People v. Jassy

THE PEOPLE, Plaintiff and Respondent, v. DAVID MOSES JASSY, Defendant and Appellant.

B222993

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

Filed: November 7, 2011

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BA349467)

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael Johnson, Judge. Affirmed.

Marilee Marshall & Associates, Inc., and Marilee Marshall for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Carl N. Henry and Linda C. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

David Moses Jassy was convicted of second degree murder, assault by means likely to produce great bodily injury and aggravated battery and sentenced to an aggregate state prison term of 15 years to life. On appeal Jassy mounts a broad ranging challenge to the proceedings in the trial court, including contentions that the evidence is insufficient to support his conviction for murder; the court committed prejudicial error in its evidentiary rulings and when instructing the jury; his counsel provided constitutionally ineffective assistance; and his sentence constitutes cruel and/or unusual punishment in violation of the United States and California Constitutions. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Information

Jassy was charged in an information with murder (Pen. Code, § 187, subd. (a))¹ (count 1), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) (count 2), assault with a deadly weapon (§ 245, subd. (a)(1)) (count 3), battery with the infliction of serious bodily injury (§ 243, subd. (d)) (count 4) and leaving the scene of an accident (Veh. Code, § 20001, subd. (a)) (count 5). It was specially alleged as to count 1 that Jassy had personally used a deadly and dangerous weapon, "to wit, an automobile," within the meaning of section 12022, subdivision (b)(1). It was also specially alleged as to counts 2 and 3 that Jassy had personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). Jassy pleaded not guilty and denied the special allegations.

2. The Trial

Jassy is a 37-year-old Swedish citizen who was on an extended business trip in Los Angeles in November 2008 when he encountered 55-year-old John Osnes. According to several witnesses at the scene, Osnes was crossing the street in a crosswalk at the intersection of Schrader Boulevard and Selma Avenue in Hollywood at 1:20 a.m. when Jassy drove his rented SUV past the stop sign and partially into the crosswalk. The SUV nearly hit Osnes before coming to a stop. Osnes, who at six feet was an inch tallerthan Jassy and about the same weight (162 pounds), slapped the front passenger side of the SUV with both hands just before the vehicle came to a complete stop and yelled something at Jassy. Jassy got out of the SUV and walked aggressively toward Osnes. Jassy's girlfriend, Therese Fischer, who was in the SUV's front passenger's seat, also got out of the car, but stayed close to the passenger door. As Jassy came toward him, Osnes put his hands in the air with the palms out "as if to surrender" and backed onto the sidewalk at the corner. Jassy immediately punched Osnes in the face while Osnes moved his hands defensively to block the blow. Jassy turned around and started walking back to his car, leading witnesses to believe the altercation was over. Then, when Osnes was rising from a kneeling or squatting position—he had bent down either to regain his balance or to retrieve his eyeglasses—Jassy turned to face Osnes, took a couple of steps and kicked Osnes "extremely hard" in the face like "a punter kicking a football." The kick lifted Osnes into the air in a horizontal "plank position" and appeared to render him unconscious. When he landed on his back, Osnes's head "bounced off the ground."

Jassy and Fischer returned to the SUV, and Jassy attempted to drive away. Off-duty Anaheim police officer Robert Young, who was in plainclothes, witnessed the incident. When Jassy returned to his car, Young ran to the SUV, identified himself as "Anaheim police" and screamed at Jassy to stop. Young held his badge in his hand and pressed it against the driver's side window as he attempted to open the driver's side door. The door was locked. With Young gripping the driver's door, Jassy put the car in gear and drove over Osnes, who was lying in the road. Jassy then accelerated the SUV, causing Young to lose his grip on the driver's side door. Jassy drove home, where he was arrested several hours later.

Dr. Ajay Panchal, a medical examiner with the Los Angeles County Coroner's Office, performed an autopsy on Osnes. Panchal testified Osnes had suffered blunt force trauma to his head from hitting the pavement, causing fatal hemorrhaging of the brain. Osnes also suffered severe lacerations to his liver when the SUV ran over him. Panchal opined the injury to Osnes's head and the injury to his liver were separate and independent causes of his death. Toxicology tests performed by Panchal revealed a.10 percent blood-alcohol level in Osnes's system. Other tests showed plaques in Osnes's brain possibly indicative of early Alzheimer's disease.

Jassy testified in his defense. Jassy explained he and Fischer had been driving home from a nightclub when he heard an extremely loud bang on the front of his car. The sound evoked a childhood memory of a car accident in which his mother had been killed. He looked toward Fischer's side of the car and saw a very angry Osnes continuing to slam his car hood with enough force to make the SUV move up and down. Jassy felt scared and protective of Fischer, who was visiting him from Sweden. He was in a foreign country. He did not know what was happening or why someone would be beating on his car. Jassy got out of the SUV to check the damage and confront Osnes. He yelled at Osnes, "What are you doing?" Osnes turned toward Jassy, displaying a "devilish grin." He appeared angry and drunk. Osnes put his hands up at about ear level with his palms cupped and his fingers pointed out like claws in a gesture that Jassy interpreted as dangerous and scary, not defensive. Osnes then punched Jassy in the face with his right hand. Jassy punched him back, causing Osnes to lose his balance. (Osnes's eyeglasses did not come off.) After Osnes staggered backward, Jassy immediately turned around and "took cover" in his car. Jassy insisted he never kicked Osnes. He testified "the only time" his "foot impact[ed] the man" was when Osnes grabbed for Jassy's legs during the altercation, and, even then, Jassy had not kicked him; he had jumped back to protect himself. It all happened very, very fast, in less than 15 or 20 seconds.

Jassy returned to his car and saw Officer Young running up to the SUV. Jassy was scared. He did not see Young's badge and did not know Young was a police officer. Jassy thought Young was affiliated with Osnes and was going to attack him. Young tried to open the car door and then jumped on the SUV's hood, all the while screaming at Jassy and punching at his windows to shatter them. Jassy could not hear what Young was saying. Jassy was frightened and thought he was going to be killed. He sped away, not realizing Osnes was in the street or that he had run over him with the SUV. Jassy immediately went home, believing he had escaped being killed. He did not know whathad happened to Osnes, but did not believe he was dead. He was arrested the next day and became very emotional when police told him Osnes had died.

3. Voir Dire and Jury Instructions

During voir dire the defense moved to strike the entire jury panel, contending the People's use of five of its 15 peremptory challenges to excuse Hispanic jurors constituted racially motivated group bias in violation of Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69] (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in part by Johnson v. California (2005) 545 U.S. 162, 168-173 [125 S.Ct. 2410, 162 L.Ed.2d 129].) The court denied the motion, finding the defendant had failed to make a prima facie case the peremptory challenges were racially motivated.

At the close of the trial, the court instructed the jury, among other things, on first and second degree murder (CALCRIM Nos. 500, 520, 521), voluntary manslaughter (CALCRIM Nos. 570, 571, 522) and involuntary manslaughter based on a modified version of CALCRIM No. 580. During deliberations the jury asked, "Could we have a more precise definition of the difference between second degree murder and voluntary manslaughter?" The court instructed the jury to refer to CALCRIM Nos. 520, 521, 570, 571 and 522. The court did not identify the instruction it had given on involuntary manslaughter.

4. The Verdict and Sentence

The jury convicted Jassy of second degree murder, assault by means likely to produce great bodily injury and battery with serious bodily injury and found true the special allegations of great bodily injury as to the aggravated assault in count 3. The jury acquitted Jassy of assault with a deadly weapon and leaving the scene of an accident and found not true the special allegation he had used a deadly weapon in committing the murder.

The trial court denied Jassy's new trial motion and his alternative request to reduce the judgment of conviction to the lesser included offense of voluntary manslaughter. The court sentenced Jassy to a state prison term of 15 years to life forsecond degree murder....