Opinion
H046188
09-13-2019
THE PEOPLE, Plaintiff and Respondent, v. RICHARD RENO LANE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Clara County Super. Ct. No. B1793068 )
Armed with a handgun, defendant Richard Reno Lane went to the home of his former son-in-law, David C., to confront him about his ongoing divorce with defendant's daughter. Defendant shot David in the arm. A jury convicted defendant, then 80 years old, of attempted voluntary manslaughter and assault with a firearm. The jury also found true firearm and great bodily injury enhancement allegations as to both counts. The trial court sentenced defendant to a 12-year six-month prison term.
To protect personal privacy interests, we refer to the victim by his first name and last initial only. (Cal. Rules of Court, rule 8.90.) All further references to rules are to the California Rules of Court.
On appeal, defendant raises instructional and sentencing error claims. We conclude that they lack merit and affirm.
I. BACKGROUND
A. Factual Summary
David and defendant's daughter Katherine married in 2000. They had two daughters together. David and Katherine separated in 2013 and divorced in 2015. The divorce was extremely contentious. Katherine accused David of physical abuse and of hiding assets, allegations he denied. The pair's family court disputes were ongoing in 2017 and 2018.
In July 2017, David and Katherine were awaiting the family court's decision regarding division of assets, alimony, and support following a 32-day trial that took place over the course of two years. Katherine had asked her father, defendant, to review the trial transcript. In doing so, defendant observed that David had a "pattern" of "appeal[ing] whatever the decision the judge came down with." Defendant "knew that there was a big decision coming down about a week later." He decided to tell David not to appeal and to "let this divorce go."
Defendant decided to deliver that message "face-to-face" so that David would understand "how serious his actions were." To that end, defendant went to David's Cupertino home on July 15, 2017 armed with a handgun. Defendant had purchased the gun in June 2017 and had visited a firing range five times that month. Defendant testified that he purchased the gun for self-protection because the construction of Levi's Stadium had brought significant foot traffic to his neighborhood.
David testified that he was working on his truck in the driveway when he saw defendant approaching him. David was surprised, having not seen defendant in more than three years. David said, "Hello, Richard. What are you doing here?" Defendant, who was about six feet away from David, had a flannel shirt draped over his hand. Defendant removed the shirt, revealing a handgun pointed at David. According to David, defendant said something along the lines of "You've done too much" or "You've gone too far." David turned to run, and defendant fired, hitting David in the right arm. The bullet entered and exited David's forearm, then entered and exited his bicep, before wounding the side of his chest. David yelled to his girlfriend to call 911 as he fled down the street. Defendant followed him for a brief time at a walk.
Shrapnel from the gunshot wound remained in David's arm at the time of trial. He testified that he had ongoing pain from the wounds, which impaired his ability to perform his job, play guitar, and perform daily activities.
Police recovered bullet fragments from the scene. A firearms expert testified that the bullet that hit David was a hollow point bullet. He further testified that hollow point bullets expand and thus do more damage than other kinds of bullets.
Defendant, a former CIA agent and a former San Jose State University professor, testified that he took the gun to David's for protection because David has "very violent mood swings," "had been extremely violent with his wife and with his children," and is "30 years younger" than defendant. Defendant acknowledged that he had the gun in his hand when he walked up to David. He explained that he wanted David to understand "how serious this confrontation was." Defendant testified that David raised a screwdriver as he asked, "what are you doing here" and then "disappeared under the side of the truck," at which point "the gun went off." Defendant acknowledged firing the gun, but said it was a "shock," "wasn't a planned thing," and that he had no intention of killing David.
David denied having anything in his hand at the time defendant shot him. He also denied threatening defendant or making any aggressive movements.
After the shooting, defendant drove to Santa Cruz, where he threw the gun in the ocean because it was of "no further value" to him. Defendant testified that in reviewing the transcript of his daughter's divorce proceedings, he became "disgusted" with David's actions. He further explained that he felt "a duty and an obligation" to protect his daughter.
B. Procedural History
The Santa Clara County District Attorney charged defendant with attempted murder (Pen. Code, §§ 664, subd. (a), 187; count 1) and assault with a firearm (§ 245, subd. (a)(2); count 2). As to count 1, the operative second amended information alleged that defendant intentionally and personally discharged a firearm, proximately causing great bodily injury to a nonaccomplice (§ 12022.53, subd. (d)), and personally inflicted great bodily injury on a nonaccomplice (§§ 12022.7, subd. (a), 1203, subd. (e)(3)). The operative information further alleged, as to count 2, that defendant personally used a firearm (§ 12022.5, subd. (a)) and personally inflicted great bodily injury on a nonaccomplice (§§ 12022.7, subd. (a), 1203, subd. (e)(3)).
All statutory references are to the Penal Code unless otherwise stated.
The case went to a jury trial in May 2018. The jury found defendant not guilty of attempted murder, but guilty of the lesser included charge of attempted voluntary manslaughter (§§ 21a, 192, 664). The jury also found defendant guilty of assault with a firearm and found true, with respect to both counts, that defendant personally used a firearm (§ 12022.5, subd. (a)) and personally inflicted great bodily injury on a nonaccomplice (§§ 12022.7, subd. (a), 1203, subd. (e)(3)).
On August 23, 2018, the trial court sentenced defendant to a total prison term of 12 years six months. As to count 1, the court imposed the upper term of five years six months for attempted voluntary manslaughter (§§ 193, subd. (a), 664); the middle term of four years for the associated firearm enhancement (§ 12022.5, subd. (a)); and the middle term of three years for the associated great bodily injury enhancement (§ 12022.7, subd. (a)). As to count 2, the court imposed the upper term of four years for assault with a firearm (§ 245, subd. (a)(2)); the middle term of four years for the associated firearm enhancement (§ 12022.5, subd. (a)); and the middle term of three years for the associated great bodily injury enhancement (§ 12022.7, subd. (a)). The court stayed punishment on count 2 pursuant to section 654. Defendant timely appealed.
II. DISCUSSION
A. Refusal to Give Pinpoint Instruction
Defense counsel requested that the jury be instructed that "[a] parent has a legal duty to protect his or her child from attack." The court denied that request, reasoning that the cases defendant cited in support of the request were inapposite and did not set forth an affirmative defense to the charges.
1. Principles Governing Pinpoint Instructions and Standard of Review
"A pinpoint instruction 'relate[s] particular facts to a legal issue in the case or "pinpoint[s]" the crux of a defendant's case, such as mistaken identification or alibi.' [Citation.]" (People v. Ward (2005) 36 Cal.4th 186, 214.) "A proper pinpoint instruction must be given at a defendant's request." (People v. Mora and Rangel (2018) 5 Cal.5th 442, 498.) But a pinpoint instruction is improper and should not be given "if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence [citation]." (People v. Moon (2005) 37 Cal.4th 1, 30.) Our review is de novo. (People v. Shaw (2002) 97 Cal.App.4th 833, 838 ["assertions of instructional error are reviewed de novo"].)
2. The Trial Court Did Not Err in Refusing to Give the Requested Instruction
In support of the requested instruction, defendant relied below on People v. Rolon (2008) 160 Cal.App.4th 1206 (Rolon) and People v. Ogg (2013) 219 Cal.App.4th 173 (Ogg), two cases imposing criminal aiding and abetting liability on the parents of minor children for knowingly failing to protect those children from abuse with the intent to facilitate the abuse. In Rolon, the defendant went to sleep, leaving her one-year-old son alone with his father, who had recently punched the child and thrown him against a wall. (Rolon, supra, at pp. 1209, 1221.) The court upheld defendant's second degree murder conviction, holding that "a parent has a duty to protect his or her young child and may be criminally culpable on an aider and abettor theory for an assault causing death and on an implied malice theory for murder where the parent fails to take reasonably necessary steps for the child's protection, so long as the parent, with ability to do so, fails to take those steps with the intent of facilitating the perpetrator's assaultive offense." (Id. at p. 1209.) Noting that " '[t]he common law imposes affirmative duties upon persons standing in certain personal relationships to other persons—upon parents to aid their small children,' " Rolon concluded that "parents are under a common law duty to protect their children." (Id. at p. 1215.) In Ogg, the court held that a mother's failure to protect her child from continuous sexual abuse of which she was aware supported her conviction as an aider and abettor of the crime where there was evidence she failed to act with the intent to facilitate the abuse. (Ogg, supra, at pp. 176, 181.) The sexual abuse in Ogg took place over the course of 10 years, from the time the victim was six years old until the time she was 16 years old. (Id. at pp. 177-178.)
Rolon and Ogg do not stand for the broad proposition that a parent has a legal duty to protect his or her child from attack. Rather, they stand for the narrower principle that a parent has a legal duty to protect his or her minor child from attack. Accordingly, the requested instruction did not correctly state the law, such that the trial court did not err in refusing to give it.
The requested pinpoint instruction also was potentially confusing. Had it been given, jurors may have believed that parents have some broader right to use deadly force in defense of their children than do nonparents in defense of another. Defendant cites no authority for that proposition. Nor are we aware of any affirmative defense available only to parents acting in defense of their children.
Finally, the requested pinpoint instruction was unsupported by substantial evidence. There was no evidence that Katherine needed protection from physical attacks by David. Defendant testified that David had been physically abusive of Katherine during their marriage, but their marriage was over, and they had not lived together in years. Defendant said he felt a responsibility to stop David "specifically" from "filing these objections with the [c]ourt and prolonging court matters . . . ." But extending divorce proceedings, even if financially and emotionally burdensome, does not constitute an attack under Rolon and Ogg.
For the foregoing reasons, we conclude the trial court correctly refused to give the requested pinpoint instruction.
B. Sentencing Challenge
1. Denial of Probation
Defendant argues the trial court erred by denying probation. We find no abuse of discretion.
a. Governing Legal Principles and Standard of Review
"Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to . . . [a]ny person who used, or attempted to use, a deadly weapon upon a human being in connection with the perpetration of the crime of which he or she has been convicted." (§ 1203, subd. (e)(2).) "If the defendant comes under a statutory provision prohibiting probation 'except in unusual cases where the interests of justice would best be served,' or a substantially equivalent provision, the court should apply the criteria in [rule 4.413](c) to evaluate whether the statutory limitation on probation is overcome; and if it is, the court should then apply the criteria in rule 4.414 to decide whether to grant probation." (Rule 4.413(b).)
" 'The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation . . . .' [Citation.] There is likewise broad discretion to determine whether a given case is 'unusual' and entitles the defendant to probation in the interests of justice. [Citation.] To establish abuse, the defendant bears the burden on appeal to show that the denial of probation was, under the circumstances, arbitrary, capricious, or exceeding the bounds of reason. [Citation.]" (People v. Nuno (2018) 26 Cal.App.5th 43, 49.)
b. The Trial Court's Application of the Law
The trial court correctly concluded that section 1203, subdivision (e)(2) applied because defendant used a deadly weapon in the underlying crimes. Therefore, the court noted that probation could be granted only if the cause was an "unusual" one in which "the interests of justice would best be served if [defendant was granted] probation . . . ." The court stated that it "consider[ed] the criteria under Rule of Court 4.413" to determine whether the statutory limitation on probation was overcome. The court concluded it was because the factors set forth in rules 4.413(c)(2)(A) and 4.413(c)(2)(C) applied, namely: "defendant participated in the crime under circumstances of great provocation . . . not amounting to a defense, and the defendant has no recent record of committing crimes of violence" and "defendant . . . is aged, has no significant record, and no record of prior criminal offenses."
The court went on to consider "whether probation was appropriate, given the general factors under Rule of Court 4.414" and decided to deny probation because "the unfavorable factors far outweighed the favorable factors." The court explained that the applicable unfavorable factors were (1) the nature and seriousness and circumstances of the crime as compared to other instances of the same crime (rule 4.414(a)(1)), (2) defendant was armed with and did use a weapon (rule 4.414(a)(2)), (3) the victim was vulnerable because he was exposed while working on his truck in the driveway of his own home (rule 4.414(a)(3)), (4) defendant inflicted physical injury (rule 4.414(a)(4)), (5) the injuries inflicted limit David's ability to do his job (rule 4.414(a)(5)), (6) defendant was an active participant in the crime (rule 4.414(a)(6)), (7) defendant's lack of remorse (rule 4.414(b)(7)), and (8) the likelihood that if not imprisoned, the defendant would be a danger to David (rule 4.414(b)(8)). The court listed the following applicable favorable factors: (1) defendant did not take advantage of a position of trust (rule 4.414(a)(9)), (2) defendant has no criminal record (rule 4.414(b)(1)), (3) defendant's willingness to comply with the terms of probation (rule 4.414(b)(3)), and (4) defendant's ability to comply with the terms of probation (rule 4.414(b)(4)).
c. The Trial Court did not Abuse its Discretion
Defendant contends this was an unusual case warranting a grant of probation because his "crimes were committed out of love and fear for his daughter and her children, as well as frustration with a legal system that failed to protect them." He also contends his advanced age of 80 made the case an unusual one. And defendant says he was suffering from cancer both at the time of the offense and at the time of sentencing, a fact he says also made the case unusual. Defendant cites nothing in the record for this assertion, nor can we find any evidence that he had cancer at the time of sentencing. Defendant's own sentencing brief below made no mention of a cancer diagnosis or other health problems. Defense counsel did not state that defendant had cancer or argue that his health justified a grant of probation at the sentencing hearing. Defendant did not testify at trial that he currently was suffering from cancer or any other illness. The only evidence about defendant's having been diagnosed with cancer was David's testimony that he had heard through Katherine that defendant had cancer in 2014.
The trial court considered defendant's age and motivation in considering whether probation was appropriate. Unlike defendant, the trial court did not look favorably upon defendant's decision to resort to vigilantism; we do not fault the trial court in that regard. The trial court considered and weighed all of the relevant factors, and its decision to deny probation was not arbitrary.
2. Sentence
Defendant contends the trial court abused its discretion by failing to adequately consider his advanced age and poor health as mitigating factors in determining the length of his sentence.
a. Governing Legal Principles
"When a sentence of imprisonment is imposed, . . . the sentencing judge must select the upper, middle, or lower term on each count for which the defendant has been convicted . . . ." (Rule 4.420(a).) "In exercising his or her discretion in selecting one of the three authorized terms of imprisonment . . . , the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. The relevant circumstances may be obtained from the case record, the probation officer's report, other reports and statements properly received, statements in aggravation or mitigation, and any evidence introduced at the sentencing hearing." (Rule 4.420(b).) Rule 4.421 identifies factors relating to the crime and factors relating to the defendant that are deemed circumstances in aggravation; rule 4.423 identifies such factors that are deemed circumstances in mitigation. Those lists are "not exhaustive and do[] not prohibit a trial judge from using additional criteria reasonably related to the decision being made." (Rule 4.408(a).)
We review the trial court's sentencing decision for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) "The trial court's sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.' " (Ibid.)
b. Relevant Facts
The sentencing judge stated on the record his reasons for selecting the upper term of imprisonment on count 1. Specifically, the judge indicated that he found the following circumstances in aggravation: the crime involved great violence (rule 4.421(a)(1)), the victim was vulnerable (rule 4.421(a)(3)), defendant perjured himself on the stand (rule 4.421(a)(6)), the crime involved planning (rule 4.421(a)(8)), the defendant engaged in violent conduct that indicates a serious danger to society (rule 4.421(b)(1)), and defendant showed a lack of remorse. The sentencing judge stated that he also considered the following mitigating circumstances: that the crime was committed because of great provocation (rule 4.423(a)(3)); defendant's lack of a prior criminal record (rule 4.423(b)(1)); "the very many strong letters to the Court . . . from [defendant's] family and other"; defendant's "earlier experience, his public service, and . . . his age."
The sentencing judge stated on the record that he selected the middle term of imprisonment on the firearm enhancement associated with count 1 based on the same aggravating and mitigating circumstances listed above and on the total length of the resulting sentence. As to the great bodily injury enhancement, the court declined to strike the enhancement or the associated punishment based on David's testimony about the seriousness of his injuries.
In selecting the upper term of four years on count 2, the court considered all the same factors it considered in connection with count 1. The court selected the middle term for the count 2 firearm enhancement based on those same factors and the resulting aggregate term. And the court declined to strike the great bodily injury enhancement or the associated punishment "given the seriousness of the injuries to the victim as testified by the victim under oath at trial." The court stayed the sentence on count 2 pursuant to section 654.
c. The Trial Court did not Abuse its Discretion
Defendant maintains the trial court abused its discretion by imposing what, at his age, is effectively a life sentence. We find no abuse of discretion.
The record squarely refutes defendant's claim that the court failed to consider his age as a mitigating factor. The court specifically noted that it had considered defendant's advanced age as a mitigating factor. While the court made no mention of defendant's health, as noted above, defendant did not raise his health as an issue and there is no record evidence indicating that defendant is in poor health for someone his age.
The trial court was confronted with a defendant who, at the age of 79, had shot his former son-in-law at relatively close range. As a result, a jury had convicted defendant of attempted voluntary manslaughter and assault with a firearm and had found true that defendant had personally used a firearm and inflicted great bodily injury in committing those offenses. Defendant, both in his trial testimony and in his statements to the court at the sentencing hearing, showed no remorse for David. To the contrary, defendant suggested that his actions were justified in light of the past abuse his daughter had reported to him, David's obstructive approach to the ongoing divorce proceedings, and defendant's view that the system had failed his family. Defendant continues to minimize his actions on appeal, characterizing them merely as "a misguided effort to protect his child and grandchildren" that caused the victim "only a soft tissue injury." While we can appreciate a parent's instinct to protect his or her child, we cannot condone vigilantism and we do not fault the trial court for its refusal to do so. Given the circumstances described above, we cannot say the trial court abused its discretion in imposing the 12-year six-month prison term.
C. Independent Review of Psychiatric and Psychological Testing Records
The trial court conducted an in camera review of David's psychiatric records and a 2014 Confidential Child Custody Evaluation, which included the results of psychological testing David completed in connection with that evaluation. The documents had been subpoenaed by defense counsel. The court refused to disclose the records to defense counsel, concluding that they were not relevant. The court provided a detailed oral explanation of its ruling on August 1, 2018 and ordered the transcript of that proceeding sealed to protect David's privacy interests.
Defendant asks us to independently examine the sealed records to determine whether the court erred; the Attorney General does not oppose the request. We have reviewed the records and conclude that the trial court did not err, for all of the reasons set forth in the court's ruling. Given the serious privacy interests at stake, we will not repeat those reasons here.
III. DISPOSITION
The judgment is affirmed.
/s/_________
ELIA, J. WE CONCUR: /s/_________
GREENWOOD, P. J. /s/_________
PREMO, J.