Filed 6/23/17 P. v. Gutermuth CA4/2






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

JASON ANDREW GUTERMUTH,

Defendant and Appellant.


G053349

(Super. Ct. No. 14NF3042)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Glenda Sanders, Judge. Affirmed.
Stephanie M. Adraktas, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, and Christine Y. Friedman, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted Jason Andrew Gutermuth of attempted second degree robbery. (Pen. Code, §§ 664, subd. (a), 211, 212.5, subd. (c); all further statutory references are to the Penal Code) and misdemeanor resisting a peace officer (§ 148, subd. (a)(1)). The court found he had a prior serious felony conviction (§ 667, subd. (a)(1).)
Gutermuth asserts the court misdirected the jury on the mens rea required for attempted robbery, and his attorney rendered ineffective assistance of counsel by failing to request a pinpoint instruction on the defense of accident or mistake. He does not challenge his conviction for resisting a peace officer. We affirm.
FACTS
One evening in July 2014, while then 69-year-old Barbara Collucci waited for a bus in Anaheim, she saw Gutermuth gesturing wildly with his hands, yelling at people, and asking everyone for a cigarette. When Gutermuth asked Collucci for a cigarette, Collucci refused. Gutermuth called Collucci a “bitch” and threw a piece of paper at her.
Gutermuth walked around and stood behind Collucci. He hit her on the back of her head with his hand, perhaps unintentionally, and grabbed her purse. Collucci held on to her purse with all of her strength, and they engaged in “a little pulling match” over the purse. Gutermuth was screaming so Collucci started to scream. The struggle ended with Gutermuth walking away.
Collucci called 911. She told police she had been assaulted by a man trying to take her purse. When police officer Jose Duran responded to Collucci’s 911 call, Gutermuth was waving his arms and aggressively interacting with a man near the same bus stop. Duran asked Gutermuth to sit on the ground. Gutermuth responded, “Fuck you. I’m not doing shit.”
Gutermuth started in Duran’s direction. When Gutermuth got within reach, Duran grabbed him by the shoulders, swiped his legs out from under him, and pinned him to the ground. Duran tried to handcuff Gutermuth, but he resisted and a second officer helped Duran while Gutermuth yelled obscenities at them.
At trial, Gutermuth testified Collucci acted like she was going to give him a cigarette, but she said, “No,” and threatened to call the police. He denied calling Collucci a “bitch,” hitting her on the head, or grabbing her purse.
In closing, Gutermuth’s attorney argued, “I submit to you, that’s what happened. He’s not trying to take the purse. He’s not trying to take a cigarette. He’s trying to get her attention, and he’s flailing his arms, and he hits her, and that’s an innocent explanation of what happened.” She also said, “So if he’s just flailing his arms and hits her but he’s not using force or fear at that point for the property, it’s not a robbery.” “He just hit her on the head accidentally.”
DISCUSSION
1. Attempted Robbery Instructions
A reviewing court examines “the jury instructions as a whole, in light of the trial record, to determine whether it is reasonably likely the jury understood the challenged instruction in a way that undermined the presumption of innocence or tended to relieve the prosecution of the burden to prove defendant’s guilt beyond a reasonable doubt. [Citation.]” (People v. Paysinger (2009) 174 Cal.App.4th 26, 30.)
Gutermuth asserts giving an instruction on the union of act and specific intent (CALCRIM No. 252), with an instruction on attempt (CALCRIM No. 460), made it possible for the jury to convict him of the attempted robbery without finding he used force or fear with the specific intent to deprive Collucci of her property. We disagree.
What Gutermuth neglects to mention is the court also gave an instruction on the elements of robbery (CALCRIM No. 1600). This instruction explained that in order to prove robbery the prosecution is required to show the defendant: (1) took someone else’s property; (2) while the property was in the person’s possession; (3) on their person or in their immediate presence, (4) against the person’s will, (5) by use of force or fear to take or retain the property, and (6) with the intent to permanently deprive the person of their property.
CALCRIM No. 460, the attempt instruction, informed the jury, “To prove that the defendant is guilty of [attempted robbery], the People must prove” “[t]he defendant took a direct but ineffective step toward committing robbery” and “[t]he defendant intended to commit robbery.” (Italics added.) And, CALCRIM No. 252 emphasized attempted robbery required specific intent.
In our view, there was no misdirection of the jury on the attempted robbery. Taken together, the standard instructions given, CALCRIM Nos. 1600, 460 and 252, correctly stated the specific intent required for attempted robbery. It is not reasonably likely the jury misunderstood the challenged instructions in a way that undermined the presumption of innocence or tended to relieve the prosecution of the burden to prove defendant’s guilt beyond a reasonable doubt. Another instruction on specific intent would have been duplicative and was not required. (People v. Earp (1999) 20 Cal.4th 826, 901-902 [court need not give duplicative instructions].)
Gutermuth also argues a pinpoint instruction on after-formed intent should have been given. But if standard instructions given fully and adequately advise the jury upon a particular issue, a pinpoint instruction on that point is properly refused. (People v. Canizalez (2011) 197 Cal.App.4th 832, 857.) And because the court could have properly refused a pinpoint instruction, there could be no miscarriage of justice. (Id. at p. 858.)
2. Ineffective Assistance of Counsel
Gutermuth asserts defense counsel rendered prejudicial ineffective assistance by failing to request CALCRIM No. 3404, an instruction on the accident defense, based on the closing argument set forth above. We do not agree.
A defendant claiming ineffective assistance of counsel must demonstrate both deficient performance and resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687, 691-692 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) If the defendant fails to demonstrate prejudice, we may reject a claim of ineffective assistance without reaching the issue of deficient performance. (Strickland, at p. 697.)
Assuming without deciding counsel was deficient in failing to request CALCRIM No. 3404, Gutermuth has failed to show prejudice. As is readily apparent, CALCRIM No. 3404 merely emphasizes the required intent covered by CALCRIM Nos. 1600, 460 and 252. Again these instructions explained the prosecution’s burden to prove Gutermuth used force or fear with the specific intent to deprive Collucci of her property. Giving another instruction on the required intent would have made no difference here.
The tussle over the purse, as described by Collucci, cannot be categorized an accident or mistake. But even if it could, Gutermuth testified it never happened. The jury considered and rejected Gutermuth’s testimony and accepted Collucci’s testimony. Accordingly he has not shown the required reasonable probability of a more favorable result absent the alleged error. (Strickland, supra, 466 U.S. at p. 694.)
DISPOSITION
The judgment is affirmed.



THOMPSON, J.

WE CONCUR:



O’LEARY, P. J.



IKOLA, J.