P. v. Sands



















Filed 5/17/13 P. v. Sands CA4/3













>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FOURTH
APPELLATE DISTRICT



DIVISION
THREE




>

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL LAURENCE SANDS, Defendant and Appellant.

G047159 (Super. Ct. No. 11CF2061) O P I N I O N

Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, M. Marc Kelly, Judge. Affirmed.

Richard Schwartzberg,
under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Kevin Vienna and Heidi T. Salerno,
Deputy Attorneys General, for Plaintiff and Respondent.

* * *

>

Introduction

Defendant Michael
Laurence Sands appeals from the judgment entered after a jury found him guilty
of two counts of carjacking, two counts of second degree robbery, two counts of
assault with a semiautomatic firearm,
and one count of making criminal threats. The jury also found Sands personally used a
firearm in the commission of each of those offenses. Sands argues his convictions for assault with
a semiautomatic firearm must be reversed because the trial court erred by
failing to instruct the jury that it must find the semiautomatic firearm that
he used was loaded.

We affirm. The trial court properly instructed the jury
with CALCRIM No. 875 on the offense of assault with a semiautomatic
firearm. That instruction accurately
informed the jury that before finding Sands guilty of assault with a
semiautomatic firearm, it must find that at the time Sands acted, “he had the
present ability to apply force with a semiautomatic firearm to a person.” Sands did not request that the trial court
provide any further clarification to the jury and thus forfeited the argument
that such clarification was required.
Sands concedes substantial evidence supported the reasonable inference
the semiautomatic firearm was loaded at the time of the offenses. We find no error.



Facts

In July 2011, Matthew
Stingley was employed by Seven Star Recovery Services as a field repossession
agent. Around 6:30 p.m. on July 24, Stingley was driving
through a mall parking lot, scanning license plates in search of “delinquent
cars.” When the license plate of a
parked blue Honda was scanned, the alert on the computer system in Stingley’s
car sounded. Stingley called the finance
company connected to that car, and obtained an order to repossess it. Stingley called his partner, Brian Mason, who
then drove a tow truck to the mall parking lot to recover the car.

After Stingley and Mason
applied “go jacks” to the car, Stingley saw Sands running through the parking
structure toward them. Stingley told
Mason, who had already broken into the car, “I think our R.O. [(registered
owner)] is coming out.” Mason jumped
into the car through the front passenger door and then moved over into the
driver’s seat. Sands ran around
Stingley, opened the driver’s side door, and almost sat on Mason as Sands tried
to put the keys in the ignition. Mason
grabbed Sands’s hands and tried to stop him from starting the car. Stingley successfully pulled Sands out of the
car; Mason remained sitting in the driver’s seat.

Sands stepped back,
pulled out a pocketknife from his pocket, and “flip[ped] it out” but held it
down at his side. Stingley told Mason
that the “R.O.” pulled out a knife.
Stingley asked Sands, “are you really going to pull a knife out on
me?” Sands “kind of stepped back,”
looked at Stingley, and appeared to calm down.
Stingley testified Sands “put the knife even further back down at his
side, and then proceeded to ask [Stingley] if he could get his stuff out of his
car.” Stingley said Sands could “get his
stuff.”

Sands reached into a bag
in the trunk, pulled out a semiautomatic handgun (which he “pull[ed]
. . . down to his side”), and said to Stingley, “get the fuck away
from my car.” Stingley backed up from
the car and told Mason that Sands had a gun.
Sands approached Mason, who was still sitting in the driver’s seat, and
pointed the gun at Mason’s face. Mason
testified Sands “told me to get the fuck out of the vehicle or he was going to
fucking shoot me.” Mason got out of the
car and told Sands that he would get his stuff out of the passenger side of the
car. Sands said, “okay. Fine.”
Mason picked up his sunglasses and a tool, and closed the door.

Sands started the car
and punched the accelerator three times before the car was free of the go
jacks. He backed out of the parking
structure in reverse. Mason got into his
truck and followed Sands before losing sight of him on a freeway. Sands was arrested on August 2, 2011.

>Procedural
Background

Sands was charged in an
amended information with two counts of carjacking in violation of Penal Code
section 215, subdivision (a) (counts 1 and 2); two counts of
second degree robbery in violation of Penal Code sections 211 and 212.5,
subdivision (c) (counts 3 and 4); two counts of assault with a semiautomatic
firearm in violation of Penal Code section 245, subdivision (b)
(counts 5 and 6); and two counts of making criminal threats in violation
of Penal Code section 422 (counts 7 and 8).href="#_ftn1" name="_ftnref1" title="">^[1] (All further statutory references are to the
Penal Code.) The information contained
multiple prior conviction allegations, and also alleged that Sands personally
used a firearm in the commission of the carjacking and second degree robbery
offenses pursuant to section 12022.53, subdivision (b) and within the
meaning of sections 1192.7 and 667.5.
The information further alleged that pursuant to section 12022.5,
subdivision (a) and within the meaning of sections 1192.7 and 667.5,
Sands personally used a firearm in the commission of the criminal threats
offenses.

The jury found Sands
guilty as charged in the amended information of all counts but
count 7. The jury found true the
personal use of a firearm enhancement alleged as to counts 1, 2, 3, 4, and
8.

The trial court
sentenced Sands to a total prison term of 13 years, by imposing the three‑year
low term for count 1 and a consecutive 10‑year term for the personal
use of a firearm enhancement as to count 1. The court stayed execution of sentence on
counts 2, 3, 4, 5, 6, and 8, under section 654. The court struck the personal use of a
firearm enhancement as to counts 2, 3, 4, and 8 for purposes of
sentencing.

Sands appealed.

>

Discussion

The offense of assault
with a semiautomatic firearm is codified at section 245,
subdivision (b), which provides:
“Any person who commits an assault upon the person of another with a
semiautomatic firearm shall be punished by imprisonment in the state prison for
three, six, or nine years.”
Section 240 defines assault as “an unlawful attempt, coupled with a
present ability, to commit a violent href="http://www.sandiegohealthdirectory.com/">injury on the person of
another.”

Here, the trial court
instructed the jury on the offense of assault with a semiautomatic firearm with
CALCRIM No. 875, without any objection by Sands or the prosecution, as
follows: “The defendant is charged in
Counts 5 and 6 with assault with a semiautomatic firearm in violation of
Penal Code section 245(b). [¶] To
prove that the defendant is guilty of this crime, the People must prove
that: [¶] 1. The defendant did an
act with a semiautomatic firearm that by its nature would directly and probably
result in the application of force to a person; [¶] 2. The defendant did
that act willfully; [¶] 3. When the defendant acted, he was aware of facts
that would lead a reasonable person to realize that his act by its nature would
directly and probably result in the application of force to someone; [¶]
4. When the defendant acted, he had
the present ability to apply force with a semiautomatic firearm to a person. . . .
[¶] Someone commits an act willfully when he does it willingly or on
purpose. It is not required that he
intend to break the law, hurt someone else, or gain any advantage. [¶] The terms application of force and apply
force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is
done in a rude or angry way. Making
contact with another person, including through his or her clothing, is
enough. The touching does not have to
cause pain or injury of any kind. [¶]
The touching can be done indirectly by causing an object

to touch the other person. [¶] The People are not required to prove that
the defendant

actually touched someone. [¶] The People are not required to prove that
the defendant actually intended to use force against someone when he
acted. [¶] No one needs to actually have
been injured by defendant’s act. But if
someone was injured, you may consider that fact, along with all the other
evidence, in deciding whether the defendant committed an assault, and if so
what kind of assault it was. [¶] A
firearm is any device designed to be used as a weapon, from which a projectile
is discharged or expelled through a barrel by the force of an explosion or
other form of combustion. [¶] A
semiautomatic pistol extracts a fired cartridge and chambers a fresh cartridge
with each single pull of the trigger.”
(Italics added.)

CALCRIM No. 875, as
given to the jury here, accurately tracks the language of sections 240 and
245, subdivision (b); Sands does not argue otherwise. Citing People
v. Rodriguez (1999) 20 Cal.4th 1 (Rodriguez),
Sands contends that the crime of assault with a semiautomatic firearm in
violation of section 245, subdivision (b), however, “requires proof
that the firearm was loaded” and that the trial court erred by failing to instruct
the jury accordingly.

In People v. Miceli (2002) 104 Cal.App.4th 256, 268 (>Miceli), the appellate court explained:
“[T]he offense of assault with a semiautomatic firearm does not require proof
that the weapon was operable as a semiautomatic firearm (i.e., loaded); the
crime may also be committed by using the weapon as a bludgeon.” The Miceli
court stated, “nothing in section 245, subdivision (b), or in any
apposite case law, indicates that assault with a semiautomatic weapon requires
proof the gun was operable as a semiautomatic at the time of the assault. A person may commit an assault under the
statute by using the gun as a club or bludgeon, regardless of whether he could
also have fired it in a semiautomatic manner at that moment. [Citations.]
[¶] ‘A firearm does not cease to be a firearm when it is unloaded or
inoperable.’ [Citation.] This applies to semiautomatic firearms as
well as any other kind. When a clip is
removed from a semiautomatic

firearm, the firearm does not suddenly
become a billy club, a stick, or a duck.
[¶] Furthermore, section 245, subdivision (b), does not say,
‘assault with a loaded semiautomatic
firearm’—it says simply, ‘assault . . . with a semiautomatic
firearm.’ By contrast, numerous
provisions in the Penal Code plainly require that a firearm be loaded as an
element of an offense or a prerequisite to a specific sentence. . . .
[¶] Thus the Legislature knows how to specify that a firearm must be loaded in
order for a criminal statute to apply.
It did not so specify in section 245, subdivision (b).” (Miceli,
supra, at p. 270.) Sands does not cite any legal authority
showing that assault with a semiautomatic firearm necessarily involves a loaded
firearm.

In a footnote in >Rodriguez, supra, 20 Cal.4th at page 11, footnote 3, the California
Supreme Court acknowledged, “[a] long line of California decisions holds that
an assault is not committed by a person’s merely pointing an (unloaded) gun in
a threatening manner at another person.”
The Supreme Court in Rodriguez,
however, did not address “[t]he continuing viability of this rule” because it
was not questioned in that case. (>Ibid.)
In People v. Lochtefeld (2000)
77 Cal.App.4th 533, 542, footnote 10, the appellate court called the rule
an “anachronism” that the Supreme Court should reexamine and discard.href="#_ftn2" name="_ftnref2" title="">^[2] Thus, Rodriguez
does not support Sands’s proposition that assault with a semiautomatic firearm
in violation of section 245, subdivision (b) can only be accomplished
with a loaded firearm; Sands does not cite to any other case that supports his
position.

In any event, under the
instruction given, the jury had to find that Sands had the “present ability to
apply force with a semiautomatic firearm to a person.” To the extent Sands argues that the trial
court should have further defined the “present ability” element contained in
CALCRIM No. 875 to require a loaded semiautomatic firearm, in light of the
absence of any evidence that Sands used or attempted to use the firearm as a
bludgeon-type weapon, any such argument is forfeited due to his failure to
object to the instruction or request further clarification of it by the trial
court. In People v. Whalen (2013) 56 Cal.4th 1, 81‑82, the California
Supreme Court stated, “‘[a] trial court has no sua sponte duty to revise or
improve upon an accurate statement of law without a request from counsel
[citation], and failure to request clarification of an otherwise correct
instruction forfeits the claim of error for purposes of appeal.’”

Furthermore, Sands
concedes substantial evidence supports the reasonable inference that his
semiautomatic firearm was indeed loaded.
Sands’s conduct of retrieving the semiautomatic firearm from the trunk
and telling Stingley to “get the fuck away from my car,” and Mason to “get the
fuck out of the vehicle” or he would shoot Mason, supports the inference that
Sands stood before Stingley and Mason ready to fire a fully operable and loaded
semiautomatic firearm unless they cooperated with his demands. (Rodriguez,
supra, 20 Cal.4th at p. 13 [“A defendant’s
own words and conduct in the course of an offense may support a rational fact
finder’s determination that he used a loaded weapon”].) In his opening brief, Sands states he
“concedes that jurors could have inferred that the firearm was loaded.” He does not otherwise mount any substantial
evidence to challenge his convictions.

We find no error.

>Disposition

The
judgment is affirmed.





FYBEL,
J.



WE CONCUR:







MOORE, ACTING P. J.







ARONSON, J.