P. v. Falcon

Filed 6/22/07 P. v. Falcon CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Brian C. Yep, Judge. Affirmed.

Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Jose Angel Falcon argues that the evidence is insufficient to support his conviction for dissuading a victim by force or threat. He also argues the trial court erred in failing to instruct the jury, sua sponte, on the crime of dissuading a victim as a lesser included offense. Finally, he contends the court erred in failing to give CALJIC No. 5.54 (self-defense by an aggressor) on its own motion. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

As of September 2005, appellant and Maria Salazar were married, but separated and living apart. On September 17, 2005, appellant went to Salazars residence to visit their four children. At 2:30 a.m. the next day, appellant tried to raise the volume on Salazars stereo. Salazar objected, not wanting to wake the children or disturb the neighbors. They continued to argue. Appellant threw the stereo control and told Salazar to pick it up. She refused, and they exchanged insults.

Appellant then got up from the couch and hit the stereo. Salazar pushed and pulled appellant to prevent him from hitting the stereo again. Appellant warned Salazar that he could do anything he wanted to her, and she told him to go ahead and do it. Appellant unsuccessfully attempted to break a beer bottle on the floor, and then went into the kitchen and broke it on the sink. At some point, Salazar warned appellant that if he did anything to her, she would call the police. With the broken bottle in hand, appellant threatened Salazar and threw himself on top of her. He cut her cheek, and choked her. Salazar fought back, kicking and hitting him. The children came into the room, and their oldest daughter pushed appellant off of Salazar.

Salazar tried to call the police, but appellant unplugged the phone. She plugged it back in, and he unplugged it again. He then sat down on the couch and tried to calm the children. Salazar plugged the phone back in and called 911. The phone rang twice before appellant unplugged it yet again. When officers responded, they found appellant hiding in the bathroom. He was arrested.

A jury found appellant guilty of corporal injury to a spouse (Pen. Code, 273.5, subd. (a)),[1]dissuading a victim by force or threat ( 136.1, subd. (c)(1)), and two counts of assault ( 240). Appellant filed a timely notice of appeal.

DISCUSSION

I

Appellant argues that the evidence is insufficient to support his conviction for dissuading a witness by force or threat. Force or threat is lacking, he contends, because he simply unplugged the phone. He explains: There was no evidence of an ensuing struggle over the phone or evidence that appellant used any force or violence to unplu[g] it. When Maria again plugged in the phone, appellant did not use force to stop her. He did not hit Maria, kick Maria, shove or wrestle with her. . . .  [] . . . There was no evidence that appellant warned Maria not to call the police or threatened that if she did, he would harm her. There is no evidence that appellant shouted at her to desist from plugging in the phone or making the call.

Section 136.1, subdivision (b) provides: Except as provided in subdivision (c), every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: [] (1) Making any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge. Subdivision (c) of the same section provides: Every person doing any of the acts described in subdivision (a) or (b) knowingly and maliciously under any one or more of the following circumstances, is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years under any of the following circumstances: [] (1) Where the act is accompanied by force or by an express or implied threat of force or violence, upon a witness or victim or any third person or the property of any victim, witness, or any third person. (Italics added.)

The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] (People v. Jones (1990) 51 Cal.3d 294, 314.)

As set out in section 136.1, subdivision (c)(1), dissuading a victim by force occurs even where the force is used against the victims property. The jury instruction given by the trial court regarding force under this section states that the words force and violence are synonymous and mean any application of physical force against the person of another . . . .  The slightest touching, if done in an insolent, rude, or angry manner, is sufficient. [] It is not necessary that the touching be done in actual anger or with actual malice; it is sufficient if it was unwarranted and unjustifiable. Although the instruction is about force against a person, appellant has provided no authority that requires force against property be any greater.

After cutting and choking Salazar, appellant used unwarranted physical force three times to unplug her phone. Given that Salazar previously had warned she would call the police if appellant hurt her, a rational jury could find he unplugged the phone to prevent her from calling the police. The evidence is sufficient to support appellants conviction for dissuading a victim by force or threat. (See People v. Lozano (1987) 192 Cal.App.3d 618, 627, fn. 8 [observing that defendants actions of grabbing and breaking an officers radio to prevent the officer from calling for assistance is sufficient evidence of force against property to constitute escape by force].)

II

Appellant contends the trial court erred in failing to instruct the jury, sua sponte, on the crime of dissuading a victim as a lesser included offense of dissuading a witness by force or threat. The trial court is obligated to instruct the jury on a lesser included offense 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. (People v. Brenner (1992) 5 Cal.App.4th 335, 341.)

In People v. Brenner, supra, 5 Cal.App.4th at pages 338, 341, the victim and a witness testified that defendant had threatened to kill the victim if he went to the police. Defendant was convicted of dissuading a victim by force or threat. (Id. at p. 337.) On appeal, he argued the trial court erred by failing to instruct, sua sponte, on the lesser included offense of dissuading a victim. (Id. at p. 340.) The court held that because the crime either occurred by force or threat, or not at all, the trial court had no sua sponte duty to instruct the jury on the lesser included offense. (Id. at p. 341.)

Similarly, appellant either dissuaded Salazar from calling the police by force against her property, or not at all. In any event, any error is harmless. Appellant has not shown that it is reasonably probable he would have obtained a more favorable result had the court instructed the jury on the lesser offense of dissuading a victim. (See People v. Breverman (1998) 19 Cal.4th 142, 178, citing People v. Watson (1956) 46 Cal.2d 818, 836.)

III

Appellant argues the trial court erred in failing to instruct, sua sponte, in terms of CALJIC No. 5.54 (self-defense by an aggressor). That instruction reads: The right of self-defense is only available to a person who initiated an assault, if [] [[1.] [He] [She] has done all the following: [] A. [He] [She] has actually tried, in good faith, to refuse to continue fighting; [] B. [He] [She] has by words or conduct caused [his] [her] opponent to be aware, as a reasonable person, that [he] [she] wants to stop fighting; and [] C. [He] [She] has by words or conduct caused [his] [her] opponent to be aware, as a reasonable person, that [he] [she] has stopped fighting. [] After [he] [she] has done these three things, [he] [she] has the right to self-defense if [his] [her] opponent continues to fight[.]] [, or] [] [[2.] [if] [T][t]he victim of simple assault responds in a sudden and deadly counterassault, the original aggressor need not attempt to withdraw and may use reasonably necessary force in self-defense.]

The trial court has a duty to instruct the jury on the general principles of law relevant to the evidence. (People v. Breverman, supra, 19 Cal.4th at p. 154.) A trial courts duty to instruct, sua sponte, on particular defenses arises only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendants theory of the case. (People v. Maury (2003) 30 Cal.4th 342, 424.)

Appellant did not rely on the self-defense by an aggressor theory set out in CALJIC No. 5.54. His opening statement and closing argument show the defense theories were that Salazar was the original aggressor, Salazars testimony was not credible, their daughters testimony was not credible, and the physical evidence was weak. Appellant argues that because the prosecutions theory was that he was the initial aggressor, the court should have instructed the jury that even if this were true, that the original aggressor has the right to self-defense if the opponent suddenly escalates the fighting using excessive force. He also states that another self-defense instruction given, CALJIC No. 5.56 (self-defense participants in mutual combat), was inadequate because it did not apply to the facts of this case.[2]

The court did not err because there is no substantial evidence that Salazar responded to appellant with a sudden and deadly counterassault, or that she used excessive force. (CALJIC No. 5.54.) When appellant hit Salazars stereo, she pushed and pulled appellant to keep him from hitting it again. She testified that she did not push hard, and that she did not hit or injure appellant. Appellant then attacked Salazar with the broken bottle and choked her. Salazar feared that appellant would kill her, as he previously had threatened to do. She fought back by pushing, kicking and hitting appellant. Nothing about Salazars responses was excessive or deadly.

Further, even if Salazars actions of pushing and pulling appellant were excessive, appellants response was not reasonably necessary as CALJIC No. 5.54 requires. Salazar was trying to keep appellant from hitting her stereo again. Instead of backing away from the stereo, appellant responded by going into another room, breaking a bottle on the kitchen sink, and then attacking Salazar with that weapon and choking her. Because substantial evidence does not support the self-defense theory set out in CALJIC No. 5.54, the court did not err in failing to give the instruction on its own motion.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.

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[1] All further statutory references are to the Penal Code.

[2] CALJIC No. 5.56 reads: The right of self-defense is only available to a person who engages in mutual combat: [] [[1.] If [he] [she] has done all the following: [] A. [He] [She] has actually tried, in good faith, to refuse to continue fighting; [] B. [He] [She] has by words or conduct caused [his] [her] opponent to be aware, as a reasonable person, that [he] [she] wants to stop fighting; and [] C. [He] [She] has caused by words or conduct [his] [her] opponent to be aware, as a reasonable person, that [he] [she] has stopped fighting; and [] D. [He] [She] has given [his] [her] opponent the opportunity to stop fighting. [] After [he] [she] has done these four things, [he] [she] has the right to self-defense if [his] [her] opponent continues to fight[.]] [, or] [] [[2.] [If the other [party to the mutual combat responds in a sudden and deadly counterassault, that is, force that is excessive under the circumstance, the party victimized by the sudden excessive force need not attempt to withdraw and may use reasonably necessary force in self-defense.]