Filed 12/23/15 P. v. McBreairty CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JUDAH McBREAIRTY,

Defendant and Appellant.

 D066161

 (Super. Ct. No. SCD254139)

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.
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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).
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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 
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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.)
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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 
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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 
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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 
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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 
10

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 selfrepresented 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 
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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 
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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.)
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DISPOSITION

The judgment is affirmed.

MCCONNELL, P. J.

WE CONCUR:

HALLER, J.

IRION, J.