P. v. Blythe

Filed 9/28/06 P. v. Blythe CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

Defendant and appellant Michael Gayle Blythe appeals from his conviction for battery with serious bodily injury (Pen. Code, § 243, subd. (d))^[1] with an enhancement for the personal infliction of great bodily injury (§ 1192.7, subd (c)(8)). Blythe was sentenced to two years in state prison.

On appeal, he argues that the trial court erred in not permitting additional argument after it provided the jury with supplemental instructions during deliberation. Blythe also contends that two of the supplemental instructions given by the trial court -- CALJIC Nos. 5.54 and 5.55 -- were incorrect statements of the law. He further contends that we must remand the matter for resentencing because the trial court erred when it found defendant presumptively ineligible for probation under section 1203, subdivision (e)(3). He also argues that counsel was ineffective for failing to request that the trial court reduce defendant’s conviction to a misdemeanor.

Finding no error, we affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

The incident that forms the basis for defendant’s conviction occurred on October 27, 2004, beneath the bridge over Highway 80 near Butcher Road in Vacaville, California. Both defendant and the victim sleep in tents under the bridge, along with a friend named Van Derrick Vickers. The victim sleeps in the encampment when she does not stay with her ex-husband, Kyle. On the evening in question, the victim, defendant and Vickers were staying under the bridge. They had been drinking, although Vickers testified that he did not think anybody was really drunk.

Both the victim and Vickers described the fight that broke out between defendant and the victim. The victim testified that when the defendant arrived at the camp the night of the 27th, “he was acting like he was really angry. . . . he wouldn’t stop cursing at me and calling me names, and actually he was trying to, trying to touch part of my body I didn’t want him to touch.” Defendant called the victim a “whore” and a “bitch.” She had not done anything to provoke him into calling her these names. After the defendant tried to touch her buttocks, the victim “hit him in the face with an open hand” and she told him “not to touch me.” The defendant did not, however, stop. Instead, he started “attacking” the victim: “[h]e ran at me and tried to tackle me to the ground. And -- and so, and I was trying to stop him.” She pushed defendant and “he fell on my left side and then he got up and ran at me, almost picked me out of the air and threw me on the ground. That’s when my shoulder broke.” The victim testified that she remembered the details of the incident clearly.

Vickers testified that he’d known the defendant for about three years and was with him on the night of October 27th. He had also known the victim for about a year. He considered them both his friends. He testified that the victim and defendant got into a verbal argument. He heard words going back and forth but didn’t hear what was said. After the argument began “they started tussling. She flipped him. . . . I seen some tussling, next thing I knew he was laying on his back. He was laying on his back. So, I think he kind of got a little angry at that.” He walked closer and the next thing he noticed was defendant “laying on top of her.” Although he’d told a police officer that night that he saw defendant swing and attack the victim first, he testified that “I have to say both of the was swinging.” He hadn’t mentioned the victim might have swung at defendant because he was “[b]asically . . . try[ing] to save her butt.” After the victim got up from the ground she said she thought her shoulder was broken.

Vickers also described an argument between the victim and defendant that had taken place the night before. He agreed that on this occasion, the victim had been “pretty physically aggressive with Mr. Blythe and you actually sort of stopped her . . . .”

The police officer who took the victim’s statement and the defendant’s statement after the victim was transported to the hospital testified that he could smell the odor of alcohol coming from the victim. He never asked during the interview whether she had ever hit the defendant.

The matter went to the jury. During deliberations, the jury submitted a question to the court: “Does it make a difference who initiated the confrontation when you are acting in self defense?” The court proposed reading CALJIC Nos. 5.54 (self-defense by aggressor) and 5.55 (plea of self-defense may not be contrived) and 5.56 (self defense--participants in mutual combat.) The court added some proposed language to CALJIC No. 5.56 suggested by defense counsel. No other objection was made to the supplemental instructions.

Before the jury returned to the courtroom, defense counsel asked the court, “Your Honor, will we be rearguing?” The court responded “Rearguing what?” Counsel explained: “Will we be given an opportunity to argue this instruction and the facts to the jury?” The court refused this request. The court then instructed the jury with the supplemental instructions. After doing so, the court asked the jury, “Okay . . . . I can reopen the argument and have the attorneys argue this legal point to you and as to the facts as they were presented in the trial. If you would like to hear from the attorneys, I’ll give them an opportunity to do that. If you think that what you have heard is sufficient, then I’ll let you go back into the jury room and start deliberating.” The jury declined this invitation.

After the jury was excused to resume deliberations, defense counsel stated, “Your Honor, I was attempting as the jury was coming into the room to ask the Court if we could have an opportunity to conduct a little bit of further argument. I think you, I appreciate the court inquiring with the jury as to whether they want to hear further argument. As jurors often do, they seemed to be in a rush to complete their service.” The court did not agree with this assessment of the jury’s behavior: “I don’t think they have to rush. I think the instruction answered their question. They didn’t have to hear from either one of you to explain what this means.”

The jury returned a verdict that same day, finding defendant not guilty of assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)), not guilty of the lesser included offense of assault (§ 240), but guilty of battery with serious bodily injury (§ 243, subd. (d)), with an enhancement for the personal infliction of great bodily injury. (§ 1192.7, subd. (c)(8).) The court sentenced defendant to two years in state prison. This timely appeal followed.

III. DISCUSSION

A. Request for Additional Closing Argument

Defendant argues that the trial court erred in refusing his request for additional closing arguments after the court responded to a jury query by reading additional jury instructions. The People argue that this claim has been waived and, even if not waived, is without merit. We agree with the latter argument.

Defense counsel asked the court , “Your Honor, will we be rearguing?” and “Will we be given an opportunity to argue this instruction and the facts to the jury?” These questions were tantamount to a request for further argument. If this request was not clear enough, defense counsel also informed the court that “Your Honor, I was attempting as the jury was coming into the room to ask the Court if we could have an opportunity to conduct a little bit of further argument.” This issue has, therefore, not been waived.

The applicable legal principles are not in dispute. In general, when a court gives the jury a supplemental instruction in response to a jury question, the court should give counsel an opportunity to reargue when the instruction “introduces a new theory to the case.” (United States v. Fontenot (9th Cir. 1994) 14 F.3d 1364, 1368, citing United States v. Horton (4th Cir. 1990) 921 F.2d 540, 546-48; United States v. Civelli (2d Cir. 1989) 883 F.2d 191, 196; United States v. Cheek (7th Cir. 1989), 882 F.2d 1263, 1279, vacated on other grounds, Cheek v. United States (1991) 498 U.S. 192. However, additional argument is not required when a supplemental instruction clarifies an existing theory. (Compare United States v. Fontenot, supra 14 F.3d at p. 1368 and People v. Bishop (1996) 44 Cal.App.4th 220, 231-235.)

The issue then, before us, is whether the reading of these supplemental instructions changed the defendant’s theory that he had acted in self defense when he injured the victim or simply clarified an existing theory that his behavior was justified under principles of self-defense.

In our view, the latter is the more accurate description of the effect of the supplemental instructions. The jury had already been given a number of instructions on the theory of self-defense -- CALJIC Nos. 5.30 (self defense against assault), 5.50 (self defense -- assailed person need not retreat), 5.50.1 (prior threats/assault by victim), and 5.51 (self defense -- actual danger not necessary), 9.11 and 16.142 (insulting words not a justification for assault or battery.) Counsel for both sides discussed self-defense during their closing arguments. The supplemental instructions given by the court, CALJIC Nos. 5.54 (self-defense by aggressor), 5.55 (plea of self-defense may not be contrived) and 5.56 (self defense-- participants in mutual combat) clarify the application of principles of self-defense to the events described to the jury. Because these instructions did not amount to a change in the theory of the defense, the court did not err in refusing to permit additional argument.

The cases defendant cites do not compel a contrary conclusion, because each of them concerns a situation in which the supplemental instruction materially changed the defense’s theory. ( People v. Stouter (1904) 142 Cal. 146, 148-150 [trial court instructed the jury on an offense that had not been charged]; People v. Sanchez (1978) 83 Cal.App.3d Supp. 1, 7 [supplemental instruction given in the middle of argument, contradicting earlier instruction]; United States v. Gaskins (9th Cir. 1988) 849 F.2d 454, 458-460 [supplemental instructions given in response to jury question unfair because involved a “conceptually different theory“ than that argued by the defense.]

B. CALJIC No. 5.55

Defendant argues that CALJIC No. 5.55 misstates the law because it does not accurately describe the law of self-defense. Specifically, defendant contends that the wording of the instruction, particularly the phrase “seeks a quarrel,” is misleading because it implies that the right to self-defense is unavailable when a defendant initiates a quarrel through words alone and then meets with a physical response. The People correctly point out that this argument was not raised below. Therefore, it has been waived. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382, fn. 12.)

Defendant argues, however, that no objection was required because the instruction is an incorrect statement of the law. We disagree. Defendant’s argument is not that the instruction, properly construed, is an incorrect statement of the law, but rather that the instruction is unclear because it does not specifically state that the word “quarrel” does not include a purely verbal quarrel. An argument that an instruction, though substantively correct, should have been clarified or supplemented, is waived by the failure of appellant’s trial counsel to request or suggest any modification or additional instruction. (Ibid.; see also, People v. Woods (1991) 226 Cal.App.3d 1037, 1054-1055.)

We also reject defendant’s claim on the merits. CALJIC No. 5.55 states that “[t]he right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense.” This instruction has long been approved under the case law. (See, e.g., People v. Holt (1944) 25 Cal.2d 59, 65-66, 1; People v. Hinshaw (1924) 194 Cal. 1, 26.)

Defendant, however, argues that CALJIC Nos. 9.11 and 16.142, (which articulate the rule that words alone cannot justify an assault or battery) are contradicted by CALJIC No. 5.55 and, therefore, CALJIC No. 5.55 is an incorrect statement of the law of self-defense. We disagree.

Defendant does not contend that either CALJIC No. 9.11 or 16.142 is legally incorrect. Reading the instructions as a whole, we find no inconsistency between CALJIC No. 5.55 and CALJIC Nos. 9.11 and 16.142, each of which is an accurate description of the principles it articulates. CALJIC No. 5.55 is concerned with situations in which a defendant provokes an attack and then claims his response to that attack was justified as self-defense. CALJIC Nos. 9.11 and 16.142, on the other hand, apply when a defendant charged with an assault or battery attempts to argue the assault or battery was a justified response to an oral insult. These principles, which operate in different arenas, do not undermine each other.

Defendant also contends that CALJIC No. 5.55 contradicts CALJIC No. 5.56. We see no contradiction. CALJIC No. 5.56 instructs the jury as to when self-defense is available to participants in mutual combat. CALJIC No. 5.55 instructs the jury on a different issue, that is, when a plea of self-defense cannot be made because the “combat” was not truly mutual, but contrived by the defendant to justify his actions.

Defendant cites a case from Washington state, State v. Riley (Wash. 1999) 976 P.2d 624 in support of his argument that CALJIC No. 5.55 is legally incorrect. In Riley, the Washington court rejected an argument that a jury instruction limiting an aggressor’s right to self defense violated the defendant’s First Amendment rights. The opinion does not deal with the issue of whether a jury instruction such as CALJIC No. 5.55 is legally incorrect. (Id. at p. 626.) Although the court discusses the law of self-defense, it does not at any point conclude, as defendant argues, that a person may claim self-defense when he intentionally seeks a quarrel, so long as he has sought that quarrel verbally.

We also reject defendant’s claim that CALJIC No. 5.55 infringes on his First Amendment rights and his right to due process. As the People point out, CALJIC No. 5.55 does not restrict or punish speech. Instead, it restricts the use of a self-defense claim when a defendant contrives a claim of self-defense by seeking a quarrel.

Finally, defendant argues that CALJIC No. 5.55 requires a finding of specific intent to create a real or apparent necessity of exercising self-defense. CALJIC No. 5.55 refers to the “intent to create a real or apparent necessity of exercising self-defense.” The intent to which this instruction occurs is not specific intent, as defendant contends, but rather to the general intent to engage in the proscribed conduct. (See People v. Sargent (1999) 19 Cal.4th 1206, 1228 (conc. opn. of Mosk, J.)

C. CALJIC No. 5.54

Defendant next contends that CALJIC No. 5.54, which the court gave in response to the jury’s query during deliberations, misstates the law applicable to the right of an aggressor to withdraw from combat and invoke the right of self-defense, because the instruction does not make clear that it applies to the “first” aggressor in a physical altercation.

The People point out that defendant did not object to this argument and, therefore, it has been waived. Defendant again contends that CALJIC No. 5.54 is not a correct statement of the law and, therefore, no objection was required.

We disagree. Defendant’s argument is that the language “a person who initiated an assault” is unclear and might not be understood to refer to the person who first committed an assault. Even were we to consider the merits of this argument, it is simply not the case that it is reasonably likely a jury would have understood the phrase “a person who initiated an assault” to refer to someone other than the person who first committed an assault. To argue otherwise is sophistry.

Because we have found no trial errors, defendant’s claim of cumulative error fails. (See People v. Seaton (2001) 26 Cal.4th 598, 639; People v. Bolin (1998) 18 Cal.4th 297, 335 .)

E. Finding of Presumptive Ineligibility for Probation

The trial court found that defendant was presumptively ineligible for probation under section 1203, subdivision (e)(3). Citing People v. Lewis (2004) 120 Cal.App.4th 837 (Lewis), defendant argues the trial court committed prejudicial error. The People contend that any error has been waived because defendant did not raise this issue at sentencing and, in any event, Lewis was wrongly decided. Moreover, even assuming there was error, the People argue that remand is unnecessary because it is unlikely that the trial court would have imposed a different sentence. We agree with this last argument and, accordingly, do not reach the question of waiver or the correctness of Lewis.

Lewis holds that a defendant is rendered presumptively ineligible for probation under section 1203, subdivision (e)(3) only if the trial court specifically finds that he willfully caused great bodily injury or torture. (Lewis, supra, 120 Cal.App.4th at p. 853.) In Lewis, the sentencing court “was not asked to find and did not state on the record” that the defendant intended to inflict great bodily injury, the appellate court remanded for a new sentencing hearing. (Id. at p. 854.) Because counsel and the court assumed defendant was presumptively ineligible for probation under section 1203, subdivision (e)(3), the court remanded for a determination of whether defendant “willfully” caused the victim great bodily injury.

Here, as in Lewis, the trial court did not specifically find that defendant willfully caused the defendant great bodily injury. However, we need not decide whether Lewis was correctly decided, because even if the trial court erred in failing to make this finding, a remand for resentencing is not warranted.

The facts of the offense and appellant’s background unequivocally support the imposition of a prison term. The probation report does not treat section 1203, subdivision (e)(3), as the only ground on which to deny probation. Rather, it also reports that defendant is an inappropriate candidate for probation because of his lack of remorse, his substantial prior record, his poor compliance on prior grants of probation and parole, including four grants of probation terminated as unsuccessful and the denial of probation in a recent misdemeanor case.” The probation report also points to a “pattern of regular and increasingly serious conduct.” It notes that “[defendant] is becoming increasingly violent, and he is assessed as a danger to the community.” Under these circumstances, we decline to order a remand because it is not reasonably probable the trial court would impose a different sentence. (People v. Coelho (2001) 89 Cal.App.4th 861, 889-890, People v. Fuhrman (1997) 16 Cal.4th 930, 945-946.)

F. Ineffective Assistance of Counsel

Defendant contends that his counsel failed to ask the trial court to reduce his felony conviction to a misdemeanor under section 17, subdivision (b), and that this failure constituted ineffective assistance of counsel. We disagree.

Defendant is incorrect in arguing that counsel failed to make this request. At sentencing, defense counsel informed the trial court that the People had offered defendant a plea bargain reducing one charge to a misdemeanor and dismissing the other in exchange for a sentence of credit for time served. Defense counsel then stated, “That was approximately a month ago. That was after hearing the testimony of the complaining witness. No facts have changed since then. . . . And given that, given that at one point the Prosecutor felt [defendant] had already spent enough custody time, we would ask the Court to consider that an consider a sentence of credit for time served.” Although defense counsel did not refer by name to section 17, subdivision (b) (which authorizes the trial court to reduce “wobbler offenses”), counsel’s meaning here was plain. Defense counsel’s request to consider a sentence of credit for time served would have been understood as including a request that the sentence be reduced to a misdemeanor, the plea bargain counsel had just described to the court. Accordingly, we reject this argument.

IV. DISPOSITION

The judgment is affirmed.

_________________________

Haerle, Acting P.J.

We concur:

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Lambden, J.

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Richman, J.

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