Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County., No. GA071981, Robert P. Applegate, Judge.
Melanie K. Dorian and Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Margaret E. Maxwell, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
A jury convicted Cortney McCullin on two counts of assault with a firearm on a peace officer (Pen. Code, § 245, subd. (d)(2)), and carrying a loaded firearm (§ 12031, subd. (a)(1)). McCullin appeals, claiming that the trial court misled jurors in its response to a jury question during deliberations. We affirm.
Unless otherwise noted, all further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On the night of December 31, 2007, two Pasadena Police Department homicide detectives, Keith Gomez and William Broghamer, visited the Community Arms apartment complex as part of a gang murder investigation.
According to the two officers, they saw McCullin standing near a basketball court with a woman and two men, one of whom, a known gang member named Frank Beatty, held a liquor bottle. The officers testified that while they were struggling with Beatty to take him into custody for public drinking, McCullin reached into Beatty’s waistband, grabbed a handgun and ran. Broghamer chased McCullin into the apartment complex and saw McCullin slip and fall while coming around a corner. When the detective turned the corner, he saw McCullin on one knee pointing the gun at him. He also heard a “click” sound of the trigger. As Broghamer drew his own weapon, McCullin threw the gun into the air and ran. After McCullin escaped, Broghamer returned to find the gun in a flowerbed.
McCullin testified that he was drinking with Beatty and two women near the basketball court that evening when the officers arrived. He stated, however, that the gun fell out of the bottom of Beatty’s pants and hit the ground after the officers became “real rough and aggressive” with Beatty. He had not known Beatty was carrying the gun and feared that, because a crowd was beginning to form, someone might grab the gun and shoot it. He then picked up the gun so that a “worse situation wouldn’t happen” and ran into the complex. As he ran, he slipped on mud and dropped the gun to brace his fall. He denied rising to his knee, aiming the gun at Broghamer, clicking the trigger or throwing the gun in the air. He also acknowledged hearing Broghamer shout for him to stop, but said that he had already dropped the gun and decided to keep running.
McCullin was charged with assault on a peace officer with a firearm (§ 245, subd. (d)(2); count 4); carrying a loaded firearm (§ 12031, subd. (a)(1); count 5); attempted premeditated murder (§§ 664/187, subd. (a); count 6); and attempted murder of a public official (Broghamer) (§ 217.1, subd. (b); count 7). He pled not guilty to all the charges, and a jury convicted him only on the assault and firearm possession counts, and found true the firearm enhancements alleged (§§ 12022.53, subd. (b); 12022.55, subds. (a) & (d)). The court dismissed the remaining charges, denied the motion for new trial, and sentenced McCullin to 15 years in state prison.
DISCUSSION
On appeal, McCullin asserts only one issue: whether the trial court erred in responding to a jury question.
The jury posed two questions regarding the assault charge, initially asking for clarification on the first element of the jury’s CALCRIM No. 860 instruction: “Question re ‘Assault on Firefighter....” # 860 # 1, line 7 – need clarification on meaning.” The question referenced the instruction that McCullin must have “[done] an act with a semiautomatic firearm that by its nature would directly and probably result in the application of force to a person.” When called into the courtroom, the foreperson explained that the jury wanted clarity on whether “the act of picking up the gun” was “considered assault on a peace officer, ” or whether the act was “actually having to point the gun?” The jury’s second question asked if McCullin had to meet all six elements of assault under CALCRIM No. 860.
For this question, the trial court and counsel agreed to respond to the jury in the affirmative. McCullin does not challenge this answer on appeal.
In response to the first question, the trial court initially indicated its intent to inform the jury that “picking up the gun” alone is not an act sufficient for assault. After discussion with both the defense and prosecution, who argued that determining the term “act” was a jury decision, the court instead focused its response on present ability. It read to the jury from CALJIC No. 9.01: “A necessary element of an assault is that the person committing the assault have the present ability to apply physical force to the person of another. This means that at the time of the act, which by its nature would probably and directly result in the application of physical force upon the person of another, the perpetrator of the act must have the physical means to accomplish that result. If there is this ability, ‘present ability’ exists even if there is no injury.”
McCullin claims that, by relying on CALJIC No. 9.01 alone to answer the first question, the trial court misled the jury and prejudicially focused its attention on only one of the six elements of assault – present ability – at the expense of the other elements. This alleged error, McCullin contends, was a violation of the trial court’s statutory duty under section 1138 to clarify jury confusion. Implying to the jury that one element was sufficient to find assault, McCullin further argues, the trial court failed to “require a jury determination as to all of the elements of the charge... implicat[ing] appellant’s federal constitutional rights to trial by jury and due process.” In response, the Attorney General argues that the jury instructions correctly stated the law and properly left the decision of defining the assault in the hands of the jury.
Under section 1138, California trial courts have a statutory duty to respond to a jury’s request for information “on any point of law arising from the case.” (§ 1138.) This “imposes a ‘mandatory’ duty to clear up any instructional confusion expressed by the jury.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212, superseded by statute on another ground as stated in In re Steele (2004) 32 Cal.4th 682, 691.) However, the duty “does not require trial court elaboration on the standard instructions in every instance. When the original instructions are full and complete, the trial court has discretion to determine what additional explanations are sufficient to satisfy the jury’s request for information.” (People v. Moore (1996) 44 Cal.App.4th 1323, 1331, citing People v. Gonzalez, supra, 51 Cal.3d at p. 1213.) In practice, the trial court has latitude in responding, short of silence. It “must do more than figuratively throw up its hands and tell the jury it cannot help.... It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
In reviewing a claim of error in a response to the jury, we apply the same standard of review as to jury instructions. (People v. Moore, supra, 44 Cal.App.4th at pp. 1330-1331.) We first must determine if there was an error in the instructions given, and, if so, whether the error was harmless. (Chapman v. California (1967) 386 U.S. 18; Neder v. United States (1999) 527 U.S. 1.) We consider the instructions as a whole and “‘assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.’” (People v. Holmes (2007) 153 Cal.App.4th 539, 545-546.) “An instruction can only be found to be ambiguous or misleading if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words.” (People v. Campos (2007) 156 Cal.App.4th 1228, 1237.) Thus, a single jury instruction that alone “could [be] confusing” may not constitute error if an accompanying instruction clarifies any potential confusion. (People v. Simpson (1954) 43 Cal.2d 553, 566.) In Holmes, for instance, although a jury instruction neglected to include the prosecutor’s burden of proof on a lesser offense, the court held the omission was not an error because the burden had been repeated throughout other instructions. (People v. Holmes, supra, 153 Cal.App.4th at pp. 545-546.)
Within this framework, we find no error in the trial court’s focus on present ability in response to the jury’s request to define the act of assault. First, the language of the response itself and the context in which it was delivered would not lead a reasonable juror to believe that the single element of present ability was “sufficient to convict of assault, ” as McCullin claims. CALJIC No. 9.01 states that “present ability to apply physical force” is “a necessary elementof an assault” (CALJIC No. 9.01 [emphasis added]); it does not indicate that present ability is the only element of assault. Also, in response to the jury’s second question, the trial court explicitly told the jury that an assault conviction required all six elements be met. These responses by the trial court — correct statements of law on their own — followed thorough jury instructions on the required elements of assault that McCullin does not challenge as incomplete or inaccurate. While the trial court did delve into one specific element of the charge in response to the first jury question, elaborating on one element in this instance does not negate the necessity for the others.
Second, the trial court’s response did not, as McCullin claims, “[tell] the jury, in the context of the question posed, that the mere fact that McCullin had possession of the gun constituted an assault.” To the contrary, the language of the trial court’s first response references neither “possession” nor “pointing the gun, ” and was purposefully open-ended to leave the factual determination to the jury.
To the extent that McCullin relies on the affidavit of the jury foreperson as evidence of any jury confusion following the trial court’s response, such evidence is inadmissible under Evidence Code section 1150.
McCullin argues that the focus on present ability was a simple mistake by the trial court, which misunderstood the jury’s request for a clarification of the term “act” in line 7 of CALCRIM No. 860. While the record does reveal some confusion over the “line 7” wording of the jury question, the trial court made clear it believed that a direct answer to the foreperson’s question would usurp the jury’s fact-finding role and that the present ability explanation would help the jury overcome this hurdle. While the trial court might have responded more directly or explained why it was presenting the jury with the present ability elaboration, section 1138 does not mandate either step.
Responding to the defense counsel’s objection to the CALJIC No. 9.01 instruction as not “being the answer to [the foreperson’s] question, ” the trial court responded: “I think that point is arguable. And yet I – I see a huge down side in giving the instruction proposed by the defense, which tells the jury what to do under the facts of the case, versus giving the jury a Judicial Council approved instruction which I think addresses their clarification and addresses their confusion at line 7 of number 1 pertaining to present ability.”
Finally, in leaving the definition of the term “act” open to jury interpretation, the trial court restated the exact language of the original instruction. Both CALJIC No. 9.01 and CALCRIM No. 860 describe the act of assault as one that by its nature would probably and directly result in the application of physical force upon the person of another. In this way, the trial court followed a process that the Supreme Court has approved: repeating instructions to jurors. (See People v. Beardslee, supra, 53 Cal.3d at p. 97; People v. Gonzalez, supra, 51 Cal.3d at p. 1214.) Within the context of the full jury instructions, the trial court did not err.
DISPOSITION
The judgment is affirmed.
We concur: WOODS, Acting P. J., JACKSON, J.