P. v. Reinhardt

Filed 5/10/07 P. v. Reinhardt CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge.

S. Lynne Klein, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Kathleen A. McKenna and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant David Michael Reinhardt appeals his convictions for assault with a firearm upon peace officers. Appellant contends that the trial court erred by failing to instruct, sua sponte, the jury that an initial aggressor can claim self-defense even when he does not withdraw where the police escalated the encounter. He also contends that he received ineffective assistance of counsel when trial counsel failed to request this instruction. Appellant further contends that there was ineffective assistance of counsel when trial counsel failed to seek a jury instruction on antecedent threats. We affirm the judgment in its entirety.

STATEMENT OF THE CASE

On October 20, 2005, the Fresno County District Attorneys Office filed a second amended information charging appellant with two counts of attempted premeditated murder of a peace officer (Pen. Code,  664/187, subd. (a), counts one and two)^[1]and four counts of assault with a firearm upon a peace officer ( 245, subd. (d)(1), counts three through six), discharge of a firearm with gross negligence ( 246.3, count seven), and felony vandalism ( 594, count eight). Counts one through six further alleged that appellant personally used and intentionally discharged a firearm ( 12022.53, subds. (b) and (c).). Counts three through six also alleged personal use of a firearm pursuant to section 12022.5, subds. (a) and (d).

Appellant pled not guilty to all the counts and denied the allegations.

On November 1, 2005, a jury found appellant not guilty of attempted premeditated murder and its lesser-included offense, but guilty of all four assault counts. It also found the personal firearm use and intentional discharge allegations true.

On December 1, 2005, the trial court sentenced appellant to an aggregate term of 52 years in prison, as follows: the middle term of six years on count three, plus 20 years for the intentional discharge enhancement; one-third the middle term, consecutive on counts four through six, for an additional six years; plus one-third the enhancement consecutive on counts four through six for an additional 20 years. The court awarded appellant 878 days custody credit and ordered two $10,000 restitution fines, but stayed one, and a $20 court security fee.

On December 2, 2005, appellant filed a timely notice of appeal.

FACTS

Appellants grandfather died in the 1980s, giving appellants mother, Mariel Reinhardt, an irrevocable trust. The trust only would have passed assets to appellant if his mother had died before his grandfather.

In March 2003, appellant was living in Oregon, while his parents, Don and Mariel Reinhardt, lived in Fresno, California. Appellant previously had called his parents asking about his inheritance. On March 5, appellant angrily called his parents demanding his trust fund. In that recorded message, appellant told them that if he remained homeless, they were going to suffer problems the rest of [their] lives.

Either Don or Mariel called appellants grandfathers probate attorney, William Coleman, asking that if appellant called him, he correct appellants misconceptions about the trust. Appellant called Coleman around April 3 and Coleman explained that the trust went to Mariel, the sole beneficiary, because she survived her father. Coleman also explained the key terms of the trust in a letter to appellant.

Appellant again called Coleman on May 12, angrily demanding his trust. In that recorded message, appellant told Coleman that he was coming to Fresno and that Coleman better start installing bullet-proof glass in [his] office and [he better] carry a gun. Appellant called Coleman several more times demanding his inheritance, and these conversations ended with some type of threat.

On September 9, appellant arrived in Fresno from Oregon. That morning, he appeared unexpectedly at his parents home. He told his mother, the only one at home, that he was there to take care of his inheritance, one way or another. Mariel testified that appellant became agitated when he saw work was being done on the pool in the backyard, stating, thats where youre spending my inheritance[.] She explained that he did not have an inheritance.

Reinhardt family friend and retired police officer Ernie Rojas had noticed appellant walking into the Reinhardt house. When he reached his home two blocks away, he called Mariel. As appellant was looking around the house, Mariel got the call. Rojas confirmed appellants identity. Aware that appellant had previously threatened his parents, Rojas asked Mariel if she was okay and she replied no. He offered to come over, and she accepted.

Before entering Mariels house, Rojas heard arguing. Once inside, Mariel introduced appellant to Rojas. Appellant then continued talking to his mother about his inheritance. He started to curse and scream in a high voice that he wanted his inheritance. Mariel and Rojas tried to calm appellant, but according to Rojas, appellant threatened to kick [Rojass] ass. Appellant bolted down the hallway saying he was going to get a shotgun. Rojas grabbed Mariel and ran outside, leaving appellant alone in the house. Once they were at a safe distance, Rojas called the police on a cell phone and they waited for the police to arrive.

On September 9, the Reinhardt home contained a nine-millimeter handgun, 20 shotguns, and a 257 Roberts rifle for shooting big game from three or four miles away. A large quantity of ammunition for the weapons was scattered throughout the house.

At approximately 1:00 p.m., Fresno County Sheriffs Office Specialized Weapons and Tactics (SWAT) team leader Sergeant Craig Gularte was dispatched to assess the scene at the Reinhardt house. After speaking with the field supervisor, Sergeant Gularte requested additional units, including sniper units. Other team members who arrived on the scene throughout the afternoon included Detectives Kevin Lolkus and Tim Herzog. Deputies Juan Espinoza, Greg Siemans, Frank Harper, and Joel Walenmeier comprised two sniper teams. The SWAT team set up an inner perimeter to contain appellant in the house and an outer perimeter for crowd control. Other non-SWAT team personnel from the Sheriffs Office and the Fresno Police Department also assisted in the scene.

Connie Moore, a senior investigator and crisis negotiator with the Fresno County District Attorneys Office, was dispatched to the scene. The Crisis Negotiation Team (CNT) included a second negotiator, Detective David Lopez, who joined Investigator Moore at the country club where they set up a communications center to establish phone contact with appellant. They contacted appellant around 2:30 p.m. by calling the telephone in the house. Their negotiations were recorded.

Investigator Moore testified that during the initial contact, she let appellant tell her what his concerns were and what he needed or wanted. According to Investigator Moore, [appellant] was wanting his inheritance. He believed he had [not] been given what he felt he rightfully deserved from a family inheritance, being savings bonds, trust funds, gold coins. Appellant told Investigator Moore that he was owed between $20,000 and $60,000 a year from the time he was a young man gold coins an education at [] M.I.T.

Appellant knew that the SWAT team and sheriffs deputies were outside because he could see them through the windows. He could even describe the officers location to Investigator Moore. Appellant told Investigator Moore that he had loaded the firearms in the house, which included a 257 Roberts rifle, handguns, and one shotgun, and placed them throughout the house. He also had boxes of ammunition. Appellant moved furniture around in the house to prevent entry. During the negotiations, appellant repeatedly threatened to kill: you pull a gun on me and you know what? I will kill instantly. Im not worried about your little SWAT team. What Ive got in my hand pokes holes right through bullet proof vests . Hey, Ill shoot em where they are.

Around 5:00 p.m., Sergeant Gularte had the electricity to the house shut off. The gas was shut off some time later. Sometime around 6:00 p.m., the SWAT team deployed flash bang noise diversionary devices on each side of the house. All of these tactics were to get appellants attention and get him to restart communications since the police had not heard from him for a couple of hours. Appellant started to talk to CNT again, but the dialogue began dropping off again.

To restart communication with appellant, Assistant Sheriff Tom Gattie deployed a robot at around 8:00 p.m. The robot stood approximately two-and-a-half feet tall and three feet across. It had tracks on the bottom for mobility, four adjustable lights and several cameras mounted on top for visibility, and a microphone and speaker for communication. It was operated by a toggle switch. It held in its claw a window punch for breaking glass. A 12-gauge automatic shotgun was mounted on the robot.

Sergeant Gularte watched the robots progress through a monitor. The robot entered the backyard of the house and reached a sliding glass door. It turned on its lights, immediately contacting appellant. The team could see and hear him. Appellant was yelling at them to get the robot out of the house. Appellant fired four shotgun blasts at the robot. Appellant fired two other shots from the back of the house, to the right of Detective Herzog. Both Detective Herzog and Deputy Harper heard the rounds going over their heads. Seconds later, appellant moved to the front of the house and began firing shots.

At the same time, snipers Deputies Siemans and Espinoza were positioned prone on the ground under a tree 10 to 12 feet tall whose branches hung five to six feet from the ground. Deputy Siemans thought that appellant fired a shotgun round in his direction because he felt a whoosh go over his head. Deputy Espinoza saw one round ricochet off a patrol vehicle. Deputy Espinoza returned fire. Appellant was running through the house cursing and yelling that he knew where all the deputies were and that they had better get back. Deputy Siemans saw appellant move to another window illuminated by a candle in the room. Appellant was holding a rifle in his hands, leveling it at the deputies. Deputy Siemans fired into that window.

Subsequently, negotiators were able to communicate with appellant over the telephone but lost contact with appellant shortly after 11:00 p.m. Around that time, law enforcement deployed more gas devices and appellant responded by firing a volley of three to five rounds at Deputies Siemans and Espinoza. Deputy Siemans heard the crisp sound of a round fired from a high-power, long rifle snap above his head as leaves from the branches hanging a few feet above them fell on Deputy Espinozas head.

Deputy Herzog was extracted from his location by an armored vehicle and joined Detective Lolkus at his location to provide lethal cover for him as he deployed gas into the house. They used barricade-penetrating, smokeless, micro-particle C.S. gas inside 40-millimeter large ferret rounds.

Around midnight, Detective Lolkus fired a ferret round into the house as Detective Herzog kneeled next to him. Detectives saw the muzzle blast as appellant fired a round from the house directly at them. Detective Herzog returned fire into the broken sliding glass door whence the shot came.

In all, Detective Lolkus fired seven ferret rounds into the house that night. Each time the team deployed gas, appellant returned fire. Appellant fired 40 to 50 rounds from the house sporadically throughout the night until approximately 2:00 or 3:00 a.m., at which time the Fresno Police Department relieved the sheriffs office. At 3:40 a.m., appellant surrendered to the police.

Sheriffs Detective Sergeant Toscano interviewed appellant at the sheriffs department headquarters. Appellant told him that the operator of the robot was telling him to pick up the telephone so that the police could communicate with him. Appellant admitted firing a nine-millimeter pistol, a 12-gauge shotgun, a 16-gauge shotgun, and a 257 bolt-action rifle. He also admitted firing at officers who had fired the ferret rounds. He said that he fired three or four rounds at the patrol car and when the tear gas impaired his vision, he grabbed the nine-millimeter pistol and fired it indiscriminately. Appellant also told Detective Toscano that he was carrying a rifle when he had earlier gone outside to retrieve some paperwork.

Appellant said that he took the law into his own hands because his complaint about his inheritance was not being resolved. He told Detective Toscano that when the officers fired the ferret rounds he felt that it was a threat, and therefore, he was going to return fire and stop the threat. If that meant to kill an officer, that happens in those occasions, in a gun battle.

Appellant appeared lucid, had not been drinking, and was not taking any medication. Appellant stated that he had smoked a little weed, but said that he knew exactly what he was doing during the incident that day.

Defense case

Clinical psychologist Harold Seymour evaluated appellant and opined that he suffered from a delusional disorder with paranoid and grandiose features. Central to the disorder is

[T]hinking thats inconsistent with how other people think. In the case of a delusional disorder, these thought processes, the ideas associated with them are pretty firmly fixed and entrenched so the person truly believes the thoughts that they have are, in fact, real.

In appellants case, Seymour concluded, he believed that he was owed an inheritance. According to Seymour, once a delusional person locks onto a theme or idea, they stay with it even in the face of overwhelming, contrary evidence.^[2]

Assistant Sheriff Gattie testified that the robot was armed with a 12-gauge automatic shotgun on September 9. Once the robot entered the house, appellant shot the robot, which became inoperable, except that the robot still allowed for two-way voice communication.

Appellant testified on his own behalf. He testified that when he turned 35, he found out about Coleman from his parents. He contacted Coleman and received a copy of trust documents from him. According to appellant, he was to receive one third of his inheritance when he turned 35, 40, and 45. He was to receive $5,000 a month or $60,000 a year until age 35. Appellant claimed that his parents were keeping the money from him, thereby financially abusing him. Appellant acknowledged that the document entered into evidence in his case entitled him to nothing, but claimed that it was only part of the original document. Appellant testified that he did not trust his parents or the document in their hands because they could make it say whatever they wanted.

Appellant testified that when Rojas came over on September 9, he did not threaten Rojas. Rather, Rojas threatened him by picking up the cordless telephone and saying do what I say and leave immediately or Im going to call the police and have you arrested. Appellant claimed that he went to the back room to get another phone to talk to 911.

Appellant testified that he had intermittent contact with Investigator Moore but that she was not doing anything. He admitted shooting 12 or 13 shots from the home. He claimed that he fired the 257 Roberts at the patrol car in front of the house, he shot the robot four times each with the 257 Roberts and a shotgun, and he fired a 16-gauge shotgun and a nine-millimeter, both of which he claimed jammed. He claimed that when he shot the robot, he had no intention of shooting at the police officers.

After he shot the robot, appellant testified, the police opened fire at the front and back of the house. Appellant said that he shot the lights out of the patrol car so police could no longer use them to illuminate the house. When the ferret rounds of gas were fired into the house, appellant testified that he went to the back bedroom to escape the gas and wrapped a wet shirt around his face to breathe.

Appellant claimed that he never fired in the direction from which the officers fired because he never saw their fire. He also denied shooting high above the officers heads. Appellant testified that of the 13 shells that the police found in the house, eight were for bullets fired into the robot, three into the police car, and one each into the living room and hallway walls.

When asked why he resisted as he had, appellant said that he had been to jail a few times and that the legal system in Fresno used excessive force. When asked why he did not surrender when ordered to, appellant claimed that basically Fresno County likes to lock you up for exercising your freedom of speech when theres no evidence against you. Appellant reported having been jailed seven or eight times when he was a teenager, mostly on traffic matters.

Appellant testified that if he had it all to do over again, he would not back down. They instigated what happened. I would probably do the same thing again, okay, in the way of standing my ground there. I wouldnt back down like this and just let them cart me off. Appellant denied being delusional and had no doubt that a trust fund existed for him. Appellant claimed that the whole event happened because he wanted someone to listen to his side of the story, he wanted protection of the law. Appellant testified that he wanted to let the police know that he had weapons, and they should not come into the house. He claims, however, that when the armed robot came in, he had no choice but to defend himself. He denied assaulting or trying to kill the police officers.

DISCUSSION

I.

Trial Courts Duty to Sua Sponte Give a Jury Instruction

Appellant contends that the trial court committed reversible error when it failed to instruct the jury correctly on the availability of self defense to one who initiates a non-deadly conflict.

It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jurys understanding of the case. [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.] (People v. Breverman (1998) 19 Cal.4th 142, 154-155.) However, a trial court does not have an obligation to instruct sua sponte on a defense supported by minimal and insubstantial evidence. (People v. Barnett (1998) 17 Cal.4th 1044, 1152.)

In reviewing whether the trial court erred in failing to instruct the jury, the reviewing court must consider the instructions as a whole to determine if error has been committed; in doing so, the reviewing court assumes that jurors are intelligent people capable of understanding and correlating all instructions that were given. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.)

Here, the trial court instructed on the basic principles of self-defense, as appellant requested, by giving the standard CALJIC instructions on this topic. (CALJIC No. 5.30 [self-defense against assault]; CALJIC No. 5.50 [self-defense-assailed person need not retreat]; CALJIC No. 5.51 [self-defense-actual danger not necessary]; CALJIC No. 5.54 [self-defense by an aggressor]; and CALJIC No. 5.55 [plea of self-defense may not be contrived].)

Appellant contends, however, that the trial judge was also required to give an instruction based upon the principles enunciated in People v. Hecker (1895) 109 Cal. 451 (Hecker), abrogated on other grounds by statute as stated in People v. Hardin (2000) 85 Cal.App.4th 625, 631-634.

In Hecker, the defendant was tried for murder of Patrick Riley but pled self-defense. (Hecker, supra, 109 Cal. at p. 455.) Riley had lost two horses, and he offered a reward to those who find and return his horses. Hecker found the horses and turned them over to Rileys wife. (Id. at pp. 455-456.) Riley suspected that Hecker had stolen the horses and hidden them away in expectation of a reward. (Id. at p. 456) Riley accused Hecker of being a horse thief and refused to give Hecker the reward. Hecker then decided to take back the horses until he was paid. (Ibid.) He armed himself because he thought that Riley would try to cause trouble, and went to Rileys place. (Id. at p. 457) A confrontation occurred that eventually resulted in the death of Riley. (Id. at pp. 457-458.)

The California Supreme Court held that the trial court erred in instructing the jury on self-defense. According to the Court,

Where one is the first wrongdoer, but his unlawful act is not felonious, as a simple assault upon the person of another, , even though forcible, and this unlawful act is met by a counter assault of a deadly character, the right of self-defense to the first wrongdoer is not lost. For, as his acts did not justify upon the part of the other the use of deadly means for their prevention, his killing by the other would be criminal, and one may always defend himself against a criminal attempt to take his life. But in contemplation of the weakness and passions of men, and of the provocation, which, though inadequate, was wrongfully put upon the other, it is the duty of the first wrongdoer before he can avail himself of the plea to have retreated to the wall, to have declined the strife and withdrawn from the difficulty, and to have killed his adversary, under necessity, actual or apparent, only after so doing. If, however, the counter assault be so sudden and perilous that no opportunity be given to decline or to make known to his adversary his willingness to decline the strife, if he cannot retreat with safety, then as the greater wrong of the deadly assault is upon his opponent, he would be justified in slaying, forthwith, in self-defense. [Citations.] (Id. at p. 464.)

Thus, according to appellant, although he did not decline[] the strife and withdraw[] from the difficulty, he was entitled to a claim of self-defense because he unlawfully initiated or joined the contest with no thought of causing death or great bodily harm (e.g., a fist fight) and the police suddenly escalated the standoff into a deadly encounter when the police sent in the armed robot.

An instruction on this Hecker principle would be justified only where substantial evidence supports findings that: (1) appellant did not make a felonious assault or create the appearances justifying a deadly response; (2) sending the armed robot was an escalation of the standoff into a deadly encounter; and (3) sending in the robot was sudden and unanticipated so as to prevent appellant from having the opportunity to withdraw safely. (Hecker, supra, 109 Cal. at p. 464; People v. Gleghorn (1987) 193 Cal.App.3d 196, 201.) The record in this case, however, does not support any of those findings.

First, appellant did create appearances justifying possible deadly response. During the negotiations with the police, appellant threatened to kill the officers. And, although appellant did not fire any shots until the robot was sent into the house, he did load the firearms in the house and placed them throughout the house. Thus, because police officers reasonably believed that appellant was armed and willing to kill police officers, they were entitled to surround the house and aim deadly weapons at appellant.

Second, sending in the armed robot was not an escalation of the conflict into a deadly standoff because there is no evidence that the armed robot fired on appellant or aimed its shotgun at appellant. Moreover, there was no escalation as the police officers were already aiming firearms at the house.

Finally, sending in the robot was not so sudden or unanticipated as to prevent appellant from withdrawing safely. The standoff began at approximately 1:00 p.m. and the robot was not sent into the house until approximately 8:00 p.m. The robot did not penetrate the houses entrance until 30 to 45 minutes later. Appellant could have informed the police that he was withdrawing or surrendering during the 30 to 45 minutes that the robot took to break into the house. For example, he could have gone to the front of the house, away from the robot, and waved a white flag to surrender.

Thus, the trial court did not err in not giving the Hecker instruction sua sponte.

II.

Ineffective Assistance of Counsel

Appellant also complains that he received ineffective assistance of counsel because his trial counsel did seek a Hecker instruction. In order to prevail on a claim for ineffective assistance of counsel, appellant must make two showings. First, appellant must show that counsels representation fell below an objective standard for reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-88; People v. Gray (2005) 37 Cal.4th 168, 206-207.) Second, appellant must show that there is a reasonable probability that, but for counsels unprofessional errors, the result would have been more favorable to the defendant (i.e., show prejudice). (Strickland v. Washington, supra, 466 U.S. at p. 687; People v. Kelly (1992) 1 Cal.4th 495, 519-520.) Furthermore, if appellant fails to show prejudice, the court may reject the claim of ineffective assistance without determining the adequacy of counsels performance. (People v. Brodit (1998) 61 Cal.App.4th 1312, 1332, citing People v. Sanchez (1995) 12 Cal.4th 1, 40-41.)

Here, given that we have previously found that the record does not support a Hecker instruction, trial counsels representation did not fall below an objective standard for reasonableness under prevailing professional norm. Alternatively, given that there was no substantial evidence to support a Hecker instruction, appellant cannot show prejudice because the request for a Hecker instruction probably would have been denied by the trial court or rejected by the jury.

Therefore, we reject appellants claim of ineffective assistance of counsel on this ground.

III.

Ineffective Assistance of Counsel

Appellant further contends that he received ineffective assistance of counsel because trial counsel failed to seek a jury instruction on antecedent threats, i.e., an instruction that appellant was justified in using deadly force during the standoff because he was previously threatened or assaulted by Fresno police officers.

In People v. Minifie (1996) 13 Cal.4th 1055, the California Supreme Court held that a defendant could introduce evidence that he was threatened previously by third parties to demonstrate that it was reasonable for him to act in self-defense. In subsequent cases, the courts have concluded that a defendant could act more quickly or more harshly than normal because of prior antecedent threats. For example, in People v. Pena (1984) 151 Cal.App.3d 462 (Pena), the court concluded that a defendant was entitled to an antecedent threats instruction where the defendant was threatened by the victim, who was half a foot taller and 80 pounds heavier than defendant and was a trained martial artist.

Here, however, appellant presented no witnesses, documentary evidence, or even circumstantial evidence supporting his accusation that sheriffs deputies had previously threatened or assaulted him in jail. The fact that appellant had been incarcerated quite a few times for nothing in Fresno says nothing about being threatened or assaulted. Appellants general statements that officers use excessive force or are rough also do not constitute substantial evidence that appellant was subject to excessive force.

Thus, given the lack of supporting evidence, appellant cannot show error or prejudice for trial counsels failure to seek an antecedent threat instruction. Therefore, we also reject this claim of ineffective assistance of counsel.

IV.

Cumulative Error

Appellant lastly contends that the above three errors weakened his self-defense claim. However, since each alleged error, if true, was harmless when considered separately, their cumulative effect did not prejudice appellant and reversal is not required. (People v. Bunyard (1988) 45 Cal.3d 1189, 1236; People v. Bolden (2002) 29 Cal.4th 515, 567-68.)

DISPOSITION

The judgment is affirmed.

_____________________

Ardaiz, P.J.

WE CONCUR:

_____________________

Levy, J.

_____________________

Gomes, J.

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^[1]All further citations are from the Penal Code, unless otherwise stated.

^[2]Appellant was found competent to stand trial on two separate occasions.