P. v. John

Filed 3/16/07 P. v. John CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, David M. Mintz, Judge. Affirmed.

Kiana Sloan-Hillier, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.

______________________

I. INTRODUCTION

Defendant, David John John, appeals from his conviction for second degree robbery and the jurors finding that he personally used a deadly weapon. (Pen. Code,^[1] 211.) Defendant admitted that he had previously been convicted of a serious felony and served two prison terms. ( 667, subds. (a)(1), (b)-(i), 667.5, subd. (b), 1170.12.) Defendant argues the trial court improperly: refused to instruct on defense of others; inadequately instructed on robbery; and failed to instruct on imperfect self-defense. Defendant also argues that the jurors committed misconduct.

II. FACTUAL BACKGROUND

We view the evidence in a light most favorable to the judgment. (Jackson v.Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; People v.Osband (1996) 13 Cal.4th 622, 690; Taylor v.Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) At approximately 11:15 a.m. on April 4, 2005, Damian Ochoa was working at the L.A. Center General Merchandise store, which he owned. Mr. Ochoa saw a white truck park in front of the store. Defendant and three women got out of the truck. Defendant and two women came into the store. Defendant went to the rear of the store, where he began looking at mens jeans. The two women began looking at mens boxer shorts and socks. The third woman entered the store a short time later. The third woman, who was barefooted, attempted to try on some tennis shoes. Mr. Ochoa told the woman that she could not try on the shoes until she paid for them. Mr. Ochoa believed the woman might take the shoes without paying for them. Mr. Ochoa asked the woman to leave the store.

Mr. Ochoa then spoke to defendant and the other two women. Mr. Ochoa instructed them to leave the store. Mr. Ochoa said that he would not sell anything to them. Defendant left the store. However, the two women did not follow defendant out of the store immediately. When the two women finally left the store, Mr. Ochoa saw them taking clothing items out of their jackets and placing them in the white truck. Defendant was seated in the drivers seat. The woman who had attempted to try on the shoes was sitting behind him. One woman removed boxer shorts and socks from her jacket. The other woman removed mens Echo and Tommy brand jeans. Mr. Ochoa approached the front passenger door to speak to defendant. Mr. Ochoa demanded the return of his merchandise. Defendant placed his hand on the seat and picked up a gun. Defendant pointed the gun at Mr. Ochoas chest. Mr. Ochoa was standing approximately 15 inches from the right front passenger window. Defendant ordered Mr. Ochoa, Go back to the store. Mr. Ochoa, afraid he was about to be shot, returned to the store. The two women who had been placing merchandise in the truck got inside. Thereafter, the truck quickly drove away. Mr. Ochoa wrote down the trucks license plate number. Mr. Ochoa called the police. When the police arrived, Mr. Ochoa immediately gave them the license plate number. Mr. Ochoa told the Sergeant Guillermo Perez that two pair of pants, two or three packs of boxer shorts, and socks were taken from the store.

On April 10, 2005, Sergeant Cory Brown responded to a radio call at a strip mall. While at the strip mall, Sergeant Brown saw a white truck with a license plate that matched that given by Mr. Ochoa to police. Defendant, who was standing outside the truck, and a woman in the drivers seat averted their eyes as Sergeant Brown approached. Two other women were inside the truck. Thereafter, defendant and the women got out of the truck and walked away. When Sergeant Brown ran a check of the license plate number on the computer, it identified the truck as an armed and dangerous vehicle. Sergeant Brown retreated and summoned assistance. Once other officers arrived, defendant and five women were arrested. Sergeant Brown overheard defendant say something about a gun being inside the truck to one of the women. Defendant had previously identified the truck as belonging to him. A search of the truck revealed a pellet gun under the front passenger seat. A tin of pellets was found in the glove box.

On April 11, 2005, Mr. Ochoa positively identified defendant from a photo lineup. Mr. Ochoa identified the pellet gun, marked as exhibit No. 9, as the same shape and color as the one used by defendant. Mr. Ochoa also identified Tiffany John, indicating she resembled one of the individuals who robbed him.

Defendant testified on his own behalf. Defendant admitted driving to Mr. Ochoas store. Defendant had shopped at Mr. Ochoas store on three or four previous occasions. Defendant drove his own Tahoe truck. Defendant was accompanied by: his wife, Chastity; his sister, Sherry Peres; and, his sister-in-law, Tiffany John. Defendant parked directly in front of the store. Defendant and the three women entered Mr. Ochoas store. Defendant and his sister-in-law were looking at jeans. Meanwhile, Ms. Peres and defendants wife were shopping in the shoe department. Apparently, defendant was attempting to negotiate with Mr. Ochoa over the price of some pants. Defendant testified, [T]hen Im looking for a pair of pants, talking to Ochoa, if you give me a little deal, but wasnt really doing -- like he wasnt in the greatest mood like he normally is with me. Defendant saw his wife leaving the store with something under her jacket. Mr. Ochoa intercepted defendants wife and, before she left the store, grabbed jeans from under her jacket. Mr. Ochoa then instructed defendant to leave the store. Defendant and the three women got into his truck.

As they attempted to leave, Mr. Ochoa opened the passenger door of the truck and attempted to pull his wife out. Ms. John was screaming. Defendant pulled out a pellet gun, which he had underneath the seat for protection. Defendant pointed the gun at Mr. Ochoa. Defendant demanded, [L]eave my wife alone. Mr. Ochoa continued to drag her out of the car. Defendant was afraid for his wife. Defendant dropped the gun down, went around the truck, and begged Mr. Ochoa to let her go. Mr. Ochoa grabbed a pair of socks from Ms. Johns jacket. Defendant had no idea that his wife had a pair of socks in her jacket. Mr. Ochoa ordered them to leave. Defendant drove away. Defendant went to Long Beach to visit his mother in the hospital. Defendants wife passed away that day. Defendant acknowledged that he was previously convicted of attempted murder and commercial burglary. Mr. Ochoa did not strike or hit defendants wife. Rather, Mr. Ochoa held Ms. Johns hand and was trying to drag her out of the truck. Mr. Ochoa did not have any weapons. When cross-examined defendant admitted that he knew that his wife took a pair of jeans. Rather than attempt to address that situation, defendant admitting pulling a gun and pointing it at Mr. Ochoa.

III. DISCUSSION

A. Instructions

1. Defense of others instruction

Defendant argues that the trial court improperly refused to instruct the jury with CALJIC No. 5.32^[2]regarding the defense of others. The proposed defense instruction was premised on the fact that defendant was defending his wife from greater injury. Defense counsel argued that the instruction applied to both the robbery charge and deadly weapon use allegation. In denying the requested instruction, the trial court held: Robbery is a different situation. What the only offense that youre [sic] client is charged with is robbery. And in order for the jury to find that a robbery was committed they would have to find that your client, by means of force or fear, with the specific intent permanently to deprive the victim of the property, took that. Whether his wife was being assaulted or not is legally irrelevant if the jury finds that he took property by force or fear with the intent to permanently to deprive. Defense of others is not a defense to robbery. The trial court further noted that Mr. Ochoa was entitled to use reasonable force to recover his property.

A trial court is obliged to instruct, even without a request, on the general principles of law which relate to the issues presented by the evidence. ( 1093, subd. (f), 1127; People v. Wims (1995) 10 Cal.4th 293, 303; People v.Turner (1990) 50 Cal.3d 668, 690.) When the evidence is minimal and insubstantial, there is no duty to instruct. (People v. Crew (2003) 31 Cal.4th 822, 835; People v.Barton (1995) 12 Cal.4th 186, 196, fn. 5; People v.Bunyard (1988) 45 Cal.3d 1189, 1232-1233.) Here there was no duty to instruct on defense of others.

CALJIC No. 5.32 is a defense against an assault charge. Defendant was not charged with assault in this case. Rather, defendant was charged with robbery and personal deadly weapon use. The California Supreme Court has held: For purposes of aider-abettor liability, the commission of a robbery continues so long as the property taken is being carried away to a place of temporary safety. [Citation.] The act of taking begins when the separation of the victim from his or her property occurs, and it continues through the forcible consummation. [Citation.] (People v. Harris (1994) 9 Cal.4th 407, 421; see also People v. Young (2005) 34 Cal.4th 1149, 1177; People v. Salas (1972) 7 Cal.3d 812, 822.) In People v. Haynes (1998) 61 Cal.App.4th 1282, 1291-1292, our colleagues in the Court of Appeal for the First Appellate District held that when a robber got into a car in the parking lot at the scene of a robbery he had not reached a place of temporary safety. The jury in this case was so instructed. The jurors found the robbery was still in progress at the time defendant pulled the gun as evidenced by their true finding that he personally used a deadly or dangerous weapon in the commission of the charged felony. Therefore, defendant was not entitled to a defense of others instruction. In addition, as the trial court found, Mr. Ochoa was justified in his attempt to retrieve his property. ( 490.5, subds. (f)(1), (f)(2)^[3].) The trial court was not obliged to give the defense of others instruction.

2. Robbery instructions

a. defendants argument

Defendant argues the trial court had a sua sponte duty to instruct the jurors he had the right to defend himself and resist an overly zealous and unprivileged detention and assault of his wife. Defendant reasons that Mr. Ochoas use of force was excessive. Thus defendant argues he was entitled to use force to protect his wife. Defendant asserts the jury should have been instructed his use of force to protect his wife could not serve as the basis for finding the requisite force or fear to support a robbery verdict.

b. waiver

This issue has been forfeited. The sua sponte duty to instruct exists only as to the general principles of law closely connected with the case. There is no sua sponte duty to give so-called pinpoint instructions. (People v. Rogers (2006) 39 Cal.4th 826, 877-878 [provocation inadequate to reduce a killing from murder to manslaughter nonetheless may suffice to negate premeditation and deliberation]; People v. Bolden (2002) 29 Cal.4th 515, 555 [theft as the motive for the application of force in a robbery case]; People v. Silva (2001) 25 Cal.4th 345, 371 [after formed intent for robbery]; People v. Castillo (1997) 16 Cal.4th 1009, 1014, fn. 2 [no sua sponte duty to give a pinpoint instruction relating voluntary intoxication to premeditation and deliberation where jury was fully instructed on first degree premeditated murder and also instructed that the requisite mental states would be defined elsewhere in these instructions].) Defendants proposed instruction, posited for the first time on appeal, was not a general principle of law but more in the nature of a pinpoint instruction for which there is no sua sponte duty to instruct. If there is no sua sponte duty to instruct, as is the case here, under California law in order to preserve any issues, a request for an instruction must be interposed. (People v.Padilla (1995) 11 Cal.4th 891, 971, disapproved on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 [failure to request a particular instruction where there is no sua sponte duty to instruct waived due process contention]; People v.Hawkins (1995) 10 Cal.4th 920, 952, overruled on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89 [since there was no sua sponte duty to instruct, instructional error issue waived on appeal].) This issue is waived.

c. the trial court properly instructed the jurors

Defendant acknowledges that robbery is a continuing offense until the perpetrator reaches a place of temporary safety. Defendant further agrees that a merchant, such as Mr. Ochoa, may attempt to regain possession of property. However, defendant argues, [T]his assumes that the property owner or merchant acts reasonably and uses only reasonable force in attempting to detain the thief and regain his property. Defendant continues, [T]he suspected shoplifter necessarily has a right to defend himself or others with reasonable force when an over-zealous shopkeeper or his agent goes beyond the bounds of reason and commits an unprivileged assault and that the jury must be so instructed.

Defendant relies on People v. White (1980) 101 Cal.App.3d 161, 166-169, to support his argument. In White, the Court of Appeal held the jury should have been instructed on excessive force and self-defense where the defendant was found to be justified in resisting the unreasonable force used by an arresting officer. In this case, defendant was neither pursued by an officer nor subjected to excessive force. Rather, Mr. Ochoas attempts to recover his property were reasonable. It was defendants response that was unreasonable. Defendant pointed a gun directly at Mr. Ochoa and threatened him. Defendants use of force likely to cause great bodily injury would have been authorized only in response to force that was either deadly or likely to cause great bodily injury. (See People v. Pinholster (1992) 1 Cal.4th 865, 966 [The right of self-defense did not provide defendant with any justification or excuse for using deadly force to repel a nonlethal attack]; People v. Clark (1982) 130 Cal.App.3d 371, 380.) Moreover, defendants reliance on People v. Estes (1983) 147 Cal.App.3d 23, 28, is likewise unavailing. In Estes, the Court of Appeal held, Whether defendant used force to gain original possession of the property or to resist attempts to retake the stolen property, force was applied . . . in furtherance of the robbery and can properly be used to sustain the conviction. (Ibid.; see Miller v. Superior Court (2004) 115 Cal.App.4th 216, 224.) The trial court was not obliged to instruct the jurors as argued by defendant. No pertinent issue was withdrawn from the jurors consideration.

d. harmless error

Even if the trial court should have instructed the jury on self-defense, the failure was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 22; People v. Carter (2003) 30 Cal.4th 1166, 1221-1222; People v. Ervin (2000) 22 Cal.4th 48, 91.) By his own testimony, defendant knew of his wifes attempt to steal merchandise. In addition, defendant admittedly drew the gun and pointed it at Mr. Ochoa. This occurred when Mr. Ochoa attempted to recover the stolen merchandise. Even if the self-defense instruction were given, Mr. Ochoas acts would not rise to a level justifying the use of force employed by defendant.

e. counsel was not ineffective

Defendant argues defense counsel was ineffective for failing to request a use of force instruction. This contention is without merit. The Supreme Court has held: A defendant claiming ineffective representation bears the burden of proving by a preponderance of the evidence both (1) that counsels performance was deficient, i.e., that the representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsels unprofessional errors, the result would have been more favorable to defendant, i.e., a probability sufficient to undermine confidence in the outcome. [Citations.] (In re Ross (1995) 10 Cal.4th 184, 201; see also Strickland v. Washington (1984) 466 U.S. 668, 688, 694.) First, as to whether the representation was deficient, the California Supreme Court has held that a reasonable attorney may have tactical reasons for not requesting an instruction where the risk is outweighed by the benefits it might provide. (People v. Maury (2003) 30 Cal.4th 342, 394; People v. Hawkins, supra, 10 Cal.4th at p. 942; People v. Griggs (2003) 110 Cal.App.4th 1137, 1141.) Second, as to the reasonable probability of a different result, having found no prejudice in the omission of the instruction, we reject the ineffective assistance of counsel claim.

3. Imperfect self-defense

Defendant argues that the trial court should have instructed the jury on imperfect self-defense. Defendant acknowledges that the doctrine of imperfect self- defense had traditionally been applied to murder to negate malice aforethought. However, defendant argues that the doctrine has been extended to non-homicide cases. Defendant also argues that the doctrine extends to the defense of others. Defendant then reasons that the trial court had a sua sponte duty to instruct the jury that he could not be guilty of robbery if he honestly but mistakenly believed that excessive force was being used on his wife. We disagree.

The California Supreme Court recently rejected such a notion: We . . . have reaffirmed [the] doctrine [of imperfect self-defense] but have cautioned that it is narrow and will apply only when the defendant has an actual belief in the need for self-defense and only when the defendant fears immediate harm that must be instantly dealt with. [Citation.] We have explained further that imperfect self-defense is not a true defense; it is rather a shorthand description of one form of the crime of voluntary manslaughter. (People v. Barton (1995) 12 Cal.4th 186, 200.) Thus, a trial courts duty to instruct on this theory arises whenever the evidence is such that a jury could reasonably conclude that the defendant killed the victim in the unreasonable but good faith belief in having to act in self-defense. [Citation.] (People v. Rogers (2006) 39 Cal.4th 826, 883, original italics, quoting People v. Barton, supra, 12 Cal.4th at p. 201; see also People v. Bacigalupo (1991) 1 Cal.4th 103, 126-127, fn 4.) The trial court had no duty to instruct the jury on the imperfect self-defense doctrine in the context of a robbery and deadly weapon use prosecution.

B. Alleged Juror Misconduct

1. Factual background

Defendant was found guilty and was sentenced on August 4, 2005. On August 8, 2005, after defendant was sentenced to prison, juror No. 7 appeared in the trial court in order to discuss the jury deliberations in this case. Juror No. 7 did not take the witness stand and no oath was administered. Juror No. 7 complained about another juror, who owned a medical clinic. The other juror had commented that he made a decision on the case prior to the defense testimony. Once the deliberations began, that same juror immediately asked for a vote, indicating defendant was guilty. Other jurors then joined this individual. Juror No. 7 claimed he attempted to ask a question of the court about whether there were materials in the car. Juror No. 7 said the jury foreman attempted to alter the question. Other jurors indicated that there was no use in sending such a question to the trial court. Juror No. 7 persisted. A written inquiry was sent to the trial court. The question was returned by the trial court. Thereupon, the jury foreperson would not revise it as the trial court had requested. Juror No. 7 made the modifications in the question. Once the trial court responded, the jurors did not want to review the answers. Juror No. 7 believed that the other jurors were snipping at him. Juror No. 7 ultimately voted guilty despite a lack of conviction that defendant was guilty. The jury foreperson also refused Juror No. 7s request that part of the testimony be read back. Juror No. 7 complained: [T]hey seemed to show more concern about whether he killed his wife or not. They werent as concerned about the cause how she died or whether he killed her than they were about the facts that were presented in the case.

2. Waiver

The California Supreme Court has held that a failure to object to jury misconduct or request a mistrial constitutes a waiver of the issue on appeal. (People v. Stanley (2006) 39 Cal.4th 913, 950; People v. Billings (1981) 124 Cal.App.3d 422, 433, overruled on other grounds in People v. Karis (1988) 46 Cal.3d 612, 642.) Defendant took no action following the interview with Juror No. 7 on August 8, 2005. Defendants failure prior to the August 8, 2005 hearing or thereafter to take any question amounts to a waiver of the issue here.

IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

ARMSTRONG, J.

MOSK, J.

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

^[2] CALJIC No. 5.32 provides: It is lawful for a person who, as a reasonable person, has grounds for believing and does believe that bodily injury is about to be inflicted upon [another person] [to] protect that individual from attack. [] In doing so, [he] [she] may use all force and means which that person 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.

^[3] Section 490.5 provides in pertinent part: (f)(1) A merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchants premises. [] . . . [] (2) In making the detention a merchant . . . may use a reasonable amount of nondeadly force necessary to protect himself or herself and to prevent escape of the person detained or the loss of tangible or intangible property.