P. v. Curtis

Filed 6/12/06 P. v. Curtis CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. William R. Hollingsworth, Judge. (Retired Judge of the L.A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part, reversed in part, and remanded.

Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Jonathan J. Kline, Deputy Attorney General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant William Curtis challenges his attempted criminal threats and vandalism convictions on the grounds the trial court erred by failing to instruct upon self-defense and imposing a prior prison term enhancement upon him. We conclude that any error in failing to give requested instructions was harmless. However, because appellant did not admit all of the elements of a prior prison term enhancement, and the prosecution offered no proof of the unadmitted elements, the court erred in enhancing appellant's sentence under Penal Code section 667.5, subdivision (b).

BACKGROUND AND PROCEDURAL HISTORY

At the bartender's request, Erik Zwierlein asked appellant to leave a bar in Hermosa Beach. As appellant moved from the bar's patio onto the public walkway, he told Zwierlein he was going to kill him, reached into his backpack, and pointed his hand at Zwierlein. Because Zwierlein thought appellant had a gun, he ducked and placed his hands over his face. Appellant laughed at him, and then repeated the action and threat to kill him. Zwierlein again feared appellant had a gun. Zwierlein quickly walked to a pay phone and called the police. After the officers arrested appellant and placed him in a police patrol car, he kicked out one of the car's windows.

A jury convicted appellant of attempted criminal threats and misdemeanor vandalism. Appellant admitted the allegations that he had suffered one prior serious felony conviction, for the purposes of Penal Code sections 667, subdivision (a)(1) and 667.5, subdivision (b), and the Three Strikes Law. Appellant was sentenced to a second strike term of eight years in prison.

DISCUSSION

1. Any putative error by the trial court in failing to instruct upon self-defense was harmless.

Appellant requested an instruction on self-defense using CALJIC Nos. 5.30, 5.50, and 5.51, and on the right to use reasonable force to protect oneself from a police officer's use of excessive force (CALJIC Nos. 9.24, 9.25, 9.26, 9.27, 9.28, and 9.29). The trial court refused to give the instructions. Appellant contends this refusal was error and violated due process.

The trial court need not give a requested instruction unless it is supported by substantial evidence. (People v. Marshall (1997) 15 Cal.4th 1, 39-40.) In deciding that evidence is substantial enough to require an instruction, the court determines only its bare legal sufficiency, not its weight. (People v. Flannel (1979) 25 Cal.3d 668, 684 overruled on other grounds by In re Christian S. (1994) 7 Cal.4th 768.)

a. CALJIC Nos. 5.30, 5.50, and 5.51

Self-defense requires an actual and reasonable belief in the need to defend against an imminent danger of bodily injury. (People v. Jefferson (2004) 119 Cal.App.4th 508, 517-518.) The trier of fact must consider what would appear to be necessary to a reasonable person in the position of defendant, with the defendant's knowledge and awareness. (Id. at p. 518.)

Zwierlein testified he did not touch appellant or say anything to him as he followed appellant out of the bar. He followed appellant as far as the bar's patio. After appellant left the patio, he threatened to kill Zwierlein and pretended to have a gun. Zwierlein was 6'5” tall and weighed about 350 pounds.

Appellant testified he was frightened as Zwierlein followed him out of the bar. In an angry tone, Zwierlein told appellant he would â€