P. v. Cortina

Filed 8/29/06 P. v. Cortina 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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. Graham A. Cribbs, Judge. Affirmed with directions.

Steven A. Torres, 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, Lilia E. Garcia, Supervising Attorney General, for Plaintiff and Respondent.

A jury convicted defendant of discharging a firearm in a grossly negligent manner (Pen. Code § 246.3)^[1], during which he used a firearm (667), assault with a firearm (245, subd. (a)(2)), possession of a firearm by an ex-felon (12021, subd.(a)(1)) and possession of ammunition by an ex-felon (12316, subd. (b)(11).) In bifurcated proceedings, the trial court found defendant had suffered five strike priors. He was sentenced to prison for 25 years to life He appeals, claiming the trial court erred in failing to give the jury a particular instruction and the prosecutor’s remarks during argument to the jury compounded that error. We reject his contention and affirm.

Facts

As is pertinent to this appeal, around 4:45 p.m. on October 12, 2002, a man who lived one street over from defendant heard a gunshot and saw defendant standing on the corner of his property yelling at someone to “stay away.” The person was walking away from defendant’s house on the sidewalk. The person who was walking was not the man defendant identified at trial was the victim, who was also a neighbor. As the person who was walking turned as if to say something to defendant, defendant stood behind a compact car, raised his gun to chest level and fired a round in the direction of the person. Defendant was 35 to 40 yards from the person at the time. The victim of this assault was identified by the People in the charging papers as John Doe. He did not testify at trial.

Issue and Discussion

Defendant testified^[2] that around 9 or 10 a.m., he went outside his house, where the person he identified as the victim [hereinafter, “the neighbor”] was, because he wanted to buy a pair of earrings off the latter. Defendant claimed that the neighbor was mentally ill and had a reputation for being violent . Defendant went inside his house to get money for the purchase, telling the neighbor to stay in the front yard. As defendant was leaving his bedroom after having gotten money from his wallet, his wife approached him and said that the neighbor had come into the house and said disturbing things to her. She appeared to be frightened. Defendant met the neighbor inside his house and heard the latter call defendant’s wife names. Defendant hit him and the neighbor ran out the front door. The neighbor angrily told defendant that he would be back, that he would burn defendant’s house down and kill his family. Defendant, afraid and believing the neighbor would return, yelled at him not to come back to the house. Defendant and his family then went to the park a block and a half or two blocks away for a picnic. After being there about 10 or 15 minutes, defendant had his son drive him back to his house. Defendant removed a fully loaded gun from his closet and put it on a shelf by the front door. Twenty to forty-five minutes after he returned home, the neighbor appeared outside the closed gate of the fence surrounding the front yard.^[3] Defendant testified, “When [the neighbor] came the second time, I felt he was going to . . . try to do something to me or my family . . .

[r]ight then.” As defendant stood inside his house, the neighbor yelled that he had told defendant that he would return and would burn down the house and kill defendant’s family. Defendant came out into the front yard. The neighbor pushed open the gate and took one step inside. Defendant did not see a weapon in the neighbor’s hand and the latter was not close enough to defendant to touch him. Defendant returned to the house, grabbed the gun, stepped back outside and fired into the air, telling the neighbor, “Don’t come in my house. Get out of here . . . .” Defendant intended to scare the neighbor away. The neighbor backed up and the gate closed, but defendant kept yelling. Defendant told the neighbor to get out of there. The neighbor walked in the street to the corner of defendant’s property, yelling that he was going to come back and burn the house and kill defendant’s family. As the neighbor turned the corner and walked quickly down the street that ran along the side of defendant’s property, still yelling that he was going to kill defendant’s family, defendant moved out into the street in front of his property and fired a second time at an upward angle over the neighbor’s head when the latter stopped, looked at him and “kept threatening.” Defendant intended to scare the neighbor away, not hit him. Defendant admitted that this bullet could have hit a house or cars, but not any people. Defendant went back inside his house and returned the gun to the shelf near the front door. The neighbor did not testify at trial.

The jury was given CALJIC No. 5.30, which provides, “It is lawful for a person who is being assaulted to defend himself from attack if, as a reasonable person, he has grounds for believing and does believe that bodily injury is about to be inflicted upon him. In doing so, that person may use all force and means which he believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent.” [Italics added]^[4] At trial, defendant requested that this instruction be given and, on appeal, he takes no issue with the fact that it was given. Defendant contends that the trial court erred by failing, sua sponte, to give the jury CALJIC No. 5.50,^[5] which provides, “A person threatened with an attack that justifies the exercise of the right of self-defense need not retreat. In the exercise of his right of self-defense a person may stand his ground and defend himself by the use of all force and means which would appear to be necessary to a reasonable person in a similar situation and with similar knowledge; and a person may pursue his assailant until he has secured himself from danger if that course likewise appears reasonably necessary. This law applies even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene.”

We assume, for purposes of this discussion only, that a convicted felon who is being assaulted has the right to stand his ground and even pursue his attacker if necessary to secure himself from danger.^[6] We take issue with defendant’s position that his testimony supported the giving of this instruction as to the assault and discharge of a firearm counts. (See People v. Curtis (1994) 30 Cal.App.4th 1337, 1355 [The trial court has a duty to instruct sua sponte on a defense only if there is substantial evidence of that defense.]) In fact, it did not. At the time defendant fired both rounds, according to his own testimony, he was not being assaulted^[7] by the unarmed victim, as is required by CALJIC No. 5.30.^[8] CALJIC No. 5.50 does not come into play unless self defense applies and under defendant’s own version of the facts, it did not. It was not enough that

defendant feared the victim, even if he did so reasonably.^[9] (See People v. Curtis, supra, 30 Cal.App.4th at 1359, 1360.) We note that during the second assault, the victim was in the street, walking away from defendant’s house.

Disposition

The trial court is directed to attach a page to the amended abstract of judgment, showing that defendant was sentenced pursuant to section 667, subdivision (c)(1), as was done with the original abstract. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

HOLLENHORST

J.

McKINSTER

J.

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^[1] All further statutory references will be to the Penal Code, unless otherwise noted.

^[2] Apparently the parties and trial court forgot that criminal matters are often appealed. It is impossible for this court to determine where on many diagrams and pictures referred to by defendant, certain events occurred because the diagrams and pictures were not marked and defendant gave no greater specificity than saying “here” and “there.”

^[3] On cross examination, defendant agreed that this portion of his timeline failed to account for three hours.

^[4] The jury was also given instructions on defense of another, which required the defendant “as a reasonable person” to have “grounds for believing and does believe that bodily injury is about to be inflicted upon another person.” It was also instructed as to defending a home against a trespasser, the presumption arising when a trespass occurs, defense of property and related matters. As to the defense of one’s home against a trespasser, the jury was informed that the dweller need not retreat even though retreat might safely be made. We disagree with defendant’s assessment of the instruction on defending the home. It is clear that it applies only to acts within the residence, not outside it.

^[5] As the People correctly note, the defense requested CALJIC No. 5.50. At some point, not disclosed by the record, a request for it was withdrawn and because the People did not request it we must assume this request to withdraw it was defendants.

^[6] People v. Rhodes (2005) 129 Cal.App.4th 1339, 1346 (Rhodes) [Division Three of this court] so holds, without citation to any particular authority, although it does discuss People v. King (1978) 22 Cal.3d 12 (King). At the time King was decided, section 12021 prohibited only the possession by an ex-felon of a concealable firearm, rather than all firearms, as is currently the case. The King court noted, “[T]he Legislature has not denied felons the right to . . . use firearms which are not concealable on the person. Thus we cannot infer that the Legislature intended absolutely to deny felons the rights declared in sections 692, 693, 694, and 197[ (the sections governing defense of self, another and property)] . . . . [W]e must reconcile [section 12021’s] prohibition of possession of a concealable firearm with those statutes declaring the right of any person to use . . . defense[ of self, another and property]. [Citations.] In so doing, we must assume in the absence of an express legislative direction to the contrary in section 12021, that the Legislature did not intend that section to restrict a felon’s right of self-defense except to the extent necessary to fulfill the legislative purpose that persons affected by [the] section . . . not have concealable firearms readily available lest the weapons be used for crimes of violence or other unlawful purposes. [Citations.]

Use of a concealable firearm in self-defense is neither a crime nor an unlawful purpose. Section 12021 was not therefore enacted to prevent possession of these firearms during such use. The People concede that felons have the right to use deadly weapons other than concealable firearms in self-defense in those circumstances in which any other person could lawfully do so . . . . It would be unreasonable and would lead to absurd results to construe section 12021 as permitting the use of a shotgun, but proscribing the use of a small caliber pistol in self-defense, and thus forcing the felon to use only a weapon capable of inflicting greater injury if he is forced by circumstances to use deadly force in self-defense. We conclude, therefore, that the prohibition of section 12021 was not intended to affect a felon’s right to use a concealable firearm in self-defense, but was intended only to prohibit [ex-felons] . . . from arming themselves with concealable firearms or having such weapons in their custody or control in circumstances other than those in which the right to use deadly force in self-defense exists or reasonably appears to exist . . . . As in all cases in which deadly force is used or threatened in self-defense, however, the use of the firearm . . . may be resorted to only if no other alternative means of avoiding the danger are available. In the case of a felon defending himself alone, such alternatives may include retreat where other persons would not be required to do so.“ (King, at pp. 23-24, italics added.) Thus, King contains conflicting declarations--first, the ex-felons have the same right to self defense anyone else does, then, that they do not. Although it reiterates the latter declaration, Rhodes does not expressly address it. The People here contend that this language suggests that ex-felons do not enjoy the same right to stand their ground and pursue their attackers as does everyone else. We note with interest that the People failed to request a hearing before the California Supreme Court in Rhodes, which is now final. Contrary to the People’s position, we do not read into King’s reference to the imminent peril of great bodily harm required for an ex-felon claiming self defense as a defense to a section 12021 charge (King, at p. 24) to be any different from that required of anyone else claiming self defense. (See People v. Aris (1989) 215 Cal.App.3d 1178, 1185-88 [disapproval of on other grounds in People v. Humphrey (1996) 13 Cal.4th 1073, 1089].) The People’s further effort to cast as incompatible the notion of imminence, assertedly required only of an ex-felon, and pursuing one’s attacker, is equally unfounded. Pursuit, contrary to the People’s assertion, cannot take place under circumstances in which the danger is no longer imminent. (People v. Hecker (1895) 109 Cal.451, 463.)

^[7] Nor did the victim even attempt to assault defendant. (See fn. 6, ante.)

^[8] In contrast, in Rhodes, the defendant testified that, as he sat in his car, the victim walked towards him with a gun in his right hand, he was too scared to drive away and the victim “got close from around the car so that he had aimed at” the victim. (Rhodes, supra, 129 Cal.App.4th at p. 1342.) Defendant omits this last fact from his analysis of Rhodes.

While we recognize that an act by the victim other than an assault may trigger the ability of the defendant to act in self defense (People v. Lopez (1948) 32 Cal.2d 673-675 [an overt act or physical demonstration by the victim that reasonably causes the defendant to believe he is in imminent danger of bodily harm].), CALJIC No. 5.30, the instruction given her, at defendant’s request, required an assault.

^[9] Because we so conclude, we view the unobjected-to argument of the prosecutor that in order for self defense to apply, there must have been no alternative means of avoiding the danger to be harmless. Also based on our conclusion, we necessarily reject defendant’s argument that his trial attorney was incompetent for failing to request CALJIC No. 5.50.