People v. Geh

• Decision Date: 30 September 2020
• Docket Number: D075858
• Parties: THE PEOPLE, Plaintiff and Respondent, v. ARCHIRI FON GEH, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. ARCHIRI FON GEH, Defendant and Appellant.

D075858

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

September 30, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. SCD279326)

APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed.

Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.

I.INTRODUCTION

Archiri Fon Geh, an inmate at the San Diego Central Jail, attacked jail and courthouse deputies on two separate occasions. A jury convicted him of eight counts of resisting an executive officer (Pen. Code, § 69, counts 3 to 6, 9 to 12), two counts each of assault with force likely to inflict great bodily injury on a peace officer (Pen. Code, § 245, subd. (c), counts 1 and 7), and battery on a peace officer with injury (Pen. Code, § 243, subd. (c)(2), counts 2 and 8).¹ The court found true that Geh had served two prior prison terms (§§ 667.5, subd. (b)), and that he had one prior serious felony conviction (§§ 667, subd. (a)(1), 668, & 1192.7, subd. (c)) and one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12). The court imposed a total sentence of 25 years and eight months.

Geh appeals, contending that the trial court erred by (1) not reading the instructions to the jury immediately before deliberations, (2) never orally instructing the jury with CALCRIM No. 337, which admonished the jury not to consider the fact that he was visibly shackled at trial during their deliberations, and (3) not accurately defining "great bodily injury." He also asserts that the prosecutor erroneously stated the legal standard for great bodily injury. We reject his arguments and affirm the judgment.

II.FACTUAL AND PROCEDURAL BACKGROUND

San Diego Sheriff's Deputy Joel B. escorted Geh from his cell at the San Diego Central Jail to an interview room for a scheduled appointment. As Deputy Joel removed Geh's handcuffs, Geh spun around, punched him in the face, and pushed him toward a doorway. On a scale of one to ten, DeputyJoel described the punch as a ten, "very forceful or painful." As Geh continued to throw punches, Deputy Joel fell to the floor. When other deputies arrived, Geh was on top of Deputy Joel punching him. Deputy Joel is five feet, five inches tall and Geh is six feet, three inches tall and weighs 260 pounds.

Immediately after the attack, Deputy Joel felt dazed and had pain "all over" his head, as well as in his elbows, knees and right "pinky" finger. He later suffered from blurred vision and headaches, and felt pain in his neck and shoulder area. He described experiencing "massive, throbbing pain on the right side of [his] head, and [his] vision turn[ing] white." His face was swollen for a week, and he experienced neck pain and stiffness for a few weeks. Deputy Joel's treating physician testified that individuals who are punched in the face can suffer from a concussion, brain bleeding and bone fractures.

A few days later, San Diego Sheriff's Deputy Lily L. went with another deputy to take Geh to court. After Deputy Lily told Geh to step outside of his cell and face the wall so that she could place a waist chain on him, Geh punched her on the side of her chin and throat. Deputy Lily briefly lost consciousness. When she regained consciousness, she was on the floor and saw her partner struggling with Geh. She immediately got up to help her partner. Deputy Lily L. is five feet, six inches tall and weighed 165 pounds, her partner is five feet, five inches tall and weighed 125 pounds. At least two other deputies responded as Geh continued to resist.

The next day, Deputy Lily's neck hurt and she had trouble turning her head and sleeping. Deputy Lily's treating physician testified that individuals who are punched in the face can suffer facial fractures, cervical spine fractures and brain bleeding.

During closing argument, defense counsel argued that Geh was not guilty of assault with force likely to cause great bodily injury, contending that the amount of force used in the assaults was not likely to cause great bodily injury. Defense counsel conceded Geh's guilt to all other charges.

III.DISCUSSION

A. The Trial Court Did Not Prejudicially Err in Instructing the Jury

1. Additional Background

Before jury selection, the trial court orally instructed jurors about the presumption of innocence and the beyond a reasonable doubt burden of proof. The court informed the jurors that they would receive a complete set of written instructions for their deliberations. The court then reviewed the charges against Geh, again informing the jurors that they would receive a set of written jury instructions for their deliberations. After swearing in the jury, the court orally instructed them on evaluating the evidence, including a defendant's right to not testify, and reviewed the elements of all charged offenses.

At the close of evidence, the trial court told the jury that it would "receive a complete set of the instructions in writing from the court when you adjourn to the jury room to undertake your deliberations" and that the court would further instruct on certain aspects of the law. After excusing the jury, the court and counsel spent the remainder of the day finalizing the jury instructions. Trial resumed the following morning at 9:42 a.m. The court minutes indicate that the court "instruct[ed] the jury in the law applicable to [the] case" and, six minutes later, at "9:48 a.m. [the] People present[ed] closing argument." The reporter's transcript, however, reflects only the courtgenerally telling the jury about closing argument but not orally instructing the jury.

During closing argument, defense counsel conceded Geh's guilt to all charges except counts 1 and 7 pertaining to assault on a peace officer with force likely to cause great bodily injury. Based on defense counsel's closing argument, the court determined that it had a sua sponte duty to instruct on simple assault as a lesser included offense. After the prosecutor's rebuttal argument, the trial court orally instructed the jury on simple assault and noted that this instruction would be included with the other written instructions that the jury would receive.

2. Analysis

Geh asserts that the trial court committed structural error requiring automatic reversal when it failed to orally instruct the jury after the close of evidence and before deliberations, and never orally instructing with CALCRIM No. 337, which informed jurors to not consider Geh's physical restraints for any purpose. Alternatively, assuming for purposes of argument that the failure to so instruct is not per se reversible error, he claims that his convictions for assault likely to inflict great bodily injury on a peace officer (counts 1 and 7) must be reversed because the court never orally instructed the jury immediately prior to its deliberations and thus failed to define "great bodily injury" for the jury at this time. Geh argues that the error is not forfeited by defense counsel's failure to raise it in the trial court, claiming that the court had a sua sponte duty to orally instruct the jury and that the error violated his substantial rights.

Because Geh contends that the alleged error affected his substantial rights, we assume that he has not forfeited his claim of error and review it on the merits. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1087 (Ramos).)

Geh concedes that, at some point after jury selection and before the jury began its deliberations, the trial court read most of the instructions to the jury, including the elements of assault on a peace officer likely to produce great bodily injury, as defined by CALCRIM No. 860, which the court read after jury selection and before the presentation of evidence.² The trial court explained that these instructions would "help [the jury] better assess the evidence." After the People rested and again after closing arguments, the trial court informed the jury that it would receive a set of written instructions.

Section 1093 delineates the order in which a criminal case is to be tried.³ Section 1094 grants the trial court broad discretion to depart from the order specified in section 1093.⁴

Two rules may be gleaned from sections 1093 and 1094: "First, when to instruct a jury is a matter within the sound discretion of the trial judge; he [or she] may instruct at any time during the trial. Second, even when a party requests instructions at the close of argument, if the court has already instructed on the subject it may in its sound discretion refuse to reinstruct. This necessarily follows from the broad discretion vested in the trial court byvirtue of section 1094." (People v. Valenzuela (1977) 76 Cal.App.3d 218, 221; see also, People v. Smith (2008) 168 Cal.App.4th 7, 14 ["trial courts are vested with wide discretion as to when to instruct the jury. (§§ 1093, subd. (f), 1094 . . . ."].) Where pertinent instructions have been given at the beginning of the case, the trial court is not obligated to repeat those instructions at the end of the case prior to jury deliberations, absent intervening circumstances that might lead to juror confusion. (People v. Chung (1997) 57 Cal.App.4th 755, 757-760 (Chung).) For example, a trial court has discretion to instruct on circumstantial evidence at the beginning rather than at the end of the trial. (People v. Webb (1967) 66 Cal.2d 107, 128.)

The trial court did not err...