P. v. Sanner

Filed 3/22/07 P. v. Sanner CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Allan J. Preckel, Judge. Affirmed.

A jury found defendant Gerald D. Sanner guilty of assault with a deadly weapon, and by means of force likely to produce great bodily injury (count 1, Pen. Code,  245, subd. (a)(1)); and hit and run involving injury (count 2, Veh. Code,  20001, subd. (a), (b)(1)). As to count 1, the jury found true an allegation that Sanner personally used a deadly weapon within the meaning of Penal Code section 1192.7, subdivision (c)(23). The trial court granted Sanner probation on the condition he serve 180 days in jail, stayed for one year.

The sole issue on appeal is whether the court erred by not instructing the jury sua sponte on the defense of mistake of fact, as substantial evidence shows Sanner mistakenly believed he needed to strike the victim with his SUV and to leave the scene immediately to protect himself from being harmed by the victim and his brother-in-law. Sanner contends the court's instructions on self-defense were inadequate because the right of self-defense is limited to the use of reasonable force, and the mistake of fact defense would allow the use of excessive force. We affirm the judgment.

BACKGROUND

Sanner and his wife rented a home in Julian for 30 years. In April 2003, the home went up for auction and Edwin Kelly outbid Sanner for it. Sanner had problems with Kelly as a landlord and he moved out. According to Kelly, Sanner left the home in poor condition and Kelly began calling him "L.D.," meaning "little dick," around Julian.

On the evening of January 12, 2005, Sanner went to the American Legion bar in Julian. Later that evening, Kelly and his brother-in-law, Kenneth Muchet, arrived at the American Legion. The prosecution evidence showed that Sanner told the bartender and another bar patron that Kelly and Muchet were his mortal enemies, and he asked the bartender not to serve them and to eject them. Kelly told Sanner "to get over it," meaning losing the house to Kelly. After exchanging profanities, Sanner left the bar. A few minutes later Kelly and Muchet left the bar to get some tobacco.

Unfortunately, Muchet's pickup truck was parked next to Sanner's SUV. When Kelly and Muchet reached the parking lot, Sanner was sitting in his vehicle. As Kelly began walking between the SUV and the truck on its passenger side, Sanner began backing out of his diagonal parking space. They again exchanged profanities. Sanner then drove forward, striking Kelly and pinning him against the truck. Muchet reached through the window of the SUV and struck Sanner in the head with his fist once or twice, and while his arm was still in the window Sanner backed up the SUV, freeing Kelly. Muchet was thrown to the ground. Sanner drove off and Kelly called 911. Sanner later called 911.

An accident reconstructionist testified the evidence showed Sanner's SUV was accelerating when it struck Muchet's truck, and a large vertical dent on the bed of the truck was consistent with a person being pushed into the truck.

Sanner's defense was that Kelly and Muchet attacked him as he sat in his SUV, and he intentionally struck Kelly with the SUV in fear for his life. The court gave the jury several instructions on the law of self-defense.

DISCUSSION

Sanner contends the judgment must be reversed because the court did not sua sponte instruct the jury on the defense of mistake of fact. Sanner acknowledges he "willingly struck Kelly with his vehicle and willingly left the scene without stopping, providing personal information, or rendering assistance." He asserts, however, that "he did so while harboring the mistaken beliefs that he needed to strike Kelly with the car to protect himself from harm, and needed to leave immediately because if he did not Kelly and Muchet would harm him."

Sanner cites evidence that at the time of trial he was 59 years of age and weighed 155 pounds, and Kelly was 43 years of age and weighed 175 pounds. Sanner also cites the testimony of San Diego County Sheriff Deputy Steven McNamara that Sanner told him after the incident that Kelly "reached through the open driver's window [of Sanner's SUV] and grabbed him and tried to pull him out of the window," and "Muchet started to punch him, striking him in the face several times." Sanner told McNamara "he feared for his life and . . . was trying to leave [the parking lot]. He did not remember exactly what happened, but as he was leaving, he thought that he had struck the pickup truck and possibly . . . Kelly as he was leaving." Sanner also relies on the transcript from his 911 call, in which he stated, "I tried to run over one of them because it was the only way I thought I could get away."

"The Penal Code sets forth the broad outlines of the mistake of fact defense. Section 26 of that code provides: 'All persons are capable of committing crimes except . . . [] . . . [] . . . Persons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent.'  Thus, for example, in a case where a defendant was convicted of murder for shooting his wife, but claimed he honestly believed the gun was not loaded, the trial court erred by refusing to instruct the jury that a person who entertains 'an honest and reasonable belief in the existence of certain facts and circumstances which, if true, would make such act and omission lawful, is not guilty of a crime.' " (In re Jennings(2004) 34 Cal.4th 254, 276, fn. omitted.) "When a person commits an act based on a mistake of fact, his guilt or innocence is determined as if the facts were as he perceived them." (People v. Beardslee (1991) 53 Cal.3d 68, 87.) "If under this assumed state of facts the defendant's actions would not have constituted a crime, the defense applies." (People v. Watkins (1992) 2 Cal.App.4th 589, 594.)

"As a general matter, however, a mistake of fact defense is not available unless the mistake disproves an element of the offense." (In re Jennings, supra, 34 Cal.4th at p. 276.) Sanner points out that the mistake of fact defense may disprove an element of an assault charge. For instance, in People v. Rivera (1984) 157 Cal.App.3d 736, the court explained: "Where a defendant reasonably believes the touching constituting the alleged assault was consensual he cannot be guilty because there is nothing unlawful about the physical contact between the parties. It is not a crime for consenting adults to engage in sexual foreplay privately. Even though assault is a general intent crime, an act committed under a mistake of fact which disproves any criminal intent is not a crime. [Citation.] 'The effect of mistake, of course, is to negate the element of intent.' " (Id.at p. 742, fns. omitted.)

Sanner's theory, however, does not pertain to consent. Rather, it pertains to self- defense, and the court instructed the jury on that theory as follows: "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." (CAJIC No. 5.30, italics added; see also People v. Pinholster (1992) 1 Cal.4th 865, 966 ["any right of self-defense is limited to the use of such force as is reasonable under the circumstances"].)

In arguing the self-defense instructions were inadequate, Sanner explains: "It is true that mistake of fact and self-defense both would require a reasonable and honest belief in the need to defend. But although self-defense requires an honest and reasonable belief in the need to use the amount of force employed, mistake of fact does not require this belief. This is because mistake of fact focuses on and disproves only the element of criminal intent for the charged crime. . . . If the defendant honestly and reasonably believes he is in danger of suffering great bodily harm and engages in an assaultive act based on this belief, he lacks the requisite criminal intent even if he employs more force than a reasonable person might employ to prevent that harm." (Italics added.)

In other words, Sanner seeks to eliminate the reasonable force limitation from the law of self-defense based on a defendant's claim he mistakenly believed he was required to defend himself. He cites no authority for that position, understandably, as it is specious. It would be illogical to allow a defendant to use only reasonable force to defend himself during an assault, but to use excessive force when he merely feared an assault that never occurred.

Moreover, the evidence does not support a mistake of fact instruction. Sanner claims the "mistake of fact theory provided a defense even if the jury found that [he] had not been assaulted" since "the mistake of fact was based on different facts than the self-defense theory, i.e., [a] reasonable belief in the need to prevent an anticipated imminent assault rather than self-defense during an actual assault." The undisputed evidence, however, shows that Sanner began backing his SUV out of his parking space and could have avoided injury or further injury by leaving the scene, but he instead shifted the SUV into drive and struck Kelly. The evidence does not permit a finding he mistakenly believed he could only avoid injury by putting his SUV into drive and striking Kelly.

Further, Sanner testified that both Kelly and Muchet assaulted him before he drove away, belying his current theory that he was entitled to a mistake of fact instruction based on supposed evidence he was not assaulted but merely feared an assault. The court has a duty to instruct sua sponte on a defense only when "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.)

The mistake of fact defense would not disprove an element of the crimes here. Accordingly, the court did not err in its instructions.

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

IRION, J.

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