision (a). To personally inflict injury, the actor must do more than take some direct action which proximately causes the injury. The defendant must directly, personally, himself inflict the injury. (People v. Rodriguez (1999) 69 Cal.App.4th 341, 349.) Proximately causing and personally inflicting harm are two different things. The Legislature is aware of the difference. When it wants to require personal infliction, it says so. (E.g., Pen. Code, 12022.7, subd. (a) [imposing a sentence enhancement on a person who personally inflicts great bodily injury].) When it wants to require something else, such as proximate causation, it says so, as in section 12022.53[, subdivision] (d). (People v. Bland (2002) 28 Cal.4th 313, 336 (Bland).)
In Bland, the California Supreme Court approved of the analysis in Rodriguez: In Rodriguez, the prosecution alleged that a certain prior conviction was a serious felony under Penal Code section 1192.7, subdivision (c)(8), i.e., that it was a felony in which the defendant personally inflict[ed] great bodily injury. The prior conviction, however, was of a crime that only required that the defendants actions proximately cause[d] death or serious bodily injury. (Pen. Code, 148.10; see People v. Rodriguez, supra, [69 Cal.App.4th] at pp. 345-346.) The trial court instructed the jury in terms of proximate causation under CALJIC No. 3.40, and the jury found the prior conviction was serious. The Court of Appeal reversed. It concluded, Proximately causing an injury is clearly different from personally inflicting an injury. (People v. Rodriguez, supra, [69 Cal.App.4th] at p. 351.) To personally inflict an injury is to directly cause an injury, not just to proximately cause it. The instruction was wrong because it allowed the jury to find against Rodriguez if the . . . injury was a direct, natural and probable consequence of Rodriguezs action, even if Rodriguez did not personally inflict the injury. (Id. at pp. 347-348.) (Bland, supra, 28 Cal.4th at pp. 336-337.)
So too here. CALCRIM No. 240 could have allowed the jury to find against defendant on the great bodily injury enhancement if defendants conduct was a substantial factor in causing the injury, even if defendant did not personally inflict the injury. The trial court thus properly denied defendants request to instruct the jury with CALCRIM No. 240.
C. CALCRIM No. 359
The trial court instructed the jury on the corpus delicti rule pursuant to CALCRIM No. 359: The defendant may not be convicted of any crime based on his out-of-court statements alone. You may only rely on the defendants out-of-court statements to convict him if you conclude that other evidence shows that the charged crime was committed. [] That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed. [] The identity of the person who committed the crime may be proved by the defendants statements alone. [] You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt.
Appellant contends the use of CALCRIM No. 359 in the absence of a confession or admission diluted the standard of proof and allowed conviction based on less than proof beyond a reasonable doubt.[4] He further claims this instruction constituted an improper comment on his testimony and impermissibly shifted the burden to the defense to produce evidence that someone else committed the charged offense. These contentions are without merit.
As an initial matter, appellant is incorrect in saying this was a case without confessions or admissions. To the contrary, appellant told Officer Morrison that he was there the night of the fight, but he did not hit [] Reno. While this statement was clearly offered for exculpatory purposes, it is nonetheless an admission. (People v. Mendoza (1987) 192 Cal.App.3d 667, 676 [stating an admission simply is any extrajudicial statementwhether inculpatory or exculpatorywhich tends to prove his guilt when considered with the rest of the evidence. ]; People v. Brackett (1991) 229 Cal.App.3d 13, 19 [An admission is an extrajudicial recital of facts by the defendant that tends to establish his guilt when considered with the remaining evidence in the case. (Citation.)].)
In any event, even if the corpus delicti instruction was superfluous under the facts of this case, there is no probability a miscarriage of justice occurred as a consequence. According to appellant, CALCRIM No. 359 diluted the standard of proof by directing that only slight evidence was necessary to establish the crime, as opposed to proof beyond a reasonable doubt.
We reject this contention. The corpus delicti rule, which has its roots in the common law, is intended to ensure that [a criminal defendant] will not be falsely convicted, by his or her untested words alone, of a crime that never happened. [Citations.] (People v. Alvarez (2002) 27 Cal.4th 1161, 1169.) This rule, which merely requires that a preliminary, cautionary step be taken before a jury may consider whether the prosecution has proven guilt of an offense beyond a reasonable doubt, plainly does not dilute the standard of proof. The last paragraph of CALCRIM No. 359 expressly cautions the jury that it cannot convict unless the People prove the defendants guilt beyond a reasonable doubt. Additionally, the court instructed the jury with CALCRIM No. 220, which defines reasonable doubt, reiterates that the jury can only convict if the People proved each element of the charged crimes beyond a reasonable doubt, and instructs the jury that, in deciding whether the People have proved their case beyond a reasonable doubt, the jury must impartially compare and consider all the evidence that was received throughout the entire trial. (CALCRIM No. 220.)
Furthermore, the jury was instructed in accord with CALCRIM No. 200 that Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them. While this language from CALCRIM No. 200 does not render an otherwise improper instruction proper, it may be considered in assessing the prejudicial effect of an improper instruction. (People v. Saddler (1979) 24 Cal.3d 671, 684 [discussing similar language in CALJIC No. 17.31].) Taken together, these further instructions dispel any possible notion that the jury could have misunderstood the requisite burden of proof on account of the corpus delicti instruction alone.[5]
Moreover, from an evidentiary standpoint, it is highly unlikely that the jury, as appellant suggests, could have determined the identity of the perpetrator from appellants statements alone. Clearly, if the jury had believed appellant, it would have acquitted him. However, the jury did not acquit appellant because it determined appellant was the assailant based on the testimony of numerous eyewitnesses, not based on appellants statements. Finally, nothing in the corpus delicti rule can remotely be interpreted as running afoul of the presumption of innocence, by requiring a defendant to produce evidence that someone else committed the crime. In sum, any error in giving CALCRIM No. 359 was harmless.
D. CALCRIM No. 362
Over defense objection, the trial court instructed the jury pursuant to CALCRIM No. 362: If the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself.
Appellant contends that consciousness of guilt is only shown by fabrications that are designed to hide complicity in the crime, not by statements denying the crime itself or by refusing to indentify other perpetrators of the crime. According to appellant, his statement to Officer Morrison that he was at the fight but did not hit Reno did not support giving CALCRIM No. 362.
We reject this contention. As stated in People v. Williams (2000) 79 Cal.App.4th 1157, 1167-1168: Deliberately false statements to the police about matters that are within an arrestees knowledge and materially relate to his or her guilt or innocence have long been considered cogent evidence of a consciousness of guilt, for they suggest there is no honest explanation for incriminating circumstances. [Citation.] Moreover, permitting the jury to draw an inference of wrongdoing from a false statement is as much a traditional feature of the adversarial fact finding process as impeachment by prior inconsistent statements. [Citations.] (See also People v. Kimble (1988) 44 Cal.3d 480, 496.) Thus, [t]he giving of CALJIC No. 2.03 [the predecessor to CALCRIM No. 362] is justified where there exists evidence that the defendant prefabricated a story to explain his conduct. The falsity of a defendants pretrial statement may be shown by other evidence even when the pretrial statement is not inconsistent with defendants testimony at trial. (People v. Edwards (1992) 8 Cal.App.4th 1092, 1103.)
Here, the falsity of appellants pretrial statement was proved by testimony of other witnesses who saw appellant kicking and hitting Reno. (People v. Edwards, supra, 8 Cal.App.4th at p. 1103.) If the jury believed the testimony of the other witnesses, it could reasonably have found appellants statement related to his innocence was false. From this, the jury could have inferred a consciousness of guilt. (Id. at p. 1104.) When testimony is properly admitted from which an inference of a consciousness of guilt may be drawn, the court has a duty to instruct on the proper method to analyze the testimony. (Ibid.) The trial court thus properly instructed the jury in giving CALCRIM No. 362.
III.DISPOSITION
The judgment is affirmed.
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Ruvolo, P. J.
We concur:
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Reardon, J.
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Rivera, J.
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[1] All further undesignated statutory references are to the Penal Code.
[2] CALCRIM No. 240 provides: An act causes (injury/
[3] Although the issue in Modiri involved personally inflicting great bodily injury under section 1192.7, subdivision (c)(8), the court in Modiri applied its holding equally to the personal infliction requirement under section 12022.7. (Modiri, supra, 39 Cal.4th at pp. 495-496, [participation in a group attack may satisfy sections 1192.7(c)(8) and 12022.7(a) where the defendant personally uses force against the victim, and the precise injurious effect is unclear].) (People v. Dunkerson, supra, 155 Cal.App.4th at p. 1417, fn. 2.)
[4] Although appellant failed to object to this instruction, the alleged instructional error is reviewable on appeal to the extent [it] affect[s] his substantial rights. [Citation.] (People v. Prieto (2003) 30 Cal.4th 226, 247.)
[5] By reason of this holding, we need not address appellants claim that use of CALCRIM No. 359 resulted in structural error amounting to a misstatement of the reasonable doubt standard.
