Filed 12/23/15 P. v. McBreairty CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). T his opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE
STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. JUDAH M c BREAIRTY, Defen dant and Appellant. D066161

(Super. Ct. No. SCD 254139)

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.2 INTRODUCTION A jury convi cted 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
instr uct 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 Pitchess 2 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 funda mentally fair trial by fail ing to provide the i nformation 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 inc luded 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 fav orable

outcome. Additionally, t he 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 )

.3

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 gua rd 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 believ ed McBreairty to be a danger

. Two San Diego p olice o fficers resp onded 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 McB r eairty , and tackled him on a gr assy 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 punc t ure the skin. Piercy felt M cBreairty bit e him. Piercy and two other police officers handcuffed McBreairty. Officer s Piercy and Coats took McBreairty to police headquarters to complete paperwork. Whil e transporting McBreairty the three or four blocks from polic e4

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 gr ate 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 in to 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 clea ned and applied topical cream to the bite mark on Piercy ' s arm. The next morning, Piercy sought medical

attent ion at the police department ' s medical provider where they cleaned the bite mark agai n, drew 24 vials of blood , and took ultrasound s of Piercy ' s internal organs including his spleen and liver

. DISCUSSION
I Instruction on the Lesser Included Mi sdemeanor Offense of Battery on a Peace Officer W ithout Injury McBreairty was convicted of fel ony 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 injur y (§ 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 crimi na l jury on any lesser offense " necessaril y5

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. Breve rman (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 C al.App. 4th 175, 181.) The issue here is whether the record contain s 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, an d seri ousness of the injury

— n ot the inclination or disinclination of the vic tim 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 believe s the injury required medical treatment, as opposed to what the officer thought of his or her injury. ( Ibid. )6

Officer Piercy testified McBreairty bit his arm, which broke the skin and caused it to b leed. 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 ult rasound s take n of his internal organs

. Piercy was s cheduled to have 24 more vials of blood drawn the week after trial and more ultra sounds , two months after McBreairty bit him

. McBreairty focuses hi s a rgument on the extent of the bite itself , which re sulted 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 bit e with health and medical implications beyond the cut itself. No rea sonable jury could conclude a bit e, 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 the re was no substantial evidence to wa rrant 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 b attery without injury, the error would have been harmless. " ' The erroneous failure to instruct on a lesser included offense generally is subject to harm l e ss 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 a7

different verdict abs ent 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 h ad been given. ( Ibid .) A " ' probability ' " in this context does not mean more likely than not, but merely a reasonable chance , more than an abstract possibilit y. " ( People v. Soojian (2010) 190 Cal.App. 4th 491, 519.) This review " focuses not on what

a r easonable 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. Breverma n , supra , 19 Cal.4 th 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 W ithin 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 information8

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 Backgro und Facts A deputy public defender representing McBreairt y 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 subseque ntly 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 order ed the name s , addresses , and phone numbers of two witnesses to be disclosed to M cBreairty ' s coordinator. McBreairty asked for clarification about who his coordinator was and how he could contact the coordinator. The court room clerk advised him the public defender typically assign s a coordinator for pro per litigants

. Since McBreari ty 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 i n the 10 days between the Pitchess hearing and the start of trial.
McB reairty represented himself at trial. McBreairty sought to intr oduce the minute order granting the Pitchess motion. The court denied McBreairty ' s request to9

admit the minute order on r elevance 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 unde r investigation. The court further explained the fact there is a n investi g ation 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 Disclosur e 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 contac t 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 defenda nt ' 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, as10

the trial court explained, a coordinato r was necessary in this case because McBre airty was in custody and could not pursue the in vestigation himself

. Therefore, the court was not obligated to provide the Pitchess information directly to McB reairty as a self

represented litigant. In his reply brief, McBreairty contends public policy d ictates he should have been given more assistance to ensure he received the discoverable information in Officer Piercy ' s file. McBreairty urges section 1054 .2 , sub division (b) required the court to appoint an investigator to pursue the discovery. In addi tion, although McBre airty concedes the court room clerk instructed him to cont act the public defender regarding the assignment of a c oordinator , he contends his ability to investigate was limited because the minute order did not include these instructions a nd made no mention of a defense investigator, and because the court room clerk never contacted the public defender ' s office to inform it of the court ' s order on the Pitchess motion

. Th e s e contention s are not supported by the law or the record. When the co urt 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 offic e 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 call11

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 hear ing 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, sub division (b) , r equires 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 previo us 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 Pursu ant to Brady McBreairty argues once the Pitchess motion was granted, the prosecut io n had a duty under Brady to investigate and obtain the information , then disclose it to12

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 person nel records of police officers who are potential witnesses in criminal cases, i.e. , Pitchess information. ( Johnson , supra , 61 Cal.4th at p. 705 .) The

c ourt 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
prose cution 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 Johnso n , 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 info rmation

. ( Ibid. ) In this case, there is no indication the prosecution had any information regarding Brady material that McBreairty did not have himself

. T he prosecution could obtain information in Piercy ' s file only by filing its own Pitchess motion , bu t it was not obligated to file such a motion

. ( Id. at p p . 714 , 718

- 719

. )13 DISPOSITION The judgment is affirmed.

M C CONNELL, P. J.
WE CONCUR:

HALLER, J.

IRION, J.