Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Santa Barbara Super. Ct. No. 1176163
Susan P. Stone, 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., Supervising Deputy Attorney General, Roy C. Preminger, Deputy Attorney General, for Plaintiff and Respondent.
Timothy J. Staffel, Judge
Arthur Nevarez appeals from the judgment entered after a jury convicted him of assault with a firearm (count 1; Pen. Code, § 245, subd. (a)(2) , corporal injury to a spouse (count 2; § 273.5, subd. (a)), dissuading a witness with force (count 3; § 136.1, subd. (c)(1)), two counts of possession of a firearm by a felon (counts 4 & 8; § 12021, subd. (a)(1)), two counts of unlawful possession of ammunition (counts 5 & 7; § 12316, subd. (b)(1)), and attempted criminal threats (count 6; §§ 644/422).
All statutory references are to the Penal Code.
In the second phase of trial, the trial court found that appellant had suffered two prior convictions within the meaning of section 667, subdivision (a), that the prior convictions were strikes within the meaning of the Three Strikes Law (§ 667, subd. (e)(2)(A); 1170.12, subd. (c)(2)(4)), and that appellant committed counts 1 through 5 while on bail (§ 12022.1, subd. (b)). Appellant was sentenced to 12 years state prison, plus 75 years to life.
Facts
January 15, 2005 (Count 8 – Felon in Possession of Firearm)
On January 15, 2005, appellant crashed a Honda into a neighbor's block wall. Erik Soto saw appellant get out and fumble around the passenger side of the vehicle. Appellant mumbled something about a handgun. An officer summoned an ambulance and found a loaded .45 caliber handgun under the front passenger seat. At trial, it was stipulated that appellant was a convicted felon.
February 1, 2005 (Counts 6 & 7 – Criminal Threats & Unlawful Possession of Ammunition)
On February 1, 2005, Monica Nevarez called 911 about a domestic dispute. Monica lived at 614 Ginko Court, Santa Maria with appellant and their three children. Earlier that day, Monica told her landlord that appellant "put a gun to her head" and threatened to kill her and the kids. Monica said the gun "went off" and shot a hole in the garage.
Responding to the 911 call, Santa Maria Police Officer Arthur Martinez helped Monica retrieve her van keys and personal items. Appellant tried to stop Monica, but Officer Martinez told appellant not to interfere. Monica was afraid of appellant and planned to leave him.
A few hours later, Monica called 911 because appellant would not let her back into the house. Monica had a emergency protective order and needed a police escort. She said that appellant used drugs and carried weapons, and that appellant pointed a gun at her forehead earlier that day. Appellant warned that if she came back, "You better come prepared because I am going to shoot you and anyone with you."
Officer Praful Patel accompanied Monica back to the house and detained appellant. The officer found a gun cleaning kit in the garage and .357 caliber and .38 caliber ammunition in the master bedroom. Appellant had more ammunition in his jacket pocket and sleeve pocket. H was arrested and posted bail.
March 26, 2005 (Counts 1 through 5 – ADW, Corporal Injury to Spouse, Dissuading a Witness, Unlawful Possession of Firearm & Ammunition)
On March 26, 2005, appellant telephoned Monica before stopping by the house. Monica put his clothes outside and locked the doors. Breaking a window, appellant entered the house and saw a criminal subpoena with Monica's name on it. Appellant became enraged and slapped and hit Monica.
Monica tried to escape but appellant dragged her by the hair to the garage and repeatedly struck her with the palm of his hand. Appellant insisted that she not testify against him and hit her in the head with a shotgun. After Monica regained consciousness, appellant dragged her to the kitchen and hit her in the face with his hand. Appellant stopped the attack when he realized that Monica's friend, Mary Garza, was in the house.
Monica's five-year-old son ran next door for help. Monica followed and told the 911 dispatcher that appellant had taken her van. Monica said that appellant had a shotgun and had hit her, knocking her out.
Officer Paul Flores responded to the call and stopped appellant in the van. A shotgun was on the right rear passenger seat under a jacket. The weapon was loaded and had a round in the chamber and three rounds in the magazine.
Officer Flores interviewed Monica later that day. She had neck bruises and scrapes, a skinned elbow, and a knot on the back of her head. Monica stated that appellant dragged her into the garage and hit her with the shotgun. When Monica regained consciousness, appellant was slapping her.
Officer Flores found Mary Garza hiding in a bedroom closet with a baby. Monica's son told the officer that appellant had a big black gun, that "daddy slapped mommy a lot," and that daddy said "that he could kill mom whenever he wanted."
Officer Flores asked about firearms. Monica showed him a bag with a gun stock, gun oil, 17 shotgun shells, two shotgun slugs, and .45 caliber ammunition. In a second duffle bag, Officer Flores found more ammunition including 9 millimeter hollow point bullets. The garage door had a shotgun hole and shotgun pellets were embedded in the garage across the street. (RT 558-559, 563)
On March 28, 2005, District Attorney Investigator Jeffrey Ellis interviewed Monica. Monica said that appellant pushed her up against the garage wall and hit her with a shotgun.
The taped interview was played to the jury. Monica said that appellant "had something on the side of him which was a big; well I knew it was a gun." Appellant told her that she "wasn't gonna testify against him if he can help it. And . . . I just remembered the object coming up . . . and I'm pretty sure that he hit me with the, the butt of the gun."
At trial, Monica recanted and denied that appellant hit her with a shotgun.
Assault Instructional Error
The trial court gave CALCRIM 875 and 915 instructions on assault with a firearm and simple assault. Appellant claims the instructions misstate the law and permitted the jury to convict based on criminal negligence or recklessness. If appellant only intended to frighten or intimidate the victim with the shotgun, it was not an assault. (See e.g., People v. Colantuono (1994) 7 Cal.4th 206, 218-219, fn. 10.) The instructions failed to inform the jury that brandishing of a firearm is not an assault unless the brandishing is done with the intent to commit some further intentional act that would result in an unlawful touching, i.e., a battery.
We reject the argument because assault is a general intent crime. In People v. Williams (2001) 26 Cal.4th 779, 790, our Supreme Court held that "assault 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 against another."
During deliberations, the jury submitted the following question: "Can we consider assault with a firearm simply brandishing the gun to a person[,] or does the firearm have to touch the person in order to be considered assault with a firearm[?] [¶] --We need clarification as to whether the holding of a gun is considered assault."
After the trial court reread CALCRIM 875 and 915, the jury foreperson asked about the phrase "did an act."
The jury was referring to CALCRIM 875 (Assault With a Firearm) which states in pertinent part: "The defendant is charged in Count 1 with assault with a firearm. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant did an act with a firearm that by its nature would directly and probably result in the application of force to a person; [¶] 2. The defendant did that act willfully; [¶] 3. When the defendant acted, he was aware 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; [¶] AND [¶] 4. When the defendant acted, he had the present ability to apply force with a firearm. [¶] AND [¶] Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage."
The court responded that the prosecution must prove that "[t]he defendant did an act with a firearm that by its nature would directly and probably result in the application of force to a person."
"JUROR NO. 9 [Foreperson]: Okay, that's the question, did an act of force . . . brandishing, holding up a gun, is that considered 'did an act,' or does it have to be force? That's the clarification that we need. We just don't understand the interpretation of Number 1 ['did an act'].
"THE COURT: The defendant did an act with a firearm that by its nature would directly and probably result in the application of force to a person. [¶] And the question [you] have is, does simply brandishing the gun to a person, does that constitute force? Is that
"JUROR NO. 9: Or does that constitute assault.
"THE COURT: Well
"JUROR NO. 9: I think the part that throws us off is on page 2 of 2, third from the last paragraph where it says, 'No one needs to have actually been injured by defendant's act.' So that's why we would like clarification as to whether brandishing a gun is considered assault."
Page two of the CALCRIM 875 instruction stated: "No one needs to actually have been injured by defendant's act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault, and if so, what kind of assault it was." (Emphasis added.)
The trial court advised the jury that it must determine what the facts are and apply the law. "I don't want to say anything that directs you to a particular factual finding, and I don't think I can do that, and I won't do that."
Defense counsel agreed that brandishing was not a lesser included offense and thought the trial court's response was "right on."
After conferring with counsel, the trial court advised the jury: "We're going to respond further to your question, and it's somewhat difficult, because the court needs to be very careful not to encroach upon the province of the jury when it responds to questions such as you've asked, and it's a very fine line. But we're going to respond in this fashion: If you determine that the brandishing of a firearm occurred, and that's only a decision that you, the jury, can make and determine, then you must also decide whether that constitutes an act for the purposes of CALCRIM 875 and/or 915, the instructions which the court read to you just now."
Appellant argues that assault with a firearm requires that brandishing be accompanied with the intent to commit a further intentional act such as battery. But appellant's construction of the law would make aggravated assault a specific intent crime. Assault with a firearm is a general intent crime. It does not require a specific intent to injure the victim or a subjective awareness that an injury might occur. (People v. Williams, supra, 26 Cal.4th at p. 790.) "[B]ecause the law seeks to prevent the wrongful application of physical force upon the victim 'irrespective of any actual purpose to cause it,' the mens rea element of assault is established by proof of general criminal intent. [Citation.] . . . '[T]he pivotal question is whether the defendant intended to commit an act likely to result in such physical force, not whether he or she intended a specific harm.' [Citation.]" (In re Tameka C. (2000) 22 Cal.4th 190, 198, emphasis added.)
Appellant dragged Monica to the garage and hit her with the shotgun. Monica told the 911 dispatcher that the blow knocked her out. Monica made similar statements to Officer Flores and to the district attorney investigator but was not sure whether she was hit with the gun stock or the gun barrel. Officer Flores observed a knot on the back of Monica's head.
We conclude that the ambiguity, if any, in the assault instructions was harmless beyond a reasonable doubt. (People v. Williams, supra, 26 Cal.4th at p. 790.) Appellant's theoretical arguments about when brandishing becomes an assault are irrelevant where, as here, the defendant shoots or bludgeons the victim with the firearm.
Court's Responses to Jury Questions
Appellant claims that the trial court failed to clarify the law in responding to the jury questions, an issue that may be raised for the first time on appeal. (See e.g., People v. Thompkins (1987) 195 Cal.App.3d 244, 251, fn. 4.) "Section 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law. [Citation.] If, however, ' "the original instructions are themselves full and complete, the court has discretion under . . . section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information." ' [Citations.]" (People v. Smithey (1999) 20 Cal.4th 936, 985.)
In People v. Colantuono, supra, 7 Cal.4th at page 222, our Supreme court admonished trial courts not to embellish on standard assault instructions unless compelled by the particular facts of the case. The admonition is apt and was observed by the trial after conferring with counsel.
The trial court reread the assault instructions and instructed that if the jury determined that brandishing occurred, "you must also decide whether that constitutes an act for the purposes of CALCRIM 875 and/or 915, the instructions which the court read to you just now."
The trial court was not required to change or amplify the instructions. "Jury questions can present a court with particularly vexing challenges. The urgency to respond with alacrity must be weighed against the need for precision in drafting relies that are accurate, responsive, and balanced. When a question shows the jury has focused on a particular issue, or is leaning in a certain direction, the court must not appear to be an advocate, either endorsing or redirecting the jury's inclination." (People v. Moore (1996) 44 Cal.App.4th 1323, 1331.)
Appellant claims that the jury was confused because it returned a guilty verdict on the aggravated assault count but found the firearm use allegation was not true. (§ 12022.5, subd. (a)(1).) Although the jury findings are inconsistent, appellant is not entitled to a reversal. (See §954; People v. Celis (2006) 141 Cal.App.4th 466, 470, fn. 2.) " '[I]f an acquittal of one count is factually irreconcilable with a conviction on another, or if a not true finding of an enhancement is inconsistent with a conviction of a substantive offense, effect is given to both.' [Citation.]" (People v. Panah (2005) 35 Cal.4th 395, 490; see also People v. York (1992) 11 Cal.App.4th 1506, 1510.) Appellant makes no showing that the conviction violates due process. (See e.g., United States v. Powell (1984) 469 U.S. 57, 69 [83 L.Ed.2d 461, 471].)
Appellant's reliance on People v. Cordero (1989) 216 Cal.App.3d 275 is misplaced. There, the jury inquired about a legal term and was told to look at all the instructions already given. (Id., at p. 280.) Unlike Cordero, the trial court pinpointed and reread the applicable instructions. It did not ignore the jury questions or fail to explain the applicable law. (See e.g., People v. Beardslee (1991) 53 Cal.3d 68, 97.)
Effective Assistance of Counsel
Appellant finally argues that his trial attorney was ineffective in not objecting to the assault instructions or requesting supplemental instructions. (People v. Pope (1979) 23 Cal.3d 412.) Counsel, however, was not required to make groundless objections or futile motions that would have likely been overruled by the trial court. (See e.g., People v. Arias (1996) 13 Cal.4th 92, 140-141; People v. Osband (1996) 13 Cal.4th 622, 678.)
The judgment is affirmed.
YEGAN, J.
We concur: GILBERT, P.J., COFFEE, J.