Filed 4/21/17 P. v. Turner 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL BRIAN TURNER, JR.,

Defendant and Appellant.

F072630

(Super. Ct. No. CRM030224A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Merced County. Mark V. Bacciarini, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-



A jury convicted appellant Michael Brian Turner, Jr., of first degree robbery (count 1, Pen. Code, § 211) and assault with a firearm (count 2, § 245, subd. (a)(2)), and found true a discharge of a firearm enhancement in count 1 (§ 12022.53, subd. (c)), and a personal use of a firearm enhancement in count 2 (§ 12022.5, subd. (a)). In a separate proceeding, the court found true a prior prison term enhancement (§ 667, subd. (b)) and allegations that Turner had a prior conviction within the meaning of the “Three Strikes” law (§ 667, subd. (a)).
On October 9, 2015, the court sentenced Turner to an aggregate term of 39 years.
On appeal, Turner contends he was denied the effective assistance of counsel. We affirm. However, a review of the record disclosed that Turner’s abstract of judgment erroneously indicates he was convicted of second degree robbery and we will direct the trial court to issue an amended abstract of judgment that corrects this error.
FACTS
Martin Velasquez testified that on October 25, 2013, at approximately 2:00 a.m., he was asleep in bed when Jose Cuellar returned, inebriated, to the motel room in Merced where he and Cuellar were staying during a temporary job assignment with a roofing company. A short time later, Cuellar allowed two women into the room who then began smoking cigarettes. After Velasquez told the women not to smoke in the room, they opened the door and threw their cigarettes outside. Turner and another man immediately walked into the room and the women ran outside.
Turner asked Cuellar if he was from the westside. After Cuellar responded he was from Sacramento, Turner pulled a small chrome handgun from his waistband, pointed it at Cuellar, and replied, “You’re in Merced now.” Turner also told Cuellar he wanted his money and ordered Cuellar to sit down. The other man ordered Velasquez to turn over his money and Velasquez replied he did not have any. The man punched Velasquez on the chin as Velasquez lay in bed and told him to empty his pockets. Velasquez complied and the man took some keys and change from him.
Velasquez further testified that the gun discharged when Cuellar hit Turner’s hand and they began wrestling. The gun discharged a second time as the men continued to wrestle. Velasquez then got out of bed and ran out of the room.
Cuellar testified that during the encounter, Turner would look back toward the other man and Velasquez to instruct the man what to do. The third time Turner looked back, Cuellar stood up and grabbed Turner’s hand and the gun together, but he did not grab the trigger. Cuellar charged Turner and pushed him towards the window. He then heard glass break and two more shots. Cuellar continued trying to get the gun as he wrestled with Turner, but he was not holding the gun and did not pull the trigger when the second and third shots were fired. Turner and the other man then ran out of the room. Cuellar chased the men but was unable to catch them.
Jessica Orozco, Turner’s girlfriend, testified that in the early morning of October 25, 2013, after going to three nightclubs, she and Turner went home to their apartment. Orozco initially testified that Turner remained with her the rest of the night. However, eventually she admitted that Turner went outside, that he may have left the apartment with friends, and that he was back inside the apartment at 3:00 a.m.
Merced Police Detective Chris Russel testified in rebuttal that during an interview of Orozco on October 25, 2013, Orozco stated that Turner left the apartment with friends at about 2:00 a.m., and did not return until around 3:00 a.m., or possibly later.
Turner did not testify.


DISCUSSION
The robbery count in the information charged Turner with an enhancement pursuant to section 12022.53, subdivision (c), which provides:
“Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years.” (Italics added.)
Turner contends the defense theory with respect to this enhancement was that the firearm discharged by mistake or accident. He further contends that there was substantial evidence that the gun discharged accidentally because Cuellar grabbed his hand that held the gun, the gun discharged as the men struggled, and he did not make any statements indicating that he had the intent to shoot. Defense counsel, however, did not ask the court to charge the jury on the defense of accident pursuant to CALCRIM No. 3404. Thus, according to Turner, defense counsel provided ineffective representation by his failure to request the court to charge the jury on accident pursuant to this instruction, and the judgment should be reversed because of this omission. We disagree.
“In order to establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel’s performance was deficient and that the defendant suffered prejudice as a result of such deficient performance. [Citation.] To demonstrate deficient performance, defendant bears the burden of showing that counsel’s performance ‘ “ ‘ “fell below an objective standard of reasonableness … under prevailing professional norms.” ’ ” ’ [Citation.] To demonstrate prejudice, defendant bears the burden of showing a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.” (People v. Mickel (2016) 2 Cal.5th 181, 198.)
The trial court does not have a sua sponte duty to instruct on accident. (People v. Anderson (2011) 51 Cal.4th 989, 997.) However, upon request, the court must give instructions that “pinpoint” the theory of the defense (People v. Earp (1999) 20 Cal.4th 826, 886), but only if the record contains substantial evidence that supports the giving of the instructions. (People v. Bolden (2002) 29 Cal.4th 515, 558.)
Turner fired three shots during the robbery. Since Turner did not testify, there is no direct evidence of his intent when he fired each shot. Further, Cuellar testified that the first shot occurred when he attempted to grab the gun and instead grabbed Turner’s hand. However, there is no evidence from which it can be inferred that Turner did not intend to fire the first shot or that Cuellar’s actions in grabbing Turner’s hand caused the gun to discharge. There is even less evidence that Turner discharged the two other shots accidently because the evidence established only that these shots were discharged while Cuellar wrestled with Turner.
Substantial evidence to support the giving of an instruction means “evidence from which a reasonable jury could find the existence of the facts underlying the instruction.” (People v. Cleaves (1991) 229 Cal.App.3d 367, 372.) “Inferences may constitute substantial evidence, but they must be the product of logic and reason.” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) “A theoretical possibility is not the equivalent of substantial evidence.” (Id. at p. 646.) Since the evidence establishes only a theoretical possibility that Turner fired any of the shots accidently, the record does not contain substantial evidence that supported the court charging the jury on accident pursuant to CALCRIM No. 3404. Thus, defense counsel did not provide ineffective representation by his failure to request the court to charge the jury with this instruction.
Moreover, “a failure to instruct where there is a duty to do so can be cured if it is shown that ‘the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.’ ” (People v. Stewart (1976) 16 Cal.3d 133, 141.)
Here, the instructions to the jury required them to determine whether Turner discharged the gun intentionally or accidentally. In charging the jury on the gun use enhancements, the court instructed the jury pursuant to CALCRIM No. 3146 that “[s]omeone personally uses a firearm if he or she intentionally … [f]ires the weapon.” (CALCRIM No. 3146, revised, second italics added.) With respect to the section 12022.53 enhancement, the court instructed the jury pursuant to CALCRIM No. 3148 that if they found Turner guilty of robbery, they had to decide whether the People proved that he “intentionally discharged a firearm” and that this required proof that Turner “intended to discharge the firearm.” (CALCRIM No. 3148, revised, italics added.) The court also instructed the jury pursuant to CALCRIM No. 252 that the section 12022.53 enhancement “required a specific intent or mental state” and that to find this enhancement true “[the defendant] must … intentionally commit the prohibited act[.]” (CALCRIM No. 252, revised, italics added.) Further, since the factual issue whether Turner discharged the gun intentionally or accidentally was resolved adversely to Turner under other properly given instructions, he was not prejudiced by the court’s failure to charge the jury with CALCRIM No. 3404. Accordingly, we reject Turner’s ineffective assistance of counsel claim because he has not met his burden of showing ineffective representation or prejudice.


DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment that correctly indicates that Turner was convicted of first degree robbery and to transmit a certified copy to the Department of Corrections and Rehabilitation.