People v. Konepachit CA3

BACKGROUND

Bryan Brown became intoxicated while drinking with friends at his friend’s apartment and at a bar. He and his friends subsequently went to a Denny’s restaurant around 1:50 a.m. Defendant was at a table in the restaurant with three women and a Hispanic man. Brown entered the men’s restroom at the restaurant around 2:25 a.m. Restaurant video cameras recorded activity in the dining room but not in the restroom. The restroom was unoccupied when Brown entered, but defendant and the Hispanic man at his table soon moved toward the men’s restroom about 40 seconds apart. Brown was at the urinal and heard the door open, then shut, then open again. When Brown turned his head to look, he was struck on the side of the head. Brown fell against the bathroom stall divider and turned to face his attacker. A second man grabbed Brown and threw him into a toilet stall. Brown was hit two or three times in the head, fell to the ground, and was kneed or kicked in the ribs. One of the assailants got on Brown’s back and repeatedly hit him in the back of his head. The assailants went through Brown’s pockets and then resumed the attack. Brown tried to get up, but one of the men yelled “stay…