Opinion
H044195
11-28-2017
THE PEOPLE, Plaintiff and Respondent, v. RENE GUERRA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 15CR01664)
The Santa Cruz County District Attorney charged defendant Rene Guerra with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and making criminal threats (§ 422) and alleged that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)) in the commission of the assault. The charges arose out of a December 12, 2015 fight between defendant and his girlfriend's adult son, Javier Flores, during which defendant was armed with a metal garden hoe. A jury convicted defendant of assault with a deadly weapon and found true the special allegation of great bodily injury, but acquitted defendant of making criminal threats. The trial court placed defendant on three years' probation.
All further statutory citations are to the Penal Code unless otherwise indicated. --------
On appeal, defendant raises a claim of instructional error and challenges one of his probation conditions on vagueness and overbreadth grounds. We will affirm.
I. FACTUAL BACKGROUND
Twenty-eight-year-old Flores and his mother, Consuelo Maria Aguilar, live in Watsonville. At the time of the December 12, 2015 fight, defendant, Aguilar's boyfriend of several years, lived with them. A couple of weeks prior to the fight, Aguilar had asked defendant to move out because the two were fighting a lot, but he had not done so.
On the evening of December 12, 2015, Aguilar was out, Flores was watching television in the living room, and defendant was outside drinking with a neighbor, Jorge Diaz. According to Flores, defendant came inside and turned off the television, saying angrily that he paid for everything. Flores responded "that's a lie." Defendant went into his bedroom briefly, went back outside, and returned a minute or so later carrying a garden hoe. The tool had a five- or six-foot long metal handle and a metal blade.
Flores testified that defendant threatened to kill him and swung the garden hoe at his head. As defendant did so, Flores stood up and used his right arm to block the blow. The garden hoe hit him in the right elbow. Defendant took a second swing, which Flores stopped with his left hand. The men struggled over the garden hoe. Defendant threatened to "finish" Flores. Flores turned his body, a move he learned in martial arts training in high school, causing defendant to fall into the side of the sofa. Flores ran outside. His elbow was bleeding and he was in significant pain. The neighbor, Diaz, took him to the hospital.
Defendant testified to his own account of the fight. Defendant said he had four or five drinks with Diaz before going in the house to use the bathroom. Inside, Flores asked defendant angrily, "Didn't my mother tell you to get out of here?" Flores ordered defendant to "leave," to which defendant responded that he paid all the bills. Defendant testified that Flores got off the couch and pushed him. Defendant responded by taking a swing at Flores, who grabbed defendant by the throat so hard that defendant had trouble breathing. Flores released defendant.
Defendant still needed to use the bathroom, but was fearful of Flores, so he went outside to find something he could use to defend himself. He picked up the garden hoe and returned to the house. When defendant reentered the house, Flores got up and moved towards him. Defendant responded by swinging the hoe at Flores. Flores grabbed the hoe and the two fought over it. Flores said he'd been cut; at first, defendant did not believe him. Eventually, Flores got control of the hoe and ran out. Defendant then saw there was blood in the room. He panicked and left the house to stay with a friend. He turned himself in a few days later when he learned the police were looking for him.
Flores had a three-centimeter laceration on his elbow and an open fracture and dislocation of the elbow that required surgery. He was still receiving physical therapy at the time of trial and did not have full range of motion in his elbow.
Both Flores and defendant also testified about a prior fight between them. About four years before the incident involving the garden hoe, Flores and defendant were riding in a car driven by Aguilar. The men began arguing. Flores insulted defendant, who responded by attempting to punch Flores. Flores testified defendant landed a punch on his face; defendant said his seatbelt prevented him from making contact. Aguilar stopped the car and the men got out and fought. Police observed the fist fight and broke it up.
II. PROCEDURAL BACKGROUND
The Santa Cruz County District Attorney charged defendant by information with assault with a deadly weapon (§ 245, subd. (a)(1)) and criminal threats (§ 422). The information included the special allegation that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)) in the commission of the assault.
The case proceeded to a jury trial. After deliberating for two hours, jurors asked whether they needed "unanimous agreement on the first count? (guilty/not guilty)" and whether they needed to consider the criminal threats charge if they convicted defendant of simple assault. The court responded "yes" to each question. After another hour of deliberations, the jury returned with its verdict. Jurors found defendant guilty of assault with a deadly weapon and found true the great bodily injury enhancement. Jurors acquitted defendant of making criminal threats.
At a November 8, 2016 sentencing hearing, the court suspended imposition of sentence and placed defendant on three years' probation. The court imposed various probation conditions, including that defendant serve 270 days in jail and that he not "possess any dangerous or deadly weapons, including knives, firearms, or anything else that might fall within that range."
Defendant timely appealed.
III. DISCUSSION
A. The Trial Court Did Not Prejudicially Err in Refusing to Instruct on Accident
Defendant argues the trial court erred in refusing his request to instruct the jury regarding accident with CALCRIM No. 3404. The requested instruction read: "The defendant is not guilty of Assault with a Deadly Weapon or [the lesser included crime of] Simple Assault if he acted without the intent required for that crime, but acted instead accidentally. You may not find the defendant guilty of Assault with a Deadly Weapon or Simple Assault unless you are convinced beyond a reasonable doubt that he acted with the required intent."
1. Legal Principles
Assault is a general intent crime; it "does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur." (People v. Williams (2001) 26 Cal.4th 779, 788, 790.) "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 against another." (Id. at p. 790.)
A trial court is required to give a requested instruction concerning a defense, such as accident, " 'only if there is substantial evidence to support the defense.' " (In re Christian S. (1994) 7 Cal.4th 768, 783.) " 'Substantial evidence' in this specific context is defined as evidence which is 'sufficient to "deserve consideration by the jury, i.e., 'evidence from which a jury composed of reasonable men could have concluded' " that the particular facts underlying the instruction did exist.' " (People v. Burnham (1986) 176 Cal.App.3d 1134, 1139.) " ' "Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the [defendant]." ' " (People v. Tufunga (1999) 21 Cal.4th 935, 944.) "On appeal, we independently review the court's refusal to instruct on a defense." (People v. Orlosky (2015) 233 Cal.App.4th 257, 270.)
2. Analysis
Defendant contends his testimony was sufficient to support an accident defense because he described an "accidental injury resulting during the struggle over the hoe and not a willful act with a deadly weapon." We disagree with defendant's characterization of his testimony.
Defendant admitted that he did not know how Flores got injured. In fact, initially, defendant did not believe Flores's claim that he was hurt. When asked whether "the blade of the hoe hit" Flores during the struggle, defendant speculated that "must have been it," but reiterated that he did not see Flores get injured. And defendant admitted that he "grabbed the hoe and . . . swung it towards [Flores]." Rather than supporting an accident instruction, defendant's testimony established that he willfully committed the act of swinging a metal hoe at another person.
Even assuming the trial court erred in failing to instruct the jury on accident as a defense to the assault charge, that error was harmless beyond a reasonable doubt. (People v. Salas (2006) 37 Cal.4th 967, 984 [noting court has not determined what test of prejudice applies to the failure to instruct on an affirmative defense and applying Chapman v. California (1967) 386 U.S. 18 beyond a reasonable doubt standard].) Defendant posits that, absent an accident instruction, the jury may have convicted him without determining whether he had the requisite intent. But the court instructed jurors with CALCRIM No. 875, which sets forth the elements of assault with a deadly weapon, including the requirements that the defendant acted "willfully" with awareness "of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone." That instruction further required the jury to find that defendant "did not act in self-defense," which the court defined for jurors by instructing them with CALCRIM No. 3470. The court also instructed the jury with CALCRIM No. 252 that "to find a person guilty of [assault with a deadly weapon] . . . , that person must not only commit the prohibited act, but must do so with wrongful intent." These instructions correctly informed the jury of the requisite intent for assault with a deadly weapon. We presume jurors understood, correlated, and followed those instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Given that presumption, we must reject defendant's theory of prejudice.
B. The Challenged Probation Condition Is Constitutional
The court ordered defendant, as a condition of his probation, not to "possess any dangerous or deadly weapons, including knives, firearms, or anything else that might fall within that range." While defendant did not object to that condition below, he challenges it on appeal as unconstitutionally vague and overbroad.
1 . Legal Principles
A court of appeal may review the constitutionality of a probation condition, even when it has not been challenged in the trial court, if the question can be resolved as a matter of law without reference to the sentencing record. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889 (Sheena K.).) Thus, we can consider facial challenges to the constitutionality of probation conditions not objected to below, as such challenges "do[] not require scrutiny of individual facts and circumstances but instead require[] the review of abstract and generalized legal concepts." (Id. at p. 885.) Our review is de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
"[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' " (Sheena K., supra, 40 Cal.4th at p. 890.) "A probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness." (Ibid.) That is, the defendant must know in advance when he may be in violation of the condition.
"Inherent in the very nature of probation is that probationers 'do not enjoy "the absolute liberty to which every citizen is entitled." ' [Citations.] Just as other punishments for criminal convictions curtail an offender's freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens." (United States v. Knights (2001) 534 U.S. 112, 119.) "[C]onditions infringing on constitutional rights . . . will pass muster if tailored to fit the individual probationer." (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373.) "A restriction is unconstitutionally overbroad, on the other hand, if it (1) 'impinge[s] on constitutional rights,' and (2) is not 'tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.' " (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) Thus, "[t]he essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights." (Ibid.)
2. The Probation Condition Is Not Unconstitutionally Vague
Defendant argues that the probation condition is unconstitutionally vague on its face because the phrase "anything in that range" is ambiguous and does not inform defendant of what items he cannot possess. Defendant requests that the phrase be removed from the probation condition.
"When interpreting a probation condition, we rely on 'context and common sense [citation] and give the condition ' "the meaning that would appear to a reasonable, objective reader." ' " (In re I.S. (2016) 6 Cal.App.5th 517, 525.) In isolation, the phrase "anything in that range" is meaningless. But, here, that phrase appears in the context of a probation condition prohibiting the possession of dangerous or deadly weapons, including knives and firearms. In this context, common sense dictates that the phrase be read as referring to "any dangerous or deadly weapon." " ' "Dangerous or deadly weapon," ' in turn, has an established meaning: it includes both 'inherently deadly items such as dirks and blackjacks which are specifically designed as weapons and are thus "deadly weapons" as a matter of law' and 'other items that are not deadly per se' but that can be used to inflict deadly harm and that a person intends to use 'to inflict, or threaten to inflict,' deadly harm." (Ibid.; see CALCRIM No. 3130 [defining "deadly weapon" for purposes of § 12022.3]; CALCRIM No. 875 [defining "deadly weapon other than a firearm" for purposes of §§ 240, 245 (a)(1)-4, (b)); CALCRIM No. 2503 [defining "deadly weapon" for purposes of § 17500]; CALCRIM No. 511 [defining "dangerous weapon" for purposes of describing Excusable Homicide: Accident in the Heat of Passion]; CALCRIM No. 3145 [defining deadly or dangerous weapon for purposes of §§ 667.61(e)(3), 1192.7(c)(23), 12022(b)(1) & (2), 12022.3].) Because "the phrase 'dangerous or deadly weapon' is clearly established in the law," the probation condition "is sufficiently precise for [defendant] to know what is required of him." (In re R.P. (2009) 176 Cal.App.4th 562, 568.)
3. The Probation Condition Is Not Unconstitutionally Overbroad
Defendant maintains the probation condition's ban on the possession of knives is unconstitutionally overbroad on its face. He contends that "the sweeping order not to possess 'knives' . . . effectively forbids him from entering a restaurant where knives will be present on the table or a friend's home where dinner may be served."
Again, context and common sense refute defendant's interpretation of the probation condition. The condition does not bar defendant from possessing all knives, but only those that qualify as "dangerous or deadly weapons." As discussed above, the phrase "dangerous or deadly weapon" means "any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury." Thus, reasonably interpreted, the condition prohibits only the possession of inherently dangerous or deadly knives and those defendant intends to use in such a way that it is capable of causing and likely to cause death or great bodily injury. Eating utensils possessed and used for their intended purpose fall outside the scope of the condition's properly interpreted prohibition. The condition is sufficiently narrow to satisfy any tailoring requirements in accord with defendant's constitutional rights.
IV. DISPOSITION
The judgment is affirmed.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.