Opinion
D072861
02-22-2018
THE PEOPLE, Plaintiff and Respondent, v. KEVIN ROBINSON, Defendant and Appellant.
Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Barry Carlton, Garrett Beaumont and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FVI1404003) APPEAL from a judgment of the Superior Court of San Bernardino County, John M. Tomberlin, Judge. Affirmed in part, and reversed in part with directions. Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Barry Carlton, Garrett Beaumont and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Kevin Robinson pulled out his gun and pointed it at his acquaintance while in the acquaintance's bedroom, and waved the gun towards two other individuals in the room. The witnesses reported that defendant also fired one bullet during this incident. No one was injured.
Based on this event, defendant was charged with: (1) one count of attempted murder; (2) three counts of assault with a firearm (one for each individual in the room); and (3) two counts of attempted robbery. The jury found defendant not guilty of the attempted murder and attempted robbery charges. But the jury found defendant guilty of the three counts of assault with a firearm, and found true the allegations that he personally used a firearm in committing each of these assaults. (Pen. Code, §§ 245, subd. (a) (2), 12022.5, subds. (a), (d).) Defendant admitted prior strike and prison term allegations. (Pen. Code, §§ 667, subds. (b)-(i), 667.5, subd. (a).) The court imposed a 25-year prison term, which included a 10-year term for the firearm-use enhancement on one of the assault counts, and one year each for the firearm-use enhancement on the other two counts.
All further statutory references are to the Penal Code.
Defendant contends the court erred in failing to sua sponte modify the model assault-with-firearm instruction (CALCRIM No. 875) to clarify that the prosecution had the burden to show he committed an assault against each victim named in each count. Defendant also argues a unanimity instruction (requested by both prosecutor and defense counsel) compounded the error. We reject these contentions.
After we initially filed this opinion on December 29, 2017, Robinson petitioned for a rehearing, raising a new issue: whether the matter should be remanded to permit the trial court to exercise its discretion on whether to strike or dismiss the firearm enhancements under a statutory amendment that became effective on January 1, 2018. (§ 12022.5, subd. (c).) We granted the rehearing petition and allowed the parties to file briefs on this issue. After reviewing the additional briefing, we remand for the court to conduct a new sentencing hearing to consider whether to "strike or dismiss" the section 12022.5 firearm enhancements "in the interest of justice." (§ 12022.5, subd. (c).) We affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL SUMMARY
Prosecution Case
In September 2014, defendant went to the home of Earl and Joan. Defendant had known Earl for about six or seven months. After defendant entered the home, he and Earl went into Earl's small master bedroom. Defendant then asked Earl to join him in fighting some men who were nearby. After Earl refused, defendant became angry and pulled out his .380 caliber gun and pointed it toward Earl, telling him he would kill him. At some point, Joan and her neighbor Melissa joined the two men in the room. All three witnesses testified that defendant fired a shot toward Earl, but missed him. Before or after firing this shot, defendant waved the gun around the room, including pointing it toward the two women. Robinson was acting "crazy" and "frantic and paranoid," and was "waving" the gun toward all three individuals. Robinson said he would "kill everybody" in the house (several young children were also at home) if the police were called.
Defendant also pulled out dresser drawers (or told one of the women to do so), and demanded that Earl give him "everything [he] had." There was no evidence defendant took anything from the house.
Shortly after, Earl told defendant there was something in his truck that defendant could have. Defendant held the gun to Earl's back as they walked outside. When defendant started looking in the truck, Earl ran away and called 911. Earl told the 911 dispatcher that defendant had fired a shot at him after he refused to go with defendant to "fight these guys around the corner."
Deputy Thomas Gates responded to the call about 35 minutes later, and spoke with Earl who appeared "terrified." Deputy Gates found an expended .380 caliber shell casing underneath clothing in the master bedroom and a penetration mark at the end of a table. He also found .45 caliber ammunition in the house. Earl later pleaded guilty to illegally possessing this ammunition as a convicted felon.
Although the officers did not find a bullet when they searched the bedroom, Joan testified that two or three days later, she found a disfigured .380 caliber bullet on a rag in the master bedroom. About 10 months later, in July 2015, Joan gave this bullet to a district attorney investigator.
At trial, the prosecutor presented the testimony (summarized above) of Earl, Joan, Melissa, and the responding officer. The prosecutor also called Earl's older daughter, who testified she heard a shot fired while defendant was in the bedroom with Earl. Earl admitted a 1996 conviction for possessing a controlled substance for sale, a 2005 conviction for domestic battery, and a 2015 conviction for illegally possessing ammunition. Earl initially lied to Deputy Gates when the officer asked him about the ammunition found at his house. Earl first said he was not a convicted felon, and then said it was not his ammunition.
Defense Case
Defendant did not testify or present any witnesses, but claimed the three witnesses fabricated the entire story. His counsel's main argument was that the jury should not find the witnesses credible because their testimony was inconsistent on numerous details. For example, the evidence was conflicting as to: (1) when and why Melissa came to Earl's home; (2) Earl's location in the bedroom when the gun was purportedly fired; (3) who pulled out the dresser drawers and how many drawers were pulled; (4) who came up with the plan to get defendant out of the house by telling him there may be valuables in Earl's truck; and (5) how and when the two women left the home after defendant and Earl exited towards Earl's truck. Defense counsel also focused the jury's attention on Earl's criminal history and his denials regarding the ammunition found at his house as evidence that Earl was not a truthful person.
On the assault-with-firearm counts, defense counsel maintained that even if the jury believed defendant pointed and/or waved the gun in the direction of the three individuals while in the bedroom, this action was not conduct "that by its nature would directly and probably result in the application of force to a person." He argued: "[I]f you believe their story about what happened, . . . the most they have proven here is a negligent discharge of a firearm. Not an attempted murder. Not an assault with a firearm. And so that is why you should vote not guilty on the assault with a firearm counts, because even if you believe these witnesses, it's still not there. And I submit that you should not believe these witnesses . . . because of the inconsistencies."
Verdict
The jury found defendant not guilty of the attempted murder and robbery charges, but found him guilty of the assault with a firearm offenses. Regarding the guilty findings, the verdict forms read: (1) "We . . . find the defendant . . . guilty of the crime of assault with a firearm of Earl . . . in violation of Penal Code section 245(a)(1) as charged in Count 2"; (2) "We . . . find the defendant . . . guilty of the crime of assault with a firearm of Joan . . . in violation of Penal Code section 245(a)(1) as charged in Count 3"; (3) We . . . find the defendant . . . guilty of the crime of assault with a firearm of Melissa . . . in violation of Penal Code section 245(a)(1) as charged in Count 4." (Italics added, capitalization and holding omitted.) As charged, each assault count pertained to a particular victim: Count 2 alleged that defendant "commit[ted] an assault on Earl"; Count 3 alleged that defendant "commit[ted] an assault on Joan"; and Count 4 alleged that defendant "commit[ted] an assault on Melissa." (Italics added.) On each of these counts, the jury found Robinson personally used a firearm within the meaning of section 12022.5, subdivision (a).)
DISCUSSION
I. Claimed Instructional Error
Defendant contends the court erred because the jury could have misunderstood the standard jury instruction defining an assault with a firearm (CALCRIM No. 875) to mean the jury could find him guilty of the offense against each victim even if the jury found he committed the assault against only one of the victims. Defendant argues this error relieved the prosecution of the burden of proving the crimes beyond a reasonable doubt.
Using the model CALCRIM No. 875 instruction, the court instructed the jury on assault with a firearm as follows:
"The defendant is charged in Counts 2, 3, and 4 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 to a person. [¶] . . . [¶]
"The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. [¶] Making contact with another person, including through his or her clothing, is enough. . . .
"The People are not required to prove that the defendant actually intended to use force against someone when he acted. No one needs to actually have been injured by the 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." (Italics added.)
Defendant argues the singular nouns "person" and "someone" (italicized in the above-quoted instruction) were misleading because the jury would not have understood that these terms referred to the particular victim named in each particular count. He argues the jury could have erroneously believed his pointing the gun at Earl was necessarily sufficient to show an assault against Joan and/or Melissa.
" 'It is fundamental that jurors are presumed to be intelligent and capable of understanding and applying the court's instructions.' [Citation.] ' "A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant. [Citations.]" [Citation.] " '[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.' " ' " (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 433.)
There is no reasonable likelihood the jury would have misunderstood the instruction in the manner suggested by defendant. The information clearly identified that each count related to a separate victim, and the court specifically instructed the jury: "Each of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one." The verdict forms required the jury to return a separate verdict as to each victim. Reading the record as a whole, it would not be reasonable for the jury to interpret the instruction as allowing it to find defendant guilty of an assault against a victim based solely on actions against a separate victim. A reasonable juror would have understood that the prosecution charged defendant with an assault against each of the three individuals in the bedroom, and that it must consider each of these charged crimes separately in deciding whether the prosecution met its burden as to each count.
Defendant's arguments to the contrary are based on a hypertechnical interpretation of the jury instructions. It is not reasonable to conclude an average juror using standard logic would attribute defendant's suggested meaning to the instruction. We assume that jurors exercise common sense in construing instructions and deliberating. " 'We credit jurors with intelligence and common sense [citation] and do not assume that these virtues will abandon them when presented with a court's instructions.' " (People v. Sanchez (2013) 221 Cal.App.4th 1012, 1024.)
Additionally, the prosecutor's closing arguments clarified any ambiguity by focusing the jury's attention on defendant's particular acts against each victim. (See People v. Kelly (1992) 1 Cal.4th 495, 524-527 (Kelly) [closing argument can correct any potential misunderstanding of applicable law]; see also People v. Visciotti (1992) 2 Cal.4th 1, 58-59.) On the assault counts, the prosecutor argued: "Count 2 is assault with a firearm on Earl Jones. Now, what satisfies that? Well, his initial pulling out and pointing the weapon, that satisfies it. We also have when he's waving the gun after he shot, that satisfies it. Also, when he's walking out towards the truck, the gun in [Earl's] back. That satisfied it. [¶] 3 is assault with a firearm on [Joan]. She was sitting in the room while's he's pointing the gun. He's, you know, moving, waving the gun side to side, pointing it, endangering everyone in that room. He's endangering her. That's Count 3. Count 4 is in regard to [Melissa,] who is also in the room when he's waving the gun back and forth." (Italics added.)
This argument communicated that the jury should consider whether the individual in the bedroom was within the zone of danger when considering the particular count against that victim. (See People v. Trujillo (2010) 181 Cal.App.4th 1344, 1350-1357 (Trujillo).) By referring to defendant's conduct toward each victim, the prosecutor focused the jury's attention on the need to find defendant's act of pointing and/or waving a gun in the room "would directly and probably result in the application of force" to the particular alleged victim named in the count (rather than to another victim) and the defendant had the "present ability to apply force with a firearm" against that named victim (rather than to another victim).
People v. Velasquez (2012) 211 Cal.App.4th 1170 (Velasquez), relied upon by defendant, is distinguishable. There, the defendant shot at a residence's garage 10 times in a drive-by shooting. (Id. at p. 1175.) Only one person was in the garage (Maria). (Ibid.) The defendant was charged with five counts of assault with a firearm, one for Maria and one for each of the four individuals who were in other areas of the residence. (Ibid.) The jury found him guilty of each of these assault counts. (Id. at pp. 1174-1175.) On appeal, the defendant contended the four counts (other than as to Maria) had to be reversed because CALCRIM No. 875 did not identify each particular alleged assault victim as the " 'person' " against whom the force would "directly and probably result." (Velasquez, at p. 1176.) The defendant maintained the instruction improperly allowed the jury to convict defendant of those counts simply because Maria was at risk of being struck by a bullet. (Ibid.)
The reviewing court agreed that CALCRIM No. 875's reference to a "person" and "someone," rather than to the victim by name, might have misled the jury to believe the prosecutor was not required to prove defendant's shooting into the garage would directly and probably result in application of force to each victim named in each count. (Velasquez, supra, 211 Cal.App.4th at p. 1177.) In reaching this conclusion, the Velasquez court explained: "One cannot assault John Doe, when the defendant aimed at Tom Smith, if John Doe as standing hundreds of feet behind the defendant when the defendant shot the firearm . . . . Tom Smith was the victim of an assault because the act in this hypothetical would directly and probably result in application of force to him. But John Doe, who was hundreds of feet away in the opposite direction, unthreatened and unharmed, was not a victim of assault because the defendant did not commit an act that 'by its nature would directly and probably result in application of force' to John Doe." (Id. at pp. 1176-1177.)
This case is materially different. In Velasquez, the prosecution's theory was that the defendant's act of shooting 10 times into the garage put all individuals in the house at risk, regardless of how far they were from the shots or whether the defendant knew of the existence of these individuals in the home. (Velasquez, supra, 211 Cal.App.4th at p. 1175.) The jury thus may have erroneously believed it did not need to separately consider the case against the defendant as to each victim named in each count. In this case, the prosecutor's theory was that defendant's actions of waving and pointing the gun in the bedroom, while threatening everyone in the bedroom, showed an assault against each victim in the same room. And unlike Velasquez, the prosecutor here separately discussed the evidence showing that defendant waved the gun in the direction of each victim. Further, in Velasquez, defense counsel raised the issue of whether all individuals were targets of the shooting. (Id. at p. 1177.) Here defense counsel's theory was that defendant did not point or wave a gun in the bedroom, but even if he did, this was not an act that would have "directly and probably result[ed] in the application of force to a person." Defense counsel did not argue that defendant may have assaulted one person in the room but not the others.
Velasquez stands for the unremarkable proposition that the jury should understand the prosecutor must prove the named assault victim was subject to the probable application of force. Here, there was no reasonable possibility the jury would not have understood this concept. Viewed in a commonsense manner, the jury instructions together with counsels' arguments sufficiently conveyed the correct legal principles governing the assault counts.
Defendant contends the court's unanimity instruction added to the confusion by suggesting to the jury it need only find "one act" to convict defendant of all three assault counts. The unanimity instruction read: "The defendant is charged in Counts 2, 3 and 4 with the crime of assault with a firearm. [¶] The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless the People have proved the defendant guilty of at least one of these acts, and you all agree on which act he committed."
Defendant forfeited his right to challenge this instruction. Defense counsel expressly joined in the prosecutor's request that the court give the unanimity instruction on the assault counts as to each of the three alleged victims. When the court responded that it did not believe this instruction was necessary, but it would be willing to give the instruction if it would not confuse the jury, both counsel (including defense counsel) reconfirmed their desire for this instruction. Defense counsel's joinder in the instruction request precludes defendant's appellate challenge. " 'The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest. If defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal.' " (People v. Marshall (1990) 50 Cal.3d 907, 931.)
Because an unanimity instruction can make it more likely a jury will not be in agreement on any one count, defense counsel presumably had a tactical reason for asking for the instruction. We do not second-guess counsel's tactical decision on appeal. (See Kelly, supra, 1 Cal.4th at p. 520.)
Defendant's challenge to the unanimity instruction also fails on its merits. Defendant argues the instruction would have confused the jury because the jury could have misconstrued the instruction to believe it had to find only "one act" as to all victims to find him guilty of all three counts. Thus, he asserts that the jury could have believed that his single act of pointing or waving the gun at Earl would have been sufficient to show an assault against Joan and/or Melissa. This argument is unavailing. First, on the record before us, it is correct that a single act of waving the gun in the small bedroom was sufficient to commit an assault against each of the victims. "An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (Pen. Code, § 240.) "[T]he gravamen of assault is the likelihood that the defendant's action will result in a violent injury to another . . . ." (Trujillo, supra, 181 Cal.App.4th at p. 1355.) Defendant's conduct in acting "frantic and paranoid" while pointing and waving the gun in a small bedroom supports an assault conviction as to each of the individuals in that room. (See ibid. [violent act "that create[s] a zone of harm encompassing multiple potential victims" can support multiple assault crimes].) Second, the record does not show that the unanimity instruction would have caused a reasonable jury to believe it could find the defendant guilty of each count if it found an assault act against only one of the victims. The jury was instructed that it must consider each count separately. There is nothing in the unanimity instruction that would have led the jury to disregard this instruction.
Finally, any error in giving the challenged instructions was not prejudicial. Defendant contends the harmless-beyond-a-reasonable-doubt standard governs the prejudice analysis. (See Velasquez, supra, 211 Cal.App.4th at p. 1177.) Assuming the applicability of this standard, the Attorney General met its appellate burden to show the outcome would have been the same had the jury received the clarifying instructions. First, the jury's findings that the prosecution did not prove some of the counts (attempted murder and attempted robbery) confirms the jury understood the need to independently evaluate the evidence as to each charged count. Second, the assault crimes against each victim occurred at essentially the same time in the same small physical space: as defendant was pointing the gun at Earl, he also turned to wave the gun toward the two women. Thus, it is not reasonable to conclude the jury would have found Earl was a victim of the assault without also finding the two women were also victims of the assault.
Defendant argues that the prosecution relied on more than one act to support its assault case as to victim Earl (the pointing of the gun, the waving of the gun, and the walking outside with the gun). However, these events show a continuing occurrence, and on the record before us there is no principled basis to conclude the jury would have found defendant committed an assault against Earl and not against the two women. For similar reasons we reject defendant's prejudice argument based on his assertion that the evidence of an assault on Joan and Melissa was "ambiguous and uncorroborated." Although the evidence was inconsistent as to precisely what occurred in the bedroom, the testimony of the three witnesses was consistent on the essential issue that defendant waved the gun towards the three individuals. The focus of the prejudice analysis is whether the jury would have returned different verdicts had it received a clarifying instruction regarding the need to prove that defendant placed each of the named victims in the zone of danger. On our review of the entire record, we are satisfied there was no possibility of a different outcome with the additional instruction.
II. Remand Request Based on Recently Amended Section 12022 .5
At the time of sentencing and when we initially filed this opinion in December 2017, section 12022.5 prohibited the trial court from striking firearm-use enhancement allegations or findings. (Former § 12022.5, subd. (c).) The statute read: "Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section." (Ibid.)
Shortly after we filed this opinion, on January 1, 2018, an amendment to section 12022.5, subdivision (c) became effective. (Stats. 2017, ch. 682.) In this amendment, the Legislature deleted the former prohibition, and stated: "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." (§ 12022.5, subd. (c).)
In his rehearing petition, Robinson requests that we remand to allow the court to exercise its discretion to consider striking or dismissing the three section 12022.5 firearm-use enhancements under this newly amended code section. He contends that because his judgment is not yet final, this court must apply the amendment retroactively under In re Estrada (1965) 63 Cal.2d 740, People v. Francis (1969) 71 Cal.2d 66, and the state and federal Constitutions. He also argues that a change in the governing law provides good cause to raise the issue for the first time in a rehearing petition.
The Attorney General does not challenge that the issue could be properly raised in a rehearing petition, and concedes that recently amended section 12022.5, subdivision (c) "has a retroactive effect" and therefore governs this case. Based on our high court's recent decision in People v. Superior Court (Lara) (Feb. 1, 2018, S241231) ___ Cal.4th ___ , we agree with the Attorney General's concession.
The Attorney General nonetheless argues remand is "not necessary because no reasonable court would find it in the interests of justice to strike the gun use enhancement." The Attorney General relies on People v. Gutierrez (1996) 48 Cal.App.4th 1894. During the pendency of the Gutierrez appeal, the California Supreme Court held that trial courts have the discretion to strike a prior strike conviction in the furtherance of justice, and ruled that its holding was retroactive. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531 & fn. 13.) Applying Romero, the Gutierrez court held a remand was not necessary because the trial court "indicated that" even if it had the discretion, it would "not . . . have exercised its discretion to lessen the sentence." (Gutierrez, at p. 1896.)
This case is different because the record does not clearly indicate how the court would have exercised its discretion. Robinson's 25-year sentence consisted of (1) the middle six-year term for the assault count pertaining to Earl (three-year term doubled under the Three Strikes law); (2) a 10-year term for the section 12022.5 firearm-use enhancement on the assault count pertaining to Earl; (3) consecutive subordinate two-year terms for each of the two remaining assault counts (Joan and Melissa) (one-year terms doubled under the Three Strikes law); (4) consecutive one-year terms for the section 12022.5 firearm-use enhancements on these two remaining assault counts; and (5) three years for the prior prison term enhancement.
In imposing this sentence, the court declined to strike the strike, noting that Robinson had recently been out of prison on "robbery with a gun [use]." But the court also indicated that it was required to impose consecutive terms for the firearm use findings and selected the lower term on two of the gun enhancements. Additionally, the total 25-year sentence was lower than the probation officer's recommended 31-year, eight-month sentence.
On this record, it is not clear the court would have imposed the same sentence if it knew it had the discretion to strike the firearm-use enhancements. It is thus appropriate to remand the matter to allow the trial court to exercise its discretion on the section 12022.5 firearm-use enhancements. This conclusion does not suggest an opinion on the manner in which the court should exercise this discretion.
DISPOSITION
The matter is remanded for resentencing for the purpose of allowing the superior court to consider whether the section 12022.5, subdivision (a) enhancements on counts two, three, and four should be dismissed or stricken under section 1385. The court shall forward any modified abstracts to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
HALLER, J. WE CONCUR: BENKE, Acting P. J. AARON, J.