Opinion
C076181
05-16-2018
THE PEOPLE, Plaintiff and Respondent, v. CHARLES DANIEL HUBBARD, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13F04534)
A jury found defendant Charles Daniel Hubbard guilty of carjacking (Pen. Code, § 215, subd. (a); count 1), assault with a firearm (§ 245, subd. (a)(2); count 2), and being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 3), and found defendant personally used a firearm in the commission of the carjacking (former § 12022.53, subd. (b)) and the assault (former § 12022.5, subds. (a) & (d)). Sentenced to 15 years 8 months in state prison, defendant appeals, contending that the jury's true finding on the firearm-use enhancements and his conviction for assault with a firearm are not supported by substantial evidence. He also asserts that his trial counsel was ineffective in failing to request an instruction on being armed with a firearm as a "lesser included enhancement" of personal use, the trial court prejudicially erred in instructing the jury, and section 29800 violates the Second Amendment.
Further unspecified statutory references are to the Penal Code.
Defendant was sentenced to five years (the middle term) on count 1, plus a consecutive 10 years on the firearm enhancement, and a consecutive eight months (one-third of the middle term) on count 3. Defendant's sentence on count 2 was stayed pursuant to section 654.
In an unpublished opinion filed April 25, 2017, we concluded that none of defendant's contentions had merit and affirmed the judgment. The California Supreme Court denied review on July 19, 2017, and we issued the remittitur on July 21, 2017. Defendant filed a petition for writ of certiorari in the United States Supreme Court on October 23, 2017, which was denied on January 8, 2018. Meanwhile, on December 28, 2017, defendant filed a motion to recall the remittitur with this court so that the case can be remanded to the trial court to consider whether to strike the former section 12022.53 and 12022.5 enhancements based on recent amendments to those code sections. On February 21, 2018, we granted defendant's motion, vacated the decision filed on April 25, 2017, and reinstated the appeal. Having done so, we shall conclude that remand is appropriate so that the trial court can determine in the first instance whether to exercise its new statutory discretion to strike the firearm enhancements, and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
"In light of the sufficiency of the evidence contentions that follow, we set forth the facts here in the light most favorable to the judgment." (People v. Lee (2011) 51 Cal.4th 620, 625, fn. 5.)
At approximately 1:00 a.m. on July 19, 2013, S. S. stopped at the Quik Stop on Antelope Road to get gas for his minivan. He left the keys in the ignition while he pumped the gas. As he was holding the gas nozzle, an African-American man, later identified as defendant, came around the front of the van with a hood on and said something like, "sorry I got to be the one to let you know but, . . . it is whatever it is" and then "let [S.S.] see a small part of . . . some gun on [his] waist . . . ." S. S. understood defendant's words and actions to mean that defendant was going to take his van. When S. S. first saw the gun, he put his hands up. While S. S.'s hands were raised, defendant pulled the gun out of his waistband and held it in his hand. Defendant took the gun out as he and S. S. were standing next to one another, and as defendant was about to get into the van. S. S. never saw defendant point the gun at him. S. S. tried to cooperate without looking at defendant because he did not want to get shot. While S. S. had his hands up, defendant told him to remove the nozzle and "bounce." After S. S. removed the nozzle, he took off running towards the Quik Stop store, and defendant drove off in the van.
S. S. called 911 and told the dispatch operator that "somebody just took my van at gunpoint . . . ." When asked by the operator whether the man who took the van "pulled a gun on you," S. S. responded, "Yeah." S. S. gave the operator a description of the van and its license plate number.
Officers responding to the dispatch call spotted the van and pulled it over. Defendant was driving the van. Officers found a handgun on the floor behind the front passenger seat. There was a live round of ammunition in the gun, and a magazine clip with ammunition lying next to the gun.
In telephone calls made by defendant from the jail, he admitted stealing the van but said he "didn't jack no mother fuckin' body" and that he believed the gun belonged to whomever owned the van.
DISCUSSION
I
The Firearm-use Enhancements Are Supported by Substantial Evidence
Defendant first contends that the true findings on the firearm-use enhancements connected to counts 1 and 2 must be vacated because there is no substantial evidence that he "personally used a firearm as opposed to merely being armed with it." We disagree.
We review claims of insufficient evidence under the substantial evidence standard, construing the evidence most favorably to the judgment and presuming in support of the court's findings the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 294.) If, applying this standard, we find sufficient substantial evidence—that is, evidence which is reasonable, credible, and of solid value—to support the judgment, we may not reverse merely because another finding from the evidence was possible. (Id. at pp. 294-295.) "A jury's finding will not be reversed unless it is clearly shown that under no hypothesis is there sufficient evidence to support it." (People v. Mendez (2010) 188 Cal.App.4th 47, 59).
In order to find the firearm enhancement allegations true, the jury had to conclude that during the commission of the crimes defendant displayed a firearm in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it. (§§ 12022.5, subds. (a) & (d), 12022.53, subd. (b), 1203.06, subd. (b)(2); see People v. Johnson (1995) 38 Cal.App.4th 1315, 1319; People v. Cory (1984) 157 Cal.App.3d 1094, 1104.) The jury was so instructed.
To support such a finding, the evidence requires "something more than merely being armed." (People v. Chambers (1972) 7 Cal.3d 666, 672.) "Although the use of a firearm connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies." (Ibid.) On the other hand, the " 'passive display' " of a weapon is not sufficient evidence where "the exposure was not an act in furtherance of the crime, but a mere incident of possession." (People v. Granado (1996) 49 Cal.App.4th 317, 324, fn. omitted (Granado).) "[A] finding of weapon use is precluded if the defendant's conduct with respect to the weapon appears to be purely incidental to the crime." (Ibid.) However, "if the defendant is found on substantial evidence to have displayed a firearm in order to facilitate the commission of an underlying crime, a use of the gun has occurred both as a matter of plain English and of carrying out the intent of section 12022.5 [subdivision] (a). Thus when a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure." (Id. at p. 325.)
Drawing all reasonable inferences and deductions from the evidence as we must, we have no trouble concluding that substantial evidence supports the jury's findings that defendant personally used a firearm in the commission of the carjacking and the assault. S. S. testified that when defendant approached him and said something like, "sorry I got to be the one to let you know but, . . . it is whatever it is," which S. S. understood to mean defendant was taking his van, defendant then "let [S. S.] see a small part of . . . some gun on [his] waist . . . ." Indeed, when S. S. first saw the gun, he put his hands up and minutes later told the 911 operator that his van was taken at gunpoint. The jury reasonably could have inferred that by "let[ing] [S. S.] see" that he had a gun, defendant engaged in "a deliberate display, intended to convey menace, for the purpose of advancing the commission of the offense." (Granado, supra, 49 Cal.App.4th at p. 325.) This suffices to establish "use" within the meaning of sections 12022.5 and 12022.53.
Contrary to defendant's assertion, the evidence does not simply establish that S. S. "noticed part of a gun protruding from [defendant's] pants when [defendant] came up and said he would be taking the van." S.S.'s testimony that defendant "let [him] see" the gun, suggests that defendant took some action with respect to the gun, which distinguishes this case from those involving the "passive display" of a weapon. (See Granado, supra, 49 Cal.App.4th at p. 324-325, fns. 7 & 8.)
The firearm-use enhancements are supported by substantial evidence.
II
Defendant Failed to Establish That He Was Prejudiced by His Trial Counsel's Failure to
Request an Instruction on the "Lesser Included Enhancement" of Being Armed with a
Firearm
Defendant next contends that his trial counsel was ineffective because he did not request the trial court to instruct the jury with being armed with a firearm (§ 12022, subd. (a)) as a "lesser included enhancement" of personal use. Again, we disagree.
To prevail on a claim of ineffective assistance of counsel, defendant must establish by a preponderance of evidence that counsel's performance was deficient, i.e., fell below an objective standard of reasonableness under prevailing professional norms, and that the substandard representation prejudiced defendant, i.e., there is a reasonable probability that defendant would have obtained a better result, but for counsel's deficiency. (Strickland v. Washington (1984) 466 U.S. 668, 687 ; People v. Mai (2013) 57 Cal.4th 986, 1009; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." (Strickland, supra, 466 U.S. at p. 697.)
Here, we need not consider whether defendant established that counsel's performance was deficient because he failed to show that there is a reasonable probability that he would have obtained a better result but for the alleged deficiency. Defendant contends that "[S. S.]'s testimony was extremely weak proof that [defendant] ever did anything facilitative with the gun." Not so. As previously discussed, S. S. testified that defendant "let [him] see" the gun while informing him that he was going to take the van. That testimony went unchallenged. Moreover, minutes later when S. S. telephoned 911, he reported that someone had just taken his van at gunpoint. Such evidence connotes an act on the part of defendant and is inconsistent with a finding that the gun was or became visible as an incident of possession, or of other circumstances unconnected with the commission of the crimes. (Granado, supra, 49 Cal.App.4th at p. 325, fn. 8.) On the record before us, it is not reasonably probable that the jury would have found defendant was armed, but did not use, the gun in the commission of the crimes had the trial court instructed them on the "lesser included enhancement" of being armed. Accordingly, defendant's ineffective assistance of counsel claim fails.
III
The Trial Court Had No Sua Sponte Duty to Instruct on the "Lesser Included
Enhancement" of Being Armed with a Firearm
Defendant also asserts that the trial court should have instructed the jury sua sponte on being armed with a firearm because it is a "lesser included enhancement" of personally using a firearm. Defendant acknowledges that our Supreme Court has held that trial courts are not required to instruct sua sponte on "lesser included enhancements." (People v. Majors (1998) 18 Cal.4th 385, 410-411.) In order to preserve the issue for further review, defendant contends that Majors was wrongly decided, and that the trial court had a duty to instruct sua sponte on being armed with a firearm as a "lesser enhancement." We are, of course, bound by Majors (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and therefore conclude that the trial court did not err by failing to instruct the jury sua sponte on being armed with a firearm.
IV
The Trial Court Did Not Err in Providing the Jury with a Common Dictionary Definition
of the Word "Menacing"
Defendant next contends that the trial court prejudicially erred in instructing the jury "with a dictionary definition of the word 'menacing' that allowed the jury to find the [firearm-use] enhancement true based on a passive display of the firearm." We are not persuaded.
"In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights. In making this determination we consider the specific language under challenge and, if necessary, the instructions as a whole." (People v. Andrade (2000) 85 Cal.App.4th 579, 585.)
Here, the jury was instructed in the language of CALCRIM No. 3146 (Personally Used Firearm) in pertinent part as follows: "Someone . . . personally uses a firearm if he intentionally does any of the following: One, displays the weapon in a menacing manner. Two, hits someone with the weapon, or, three, fires the weapon."
During deliberations, the jury informed the trial court that it had reached a verdict on count 3, and the charges underlying counts 1 and 2, but that it could not agree on the firearm enhancement allegations attached to counts 1 and 2. The trial court took the jury's verdict on count 3 and directed the jury to continue deliberating on the enhancement allegations. Thereafter, the jury asked the court for a "legal definition of the term 'menacing' . . . and or have the judges [sic] help w/wording that is written in the law as we need to make a [sic] informed decision on this case." The trial court responded by referring the jury "to instruction 200 which advises you that 'words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings. Please ask if you need help with the definition of the word 'menacing.' " Later that day, the jury asked the court for the definition of the word "menacing." Over defendant's objection, the trial court instructed the jury that "[t]he definition of the word 'menacing' is: [¶] Threatening or suggesting the presence of danger."
Defendant takes issue with the "suggesting the presence of danger" language, arguing that "all guns carried openly, whether by police officers or by citizens with permits suggest the presence of danger," and thus, the language permitted the jury "to find the enhancements true because of mere visibility or passive display." We disagree.
As a preliminary matter, there was nothing inherently wrong with the trial court's use of a common dictionary definition. (People v. Whitlock (2003) 113 Cal.App.4th 456, 462 ["To ascertain the common meaning of a word, 'a court typically looks to dictionaries.' "].) Turning to the content of the instructions, the jury was instructed in pertinent part that "[s]omeone . . . personally uses a firearm if he intentionally . . . displays the weapon in a menacing manner," and that the word "menacing" means "[t]hreatening or suggesting the presence of danger." When the instructions are considered as a whole, it is clear that something beyond merely "displaying" the firearm was required; otherwise, the phrase "in a menacing manner" would be superfluous. No juror reasonably could conclude that he or she could "find the enhancements true because of mere visibility or passive display" of the firearm. Accordingly, the trial court did not err in instructing the jury on the meaning of the term "menacing."
V
Defendant's Conviction for Assault with a Firearm Is Supported by Substantial Evidence
Defendant contends there is insufficient evidence to support his conviction for assault with a firearm on S. S. because "he never pointed the gun at [S. S.]" and did "not handle the gun or pull it out of his pants until he was turning away from [S. S.] to get into the van." We are not persuaded.
"An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) Assault requires the willful commission of an act that by its nature will probably and directly result in injury to another (i.e., a battery), and with knowledge of the facts sufficient to establish that the act by its nature will probably and directly result in such injury. (People v. Williams (2001) 26 Cal.4th 779, 782.) "Assault with a deadly weapon can be committed by pointing a gun at another person [citation], but it is not necessary to actually point the gun directly at the other person to commit the crime." (People v. Raviart (2001) 93 Cal.App.4th 258, 263.) "The drawing of a weapon is generally evidence of an intention to use it." (People v. McMakin (1857) 8 Cal. 547, 549 (McMakin).)
In McMakin, the defendant threatened to shoot the victim if he did not leave a parcel of property, at the same time drawing a revolver, with the gun pointed such that the bullet would strike the ground before it reached the victim if fired. (McMakin, supra, 8 Cal. at p. 547.) In affirming defendant's conviction for assault, the court explained, "The ability to commit the offense was clear. Holding 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. So any other similar act, accompanied by such circumstances as denote an intention existing at the time, coupled with a present ability of using actual violence against the person of another, will be considered an assault." (Id. at p. 548.) The court noted there need not be a direct attempt at violence, and that where "preparations are actually made, and weapons drawn, and placed in a position to be instantly used offensively, and with effect, against another, and not in self defense, it would seem to be clear that the offense would be complete." (Ibid.)
Here, defendant displayed a loaded gun as he approached S. S. and told him that he intended to take his van. S. S. immediately put his hands up. Thereafter, defendant pulled the gun out of his waistband and held it in his hand.
On this record, the jury reasonably could find that defendant's words coupled with the display of the gun constituted an implied threat that he would shoot S. S. if S. S. did not give up the van, defendant had the present ability to inflict a violent injury on S. S., and defendant's act would probably and directly result in such injury. (See People v. Escobar (1992) 11 Cal.App.4th 502, 503 [evidence sufficient to support conviction for assault with a firearm where victim, who was standing in front of defendant, heard defendant cock a gun that he had concealed inside a briefcase].) Defendant's conviction for assault with a firearm is supported by substantial evidence.
VI
Section 29800 Does Not Violate the Second Amendment
Finally, relying on the United States Supreme Court's decision in District of Columbia v. Heller (2008) 554 U.S. 570 (Heller), defendant contends that his possession of a firearm was protected by the Second Amendment, and therefore his conviction for being a felon in possession of a firearm violates the Second Amendment. He argues that section 29800 violates the Second Amendment on its face. It does not.
"A facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measure itself, not its application to the particular circumstances of an individual." (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.) "If a statute is constitutional in its general and ordinary application, the statute is not facially unconstitutional merely because 'there might be some instances in which application of the law might improperly impinge upon constitutional rights.' " (People v. Mitchell (2012) 209 Cal.App.4th 1364, 1373, quoting American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 347.)
The Second Amendment provides: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." (U.S. Const., 2d Amend.) In Heller, the high court evaluated the meaning of the Second Amendment, and concluded the constitutional right to possess firearms was not limited to possession for military use and included an individual's right to possess firearms in the home for self-defense. (Heller, supra, 554 U.S. at pp. 571-574, 591, 634-636.) But the court stated, "[l]ike most rights, the right secured by the Second Amendment is not unlimited." (Id. at p. 626.) In particular, the court specifically noted that "nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places . . . ." (Id. at pp. 626.)
In McDonald v. City of Chicago (2010) 561 U.S. 742 , the court held the Second Amendment right is applicable to the states through the due process clause of the Fourteenth Amendment, but " 'repeat [ed] [its] assurances' that 'the right to keep and bear arms is not "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose" ' " and reiterated "that its holding 'did not cast doubt on such longstanding regulatory measures as "prohibitions on the possession of firearms by felons and the mentally ill . . . ." ' (McDonald, supra, 561 U.S. at p. [786], quoting Heller, supra, 554 U.S. at p. 626.)" (People v. Jason K. (2010) 188 Cal.App.4th 1545, 1555.)
Defendant attempts to minimize the impact of this language by dismissing it as dicta. As have other courts, we construe the Heller language not as dicta, but as a limitation on Heller's holding that individuals have a right to possess weapons under the Second Amendment of the federal Constitution. (See, e.g., United States v. Huet (3d Cir. 2012) 665 F.3d 588, 600, fn. 11; United States v. Rozier (11th Cir. 2010) 598 F.3d 768, 771, fn. 6; and United States v. Vongxay (9th Cir. 2010) 594 F.3d 1111, 1115.) In any event, whether dictum or not, Heller's declaration of presumptively lawful prohibitions comes in a United States Supreme Court decision and must therefore be taken seriously in every Second Amendment case to which it might be relevant. (See United States v. Marzzarella (3d Cir. 2010) 614 F.3d 85, 90, fn. 5; see also United States v. Serawop (10th Cir. 2007) 505 F.3d 1112, 1122 ["[W]e are ' "bound by Supreme Court dicta almost as firmly as by the Court's outright holdings, particularly when the dicta is recent and not enfeebled by later statements." ' "].) Heller's phrase "nothing in [its] opinion should be taken to cast doubt" (Heller, supra, 554 U.S. at p. 626) is strongly worded and leaves no room for defendant's argument that the exceptions Heller recognizes for certain traditional firearms regulations are inconsistent with the rest of the opinion.
California cases have followed the same approach. In People v. Delacy (2011) 192 Cal.App.4th 1481 (Delacy), the First Appellate District, Division One, upheld the defendant's convictions for unlawful firearm and ammunition possession where the firearms and ammunition were found during probation searches of the defendant's home. (Id. at p. 1486.) There, the defendant challenged the constitutionality of former section 12021, subdivision (c)(1), which prohibited the possession of firearms by persons convicted of specified misdemeanors. (Delacy, at p. 1488.) The court explained, "there is a significant difference between the D.C. handgun ban and [former] section 12021. The D.C. statute was one of general application that did not fit within the traditional regulations described by Heller as 'presumptively lawful.' [Citation.] In contrast, as [People v.] Flores [(2008) 169 Cal.App.4th 568] held, [former] section 12021 is analogous to a prohibition on felon weapon possession, a type of restriction expressly listed by Heller as untouched by its holding. Relying on this reasoning, both California and federal decisions have upheld the type of 'presumptively lawful' regulations identified in Heller, including prohibitions on firearm possession by certain 'disqualified' persons, without applying constitutional scrutiny that balances the objectives of the statute against the means used to accomplish those ends." (Id. at p. 1489.)
Because defendant's conduct falls outside the scope of the Second Amendment's protection, we need not balance the objectives of the statute against the means used to accomplish those ends. (Delacy, supra, 192 Cal.App.4th at p. 1489.) Like the Delacy court, we conclude Heller did not "intend[] to open felon-in-possession prohibitions and similar categorical weapons possession bans to constitutional means-end scrutiny. On the contrary, following virtually all other federal and California appellate courts, we read Heller's 'presumptively lawful' language to do just the opposite." (Delacy, at pp. 1491-1492.)
VII
The Trial Court May Exercise Its Discretion to Strike the Firearm Enhancements
At the time of defendant's sentencing, firearm enhancements under former sections 12022.53 and 12022.5 were mandatory and could not be stricken in the interests of justice. (Former §§ 12022.53, subd. (h) & 12022.5, subd. (c).)
On October 11, 2017, the Governor signed Senate Bill No. 620 (2017-2018 Reg. Sess.), which amended sections 12022.53, subdivision (h) and 12022.5, subdivision (c) to give the trial court the authority to strike or dismiss in the interests of justice firearm enhancement allegations found true under those statutes.
Effective January 1, 2018, sections 12022.53, subdivision (h) and 12022.5, subdivision (c), were amended to state: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Stats. 2017, ch. 682, §§ 1 & 2.)
Defendant argues that the amendments to sections 12022.53 and 12022.5 apply to his case because his case is not yet final on appeal, citing the rule of In re Estrada (1965) 63 Cal.2d 740 (Estrada). Under Estrada, courts presume that absent evidence to the contrary, the Legislature intends an amendment reducing punishment under a criminal statute to apply retroactively to cases not yet final on appeal. (Id. at pp. 747-748; People v. Brown (2012) 54 Cal.4th 314, 324.) The Estrada rule has been applied not only to amendments reducing the penalty for a particular offense, but also to amendments giving the court the discretion to impose a lesser penalty. (People v. Francis (1969) 71 Cal.2d 70, 75.) Defendant argues that because his case is not yet final, it must be remanded to the trial court for resentencing under the amended version of sections 12022.53, subdivision (h) and 12022.5, subdivision (c), so the trial court can consider whether the strike one or both firearm enhancements. The People agree and so do we.
The matter is remanded to the trial court to exercise its discretion under sections 12022.53, subdivision (h) and 12022.5, subdivision (c), as amended by Senate Bill No. 620 (Stats. 2017, ch. 682, §§ 1 & 2, eff. Jan. 1, 2018), and if appropriate following the exercise of that discretion, to resentence defendant accordingly.
DISPOSITION
The matter is remanded to allow the trial court to exercise its discretion to strike the firearm enhancements under sections 12022.53, subdivision (h) and 12022.5, subdivision (c), and if appropriate following the exercise of that discretion, to resentence defendant accordingly. The judgment is otherwise affirmed.
/s/_________
Blease, J. We concur:
/s/_________
Raye, P. J.
/s/_________
Duarte, J.