Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Harvey Giss, Judge, Los Angeles County Super. Ct. No. PA054685
Phillip I. Bronson, 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, Assistant Attorney General, Keith H. Borjon and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P. J.
A jury convicted appellant Marcos Ordonez of having a concealed firearm (Pen. Code, § 12025, subd. (a)(2)) (count 2) and exhibiting a concealable firearm (brandishing) (§ 417, subd. (a)(2)) (count 3). The trial court sentenced appellant to one year for each offense, to be served consecutively, for a total of two years in county jail.
All further references to statutes are to the Penal Code unless stated otherwise.
The jury found appellant not guilty of making criminal threats. (§ 422.)
Appellant appeals on the grounds that: (1) the trial court erred prejudicially by failing to instruct the jury on self-defense, and (2) appellant’s term of one year in county jail for brandishing a firearm is an unauthorized sentence because the jury did not find that the offense occurred in a public place.
FACTS
I. Prosecution Evidence
David Fines (Fines) is the owner of Olympus Enterprise, a sign and printing shop located on San Fernando Road in Sun Valley. Appellant had been living in a camper truck parked in the alley behind Fines’s building. Fines allowed appellant to bring the truck within the secured area of the building at night so that appellant could be connected to water and power. Fines always spoke Spanish with appellant. This arrangement had been ongoing for approximately two months prior to March 2, 2006. On that date, Fines told appellant to leave because one of Fines’s employees said that appellant was bothering him. Appellant said he would call a tow truck but instead he called the police.
Officer Eric Perriott arrived, and appellant complained to him about a propane tank in the rear of the property that was near the truck where he had been living. Appellant said he felt it was unsafe and was having a dispute with his landlord. Fines told the officer that his workers used the grill there and that it was safe. Fines said he wanted to evict appellant from the property. Officer Perriott advised the two men that they both had rights but had to go to civil court. Appellant did not complain of any violence and the officer saw no injuries on appellant.
After Officer Perriott left, Fines was in the back area of his lot when appellant approached him with a gun he had retrieved from his truck. Appellant pointed the gun at Fines and yelled, “I’ll fuck you,” and “I’ll kill you” in Spanish. Fines ran a zigzag course toward the building and went inside while appellant continued to talk and gesture with the gun held in his right hand. Fines’s employee, Phillip Hendricks (Hendricks), saw Fines running away from appellant in a zigzag motion. Hendricks saw appellant with a gun in his right hand. Appellant was gesturing and speaking. Hendricks called the police and told them that appellant was brandishing a handgun and that Fines had to run away.
Officer Perriott returned and found appellant walking in an alley adjacent to Fines’s building. Appellant was very agitated. Officer Perriott took appellant into custody, and a patdown search revealed a firearm concealed near appellant’s groin area. When appellant was taken to the squad car he told Officer Perriott that he had been beaten with a pole, but appellant did not complain of any injuries. Officer Perriott saw no injuries on appellant and could not corroborate appellant’s claim. At booking, Officer Perriott noted an eye injury appellant had received in a work-related incident.
II. Defense Evidence
Appellant testified on his own behalf. He said that he parked his truck on Fines’s property in accordance with their mutual agreement. Fines gave him a pistol to protect the property, and that was the reason Fines wanted him to stay there. Appellant always carried the pistol concealed in his waistband.
Appellant first stated that he called police on the day of the incident to complain because a telephone line had been installed in his name without his consent. Fines told appellant he was not aware of the telephone line, and he told appellant to get out of his office. Fines followed appellant outside and told his employees to move their cars so that Fines could pull out appellant’s truck. Fines began putting chains on appellant’s truck and screaming at him. Appellant then stated he called the police because he believed his truck would be ruined. He also complained about the propane tank when the police arrived.
Appellant said that Fines was angry with appellant for calling the police, and he told appellant to leave. Fines drove his forklift up to appellant’s truck and blocked it. Fines then kicked appellant repeatedly while hanging from the bars on the forklift. As appellant tried to get up, an employee named Israel Alvarez hit and kicked appellant also. Appellant fell and the gun fell out of his waistband. Fines tried to grab the gun while he was on top of appellant, hitting him. Appellant picked up the gun first and put it back in his waistband. When appellant turned around, Fines and the other man had gone. Appellant drove his car to a pay telephone and called the police. Officers stopped appellant as he was walking back to his truck. Appellant told the police about his injuries and told them that he had a gun. Appellant was treated for his injuries, and he stated at trial that he had been under treatment for three and one-half months. The parties stipulated that on March 15, 2006, a nurse observed bruising to appellant’s upper thigh and lower leg, but none to his back or chest. Appellant testified that he never yelled or cursed at Fines, and he did not point the gun at him.
DISCUSSION
I. Lack of Instructions on Self-Defense
A. Argument
Appellant contends that the jury could have found he brandished the gun to stop the attack by Fines and the other man. Because there was substantial evidence upon which the jury could have found he acted in self-defense, and because the jury was instructed with a version of CALCRIM No. 983 that mentioned self-defense, the trial court should have instructed on self-defense. According to appellant, the trial court erred in three ways: by denying the defense request for instructions on self-defense, by failing to give the instructions sua sponte, and by failing to clarify the legal meaning of the term “self-defense” when the jury requested a definition. Appellant claims the error was prejudicial because it cannot be said beyond a reasonable doubt that the instructional error made no difference in reaching the verdict obtained.
B. Proceedings Below
After the People rested and prior to the discussion of jury instructions, the trial court told defense counsel that if appellant did not testify there would be no jury instructions on self-defense. After appellant testified, defense counsel requested two instructions: CALCRIM No. 2514, regarding possession of a firearm in self-defense by a person prohibited by statute; and CALCRIM No. 3470, regarding the right to self-defense. The trial court replied that there had been no testimony on the first theory. Appellant said he always carried a gun, and therefore he did not go back and arm himself to protect himself from Fines and the others. As for the self-defense theory, appellant had denied using the gun in any manner. He said he just picked it up and put it back in his waistband. There was, therefore, no self-defense because appellant did not claim he used the gun for any purpose.
Defense counsel replied that appellant said he reached for the gun because otherwise Fines was going to reach for it. The trial court stated that that was not self-defense because the gun was not pointed or aimed in any way to constitute a violation of the Penal Code sections involved in counts one and three. The trial court added that appellant “talked himself out of a self-defense by virtue of the nature of his testimony” and the instructions were not applicable. The trial court noted for the record that there was insufficient evidence to establish a predicate for CALCRIM Nos. 2514 or 3470 and it was denying the request to read them.
CALCRIM No. 2514 provides, inter alia, that a defendant is not guilty of unlawful possession of a firearm if he temporarily possessed the firearm in self-defense or defense of another. This occurs if the defendant reasonably believed he or someone else was in imminent danger of suffering significant physical injury, he reasonably believed the immediate use of force was necessary, a firearm became available to him without planning or preparation, he possessed the firearm temporarily, no other means of avoiding danger was available, and the defendant’s use of the firearm was reasonable under the circumstances.
CALCRIM No. 3470 provides that the defendant is not guilty of the crime charged if he used force against the other person in lawful self-defense or defense of another. A defendant acts in lawful self-defense if he reasonably believes that he is in imminent danger of suffering bodily injury or being touched unlawfully, he reasonably believes the immediate use of force is necessary to defend against that danger, and he uses no more force than is reasonably necessary to defend against that danger.
In connection with count 3, the trial court read CALCRIM No. 983 to the jury in pertinent part as follows: “The defendant is charged in count three with brandishing a firearm. To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant drew or exhibited a firearm in the immediate presence of someone else, and the defendant did so in a rude, angry or threatening manner, and the defendant did not act in self-defense.”
During deliberations, the jury presented the trial court with three requests, one of which was to “‘provide a legal definition of self-defense.’” The trial court announced its intention to inform the jury that “no self-defense instructions were given by the court under the facts of this case. So no legal definition will now be given.” Defense counsel did not object, and the trial court so instructed. The jury went on to acquit appellant of making criminal threats and to convict him of carrying a concealed firearm on his person and exhibiting a firearm.
C. Relevant Authority
A trial court has the duty to instruct on all material issues presented by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154, 159-160.) A trial court has an affirmative duty to give sua sponte instructions on a defendant’s theory of defense where “‘it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense . . . .’” (People v. Stewart (1976) 16 Cal.3d 133, 140.)
A court must give self-defense instructions requested by the defense only when substantial evidence supports them. (People v. Barnett (1998) 17 Cal.4th 1044, 1145; People v. Elize (1999) 71 Cal.App.4th 605, 615 (Elize); People v. Curtis (1994) 30 Cal.App.4th 1337, 1355 (Curtis).) Evidence is substantial if a reasonable jury could find it persuasive. (People v. Barton (1995) 12 Cal.4th 186, 201 & fn. 8.)In determining whether substantial evidence exists, we do not examine the credibility of the witnesses. (Elize, supra, at p. 615.)
D. Instructions Properly Refused
We agree with the trial court’s assessment that there was no basis in the evidence for reading the self-defense instruction. It is true that the trial court instructed the jury that, in order to find appellant guilty of count 3, brandishing a firearm, the People had to prove (1) that the defendant drew or exhibited a firearm in the immediate presence of someone else, (2) that he did so in a rude, angry, or threatening manner, and (3) that the defendant did not act in self-defense. Despite the inclusion of the third element in the instruction, there was no substantial evidence presented at trial that warranted the reading of the requested self-defense instruction.
Appellant attempts to glean parts of the testimony of several witnesses to construct a scenario whereby the self-defense instruction would find support in the evidence. Appellant acknowledges that he testified that the gun accidentally fell from his waistband while Fines and he were struggling and that he denied brandishing the gun at any time. He claims, however, the jury could still have found that appellant brandished the gun to stop the attack by the two men. According to appellant, the jury may have chosen not to believe appellant when he testified that the gun accidentally fell to the ground and that he did not fight back. The jury could have believed, however, that appellant intentionally brandished the gun hoping to end the attack upon him by frightening his assailants.
Appellant’s argument ignores the fact that the relevant authority requires a trial court to instruct on a defense that is inconsistent with the defendant’s theory of defense only if the instruction -- requested or not -- is supported by substantial evidence. (People v. Barnett, supra, 17 Cal.4th at p. 1145; Elize, supra, 71 Cal.App.4th at p. 615; Curtis, supra, 30 Cal.App.4th at p. 1355.) Regardless of whatever patchwork of evidence appellant speculates the jury might have constructed, there was simply no substantial evidence requiring a self-defense instruction in this case. Both Fines and Hendricks testified that they saw appellant pointing the gun at Fines. Hendricks saw Fines running away from appellant as he pointed the gun. On the other hand, appellant said that Fines and another employee hit him and that Fines was on top of him when the gun simply fell out of appellant’s waistband. Appellant testified that he picked it up and put it back in his waistband. When he turned both Fines and the other man were gone, heading toward the building. The instruction appellant requested, CALCRIM No. 3470, required evidence that a defendant might reasonably believe he was in imminent danger of suffering bodily injury and reasonably believe the immediate use of force was necessary to defend himself against the danger. According to appellant’s testimony and that of the other witnesses, there was no danger at the moment he retrieved the gun and thus, no immediate danger to defend against.
Appellant claims that his case is akin to Elize, supra, 71 Cal.App.4th 605. In that case, an uninvolved witness saw an armed security guard at a food market struggling with two women. (Id. at p. 607.) The defendant testified that the two women, both of whom were romantically involved with him, attacked him with iron pipes. (Id. at pp. 607-608.) The defendant claimed one of the women grabbed his handgun from its holster, and he grabbed her hand and tried to point the gun upward. The gun fired, and the two women left. (Id. at p. 609.) Evidence showed that a bullet entered and passed through the loose shirt of one of the women. (Id at pp. 607, 608.) One of the women testified that the defendant choked the other woman. (Id. at p. 608.) The defendant was convicted of assault with a firearm on one woman and battery of the other. (Id. at p. 607.) Defense counsel asked for self-defense instructions even though there had been no testimony from the defendant that he acted in self-defense. Counsel pointed out that the defendant suffered a broken arm and said he was hit by a pole. The trial court denied the request because the defendant had testified that the gun fired accidentally, and there was therefore no factual basis for self-defense instructions. (Id. at p. 610.)
The reviewing court found that the trial court erred in refusing the instructions. (Elize, supra, 71 Cal.App.4th at p. 610.) It stated that a jury could disbelieve the defendant’s testimony that the firing was accidental and decide instead that he had fired intentionally. In convicting him of assault with a firearm, the jury demonstrated it did disbelieve his testimony on this point. Having apparently determined that the firing was intentional and having no instruction regarding self-defense, the jury was deprived of any alternative to conviction. (Ibid.) Referring to the principles set out in Breverman for instructing on lesser included offenses regardless of the theories of the parties, the Elize court stated that “It is clear that inconsistency between an instruction and a defendant’s testimony is no reason to refuse an instruction, so long as substantial evidence supports the instruction . . . .” (Elize, supra, at p. 612, italics added.) The court stated that with both lesser included offenses and defenses such as self-defense, when an instruction is requested, the court should give the instruction if the record contains substantial evidence. (Id. at p. 615.)
Appellant’s case is distinguishable. In Elize, the defense of self-defense “was . . . amply supported in the record.” (Elize, supra, 71 Cal.App.4th at p. 611.) The evidence was undisputed that there was a struggle between the defendant and the two victims and that the defendant fired his gun. The only issue was the reasonableness of the defendant’s response. “Whether the gun was fired in self-defense was a material issue presented by the evidence,” and instructions were necessary to allow the jury to consider this key issue. (Elize, supra, 71 Cal.App.4th at p. 616.) In the instant case, the evidence presented no material issue of self-defense. Not only did appellant’s version of the incident negate any need for self-defense, no other witnesses provided any factual basis for supposing appellant to have a reasonable apprehension of imminent danger of bodily injury. (People v. Jefferson (2004) 119 Cal.App.4th 508, 517-518 [self-defense requires an actual and reasonable belief in the need to defend against imminent danger].) Therefore, there was no reasonable inference to be drawn that appellant believed he was in imminent danger and acted in self-defense.
In Curtis, supra, 30 Cal.App.4th 1337, the defendant likewise claimed that the court erroneously failed to sua sponte instruct on self-defense when it instructed the jury on the offense of brandishing a firearm. (Id. at p. 1362.) In that case, the brandishing offense was alleged in the context of involuntary manslaughter (as a lesser included offense of murder) committed while the defendant was unlawfully brandishing a firearm. (Ibid.) The defendant had shot and killed his girlfriend after her brother knocked on the defendant’s door and said he wanted his sister. (Id. at pp. 1346-1348.) The trial court’s instruction on brandishing, like the instruction here, included the language that it was not unlawful to brandish a firearm in self-defense. (Id. at p. 1343.) No jury instructions on self-defense were given with respect to the murder charge. (Id. at p. 1354.) The Curtis court agreed with the People that there was no evidence that self-defense applied to the defendant’s brandishing of a firearm, since no reasonable person in the defendant’s position would believe an unlawful attack was imminent. (Id. at p. 1363.)
As in Curtis, under the scenario painted by appellant and the other witnesses, no reasonable person would have believed that an unlawful attack upon appellant was imminent. Therefore, there was no substantial evidence to support the requested instruction.
Even assuming self-defense instructions were proper, there is no reasonable probability that appellant would have received a more favorable verdict had the instructions been given. Under the California Constitution, instructional error is reviewed under the Watson standard. (People v. Flood (1998) 18 Cal.4th 470, 490.) In order for error to be harmless, there must be a reasonable probability that the outcome of a defendant’s trial would have been different had the trial court properly instructed the jury. (Ibid.) “[I]nstructional errors that have the effect of removing an element of a crime from the jury’s consideration encompass a broad spectrum of circumstances and may be assessed in the context of the evidence presented and other circumstances of the trial to determine whether the error was prejudicial.” (People v. Flood, supra, at p. 489.)
People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
We believe any error in not reading a self-defense instruction was harmless under any standard in this case. (Chapman v. California (1967) 386 U.S. 18, 24; Watson, supra, 46 Cal.2d at p. 836.) As we have stated, there was no basis for speculating that a reasonable jury would have disbelieved appellant’s testimony that he merely picked up the gun and put it away while Fines was walking back to the building and then believed that appellant actually did brandish the gun and that he did so to protect himself against an imminent attack. The fact that the jury acquitted appellant of the criminal threats charge does not support appellant’s argument. The jury could reasonably have believed that appellant’s phrases shouted in anger were not intended to be taken as a murder threat, but constituted mere “mouthing off” with an unloaded gun, as defense counsel argued. The jury members may also have been dissatisfied with the lack of corroboration of the threats, which defense counsel emphasized to them. Reversal for instructional error is not required in the instant case.
II. Sentence on Count 3
A. Argument
Appellant contends that the trial court should have imposed a six-month jail term instead of a one-year term in count 3 because there was no jury finding that the brandishing occurred in a “‘public place.’” Without this jury finding, appellant’s brandishing offense could be punished only as a misdemeanor.
Respondent agrees that appellant’s sentence in count 3 should have been six months. Unlike appellant, respondent contends that remand for resentencing is not required and that this court should modify appellant’s sentence.
B. Relevant Authority
Section 417, subdivision (a)(2), with which appellant was charged, provides that “[e]very person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel is punishable as follows: [¶] (A) If the violation occurs in a public place and the firearm is a pistol, revolver, or other firearm capable of being concealed upon the person, by imprisonment in a county jail for not less than three months and not more than one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment. [¶] (B) In all cases other than that set forth in subparagraph (A), a misdemeanor, punishable by imprisonment in a county jail for not less than three months.” (Italics added.)
Section 19 provides that “[e]xcept in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.”
C. Proceedings Below
The record shows that, although appellant was charged in count 3 with a violation of section 417, subdivision (a)(2), no mention of the language “in a public place” appears in the charging document. The jury was not instructed that it had to find appellant exhibited the firearm in a public place, and it made no such finding. Therefore, appellant could not receive the sentence of one year in county jail for exhibiting the firearm in a public place, and his maximum sentence for count 3 should have been six months, in accordance with section 19. Appellant’s one-year jail term was clearly unauthorized. “[A] sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstance in the particular case.” (People v. Scott (1994) 9 Cal.4th 331, 354.) In such circumstances, “[a]ppellate courts are willing to intervene in the first instance because such error is ‘clear and correctable’ independent of any factual issues presented by the record of sentencing.” (Ibid.)
It does not appear from the record that the trial court would exercise its discretion to impose less than the maximum term if we were to remand this case for a new sentencing hearing. When defense counsel asked the trial court to run the two 1-year terms concurrently, the trial court refused. It stated that it believed appellant had lied on the stand and attempted to mislead the jury, and the trial court believed the complaining witness completely. The trial court also noted appellant’s lengthy record, which included many incidents of violence, in support of its decision. Given the trial court’s remarks, we believe there is no reasonable probability the trial court would exercise leniency. Even appellant states that he should be sentenced to six months. We therefore dispense with remand for resentencing and modify appellant’s sentence to the maximum six-month term allowed by the statutes. (See People v. Avalos (1984) 37 Cal.3d 216, 233.)
DISPOSITION
The judgment is modified to reduce the one-year term imposed on count 3 to a six-month term, and appellant’s total sentence is reduced to one year and six months. As modified, the judgment is affirmed.
We concur: DOI TODD, J., CHAVEZ, J.