P. v. Kaare

Filed 10/27/06 P. v. Kaare CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from the Superior Court of Riverside County. Paul E. Zellerbach, Judge. Affirmed as modified.

H. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Lilia E. Garcia, Supervising Deputy Attorney General, for Plaintiff and Respondent.

Following a jury trial, defendant was found guilty of assault with a deadly weapon, to wit, a metal belt buckle, and by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).)^[1] The jury also found true that defendant personally inflicted great bodily injury in the commission of the offense within the meaning of sections 12022.7, subdivision (a) and 1192.7, subdivision (c)(8). The trial court thereafter found true that defendant had sustained three prior separate prison terms. (§ 667.5, subd. (b).) As a result, defendant was sentenced to a total term of nine years in state prison. On appeal, defendant contends (1) the trial court erred in refusing to instruct the jury with CALJIC No. 2.21.2 on the effect of a witness being willfully false, and (2) the trial court erred in failing to award one additional day of actual custody credit. We agree with the parties that defendant is entitled to an additional day of custody credit. We reject defendant’s remaining contention.

I

FACTUAL AND PROCEDURAL BACKGROUND

In April 2005, Norman Douglas Harris was the coach of a Murrieta Little League baseball team. About 5:45 p.m. on April 2, 2005, Harris was dropping off 14-year-old Michael Galloway at his home after practice. Michael was sitting in the back seat, and Harris’s 14-year-old son Matthew was sitting in the front passenger seat. Because Michael’s parents were not yet home, Harris parked his Suburban in front of the Galloway residence and waited with Michael and Matthew for them to come home. Harris parked the car facing against the direction of traffic so the driver’s side was next to the curb.

After waiting about five minutes, Harris saw defendant coming toward them from across the street. Defendant walked to the passenger side window and asked in a confrontational tone through the open window, “What are you doing parking in front of my pad?” Harris, who had never seen defendant before, pointed out the window at the Galloway house and asked, “Is this your pad?” When defendant said no, Harris told him, “Then I’m not in front of your pad.” Raising his voice, defendant again questioned Harris, “What are you doing cruising my neighborhood and parked in front of my pad?” Harris responded, “This is Michael’s home. Do you live here?” When defendant said no, Harris repeated, “Then I am not in front of your pad.”

After another round of these questions, defendant asked Harris, “Why are you messing with me?” Harris said he was not, and defendant replied, “Yeah. You’re fuckin’ with me.” Harris again asked defendant if the Galloway house was his. When defendant again said no, Harris told him, “Then I’m not fuckin’ with you.” At this point, defendant walked to the driver’s side of the car while wrapping a belt around his right hand. Through the open driver’s window, defendant asked Harris, “Do you know who I am?” Harris responded, “I don’t care who you are.” Defendant replied by making a head-butting motion toward Harris through the open window, and Harris flinched. During this exchange, defendant was winding the belt tighter around his hand.

After defendant stared at Harris for about four seconds, he punched Harris in the nose with his belt-wrapped fist. Defendant lunged at Harris several times, trying to hit him, but Harris leaned away toward the passenger side each time. Harris, who was six feet five inches tall, was able to pull his legs up and start kicking at defendant through the open window. Harris tried to get out of the car, but defendant held the door frame to keep the door shut. Defendant continued to try to hit Harris through the window with his belt-wrapped fist. When Harris finally got out of the car, defendant tried to grab Harris’s foot and pull him to the ground. Defendant eventually hit Harris again in the nose. At this point, Harris moved toward defendant, who was backing up the driveway of the Galloway residence. Harris told defendant, “Why don’t you drop the belt and we’ll finish this thing.” Defendant then unwrapped the belt and dropped it on the driveway. Just as defendant did so, Mr. and Mrs. Galloway arrived in two separate cars. Mr. Galloway got out of his car and got in between the two. He picked up defendant’s belt, handed it to defendant, and told him to go home. Defendant walked across the street toward his stepfather’s home. About five minutes later, defendant got into his car and drove off. Defendant’s stepfather called the police.

As a result of the assault, Harris suffered a broken nose and two black eyes, one of which was swollen shut. Harris’s eyes were bruised for three weeks. There was no lasting effect on his vision, and he did not suffer any lacerations, except for a scratch between his eyebrows.

Murrieta Police Officer Steve Whiddon interviewed Harris at the Galloway residence. The following day, Officer Whiddon arrested defendant. After waiving his constitutional rights, defendant told the officer that he had approached Harris and admitted asking Harris why he was parked in front of “his pad.” Defendant denied that any physical altercation occurred between him and Harris. He denied touching Harris at all or using his belt. The officer noticed that the belt defendant was wearing was consistent with the one described by Harris.

II

DISCUSSION

A. CALJIC No. 2.21.2

Defendant argues that the trial court erred in refusing to instruct the jury with CALJIC No. 2.21.2, to the effect that, if the jury determines a witness has been willfully false in a material part of his or her testimony, the jury may (although it need not if otherwise convinced) reject all of the testimony as false. He claims, as defense counsel argued at trial, that there were two significant parts of Harris’s testimony (the number of blows he received from defendant and whether he was ever struck by the belt buckle) that raised questions about his truthfulness and whether he was willfully testifying falsely as opposed to being merely discrepant, which warranted giving the challenged instruction. The court declined to do so, stating that it could not “conclude nor find that [Harris] was willfully testifying falsely,” even though there were discrepancies in Harris’s testimony. The court did instruct with CALJIC No. 2.21.1, regarding discrepancies in testimony.

A court is required to give an instruction only if there is substantial evidence to support giving it, i.e., evidence sufficient to deserve jury consideration. (People v. Marshall (1997) 15 Cal.4th 1, 39.) We have reviewed the entire transcript of the trial and do not find defendant’s argument to be meritorious. Harris repeatedly testified that everything unfolded very quickly and that he could not clearly remember exactly what had occurred. For example, when asked on both direct and cross-examination to physically demonstrate for the jury how defendant held the belt when striking him, Harris repeatedly stated he could not remember where the buckle was placed. Further, Harris specifically clarified an earlier answer to a belt-buckle-related question from the prosecutor. The prosecutor had reminded Harris of his preliminary hearing testimony, wherein he was asked, “Did [defendant] hit you with the buckle that was on the belt?,” to which Harris answered, “Yeah. He got me in the nose,” and Harris confirmed at trial that he remembered so testifying. On cross-examination, Harris explained that he was referring to where the punch landed, not to the actual buckle hitting him on the nose. Moreover, Harris consistently testified that his recollection was unclear as to exactly where the belt buckle was located. Rather, Harris referred to “the hardware” on the belt, apparently meaning all the metal pieces including the belt buckle, the ring through which the belt was fed, and the metal bar and rivets forming the belt keeper. Indeed, Harris specifically testified that defendant hit him twice with “the hardware” exposed.

In addition, defendant claims that Harris willfully testified falsely when he testified he was punched twice, since he had told Officer Whiddon that he was hit three times, and Michael testified that he saw defendant land one of his many attempted punches. However, Officer Whiddon testified that during his interview with Harris, Harris was notably upset, had a broken nose, and was bleeding as a result of defendant’s apparently unprovoked assault. The officer also clarified that Harris told him that defendant had repeatedly tried to hit him but actually only landed approximately three punches. We find this minor discrepancy did not constitute substantial evidence of willfully false testimony such as to require the trial court to instruct the jury with CALJIC No. 2.21.2, especially in light of the fact that the jury was properly instructed with CALJIC No. 2.21.1 on how to address and weigh such discrepancies. (See People v. Ponce (1996) 44 Cal.App.4th 1380, 1386.) There is nothing that shows Harris was “willfully false.” Harris testified as he recalled the events. Defense counsel impeached Harris with Harris’s and the other witness’s recollections of the same event. Therefore, the trial court had no duty to instruct the jury with CALJIC No. 2.21.2.

Nevertheless, even if the trial court erred, any error was harmless. (See People v. Carpenter (1997) 15 Cal.4th 312, 393.) The refused instruction does not involve an element of the offense. It does nothing more than explain to the jury one of the tests it may employ in resolving credibility disputes. The failure to instruct with CALJIC No. 2.21.2 is subject to a Watson test.^[2] (People v. Murillo (1996) 47 Cal.App.4th 1104, 1107-1108.) We do not find it reasonably probable that defendant would have been acquitted of the offense if the instruction had been given. Its absence does not undermine our confidence in the outcome of the verdict.

An assault conviction does not require that an actual injury be inflicted. It only requires the willful commission of an act that by its nature will probably and directly result in injury to another, with knowledge of the facts sufficient to establish that the act by its nature will probably and directly result in such injury. (People v. Williams (2001) 26 Cal.4th 779, 782; People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) In addition, as used in section 245, subdivision (a)(1), a “deadly weapon” is “‘any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.’” (People v. Aguilar, at pp. 1028-1029.) Although the injuries that actually occur from an assault are not determinative of whether the force was sufficient to cause great bodily injury, “‘when the evidence shows that a blow has been struck or a physical injury actually inflicted, the nature and extent of the injury is a relevant and often controlling factor in determining whether the force used was of a felonious character.’” (People v. Covino (1980) 100 Cal.App.3d 660, 667, quoting People v. Wells (1971) 14 Cal.App.3d 348, 358; see generally 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against the Person, § 37, pp. 660-661.)

The jury here was properly instructed with all the assault-related instructions, including the directive that no actual injury was required to prove assault. There is no question that defendant at least struck Harris in the nose once after wrapping the belt around his fist. Defendant’s deliberate act of wrapping the belt around his hand before hitting Harris made it a deadly weapon -- not whether the buckle portion of the belt actually inflicted damage to Harris’s nose. (See People v. Aguilar, supra, 16 Cal.4th at pp. 1028-1029.) Hence, the number of times defendant actually hit Harris and whether he actually hit Harris with a metal portion of the belt was immaterial on proof of the aggravated assault charge. (See id. at p. 1028.)

Moreover, in this case the court did instruct with CALJIC Nos. 2.13, prior consistent or inconsistent statements as evidence; 2.20, believability of witness; and 2.21.1, discrepancies in testimony. “CALJIC No. 2.21.2 sets out a common-sense principle for evaluating witness credibility.” (People v. Murillo, supra, 47 Cal.App.4th at p. 1108.) The absence of the instruction does not preclude a jury from drawing the common-sense inferences mentioned in the instruction. (Ibid.) Other instructions essentially covering the same ground, such as CALJIC Nos. 2.13 and 2.20, as were given in the present case, may be considered in determining whether the instructional error is harmless. (Murillo, at pp. 1108-1109.) Considering the other instructions that were given, and Harris’s and the other witness’s testimonies, any reasonable juror would scrutinize Harris’s testimony even without the benefit of the omitted instruction. It is only common sense that if a juror believed Harris was deliberately false in some part of his testimony, the juror might also disbelieve other particulars of his testimony. Additionally, defense counsel had an opportunity to cross-examine Harris and bring the discrepancies in his testimony before the jurors. It is not reasonably probable the jury would have acquitted defendant if the requested instruction had been given. Therefore, any error in failing to instruct the jury with CALJIC No. 2.21.2 was harmless.

B. Custody Credits

Defendant contends, and the People correctly concede, that the trial court erred when awarding 170 days rather than 171 days of custody credit. We agree that defendant is entitled to an additional day of actual custody credit.

Section 2900.5, subdivision (a) provides: “In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, . . . all days of custody of the defendant, including days . . . credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment . . . .” Section 2900.5, subdivision (d) requires a trial court to determine custody credits and include it in the abstract of judgment. (See People v. Goodloe (1995) 37 Cal.App.4th 485, 495-496.)

The trial court here erred in calculating defendant’s actual custody credit.^[3] As defendant notes, he should have received 28 days for April 2005, starting with the calculation date of April 3 (the day of his arrest). (People v. King (1992) 3 Cal.App.4th 882, 886; People v. Smith (1989) 211 Cal.App.3d 523, 526.) Defendant was then entitled to 123 days for May, June, July, and August, plus 20 days in September, up to his sentencing on September 20. (Ibid.) In total, defendant was entitled to 171 days of actual custody credit.

III

DISPOSITION

The judgment is hereby modified to correct defendant’s presentence credits to award him one additional day of actual custody credit, for a total of 171 days. Defendant’s total presentence custody credits should therefore be 196 days (171 days of actual custody credits plus 25 days of conduct credits). The trial court is directed to amend the abstract of judgment accordingly and to forward a copy of the corrected abstract to the Director of the Department of Corrections. (§§ 1213, 1216.) In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

RAMIREZ

P.J.

MILLER

J.

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^[1] All future statutory references are to the Penal Code unless otherwise stated.

^[2] People v. Watson (1956) 46 Cal.2d 818, 836.

^[3] Defendant does not dispute the court’s calculation of his conduct credit pursuant to section 4019. Defendant was awarded 25 days of conduct credits.