People v. O'Brien CA3

Filed 7/19/16 P. v. O’Brien CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C076089

Plaintiff and Respondent, (Super. Ct. No. 13F02885)

v.

MICHAEL MARTIN O'BRIEN,

Defendant and Appellant.

Defendant Michael Martin O’Brien was convicted of assault by means of force likely to produce great bodily injury and battery resulting in serious bodily injury in connection with a bar fight. Granted probation, he contends the judgment must be reversed because the trial court erred by (1) not giving a unanimity instruction, (2) not informing the jury that it could not find personal infliction of great or serious bodily injury on an aiding and abetting theory, and (3) instructing the jury on aiding and abetting without giving him sufficient notice of that theory.

1

None of defendant’s contentions on appeal has merit. Therefore, we affirm. FACTS After midnight on May 6, 2013, defendant and two other men entered Bulls Bar. The other two men were Lawrence Sheats (defendant’s stepfather) and Steven Rodriguez. Already at the bar were Gerald Prue (who was in his late fifties) and Charisse Robinson. Sheats sat down next to Robinson, and eventually a verbal dispute occurred between Prue and Sheats about Sheats’s behavior toward Robinson. As the dispute escalated, defendant approached from another part of the bar. Prue warned the men that he had pepper spray. Defendant and Sheats rushed at Prue and knocked him to the floor. While Prue was on the floor, he was kicked until he lost consciousness. Defendant dragged Prue across the floor and taunted him, even though Prue was still unconscious. Prue received treatment at the hospital for head, face, and elbow injuries. The prosecution evidence consistently established that defendant was involved in the assault of Prue. However, there were variations of exactly who inflicted what blows. Prue told an officer investigating the incident that defendant punched him before he fell to the floor. Prue spoke to another person about the assault and said that he did not know who hit him but guessed that it was Sheats because he and Sheats were arguing. At trial, Prue said he did not remember being punched. He testified that he had been grabbed and pulled to the floor. A witness in the bar, Reuben Angel, testified that he saw defendant kick Prue when Prue was on the floor. He also saw Prue get punched, although he was not sure who did it. But, after defense counsel showed Angel a surveillance video, Angel said he could have been mistaken about who kicked Prue. Angel told an officer investigating the incident that defendant punched Prue, knocking Prue down, then kicked Prue while he was on the floor. The bartender saw defendant kick Prue while Prue was on the floor. He testified that the surveillance video did not show the entire incident.