Filed 12/23/15 P. v. McBreairty CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066161

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD254139)

JUDAH McBREAIRTY,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County,

Kenneth K. So, Judge. Affirmed.



         Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Marilyn L. George and

Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
                                     INTRODUCTION

       A jury convicted Judah McBreairty of battery on a peace officer with injury (Pen.

Code, § 243, subd. (c)(2))1 and resisting an officer in the performance of his duty (§ 69).

On appeal, McBreairty contends: (1) the trial court erred when it failed to sua sponte

instruct the jury on the lesser included misdemeanor offense of battery on a peace officer

without injury (§ 243, subd. (b)); (2) the trial court violated his right to represent himself

and his right to a fundamentally fair trial when, following the grant of a Pitchess2

motion, the court did not release discoverable information in a police file directly to him

as a self-represented litigant, but ordered the information to be released to a coordinator;

and (3) the prosecutor violated McBreairty's right to a fundamentally fair trial by failing

to provide the information from the police file under Brady.3

       We disagree with each of McBreairty's contentions and affirm the judgment.

Substantial evidence did not exist to warrant instructing the jury on the lesser included

misdemeanor offense of battery on a peace officer without injury and, even if an

instruction on the lesser included offense should have been given, any error was harmless

because it is not reasonably probable McBreairty would have obtained a more favorable

outcome. Additionally, the court was not obligated under section 1054.2, subdivision (b),

to provide the Pitchess information directly to McBreairty as a self-represented litigant


1      Further statutory references are to the Penal Code unless otherwise specified.

2      Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

3      Brady v. Maryland (1963) 373 U.S. 83 (Brady).
                                               2
and the prosecution had no duty under Brady to investigate or obtain the Pitchess

information for McBreairty. (People v. Superior Court (Johnson) (2015) 61 Cal.4th 696,

709 (Johnson).)

                               FACTUAL BACKGROUND

       A private security guard called the police after he had a verbal altercation with

McBreairty in a parking lot the guard was patrolling. During the encounter, the guard

thought McBreairty was going to pull a knife out of his backpack. The guard also

observed McBreairty curse at people walking by and believed McBreairty to be a danger.

Two San Diego police officers responded and spoke to the guard who pointed them in

McBreairty's direction. The officers approached McBreairty and, when they were

approximately 10 feet away, McBreairty ran into the middle of an intersection.

       Two other San Diego Police Officers, Macaine Piercy and Eric Coats, also

responded. They observed McBreairty run from the first two officers and into the

intersection, in the direction of Piercy and Coats's patrol car. Piercy got out of the patrol

car, ran after McBreairty, and tackled him on a grassy area.

       While Officer Piercy was on top of McBreairty, McBreairty shook his head back

and forth and pulled his hands underneath himself. As Piercy tried to secure

McBreairty's right hand, McBreairty pulled his head back and then downward causing his

front teeth to hit Piercy's left forearm and puncture the skin. Piercy felt McBreairty bite

him. Piercy and two other police officers handcuffed McBreairty.

       Officers Piercy and Coats took McBreairty to police headquarters to complete

paperwork. While transporting McBreairty the three or four blocks from police

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headquarters to the jail, McBreairty told the officers they were going to spend time at the

hospital. He then started banging his head against the metal grate partition in the police

car about 10 to 20 times until there was blood and skin everywhere. As a result of

McBreairty's injuries, he could not be booked into jail and was taken to a hospital.

       Officer Piercy stayed with McBreairty at the hospital for about five hours until

other police officers took over. While at the hospital, the nurses cleaned and applied

topical cream to the bite mark on Piercy's arm. The next morning, Piercy sought medical

attention at the police department's medical provider where they cleaned the bite mark

again, drew 24 vials of blood, and took ultrasounds of Piercy's internal organs including

his spleen and liver.

                                       DISCUSSION

                                              I

                Instruction on the Lesser Included Misdemeanor Offense of
                         Battery on a Peace Officer Without Injury

       McBreairty was convicted of felony battery on a peace officer with injury (§ 243,

subd. (c)(2)). McBreairty contends the trial court prejudicially erred when it failed to sua

sponte instruct the jury on the lesser included misdemeanor offense of battery on a peace

officer without injury (§ 243, subd. (b)). We are not persuaded.

                                              A

                        No Substantial Evidence to Warrant Instruction
                                 on Lesser Included Offense

       " 'California law has long provided that even absent a request, and over any party's

objection, a trial court must instruct a criminal jury on any lesser offense "necessarily

                                              4
included" in the charged offense, if there is substantial evidence that only the lesser crime

was committed.' " (People v. Anderson (2006) 141 Cal.App.4th 430, 442.) The trial

court's sua sponte duty to instruct on a lesser included offense exists " 'when the evidence

raises a question as to whether all of the elements of the charged offense were present

[citation], but not when there is no evidence that the offense was less than that charged.' "

(People v. Breverman (1998) 19 Cal.4th 142, 154.) "This standard requires instructions

on a lesser included offense whenever ' "a jury composed of reasonable [persons]

could . . . conclude[]" ' that the lesser, but not the greater, offense was committed." (Id. at

p. 177.) " 'An appellate court applies the independent or de novo standard of review to

the failure by a trial court to instruct on an uncharged offense that was assertedly lesser

than, and included in a charged offense.' " (People v. Hayes (2006) 142 Cal.App.4th 175,

181.)

        The issue here is whether the record contains substantial evidence to allow

reasonable persons to conclude McBreairty is guilty of battery without injury, but not

battery with injury. For the purposes of section 243, injury is defined as "any physical

injury which requires professional medical treatment." (§ 243, subd. (f)(5).) The test for

determining the existence of an injury is not whether the officer actually sought out

medical treatment, rather, "[i]t is the nature, extent, and seriousness of the injury—not the

inclination or disinclination of the victim to seek medical treatment—which is

determinative." (People v. Longoria (1995) 34 Cal.App.4th 12, 17.) "The test is

objective and factual" so the jury must decide whether it believes the injury required

medical treatment, as opposed to what the officer thought of his or her injury. (Ibid.)

                                              5
       Officer Piercy testified McBreairty bit his arm, which broke the skin and caused it

to bleed. The cut scabbed and healed on its own without any stitches or staples.

Although the bite mark itself did not require medical treatment to heal beyond cleaning

and topical medicated cream, Piercy took medication, had 24 vials of blood drawn, and

had ultrasounds taken of his internal organs. Piercy was scheduled to have 24 more vials

of blood drawn the week after trial and more ultrasounds, two months after McBreairty

bit him.

       McBreairty focuses his argument on the extent of the bite itself, which resulted in

"two small red marks" that scabbed over in a week or two, and healed like a normal cut.

However, McBreairty fails to address the nature of the cut, a human bite with health and

medical implications beyond the cut itself. No reasonable jury could conclude a bite,

which broke the skin and exposed an open wound to human saliva, potentially subjecting

Piercy to infection or other maladies, did not require medical treatment. Thus, we

conclude there was no substantial evidence to warrant instructing the jury on the lesser

included misdemeanor offense of battery on a peace officer without injury.

                                              B

                                  Harmless Error Analysis

       Even if the court should have instructed on the lesser included misdemeanor

offense of battery without injury, the error would have been harmless. " 'The erroneous

failure to instruct on a lesser included offense generally is subject to harmless error

review under the standard of People v. Watson (1956) 46 Cal.2d 818, [836-837].

Reversal is required only if it is reasonably probable the jury would have returned a

                                              6
different verdict absent the error or errors complained of.' " (People v. Prince (2007) 40

Cal.4th 1179, 1267.) Thus, a defendant must demonstrate it is "reasonably probable" the

jury would have returned a different, more favorable verdict if the omitted lesser

instruction had been given. (Ibid.) A " 'probability' " in this context does not mean more

likely than not, but merely a reasonable chance, more than an abstract possibility."

(People v. Soojian (2010) 190 Cal.App.4th 491, 519.) This review "focuses not on what

a reasonable jury could do, but what such a jury is likely to have done in the absence of

the error under consideration. In making that evaluation, an appellate court may

consider, among other things, whether the evidence supporting the existing judgment is

so relatively strong, and the evidence supporting a different outcome is so comparatively

weak, that there is no reasonable probability the error of which the defendant complains

affected the result." (People v. Breverman, supra, 19 Cal.4th at p. 177.)

       Under the facts of this case—a bite which broke the skin, exposed the officer to

human saliva, and required medical treatment and monitoring—we conclude it is not

reasonably probable a jury would have concluded there was no injury. Therefore, there is

no reasonable probability McBreairty would have obtained a better result if the jury were

instructed regarding misdemeanor battery.

                                             II

                       Discovery of Information Within Police File

       McBreairty contends the trial court violated his right to self-representation and his

right to a fundamentally fair trial when the court did not provide discoverable information



                                             7
in Officer Piercy's police file directly to him as a self-represented litigant and, instead,

ordered the information to be released to a coordinator. Again, we are not persuaded.

                                               A

                                      Background Facts

       A deputy public defender representing McBreairty filed a Pitchess motion seeking

discovery of police files and records for any evidence of excessive use of force, false

statements in police reports, or dishonesty by Officers Coats and Piercy. McBreairty

subsequently became a pro per litigant and represented himself at the hearing on the

Pitchess motion. The court granted the Pitchess motion, finding sufficient good cause to

review Piercy's personnel file on the issue of excessive force. After reviewing the file in

camera, the court found there was something in the file sufficiently similar to allow

further discovery. The court ordered the names, addresses, and phone numbers of two

witnesses to be disclosed to McBreairty's coordinator. McBreairty asked for clarification

about who his coordinator was and how he could contact the coordinator. The courtroom

clerk advised him the public defender typically assigns a coordinator for pro per litigants.

Since McBrearity only recently started representing himself, the courtroom clerk stated

he should contact the public defender if he had not been assigned a coordinator. The city

attorney agreed to have the information ready to give to the coordinator by the next week.

The record contains no information about what occurred in the 10 days between the

Pitchess hearing and the start of trial.

       McBreairty represented himself at trial. McBreairty sought to introduce the

minute order granting the Pitchess motion. The court denied McBreairty's request to

                                               8
admit the minute order on relevance and lack of foundation grounds because "[t]he fact

that there may be documents that may be released because of a Pitchess motion is not

evidence that's normally admitted." McBreairty also sought to question Officer Piercy

and himself about whether Piercy was under investigation for the use of excessive force.

The court denied the request and explained whether or not Piercy was under investigation

had no relevance because anyone can be under investigation. The court further explained

the fact there is an investigation file does not mean there is relevant evidence within it

and, if there was relevant information, it would have to be presented in court, which it

was not.

                                              B

               No Duty of Direct Disclosure to Self-Represented Defendant

       Section 1054.2, subdivision (b) states: "[i]f the defendant is acting as his or her

own attorney, the court shall endeavor to protect the address and telephone number of a

victim or witness by providing for contact only through a private investigator licensed by

the Department of Consumer Affairs and appointed by the court or by imposing other

reasonable restrictions, absent a showing of good cause as determined by the court."

Therefore, a self-represented defendant's access to witness identity information is

generally limited to contact through a duly appointed investigator or coordinator. (See

People v. Carson (2005) 35 Cal.4th 1, 12.)

       McBreairty did not show good cause for why the names, addresses, and phone

numbers of the two witnesses found within Officer Piercy's police file should be

disclosed directly to him rather than to a private investigator or coordinator. Further, as

                                              9
the trial court explained, a coordinator was necessary in this case because McBreairty

was in custody and could not pursue the investigation himself. Therefore, the court was

not obligated to provide the Pitchess information directly to McBreairty as a self-

represented litigant.

       In his reply brief, McBreairty contends public policy dictates he should have been

given more assistance to ensure he received the discoverable information in Officer

Piercy's file. McBreairty urges section 1054.2, subdivision (b) required the court to

appoint an investigator to pursue the discovery. In addition, although McBreairty

concedes the courtroom clerk instructed him to contact the public defender regarding the

assignment of a coordinator, he contends his ability to investigate was limited because the

minute order did not include these instructions and made no mention of a defense

investigator, and because the courtroom clerk never contacted the public defender's office

to inform it of the court's order on the Pitchess motion. These contentions are not

supported by the law or the record.

       When the court granted McBreairty's motion to represent himself, the court

appointed the Office of Assigned Counsel to provide a legal runner and reasonable

ancillary services. At the Pitchess hearing, McBreairty was instructed to contact the

public defender's office regarding the appointment of a coordinator. McBreairty had

prior contact with the public defender's office because he was previously represented by a

deputy public defender. The court also advised McBreairty it might be appropriate for

him to request a trial continuance to allow time to follow up on the matter. The trial call



                                             10
date was set for six days after the Pitchess hearing and trial commenced 10 days after the

hearing.

       There is no record about what happened in the time between the Pitchess hearing

and the trial as far as McBreairty's efforts to follow up on the coordinator and the

investigation, or request a continuance. "[I]t is the burden of the appellant to provide an

adequate record to permit review of a claimed error, and failure to do so may be deemed

a waiver of the issue on appeal." (People v. Akins (2005) 128 Cal.App.4th 1376, 1385;

see People v. Green (1979) 95 Cal.App.3d 991, 1001 [" ' "error is never presumed, but

must be affirmatively shown, and the burden is upon the appellant to present a record

showing it, any uncertainty in the record [is] resolved against him" ' "].)

       Section 1054.2, subdivision (b), requires the court to protect witnesses'

information by providing for contact only through an investigator appointed by the court

or by imposing other reasonable restrictions. The court complied with this statute by

ordering the witness names, addresses, and phone numbers of the witnesses to be

disclosed to a defense coordinator, which was available to McBreairty through the

previous appointment of the Office of Assigned Counsel for a legal runner and services.

The court had no obligation to contact the public defender's office or otherwise pursue

the matter for McBreairty.

                                              C

           No Duty of the Prosecutor to Provide Information Pursuant to Brady

       McBreairty argues once the Pitchess motion was granted, the prosecution had a

duty under Brady to investigate and obtain the information, then disclose it to

                                             11
McBreairty. Under Brady, "the prosecution has a constitutional duty to disclose to the

defense material exculpatory evidence, including potential impeaching evidence" even

when not requested. (Johnson, supra, 61 Cal.4th at p. 709.)

       The Supreme Court recently clarified the prosecution's duty under Brady as

applied to confidential personnel records of police officers who are potential witnesses in

criminal cases, i.e., Pitchess information. (Johnson, supra, 61 Cal.4th at p. 705.) The

court concluded, "the prosecution has no Brady obligation to do what the defense can do

just as well for itself." (Id. at p. 715.) "[T]he prosecution and the defense have equal

access to confidential personnel records of police officers who are witnesses in a criminal

case" through complying with the Pitchess procedures. (Id. at p. 716.) Thus, "the

prosecution fulfills its Brady obligation if it shares with the defendant any information it

has regarding whether the personnel records contain Brady material," but has no duty to

conduct a defendant's investigation for him. (Id. at pp. 715-716.)

       In Johnson, the police department told the prosecution that several officers' files

might contain Brady material. (Johnson, supra, 61 Cal.4th at p. 715.) This was

information the defense did not have and the prosecution had a duty under Brady to

provide that information. (Ibid.) In this case, there is no indication the prosecution had

any information regarding Brady material that McBreairty did not have himself. The

prosecution could obtain information in Piercy's file only by filing its own Pitchess

motion, but it was not obligated to file such a motion. (Id. at pp. 714, 718-719.)




                                             12
                                  DISPOSITION

      The judgment is affirmed.



                                                MCCONNELL, P. J.

WE CONCUR:


HALLER, J.


IRION, J.




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