P. v. Bornstein

Filed 6/20/06 P. v. Bornstein CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Judgment reversed in part and remanded

Jeffrey H. Friedman for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Defendant Aaron Thomas Bornstein was convicted of misdemeanor assault (Pen. Code, § 240; all further statutory references are to this code, except where otherwise noted), misdemeanor battery (§ 242), lesser included offenses of the charged crime of assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)), and making a threat to commit a crime resulting in death or great bodily injury, a felony (§ 422). As to the latter count, defendant contends that under the independent review standard, the evidence was insufficient to sustain a conviction for making a criminal threat. He also asserts that, as to both counts, a jury instruction about the victim's propensity for violence should have been given, arguing counsel was ineffective for failing to request it and the court erred by failing to give it sua sponte.

We agree that the evidence does not support the felony criminal threat conviction. We reverse as to that count and remand for resentencing. As to the jury instruction, the court had no duty to give it sua sponte, and the claim of ineffective assistance of counsel is not properly before us.

FACTS

Eric Payne was a security guard at the condominium complex in which defendant resided with his wife and two children. Payne was employed by a company hired by the homeowners' association, to deal with both safety and parking control. Payne had been a security guard for 13 years and prior to that was a Marine. While a Marine, he had weapons training and also had been trained to use pepper spray and handguns in classes he took to become a security guard. He was certified in handgun use.

One evening when Payne was patrolling in his marked security car, he saw a car he considered to be parked illegally. He stopped his own car and began to write down information to have the other car towed. Payne was wearing a uniform and armed with a .9 millimeter Glock and pepper spray. He also had with him a flashlight, handcuffs, and a voice-activated tape recorder. Defendant did not know that the incident was being recorded. The transcript of the tape was admitted into evidence and portions of the tape were played during trial, with the witnesses then describing what was happening.

Defendant and another man approached Payne and told him he could not tow the car, that it was â€