P. v. Modiri

Filed 4/2/07 P. v. Modiri CA6

Opinion on remand from Supreme Court CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H023584

Plaintiff and Respondent, (Santa Clara County

Superior Court

v. No. CC079647)

SHEA MICHAEL MODIRI,

Defendant and Appellant.

_____________________________________/

Defendant was convicted by jury trial of aggravated assault (Pen. Code, 245, subd. (a)(1)) and misdemeanor battery (Pen. Code, 242). The jury also found true allegations that defendant had personally inflicted great bodily injury (Pen. Code,  667, 1192.7, subd. (c)(8)) and personally used a dangerous or deadly weapon (Pen. Code, 667, 1192.7, subd. (c)(23)) in the commission of the assault. He was granted probation conditioned on serving a jail term. On appeal, defendant asserted that the personal infliction of great bodily injury (GBI) finding could not be upheld because the trial court, by using CALJIC 17.20, failed to require the jury to find that defendant personally inflicted that injury. He also claimed that the personal use of a weapon finding was tainted by the same instruction. This court agreed with defendant that CALJIC 17.20 was infirm and constituted prejudicial error with respect to the GBI finding, but the California Supreme Court granted review and upheld the validity of CALJIC 17.20. It remanded the case to this court to consider defendants remaining contention.

Defendant contends that the trial courts response to a jury inquiry regarding CALJIC 17.20 was inadequate and prejudiced him with respect to both the GBI finding and the personal use of a weapon finding. We conclude that the trial courts response was inadequate, but that defendant was not prejudiced by the courts error. We therefore affirm the trial courts probation order.

I. Factual Background

On the evening of July 22, 2000, defendants longtime friend 18-year-old Matthew Brendon Bour had a party at his home. About 100 people attended the party. Bour had obtained a keg of beer that was placed in the backyard, and other attendees also brought alcohol. Defendant lived on the same street as Bour, just ten houses down from Bour. Because Bours parties had a tendency to get out of hand, Bours father, who was away for the weekend, had asked that defendant keep an eye on the house.

Defendant and Bour were acquainted with, but not friends with, 18-year-old Ryan Schon. Defendant and Schon had played sports with and against each other in junior high school. They had not seen each other since junior high school. Schon and Schons friends had a history of intimidating and threatening Bour, both in person and by means of telephone calls. Six-foot, two-inch Schon was very athletic and weighed over 200 pounds. Both defendant and Bour were a bit shorter, and neither of them weighed over 160 pounds.

Schon arrived at Bours party with Schons girlfriend Amy Jorgenson and two male friends. They walked into Bours front yard where Bour was standing. Bour was highly intoxicated from both alcohol and marijuana to the point that he was incoherent. When Bour saw Schon, he asked Amber Oxley if that was Ryan Schon. Oxley replied yes. Oxley heard Bour tell a few people hey, that is Ryan Schon and then they start to take off their jewelry.[1] Bour said to defendant Ryan is here, why. Oxley thought that Bour and his companions were getting ready to fight. On his way through the yard, Schon heard Oxley say does Ryan kn[o]w he shouldnt be here . . . . Schon ignored Oxley and walked up to Bour and greeted him. Bour shook Schons hand in a friendly manner and appeared to welcome Schon to the party. Schon and Bour did not show any signs of animosity to each other. Jorgenson proceeded to walk into Bours house.

Schon only took two steps past Bour before he encountered Darren Hitt. Hitt said who is Ryan Schon. Schon said that is me. Hitt told Schon [y]ou are not wanted here. Schon told Hitt that Bour said we could go in. Hitt said to Schon you shouldnt be here, someone here doesnt like you. Schon responded I dont know anybody here. What are you talking about. At this point, defendant intervened in an aggressive manner and said you know me. Schon did not recognize defendant and said so. Defendant insisted that Schon knew him. Defendant repeatedly told Schon to leave and then he bumped Schon with his chest. The other people standing in the immediate vicinity of Schon and defendant were also telling Schon to leave. Schon perceived that defendant was trying to provoke him and start a fight. Schon was not intimidated by defendant, but he was scared because his friends had gone inside, and there were 30 guys around telling me they are going to beat the crap out of me.[2] Defendant pushed Schon several times. Schon said [y]ou are pretty tough here with all your buddies around. He also said to defendant I am not going to fight all your friends.[3]

After defendant and others had repeatedly told him to leave, Schon said fine, I am leaving and somebody get my ride. He looked around for Jorgensen (his ride) and said somebody go get her. Then he began walking back toward Jorgensons car, and Jorgenson came with him. Defendant followed Schon, pushing [Schon] and pulling, lets go, come on, lets fight . . . . Schon pushed defendant away. Defendant, who had nothing in his hands, responded by punching Schon in the left side of his face or jaw. Schon faced defendant, moved toward him and tried to grab and hit him and throw him to the ground, but Schon was immediately tackled from behind by a big mob of people. Schon could not tell how many people were in the mob or discern their identities. After he was tackled, Schon did not see defendant during the melee that ensued. When Schon tried to get up from the ground, he was hit from behind over the back of the head with a bottle. Several more times he tried to get up and was hit again. Schon perceived at least three blows to his head.

Jorgenson saw defendant punch Schon. When Schon turned to defend himself, Schon was engulfed by a swarm of guys behind defendant. Jorgenson, who was about ten feet away, watched as defendant just ran on him and jumped on [Schon]. She heard bottles being broken. She saw someone hit Schon with a bottle, but she did not see defendant hit Schon with a bottle. Jorgenson testified that defendant was in the group of guys that were hitting, kicking [Schon]. She screamed and confronted defendant. Defendant turned around, and she pushed him off of Schon. Jorgenson felt a bottle in defendants hand when she separated him from Schon.

The melee lasted less than a minute and possibly as little as ten seconds. Schon got up, and he and Jorgenson began walking away. Schon heard someone say lets get him again. Jorgenson looked back and saw defendant, who was about 15 feet away, throw a bottle at them. The bottle hit behind our feet about five feet away from them.

The police arrived within a couple of minutes, and many of the party-goers ran away. Defendant remained at Bours house and spoke to the police. Several partygoers had blood on their clothing. One of them was Michael Scharland. Schons blood was found on Scharlands shoes and shirts. Schons blood was found on defendants shoes, socks and pants and on Hitts shoes. Hitt told the police that he never got near the fight. Schon went to the hospital. The wounds on the side and top of his head required a total of ten staples to close, and he had a broken nose that required surgery.

II. Procedural Background

Defendant was charged by information with battery with serious bodily injury (Pen. Code, 242, 243, subd. (d)) and aggravated assault (Pen. Code, 245, subd. (a)(1)). It was further alleged that defendant had personally inflicted great bodily injury (Pen. Code, 667, 1192.7, subd. (c)(8)) and personally used a dangerous and deadly weapon (a bottle) (Pen. Code, 667, 1192.7, subd. (c)(23)) in the commission of these offenses. Hitt and defendant were jointly charged and jointly tried.

At trial, Leslie LaBarbera, who lived on the same street as Bour and defendant, had known defendant for many years, had been friends with Schon and Jorgenson for many years and attended the same high school as Schon, testified that she did not observe the altercation at the party because she was inside the house. When she heard that Schon had been in a fight, she left the house and saw defendant standing near the front door of the house. LaBarbera heard defendant pretty loud[ly] say give me another beer. I just broke the last . . . two . . . over the guys head. Although there were many other people around, no one else apparently heard this remark.

Defendant testified that, at the time of the altercation with Schon, the only person defendant recognized other than Schon among the people in Bours front yard was Hitt. Bour had told defendant of Schons presence, and defendant was concerned that Bour and Schon might have an altercation because he knew that Schon had threatened Bour in the past. Defendant saw Schon and Hitt conversing. He heard Hitt tell Schon to leave and Schon respond no, I could be here. Defendant also heard Schon say I dont know anybody here. Defendant walked up and said you know me, Ryan. Schon said who are you. Defendant identified himself and told Schon to leave because you are not welcome here and not liked. Schon again said no, I can be here. Defendant raised his voice, got in [Schons] face and told Schon [g]et the fuck out of here. Stop being a fag. Schon pushed defendant. Defendant fell back into the crowd, but the crowd pushed him back toward Schon.

Defendant then punched Schon in the face. Defendant testified that he did not know that anyone else would jump in and help him in a fight. Schon and defendant were grabbing each other and trying to punch each other when the crowd tackled them. Defendants impression was that everyone from the front yard ran and got in the fight. He was getting tossed around by the crowd. Defendant testified that he did not have a bottle in his hand during the altercation and that he did not hit Schon over the head.

Eventually, defendant felt himself get pushed out of the melee into a bush. He got up and saw Schon nearby. Defendant noticed a full bottle of beer on the ground by his foot. He picked up the bottle and threw it at Schon. The bottle landed ten feet away from Schon and shattered in the street. Defendant admitted that it was kind of dangerous throwing a bottle at somebody.

Defendant then returned to Bours house. He encountered LaBarbera. She grabbed his arm and said why did you do that. Defendant said do what? He started to fight with me. He did not say anything to LaBarbera or anyone else about hitting Schon over the head or breaking a bottle over anyones head. Defendants girlfriend Lynelle Rose testified that Hitt later said he had hit [Schon] on the head with a Remy bottle.

The prosecutor relied heavily on LaBarberas testimony about defendants post-altercation statement to prove the GBI enhancement. You saw Leslie testify. You saw Leslie talk about how long she has known Shea Modiri. You could see the conflict that Leslie had. One point, she knows both of these guys. On the other hand, she is going to have to see Shea Modiri, they live on the same street, she is going to continue to see Shea Modiri. . . . Not that many people came forward. Leslie LaBarbera did. Would have been a lot, lot easier for her not to. And you saw the torment that caused, you saw her crying on the stand of what she had to say, what she heard the defendant Shea Modiri say . . . . [] The fact when Mr. Modiri took the stand, he couldnt come up with the reason for why Leslie LaBarbera would make this up about him. . . .  It seems pretty darn clear, she was absolutely positive that that is what he said. And it caused her a lot of grief in doing that. Because she was acting responsibly . . . no matter how much that pained her, and it did. What we do know, that [defendant] hit [Schon] over the head with the bottle or two or three times. We know that because Leslie LaBarbera told us that.

The prosecutor identified the great bodily injuries as the staples in Schons head and the broken nose, and he explicitly relied on the group beating theory contained in CALJIC 17.20. How do I know which hit the defendant Mr. Modiri did and which hit the defendant Mr. Hitt did. You know, which cut, which broken nose. How do I know who caused the broken nose? The thing is you dont have to make that decision, because in this sort of group beating, this sort of attack, when it is going on all at the same time and the people who are involved are there and they know what is going on, and they are causing part of the injuries, and they know this was likely to know that others are hitting and attacking this Ryan Schon are also causing those kinds of injuries, they are all guilty. This fact is true. You just need to find that it is true this attack to Ryan Schon caused this great bodily injury. [] Now, the personal use of the dangerous weapon. Well for this finding you do, you do need specifically to place the bottle in Mr. Hitts or Mr. Modiris hands. And we will get to that a little bit later. And we can do that, we can put the bottle in their hands. (Italics added.) [Defendant] knows everybody else is going to back him up. And again, that other instruction, dont know if Shea hit him the first time, Shea hit him third, dont know if Shea Modiri hit him in the exact place as open wound before.

The jury was instructed with CALJIC 17.20 on the personal infliction of GBI allegation and with CALJIC 17.16 on the personal use of a dangerous or deadly weapon allegation. The jury deliberated for about two and a half days. Halfway through the jurys second full day of deliberations, it submitted two separate inquiries, one of which explicitly concerned CALJIC 17.20. The court met with counsel that afternoon, and the court then responded to the jurys inquiries during an unreported session. The jury returned its verdicts the next morning.

Defendant was acquitted of battery with serious bodily injury but convicted of the lesser included offense of simple misdemeanor battery.[4] He was convicted of the aggravated assault count and both the personal use of a deadly or dangerous weapon allegation and the personal infliction of GBI allegation were found true. Defendants request that the court strike the GBI and personal use findings was denied, and the court refused to reduce the assault conviction to a misdemeanor. The court suspended imposition of sentence. It placed defendant on probation for three years conditioned on him serving a jail term. Defendant filed a timely notice of appeal.

III. Analysis

Defendant does not challenge his convictions on appeal. He contends that the trial courts response to the jurys inquiry regarding CALJIC 17.20 was prejudicial error with regard to the GBI and weapon use allegations.

A. Instructions, Jury Question and Courts Response

The jury was instructed that the aggravated assault count charged defendant with committing an assault upon the person of Ryan Schon with a deadly weapon and instrument other than a firearm, a bottle, and by means of force likely to produce great bodily injury. The jury was also told that the two allegations charged that defendant had personally used a weapon and personally inflicted great bodily injury in the commission of the aggravated assault.[5]

The court instructed the jury with CALJIC 17.20 on the GBI allegation. If you find the defendant guilty of either Count 1 and/or Count 2 as charged, you must determine that defendant personally inflicted great bodily harm on Ryan Schon in the commission or attempted commission of the crime. [] Great bodily injury as used in the instruction means a significant or substantial physical injury. Minor, trivial or moderate injuries 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 one, 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 two, that at the time that the defendant personally applied unlawful physical force to the victim, the defendant knew that other persons, as part of the same incident, had applied, were applying, or would apply unlawful physical force upon the victim and the defendant 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 that it is true, you must find it to be not true. [] Include a special finding on that question in your verdict, using a form that will be supplied for that purpose.

The court immediately followed CALJIC 17.20 with CALJIC 17.16, the instruction on the personal use of a weapon allegation. It is alleged in Count 2 that in the commission or attempted commission of the crime charged, the defendants personally used a deadly or dangerous weapon. [] If you find a defendant guilty of the crime thus charged, you must determine whether the defendant personally used a dangerous or deadly weapon in the commission or attempted commission of the crimes. [] A deadly or dangerous weapon means any weapon, instrument or object that is capable of being used to inflict great body [sic] injury or death. [] The term personally used a deadly or dangerous weapon as used in this instruction means the defendant must have intentionally displayed a weapon in a menacing manner or intentionally fired it or intentionally struck or hit a human being with it. [] The People have the burden of proving the truth of this allegation.

On the jurys second day of deliberations, it submitted a two-page inquiry to the court.[6] The first page read: Our question regards Cal JIC 17.20 [] We understand that we are judging the facts/evidence for each defendant separately. Does any level of participation in the group directly doing the assault constitute personal use of physical force. (This is asking for clarification of Personal) The second page read: If the defendant was found to be in the core of individuals inflicting the beating regardless of there being proof as to whether or not they personally used physical force . . .  [] Can they be found guilty of [] Count 1 - yes or no [] and/or [] Count 2 - yes or no. The courts sole response to this two-page inquiry was you were to look at CALJIC 3.00 and CALJIC 3.01 with regard to the charges that are alleged in Counts 1 and 2 and lesser charge you are to look at CALJIC 17.20 with regard to the enhancement or allegation.

B. The Error

Defendant claims that the trial court violated Penal Code section 1138 and prejudicially erred in providing an inadequate response to the jurys inquiry.

Penal Code section 1138 provides: After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called. The trial court has a duty to clear up any instructional confusion expressed by the jury. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212; People v. Moore (1996) 44 Cal.App.4th 1323, 1331 [court must help the jury understand the legal principles it is asked to apply].)

The first page of the jurys inquiry concerned CALJIC 17.20 and the GBI allegation, while the second page was restricted to the substantive charges. The jury sought a clarification of Personal with respect to what it understood to be CALJIC 17.20s requirement that there be personal use of physical force by a defendant who is a participant in a group beating and asked if any level of participation in the group directly doing the assault constitute[s] personal use of physical force. (Italics added.)

The portion of CALJIC 17.20 that was the subject of the jurys inquiry allowed the jury to find the GBI allegation true if the jury concluded that defendant (1) participated in a group beating and (2) either (option A) the application of unlawful physical force to the victim was of a type that by itself, it could have caused the great bodily injury or (option B) defendant personally applied unlawful physical force knowing that this force, when combined with the force applied by others, would cause great bodily injury. Option A noticeably omitted any mention of personal conduct by defendant. While option B expressly required the jury to find that the physical force was personally applied by defendant, option A only expressly required the jury to find that the application of unlawful physical force could have caused the great bodily injury. Thus, option A did not appear to require the jury to find that defendant had personally applied the specified force to the victim.

The jurys inquiry focused on the ambiguity in option A and suggested that the jury was unsure whether it meant that any level of participation by defendant in the group directly doing the assault [would] constitute personal use of physical force within the meaning of CALJIC 17.20. The possible understanding of the instruction suggested by the jurys question was incorrect. Option A actually required the jury to find that defendant personally applied the force that could have caused the injury. Both prongs of the instruction permit a personal-infliction finding in this instance only if the defendant personally appli[es] unlawful physical force to the victim. . . . [T]he physical force personally applied by the defendant must have been sufficient to produce great bodily injury either (1) by itself [option A], or (2) in combination with other assailants [option B]. (People v. Modiri (2006) 39 Cal.4th 481, 494, italics added.)

Since the jury expressed confusion about the correct meaning of CALJIC 17.20, defendant claims that the trial court was obligated under Penal Code section 1138 to do something more than merely refer the jury back to the exact instructional language that had confused the jury. We agree.

To perform their job properly and fairly, jurors must understand the legal principles they are charged with applying. It is the trial judges function to facilitate such an understanding by any available means. The mere recitation of technically correct but arcane legal precepts does precious little to insure that jurors can apply the law to a given set of facts. A jurys request for reinstruction or clarification should alert the trial judge that the jury has focused on what it believes are the critical issues in the case. The judge must give these inquiries serious consideration. Why has the jury focused on this issue? Does it indicate the jurors by-and-large understand the applicable law or perhaps it suggests a source of confusion? If confusion is indicated, is it simply unfamiliarity with legal terms or is it more basically a misunderstanding of an important legal concept? (People v. Thompkins (1987) 195 Cal.App.3d 244, 250.) It is hardly preferable for a judge to merely repeat for a jury the text of an instruction it has already indicated it doesnt understand. We are convinced both jurors and the justice system will be well served in the vast majority of cases if the trial judge thoughtfully considers the jurys inquiry, clarifies it if necessary, studies the applicable legal principles, and responds to the jury in as simple and direct a manner as possible. (People v. Thompkins, supra, 195 Cal.App.3d at p. 253.)

In People v. Beardslee (1991) 53 Cal.3d 68, a jury inquired about the definition of premeditation and deliberation, and the court told the jury that it would not explain any of the jury instructions. On appeal, the defendant claimed that the trial court had violated Penal Code section 1138. (Beardslee, at pp. 96-97.) The California Supreme Court held that the courts response was erroneous.[7] The court has a primary duty to help the jury understand the legal principles it is asked to apply. This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jurys request for information. . . . But a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given. (Beardslee, at p. 97, first italics added, second italics in original.)

Here, the trial court provided no real assistance in response to the jurys inquiry. Obviously the jury was already aware that CALJIC 17.20 set forth the requirements for the GBI allegation. Its problem was not locating the appropriate instruction but understanding it. By merely referring the jury back to CALJIC 17.20, the trial court did nothing whatsoever to assist the jury in understanding the instruction. Under these circumstances, the trial court should have told the jury that the application of unlawful physical force referenced in option A must be by defendant personally. The courts failure to provide such clarification in response to the jurys clearly expressed confusion was error.

C. Prejudice Analysis

The remaining question is whether this error was prejudicial to defendant. A violation of section 1138 does not warrant reversal unless prejudice is shown. (People v. Beardslee, supra, 53 Cal.3d at p. 97.) Because the GBI and personal use of a weapon allegations did not increase the penalty for the aggravated assault, the appropriate standard of review is whether it is reasonably probable that a result more favorable to defendant would have resulted if the trial court had given an appropriate response to the jurys inquiry. (People v. Sengpadychith (2001) 26 Cal.4th 316, 326; People v. Watson (1956) 46 Cal.2d 818, 836.)

[I]f jury instructions are important in general, there is no category of instructional error more prejudicial than when the trial judge makes a mistake in responding to a jurys inquiry during deliberations. (People v. Thompkins, supra, 195 Cal.App.3d at pp. 252-253.) The trial courts error in this case was failing to expressly tell the jury that it was not true that any level of participation by defendant in the group directly doing the assault [would] constitute personal use of physical force under option A, and that, in fact, option A required that defendant personally apply physical force that could have caused the great bodily injury.

Defendant admitted at trial that he had participated in the assault on Schon. He initiated the melee by punching Schon and followed up on the melee by throwing a bottle at Schon. However, the evidence indisputably established that neither of these acts of defendant could have caused the great bodily injuries that Schon suffered to the side and top of his head and to his nose. The evidence linking defendant to acts that could have caused the great bodily injuries was testimony by LaBarbera and Jorgenson. LaBarbera testified that, after the melee, defendant said give me another beer. I just broke the last . . . two . . . over the guys head. Jorgenson testified that she felt a bottle in defendants hand when she pushed him off of Schon near the end of the melee. Defendant denied having hit Schon with a bottle, yet the jury found that defendant had personally used a bottle in the commission of the assault.

The trial courts error could not have had any impact on the jurys factual finding that great bodily injury was inflicted on Schon in the commission of the assault. The error concerned only the portion of the finding that attributed the infliction to defendant personally. The jury also found that defendant personally used a bottle in the commission of the assault. Defendant claims that the bottle-use finding was also impacted by the courts error, but he is incorrect. The jury was given accurate and unambiguous instructions on the weapon use allegation, and the jury submitted no inquiries regarding those instructions. The prosecutor argued to the jury that, in contrast to the GBI allegation, the weapon use allegation actually required proof that would place the bottle in . . . Mr. Modiris hands. Under the courts proper instructions and the prosecutors argument, there is no reasonable likelihood that the jury misunderstood its obligation to find that defendant had personally used a bottle in the commission of the assault in order to find the weapon use allegation true. (People v. Young (2005) 34 Cal.4th 1149, 1202.)

Because the jury found that defendant personally used a bottle in the commission of the same assault in which it found that great bodily injury was inflicted, the question becomes whether it is reasonably probable that the jury nevertheless failed to find that defendants use of the bottle could have caused the great bodily injury. It is possible that the jurys personal-use-of-a-bottle finding was based on defendant having thrown a bottle at Schon just after the melee. But this possibility is not reasonably probable. In order to find the personal-use-of-a-bottle allegation true under the courts instructions, the jury had to find that the bottle was used in the commission of the same assault in which the great bodily injury was inflicted. It would have been a stretch for the jury to conclude that defendants use of a bottle after the melee was over and Schon was walking away with his girlfriend was in the commission of the assault. It is far more likely that the jury in fact found that defendant used a bottle during the melee.

When this understanding of the jurys actual findings is coupled with the unimpeached and highly inculpatory testimony of LaBarbera and juxtaposed against defendants testimony denying any use of a bottle (other than the post-melee throwing incident), it does not appear reasonably probable that the trial courts erroneous failure to properly respond to the jurys question in fact led the jury astray. This record does not support defendants claim that it is reasonably probable that the jury would have entertained a reasonable doubt about his personal application of force that could have caused the great bodily injuries if only the trial court had given an adequate response to the jurys question.

IV. Disposition

The order of probation is affirmed.

_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Bamattre-Manoukian, Acting P.J.

_____________________________

Duffy, J.

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[1] The jewelry was apparently bracelets.

[2] All of the other witnesses quantified the number of people as around ten.

[3] Defendant testified that Schon also said but I will fight you.

[4] Hitt was convicted of the lesser included offense of simple assault and acquitted of battery. The jury apparently disbelieved both Roses testimony and Hitts statement to the police.

[5] This was the same language used in the information.

[6] The jury also submitted a separate inquiry about aiding and abetting. Our question regards Cal JIC 3.00 and 3.01 [)~ We understand that we are judging the facts/evidence for each defendant seperately [sic]. Does Aids and Abets only apply to the lessor [sic] charge of (Simple Assault) or does it also apply to uses physical force element in the greater charge (Assault with a deadly weapon or by means of force likely to produce great bodily injury). The courts response to this inquiry was aiding and abetting also applied to the greater charges.

[7] Nevertheless, the court found that the error was harmless because any ambiguity in the instructions would have favored rather than prejudiced defendant and it was mere speculation that the courts response might have discouraged the jury from asking further questions. (People v. Beardslee, supra, 53 Cal.3d at pp. 97-98.)