P. v. Barron

Filed 3/27/07 P. v. Barron CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Edward Eric Barron appeals from the judgment after a jury convicted him of sale of a controlled substance (Health & Saf. Code,  11379, subd. (a)), conspiracy (Pen. Code,  182, subd. (a)(1))^[1], and two counts of assault with a deadly weapon ( 245, subd. (a)(2) with special findings that he personally used a firearm ( 12022.5, subd. (a)(1)). The trial court suspended imposition of sentence and granted probation.

Appellant contends, among other things, that the trial court erred in failing to instruct that pointing a firearm at a person for the sole purpose of intimidation is not an assault. We affirm and conclude there was no instructional error. (People v. Williams (2001) 26 Cal.4th 779, 788-790.)

Facts and Procedural History

On the evening of April 17, 2002, a team of Drug Enforcement Administration (DEA) agents went to appellant's house to arrest him for the March 20, 2002 sale of methamphetamine.^[2] Appellant, his girlfriend Theresa Gonzales, and Robert Garcia were standing in the driveway near the sidewalk.

The officers used a "Trojan Horse maneuver" in which an unmarked car cruised by the house to divert appellant's attention. Appellant saw the car slowly drive by and told Gonzales to go inside. Appellant followed her into the house, put on a sweatshirt, and placed a .38 caliber Smith & Wesson revolver in his waistband.

Appellant went back outside and stood in the driveway with his friend Garcia. A DEA agent drove the decoy car past the house and stopped near the curb to get appellant's attention. Four DEA agents drove up in an unmarked van and stopped in the mouth of the driveway.

The driver of the van, Special Agent Jeffrey Walker, saw appellant raise his sweatshirt and reach for the revolver. Walker yelled, "[H]e's going for his gun. He's going for his gun."

Special Agent Dustin Bloxham opened the van side door, followed by Special Agents Sean Fromson and Toby Byrd. They were dressed in green jump suits and wore bulletproof vests that said "Police" in yellow letters.

Special Agent Bloxham yelled, "Police, let me see your hands." Appellant pointed the revolver at the officers and advanced towards the house. Appellant turned his upper body to face Agent Bloxham and pointed the revolver at him.

Special Agent Toby Byrd yelled, "[P]olice, police, police. . . ."

Special Agent Bloxham fired three shots as appellant backed up the driveway. After the third shot was fired, appellant collapsed on the front porch.

One of the shots struck appellant in the neck, severing his spinal cord. Paramedics found appellant lying face down on top of the revolver. Doctor Roger Bertoldi, a neurologist, testified that the shot to the neck resulted in total paralysis and would have caused appellant to drop the revolver.

At trial, appellant defended on the theory that he thought he was going to be the victim of a gang related drive-by shooting. Defense counsel argued that appellant used the revolver to scare away the van's occupants and that he did not draw or point the revolver at the officers.

CALJIC 9.00

The jury received a standard CALJIC 9.00 instruction on assault. Appellant argues that the trial court erred in not modifying the instruction to state that pointing a firearm for the sole purpose of intimidation is not an assault. The proposed special instruction stated in pertinent part:

"The mere pointing of a firearm at another person is not an assault with a deadly weapon. It must be held in a position where it can be readily used, in circumstances that would lead a reasonable person to realize that as a direct, natural and probable result of this act that physical force would be applied to another person. []  If the circumstances do not show that the person pointing the firearm intended to apply or threaten to apply physical force to another person, then no assault occurred. The pointing of a firearm at another person for the sole purpose of intimidation is not an assault."

The trial court declined to give the special instruction but stated that counsel could argue different hypotheticals and scenarios based on CALJIC 9.00. It found that "the standard CALJIC instructions on assault are adequate to cover the points necessary . . . . []  . . . [] And those elements listed [i]n CALJIC 900 cover the scenario of pointing a gun at another person under circumstances such as are alleged in this case. Some of the language in the defense-proposed instruction . . . is really inaccurate. And that shouldn't be given for those reasons. So I'm not going to give any specials on assault."

In People v. Colantuono (1994) 7 Cal.4th 206, 222, our Supreme Court admonished trial courts not to embellish on the standard jury instructions for assault unless compelled by the peculiar facts of the case. That admonition is apt where, as here, the proposed defense instruction misstates the law.

Appellant's proposed instruction states that pointing a firearm at another for the sole purpose of intimidation is not an assault. Use of a firearm to intimidate someone is brandishing, a lesser related offense. ( 417, subd. (a)(1); People v. Steele (2000) 83 Cal.App.4th 212, 218.) In People v. Valentine (2006) 143 Cal.App.4th 1383, 1387, we held that a defendant has no right to instructions on lesser related offenses even if he requests the instruction and it is supported by substantial evidence. The same principle applies here. The trial court could not instruct on an uncharged lesser related crime such as brandishing unless agreed to by the prosecution. (People v.Birks (1998) 19 Cal.4th 108, 136-137.)^[3]

Appellant's proposed instruction attempts to do indirectly what he cannot do directly. It adds two "non-elements" to assault and requires that the prosecution prove (1) the firearm was not pointed for the sole purpose of intimidation, and (2) that appellant, in pointing the firearm, intended to apply or threaten to apply physical force.

The proposed instruction conflicts with the rule that assault and assault with a deadly weapon are general intent crimes. (People v. Sargent (1999) 19 Cal.4th 1206, 1220.) There is no requirement that defendant, in pointing a firearm, intend to apply or threaten to apply physical force to another person. "[A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force of another." (People v. Williams, supra, 26 Cal.4th at p. 790.)

Appellant claims that CALJIC 9.00 should be modified where the defendant draws a firearm but does not point it at the victim or shoot. A defendant, however, does not have to point the firearm directly at the victim to commit an assault. (People v. Raviart (2001) 93 Cal.App.4th 258, 263.) Holding the weapon in such a way as to enable the defendant to effectively use it can support a finding of intent for purposes of assault. (Ibid.)^[4] In People v. Thompson (1949) 93 Cal.App.2d 780 the defendant pointed a revolver towards two officers, aiming between them and downward. The Court of Appeal held that defendant's actions supported the conviction for two counts of assault with a deadly weapon. "While [the defendant] did not point the gun directly at [the officers/deputies] or either of them, it was in a position to be used instantly." (Id. at p. 782.)

Based on appellant's proposed instruction the prosecution must prove that appellant was not bluffing and did not use the revolver for the sole purpose of intimidating the officers. But that is not the law. (See e.g., People v. Wright (2002) 100 Cal.App.4th 703, 710 [court instructed: " ' "Intimidation, bluffing is really irrelevant " ' " to charge of ADW.]

Appellant claims that the proposed instruction pinpoints a defense theory. A trial court must give a defense pinpoint instruction if it correctly states the law, is not argumentative or duplicative, and is supported by substantial evidence. (People v. Bolden (2002) 29 Cal.4th 515, 558.)

Here the proposed instruction was argumentative, misstated the law, and is not supported by substantial evidence. Appellant argued that he pulled up his sweatshirt to display the revolver as a scare tactic, but did not draw or point the revolver. The evidence, however, was uncontroverted that he drew and pointed the revolver at the officers, as established by the testimony of Special Agents Winkler, Boyd, and Bloxham. Their testimony was corroborated by Santa Paula Police Officer Cordero who saw appellant draw the revolver from his waistband.

Appellant's proposed instruction states that the jury could not convict

unless appellant "intended to apply or threatened to apply physical force to

another person . . . ." This is a misstatement of the law.

"The pivotal question is whether the defendant intended to commit an act likely to result in . . . physical force, not whether he or she intended a specific harm." (People v. Colantuono, supra, 7 Cal.4th at p. 218, fn. omitted.) "In other words, ' [t]he use of the described force is what counts, not the intent with which [the described force] is employed.' [Citation.]'' (Id., at pp. 214-215.) For example, " '[h]olding up a fist in a menacing manner, drawing a sword, or bayonet, presenting a gun at a person who is within its range, have been held to constitute an assault . . . . [A]nyother similar act, accompanied by such circumstances as denote an intention existing at the time, coupled with a present ability of using actual [force] against the person of another, will be considered an assault.' [Citations.]" (Id., at p. 219.)

Assuming, arguendo, that the trial erred in not giving the special instruction, the alleged error was harmless beyond a reasonable doubt. (People v. Flood (1998) 18 Cal.4th 470, 502-504.) The evidence clearly showed that appellant went inside the house, armed himself, and returned to the driveway to confront the decoy car and van. The revolver was loaded with hollow-point bullets and fully operational. Earlier that day, appellant learned that police raids were taking place and told his girlfriend Theresa Gonzales not to worry about it.

When the officers opened the van door and identified themselves, appellant drew the revolver and pointed it at them. Fearing they would be shot, the officers ordered appellant to drop the weapon. Special Agent Bloxham fired the first shot three or four seconds after the van pulled into the driveway. Intent may be proven by circumstantial evidence which in this case was established by the manner in which appellant armed himself, the manner in which he confronted the van and pointed the revolver at the officers, and his refusal to drop the weapon. (See People v. Colantuono, supra, 7 Cal.4th at p. 221, fn. 12.) "[T]he assaultive act, by its nature, subsumes such an intent." (People v. Williams, supra, 26 Cal.4th at p. 786.)

Pinpoint Instructions to Define Elements of Assault

Appellant claims that the CALJIC 9.00 instruction denied him due process and a fair trial because it failed to define the elements of assault based on the particular circumstances of the case. This is a restatement of appellant's earlier arguments. A defendant has no constitutional right to instructions that misstate the law. (See e.g., People v. Rodrigues (1994) 8 Cal.4th 1060, 1135.)

Appellant argues that drawing a revolver to scare away a suspected gang attack is not an assault. People v. Williams, supra, 26 Cal.4th at page 786, makes clear that a defendant's subjective belief regarding the facts is immaterial to whether an assault occurred. (Ibid.) Assault focuses on the nature of the act, not the perpetrator's specific intent. "An assault occurs whenever '[t]he next movement would, at least to all appearance, complete the battery.' [Citation.]" (Ibid.) A defendant who points a firearm at another person is guilty of assault even if he only intended to frighten the person. (Ibid.) Thus, "a defendant who honestly believes that his act was not likely to result in a battery is still guilty of assault if a reasonable person, viewing the facts known to defendant, would find that the act would directly, naturally and probably result in a battery." (Id., at p. 788, fn. 3.)

Appellant complains that the CALJIC 9.00 may have confused the jury because it suggests that recklessness or criminal negligence is a basis for liability. Appellant, however, drew the revolver, pointed it at the officers, and continued to point the revolver in a threatening manner after he was ordered to drop the weapon. It was not a negligent or reckless act.

The jury was instructed that in order to find appellant guilty of assault, it must be proved beyond a reasonable doubt that he "was aware of facts that would lead a reasonable person to realize that as a direct, natural and probable result of his act that physical force be applied to another person . . . ." (CALJIC 9.00, emphasis added.) This instruction precluded the possibility that the jury would convict based on mere recklessness or criminal negligence, i.e., based on "facts [appellant] did not know but should have known." (People v. Williams, supra, 26 Cal.4th at p. 788.)^[5]

CALJIC 2.01 Circumstantial Evidence

Appellant next argues that the trial court erred in not giving CALJIC 2.01 (Sufficiency of Circumstantial Evidence Generally) sua sponte. We conclude there was no instructional error. The jury received a CALJIC 2.02 instruction on the sufficiency of circumstantial evidence to prove mental state. The use notes to CALJIC 2.01 state that "CALJIC 2.01 and CALJIC 2.02 should never be given together. This is because CALJIC 2.01 is inclusive of all issues, including mental state and/or specific intent, whereas CALJIC 2.02 is limited to just mental state and/or specific intent. Therefore, they are alternative instructions. "If the circumstantial evidence relates to other matters as well as specific intent or mental state, CALJIC 2.02 should be Given . . . ." (CALJIC (Fall 2006 ed.) p. 33; see People v. Marshall (1996) 13 Cal.4th 799, 849; People v. Bloyd (1987) 43 Cal.3d 333, 352.)

Here the only element of the offense that rested substantially or entirely on circumstantial evidence is intent. The other elements were established by direct evidence. Appellant, in his opening brief, concedes that the prosecution relied on circumstantial evidence only to prove intent. There is no merit to the argument that the trial court had a sua sponte duty to give CALJIC 2.01, an instruction that would have confused the jury. The alleged instructional error, if any, did not prejudice appellant, deny him due process, or violate his constitutional right to present a defense. (See e.g., People v. Jackson (1996) 13 Cal.4th 1164, 1224 [failure to instruct on circumstantial evidence where there is no sua sponte duty does not violate due process or constitute ineffective assistance of counsel].)

CALJIC 5.51 - Self Defense

Appellant finally argues that the trial court erred in not giving CALJIC 5.51 (self-defense actual danger not necessary). This instruction states that the right of self-defense is the same whether the danger is real or merely apparent, so long as the defendant acts under a reasonable and good faith belief that he is about to suffer bodily injury.

The trial court gave CALJIC 5.30 (self-defense against assault) and CALJIC 5.50 (self-defense assailed person need not retreat). Appellant did not ask for an amplifying instruction and is precluded from arguing, for the first time on appeal, that CALJIC 5.51 should have been given. (People v. Hardy (1992) 2 Cal.4th 86, 153.)

Waiver aside, appellant argues that the trial court had a sua sponte duty to give CALJIC 5.51 based on appellant's belief that a gang related drive-by shooting was about to occur. "As to defenses, such as self-defense, the court must instruct sua sponte only if there is substantial evidence of the defense and the defense is not inconsistent with defendant's theory of the case. (People v. Breverman (1998) 19 Cal.4th 142, 157.)

Here the evidence showed that the officers wore distinctive police clothing, announced their presence, shouted "police" and ordered appellant to drop the handgun. Appellant's friend, Robert Garcia told a detective that he thought it was a police raid. Garcia was standing next to appellant and said that the officers were dressed like SWAT team members, that he thought they were police officers, and that he heard them shout "drop your weapons."

Appellant cites no authority that he had a right to use deadly force to defend himself against officers effectuating a lawful arrest. (See  834a [duty to refrain from resisting arrest].) "The use of violence to overcome reasonable force employed in a lawful arrest is an assault. [Citation.]" (People v. Montiel (1993) 5 Cal.4th 877, 916.) A trial court must give a defense instruction only if it is supported by substantial evidence, that is, evidence sufficient to deserve jury consideration. (People v. Williams (1992) 4 Cal.4th 354, 361.) "[U]nsupported theories should not be presented to the jury. [Citation.]" (People v. Guiton (1993) 4 Cal.4th 1116, 1131.)

In the alternative, appellant asserts that he was denied effective assistance of trial counsel because his attorney did not request a CALJIC 5.51 instruction. On review, we presume that counsel's actions were a matter of sound trial strategy. (People v. Lewis (1990) 50 Cal.3d 262, 288.)

Counsel, as a matter of trial tactics, may have decided to limit the self-defense instructions so as not to undermine the defense theory that appellant did not point the revolver at the officers.^[6] Had the defense requested a CALJIC 5.51 instruction, the trial court would have given CALJIC 5.52 which states that the right to use force in self-defense ends when the danger ceases to appear to exist. Under the facts presented, the right of self-defense ceased when the officers opened the van door and identified themselves.

In People v. Williams, supra, 26 Cal.4th at page 790, our Supreme Court noted that instructional errors in assault cases are largely technical and are unlikely to affect the outcome of most cases because a defendant's knowledge of the relevant factual circumstances is rarely in dispute. That is the case here. The evidence was overwhelming and established that appellant, a drug dealer, resisted a lawful arrest by assaulting the officers with a loaded revolver. Appellant makes no showing that he was prejudiced by the alleged instructional errors or counsel's failure to request other defense instructions. (See e.g., People v. Wims (1997) 10 Cal.4th 293, 315.) The alleged errors were harmless under any standard of review and did not deny appellant a fair trial. (See e.g., People v. Moon (2005) 37 Cal.4th 1, 32.)

Appellant's remaining arguments have been considered and merit no further discussion.

The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, Acting P.J.

We concur:

COFFEE, J.

PERREN, J.

Roland N. Purnell, Judge

Superior Court County of Ventura

______________________________

Susan Pochter Stone, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, Michael J. Wise, Deputy Attorney General, for Plaintiff and Respondent.

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

^[2]Appellant does not challenge his conviction for conspiracy to sell methamphetamine (count 4,  182, subd. (a)(1)) and sale of methamphetamine (count 3; Health & Saf. Code,  11379, subd. (a)).

^[3]Even if we assumed that brandishing is a lesser included offense to assault with a deadly weapon (see People v. Wilson (1967)66 Cal.2d 764, 764), there was no instructional error. Appellant requested that the trial court not instruct on lesser included offenses.

^[4]In dicta, our California Supreme Court has said that "merely" pointing a firearm at someone is sufficient to support a conviction for assault with a deadly weapon. (People v. Bradford (1976) 17 Cal.3d 1, 20.)

^[5]Appellant complains that CALJIC 9.00 states that an assault is "an act which by its nature would probably and directly result in the application of physical force on another person." (CALJIC 9.00, emphasis added.) He argues that "application of physical force" can be broadly defined to include "putting to use" and permits a conviction based on a defendant's use of a firearm merely to intimate another person.

We reject the argument because assault with a firearm is not the same as brandishing. CALJIC 9.00 instructs that in pointing the firearm, the defendant must act "willfully" and must be "aware of facts that would lead a reasonable person to realize that a direct, natural and probable result of this act that physical force would be applied to another person . . . ." Because the phrase "application of physical force" does not have a special meaning, the trial court had no sua sponte duty to define the term. (People v. Rowland (1992) 4 Cal.4th 238, 270-271.)

^[6]In opening statement, defense counsel argued that appellant ran but did not draw the revolver. Counsel stated that Special Agent Bloxham never saw the revolver in appellant's hand

In final argument, counsel argued that the revolver was never pointed at the officers and that appellant ran with "the gun stuck in his waistband." Counsel argued that appellant was shot and fell against the front screen door with his arms up and his hands cupped by his head. "That would put the gun right down there by the screen door, wouldn't it? But it wasn't found there." Counsel opined that the revolver was planted under appellant's body and "what were working with here is nothing but a cover-up from a mistaken shooting."