P. v. Lane

Filed 10/19/06 P. v. Lane CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Norm Shapiro, Judge. Affirmed.

PETITION for Writ of Habeas Corpus. Writ denied.

David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Peggie Bradford Tarwater, Deputy Attorneys General for Plaintiff and Respondent.

______________________

In this appeal, Christopher Lane claims the court abused its discretion excluding evidence of the victim’s prior convictions for purposes of impeachment. He also asserts instructional error. In his appeal and in his petition for writ of habeas corpus, he claims he received ineffective assistance of counsel. We affirm the judgment and deny the writ petition.

FACTUAL AND PROCEDURAL SUMMARY

Charles King and appellant were employed by International Services, Inc. as security guards. Between April 3 and April 20, 2004, the two men were assigned to an outdoor Bureau of Sanitation drop-off facility located at 2649 East Washington Boulevard. King worked the 4:45 p.m. to 12:45 a.m. shift, and appellant worked the 12:45 a.m. to 9:15 a.m. shift. Appellant was late in relieving King on six occasions. King made at least one complaint to the company about appellant’s tardiness. Appellant was transferred to a post in Westwood Village; he was told he was being moved because of his consistent tardiness.

On June 1 and 2, 2004, after appellant had been transferred, King was working an 11:45 p.m. to 9:00 a.m. shift at the Washington Boulevard drop-off facility. At approximately 1:35 a.m., just as King was coming out of the outdoor portable bathroom, he saw a Black male wearing a black hooded sweatshirt and dark pants. The man, whom King later identified as appellant, was about 35 feet away, inside the facility’s gate. He pointed a black semiautomatic handgun at King and told him to get down on his knees; King refused. Appellant fired one shot, hitting King in the stomach.

King ran toward the front gate. He crawled under the locked gate and called 911 to report the shooting. As he was making the call, he saw appellant climb over the fence onto Washington Boulevard and head toward Central Way.

Police Officers Arturo Gutierrez and Michael Tilden were on patrol when they heard the radio call of shots fired at 2649 East Washington Boulevard. The call described the assailant as a Black male, approximately 24 years old, wearing dark clothing and a black hooded sweatshirt, last seen running westbound on Washington. As the officers approached the shooting scene, they saw appellant walking quickly on Washington Boulevard. Officer Gutierrez made contact with appellant, who was sweating profusely, appeared to be nervous, and matched the description of the suspect. Appellant told the officer he had gotten off work and gone to a nearby strip club.

Officer Gutierrez contacted an officer at the scene of the shooting for clarification of the suspect’s description. The description was relayed over the radio, within hearing distance of appellant. Appellant then told Officer Gutierrez that as he was leaving the strip club, he heard gunshots and saw a Black male wearing a black hooded sweatshirt with “corn rolls” run south from the strip club and hop a fence.

The officers transported appellant to the shooting scene to have King either identify or eliminate appellant as the shooter. King was in an ambulance, being treated by paramedics. As appellant walked up to the ambulance, King said, “That’s him. Man, why’d you shoot me?” Appellant did not respond.

King was transported to a hospital. A bullet was removed from his stomach, and the wound was closed with staples. His medical records described the wound as superficial.

Appellant was arrested. During a booking search, a .38 caliber bullet was found in appellant’s front shirt pocket. At the station, appellant gave a voluntary oral and written statement to Officer Compton. According to appellant, he took the Rapid Bus to Soto and Washington. He missed his stop and started walking. He saw King, who invited appellant to come in. King asked appellant why he was removed from the post. Appellant said he did not know why. King walked to his bag and got the gun. As soon as he pulled it out, appellant ran towards him and grabbed it. The two wrestled for it, and the gun went off. Appellant panicked and ran through the lot. He took off his hooded sweater and hat and dropped the gun. He climbed the fence and walked down Washington, where he was stopped by the officers.

Appellant told Officer Compton the gun could be found right where he had jumped the fence. Three officers were sent out to find the gun, but it was not where appellant said it would be. Appellant was taken to the location, where he pointed out different areas where the gun should be. After an hour and a half, Officer Gamboa found the gun and the sweatshirt 200 to 250 yards from where appellant said they would be. The gun was a .38 caliber semiautomatic handgun. It was inside a plastic grocery bag which appeared to be folded. The gun magazine, which holds five rounds, contained four live rounds with none in the chamber. The hooded sweatshirt was found approximately three feet from the gun.

Appellant was charged with attempted murder (count one) and assault with a semiautomatic firearm (count two). The jury found appellant not guilty of attempted murder, but guilty of assault with a semiautomatic firearm. The jury found true the allegation that appellant personally used a firearm in the commission of the offense, but found not true the great bodily injury allegation. This is a timely appeal from the judgment of conviction.

DISCUSSION

I

Appellant claims the trial court erred in refusing to allow him to impeach King with a prior felony conviction for attempted robbery. We find no abuse of discretion.

Under article I, section 28, subdivision (f) of the California Constitution, any prior felony conviction of any person may be used without limitation for purposes of impeachment in any criminal proceeding. (See also Evid. Code, § 788.) Even where such evidence is relevant, trial courts retain discretion under Evidence Code section 352 to exclude the evidence if the probative value of the conviction is substantially outweighed by its prejudicial effect. Factors the court should consider are “(1) whether the prior conviction reflects adversely on an individual’s honesty or veracity; (2) the nearness or remoteness in time of a prior conviction; (3) whether the prior conviction is for the same or substantially similar conduct to the charged offense; and (4) what the effect will be if the defendant does not testify out of fear of being prejudiced because of the impeachment by prior convictions.” (People v. Mendoza (2000) 78 Cal.App.4th 918, 925.) When, as in this case, the witness subject to impeachment is not the defendant, the dominant factors are whether the conviction reflects on honesty, and whether it is near in time. (People v. Clair (1992) 2 Cal.4th 629, 654.)

King was convicted of attempted robbery with a deadly weapon in Tennessee in 1975. It was undisputed this was a felony involving moral turpitude. The issue was its remoteness: the conviction was 30 years old. The prior conviction for attempted robbery, committed by King when he was 25 years old, does not bear strongly on his veracity at the age of 55.

“[C]onvictions remote in time are not automatically inadmissible for impeachment purposes. Even a fairly remote prior conviction is admissible if the defendant [or witness] has not led a legally blameless life since the time of the remote prior.” (People v. Mendoza, supra, 78 Cal.App.4th at pp. 925-926.)

Appellant argued that King had not led a legally blameless life since the 1975 prior conviction. In 1986, he suffered a misdemeanor conviction for spousal abuse. In 1992, he was charged with exhibiting a firearm, and pleaded guilty to misdemeanor disturbing the peace. In 2000, King was convicted of misdemeanor driving under the influence. These misdemeanor convictions do not bear directly on King’s honesty or credibility. Nor were they so frequent as to suggest a pattern of conduct which bears on King’s credibility. (See People v. Muldrow (1988) 202 Cal.App.3d 636, 648.) We agree with the trial court’s observation that King had led a legally blameless life “[t]o a large extent.” On this record, we find no abuse of discretion in the court’s conclusion that the probative value of the prior conviction for attempted robbery was outweighed by the danger that its admission would create a substantial danger of confusing the issues or misleading the jury. (Evid. Code, § 352.)

Appellant makes a related argument, that facts relating to the attempted robbery conviction should have been admitted to impeach King as to his knowledge of handguns. According to the prosecutor, the records from Tennessee showed a charge of armed robbery, with a charge description of “carrying pistol, severity, unknown.” The records showed the conviction was for “attempt to commit robbery with a deadly weapon.” At the preliminary hearing, King testified that the weapon appellant used to shoot him was a semiautomatic pistol. Asked about his familiarity with pistols, King said he watched television, and that he never owned or possessed a semiautomatic handgun. At trial, King again testified that he did not know about guns, and that he had never owned, possessed, or had a gun in his hands. Pursuant to Evidence Code section 780, subdivision (i), appellant sought to impeach King with evidence of his exposure to a handgun during the attempted robbery.

At an Evidence Code section 402 hearing following this trial testimony, King testified that in 1975 he was arrested for armed robbery and carrying a pistol. According to King, the person inside his car had a gun; King denied carrying a pistol. He was ultimately convicted of attempt to commit a robbery with a deadly weapon. He was sentenced to one to five years, and served nine months.

King also was asked about his 1992 arrest for exhibiting a firearm and disturbing the peace. He explained that he was “going with” a woman who had a gun in the closet inside her house. The woman told the police that King “pulled the shotgun on her.” According to King, that was not true. The case was resolved with a misdemeanor conviction for disturbing the peace.

The court noted that King’s explanation of these two prior convictions--that in both instances, he did not have a gun--was consistent with his earlier testimony that he did not know about guns and had not handled a gun. More importantly, the court was concerned that the evidence would unduly consume time, and might confuse the issues in the case. The court ruled that evidence of the facts about the prior convictions would not be admitted “at this time” but stated it would reconsider the ruling if at some time during trial there is evidence that King “had a gun on this occasion and he was the one who perhaps pulled it first . . . .”

That evidence was later presented through Officer Compton’s testimony that appellant told police that when he was talking to King at the Washington Boulevard facility, King pulled a gun from his black bag. Appellant said he grabbed the gun, and in the resulting struggle, it went off. Appellant renewed his request for admission of the 1975 and 1992 prior convictions to impeach King’s testimony about his knowledge of guns.

The court denied appellant’s request. The court noted the 1992 incident was not for brandishing, but for disturbing the peace. King’s explanation that he did not brandish a gun was uncontradicted. The incident was remote in time, dissimilar to the facts at issue in the present case, and neither the charged crime nor the conviction involved moral turpitude. Given all these factors, the court excluded evidence of that incident.

Turning to the attempted robbery conviction, the court noted it had “no reason to disbelieve” King’s account that “he and another person attempted to rob a location, and the other person had a weapon, and he went down on that charge.” King’s explanation was uncontradicted, and the crime occurred “so long ago, and, again, under a set of facts that are quite different” from the facts of this case. For these reasons, the court excluded evidence of that conviction.

We find no abuse of discretion in these rulings. The convictions are remote in time. King’s uncontradicted denial of gun possession or use in the two incidents is consistent with his testimony at trial that he did not know about guns, had not handled a gun, and did not own a gun. If appellant were to benefit from evidence of the prior convictions, he would have to refute King’s accounts of these incidents. That could have resulted in a mini-trial of collateral issues which would consume a substantial amount of time and confuse the jury. The trial court did not abuse its discretion in concluding that the probative value of this evidence was outweighed by the risk of undue consumption of time and jury confusion.

II

Appellant claims the trial court erred when it instructed on the inapplicable defense of duress, and failed to instruct on self-defense and accident or misfortune. On appeal, and in a related petition for writ of habeas corpus, appellant also argues that counsel was ineffective for failing to request the proper instructions.

During the discussion of jury instructions, the court noted that evidence of appellant’s statement to the police “suggests an area of” self defense instructions. Defense counsel requested CALIC No. 4.40 on duress; the prosecutor objected. There followed a discussion comparing the burden of proof for duress and necessity. For duress, a defendant must raise a reasonable doubt as to volitional intent, but for the necessity defense, a defendant must prove each of the elements of the defense by a preponderance of the evidence. (See People v. Graham (1976) 57 Cal.App.3d 238, 240.) Given the choice, defense counsel opted for the instruction on duress rather than necessity.

Accordingly, the court instructed in terms of CALJIC No. 4.40 as follows: “[A] person is not guilty of a crime when he engages in conduct otherwise criminal when acting under threats and menaces under the following circumstances, one, where . . . the threats and menaces are such that they would cause a reasonable person to fear that his life would be in immediate danger if he did not engage in the conduct charged, and, two, if this person then actually believed that his life was so endangered. This rule does not apply to threats, menaces, and fear of future danger to his life.”

We agree with appellant that this instruction was not applicable under the facts of the case. The defense of duress “requires that the threat or menace be accompanied by a direct or implied demand that the defendant commit the criminal act charged.” (People v. Steele (1988) 206 Cal.App.3d 703, 706.) Even if appellant’s statement were credited, there is no evidence that King demanded or requested that appellant struggle with him to obtain control of the gun, resulting in a shot being fired at King.

Respondent asserts any error in giving the duress instruction was invited. “When defense counsel makes a ‘”conscious, deliberate tactical choice’” to request an instruction, any error in the giving of the instruction is invited and cannot be raised on appeal.” (People v. Catlin (2001) 26 Cal.4th 81, 150, quoting People v. Wader (1993) 5 Cal.4th 610, 657.) It appears defense counsel in this case made a conscious, tactical choice to request the duress instruction. Counsel and the court discussed the burden of proof for the defense of duress and for the defense of necessity. After clarifying that duress required appellant to establish only a reasonable doubt, whereas necessity required a preponderance of the evidence, defense counsel expressly asked that the court instruct on duress. From this record, we find counsel made a conscious, tactical choice to have the court give the duress instruction, and under the doctrine of invited error, appellant is barred from raising the error on appeal. (People v. Cooper (1991) 53 Cal.3d 771, 827, 831.)

Even if the claim were not barred, we do not find any prejudice from the erroneous instruction. While the evidence fell short of the technical requirement of a direct or implied demand that appellant commit the criminal act, the instruction on duress did not specifically include that requirement. The jury was informed it could find appellant’s conduct was not criminal if it determined that appellant was acting under threats and menace that would cause a reasonable person to fear that his life would be in immediate danger if he did not engage in the conduct charged, and that he actually believed his life was so endangered. The jury could have found the facts met the lay understanding of this instruction--that King pulling a gun out of his bag constituted a threat and menace which reasonably and actually caused appellant to fear that his life would be in immediate danger if he did not get the gun away from King, and that the gun went off during the ensuing struggle to get the gun. Alternatively, the jury could have found the instruction inapplicable under the facts. The jury was properly instructed to “[d]isregard any instruction which applies to facts determined by you not to exist.” In either case, there was no prejudice.

Appellant claims the court should have instructed, sua sponte, on self-defense. A trial court’s duty to instruct on its own initiative 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 defendant’s theory of the case.’” (People v. Barton (1995) 12 Cal.4th 186, 195, quoting People v. Sedeno (1974) 10 Cal.3d 703, 716.)

Appellant did not rely on self-defense, and defense counsel specifically requested that self-defense instructions not be given. The record explicitly shows that this was a tactical decision by defense counsel based on his belief the instructions would be inconsistent with his theory of the case. At the sentencing hearing, the court revisited the instructional decisions made by defense counsel for the record. The court noted that defense counsel requested that self-defense instructions not be given. Defense counsel agreed: “Your honor, just to refresh the record, I think it would be my burden with regards to self-defense instructions not sua sponte and I specifically did not make that request. My sense was [it would] undercut[] my alternative position that I urged on the jury that it was not an attempted murder. My client did not take the stand, which I think when you have a self-defense situation, it’s almost universally the client has to testify. So, that was my reasoning. And I specifically did not request for self-defense.” There was no sua sponte duty to instruct on self-defense, and even if there had been, any error was invited. (See People v. Catlin, supra, 26 Cal.4th at p. 150.)

Appellant also claims the court should have instructed, sua sponte, on accident and misfortune. Penal Code section 26, subdivision five, provides a defense to “[p]ersons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence.” “The accident defense is a claim that the defendant acted without forming the mental state necessary to make his actions a crime.” (People v. Gonzales (1999) 74 Cal.App.4th 382, 390.) The pattern instruction, CALJIC No. 4.45, provides: “When a person commits an act or makes an omission through misfortune or by accident under circumstances that show [no] . . . [criminal intent . . .] . . . [he] . . . does not thereby commit a crime.” We agree this instruction fits the defense theory that as appellant struggled with King, the gun went off. The question is whether its omission was prejudicial.

In finding that appellant personally used a firearm, the jury found that appellant “intentionally displayed a firearm in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it.” This finding of intent is entirely inconsistent with the defense theory that the gun went off during appellant’s struggle with King. Similarly, in finding appellant guilty of assault with a semiautomatic firearm, the jury found appellant intentionally “committed an act which by its nature would probably and directly result in the application of physical force on another person.” The jury resolved the issue which would have been presented by the instruction on misfortune or accident--whether appellant formed the mental state necessary to make his actions a crime.

We find no prejudice from the court’s failure to instruct on accident or misfortune. And in the absence of prejudice, appellant’s claim of ineffective assistance of counsel also fails. (See Strickland v. Washington (1984) 466 U.S. 668, 697.)

III

Appellant claims that under Blakely v. Washington (2004) 542 U.S. 296, imposition of the upper term based on facts that were neither found by the jury nor admitted by him violated his Sixth Amendment right to a jury trial. In People v. Black (2005) 35 Cal.4th 1238, the California Supreme Court held that Blakely does not invalidate California’s upper term sentencing procedure.^[1] For this reason, we reject appellant’s claim.

DISPOSITION

The judgment is affirmed. The petition for writ of heabeas corpus is denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

MANELLA, J. SUZUKAWA, J.

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^[1] The United States Supreme Court has granted a petition for writ of certiorari in Cunningham v. California (No. 05-6551, cert. granted Feb. 21, 2006) to decide whether Blakeley affects California’s upper term sentencing scheme.