Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge, Super. Ct. No. 05CF3831.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant was convicted of several charges arising from an incident in which he threatened a woman with a gun in the presence of her children. He argues various errors, including prosecutorial misconduct, instructional error, and a lack of substantial evidence. We find no merit in any of these arguments and affirm.
I
FACTS
As of December 2005, Araceli S. lived with her common-law husband Javier and her four children, ages four through ten, in Santa Ana. Defendant, Javier’s brother, had dated Araceli several years earlier and lived nearby.
On December 1, Araceli was shopping at a swap meet with her youngest child and two friends. Defendant called Araceli in the afternoon and offered a ride home, and she agreed. When defendant arrived, two of Araceli’s older children were with him. She was surprised, as she expected the children to be at school. During the drive, defendant stopped at his house, saying he needed to use the restroom, and was inside for about five minutes. When he returned and continued driving, Araceli noticed that his driving was erratic and his eyes were red. Because she was worried defendant might be drunk, Araceli asked defendant to let her drive. He first refused but eventually agreed.
Araceli dropped off her friends and continued toward her own home. As she was about to turn onto her own street, defendant ordered her to continue to drive straight ahead. When she asked why, defendant responded that he wanted to go “buy some beers.” She said no and turned the steering wheel. Defendant became angry, tried to grab the steering wheel, and struggled with her for control of the vehicle.
She was able to reach her home and park the car, but before she could turn off the engine, defendant removed a gun from his waistband, cocked it and pointed it at her head. She felt it touch her head. Defendant ordered Araceli to go where he told her to go. Defendant told her that he was very tired, and that if she wasn’t going to be his, she wasn’t going to be anyone else’s. Araceli asked him to calm down because of the children’s presence, but defendant said that he did not care and would force Araceli to be his in front of the children.
Araceli put her hands on the gun and tried to point it away from her head. The three children tried to help their mother by throwing themselves on defendant. During the struggle, the gun discharged. Araceli was able to wrest the gun from defendant, but he retrieved it and again threatened her, stating that he didn’t care about anything and he was going to kill her.
After five or ten minutes, Araceli was again able to wrest the gun from defendant and throw it out the window. She eventually escaped from the vehicle with the children. Neighbors who had witnessed portions of the incident had called the police, who arrived shortly thereafter. The gun was retrieved and a physical description of defendant was broadcast. The gun was identified as a .22-caliber Smith & Wesson semiautomatic handgun. When one of the officers pulled the slide back, a spent case ejected from the chamber.
After leaving the scene, defendant drove to a market nearby. He spoke to Jennifer Castaneda, who was setting up a vendor display. During their conversation, he informed Castaneda that the police were looking for him for a traffic violation, and he would be deported if he was found. He asked Castaneda several times if the store had a back exit, and she repeatedly replied that she did not know. He also asked if she had any company T-shirts to give away, as he wanted to change his clothes. Castaneda replied that she did not. Defendant told her that he had left his car in the back and asked if someone could take the car to his house. She declined. At some point she had noticed two police officers outside. As Castaneda left the market, defendant told her not to tell the police he was inside.
The two police officers, however, had already seen defendant’s car. Defendant left the market shortly after Castaneda, and was taken into custody. Detective Rene Bonilla, who had responded to the scene at Araceli’s home, took her to the market, where she identified defendant in a field show-up. While he was being transported to the police station, after being advised of and waiving his rights under Miranda v. Arizona, (1966) 384 U.S. 436, he agreed to talk.
Defendant told Bonilla he had bought the gun two weeks ago from a stranger after receiving death threats. He planned to keep the gun in the house, but had the gun with him to show Araceli what he had purchased. He said he had tried to show Araceli the gun while she was driving, and it had slipped and accidentally discharged. He did not know that the gun was loaded. After the gun went off, Araceli became frightened and left with her children. Defendant said he became frightened because he had purchased the gun from a stranger, so he fled the scene and went to the market. He denied threatening Araceli, ordering her to drive somewhere, or struggling with her. He said he had never pointed the gun at Araceli.
Defendant was charged with attempted murder (count one; Pen. Code §§ 664/187, subd. (a)); assault with a firearm (count two; § 245, subd. (a)(2)); criminal threats (count three, § 422); and felony child abuse (count four, § 273a, subd. (a)). It was further alleged that as to count one, defendant intentionally discharged a firearm (§ 12022.53, subd. (b)) and as to counts one, two and three, that defendant personally used a firearm (§ 12022.5, subd. (a).)
Subsequent statutory references are to the Penal Code.
Among other witnesses, forensic firearm and tool examiner Rocky Edwards testified at trial. He testified about the general procedure for firing a semiautomatic handgun and about the specific gun in this case. He explained that there are four safeties on the gun, and none of the safeties on defendant’s gun were malfunctioning. He also explained that the trigger pull was 5.1 pounds, meaning that was the amount of pressure it required to fire the weapon. He performed a test by dropping it from a height of two feet and striking it with a rubber mallet. This did not cause the gun to fire. Based on his expertise, Edwards opined that defendant’s gun was working properly. Asked why a casing would remain in the gun, as it did in this case, Edwards explained this could happen if someone’s hands were on the slide when the gun was fired (e.g., while struggling for the gun).
At the conclusion of the trial, the jury found defendant guilty of counts one, two, and three, and of misdemeanor child abuse (§ 273a, subd. (b)), a lesser-included offense of count four. The jury also returned true findings on the section 12022.5, subdivision (a) enhancements on counts one, two, and three. The section 12022.53, subdivision (b) enhancement on count one was found not true. Defendant was sentenced to 11 years in state prison.
II
DISCUSSION
A. Prosecutorial Misconduct
During closing argument, the prosecutor said: “So, the best example I can come up with from every day life to show beyond a reasonable doubt is the game, Wheel of Fortune. I think everybody knows that game. Participants spin the wheel, a color amount comes up, they guess a letter. If the letter is up there, Vana [sic] starts turning over the letters for them. [¶] And at some point you sit there and you watch that game and you’re looking at that, not all the letters have been turned over but you know what the answer is. And then you watch the greedy contestant spin the wheel again and hit bankrupt as opposed to taking what they have, when it’s clear and evident what the answer is without every single letter being turned over.” The court overruled a defense objection.
The prosecutor continued: “Not every single letter needs to be turned over for you. That would be beyond all doubt. If every single letter was turned over for you [in] that puzzle, you would know the answer beyond all doubt. And that is not my burden. My burden is beyond a reasonable doubt. [¶] So, as you look at the evidence that’s presented to you, have enough letters been turned over, is there turned over that you know beyond a reasonable doubt what the answer is.”
According to defendant, this argument constituted misconduct and an attempt by the prosecutor to relieve it from the burden of proving its case beyond a reasonable doubt. A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. (Donnelley v. DeChristoforo (1974) 416 U.S. 637, 642-643; People v. Hill (1998) 17 Cal.4th 800, 819.) Misconduct by a prosecutor that does not render a criminal trial fundamentally unfair is error under state law “if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44.)
A prosecutor, however, is entitled to argue his or her case vigorously, and is therefore entitled to wide latitude in closing argument. (People v. Bonilla (2007) 41 Cal.4th 313, 336-337.) Further, (“‘[A] court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations’”). (Boyde v. California (1990) 494 U.S. 370, 385.)
We find no error in the prosecutor’s comment. She was attempting to provide an example to the jury of the difference between reasonable doubt and no doubt at all. While a puzzle with all its letters revealed would leave no doubt as to its solution, the answer to a puzzle with some letters unrevealed could still be beyond a reasonable doubt. This is not equivalent to the argument made in People v. Nguyen (1995) 40 Cal.App.4th 28, 35, in which the prosecutor compared proof beyond a reasonable doubt to the standard people use in their everyday lives to make important decisions, such as getting married and changing lanes while driving.
Defendant characterizes the prosecutor’s argument as being about “the thought process contestants use when playing Wheel of Fortune on TV.” We disagree; indeed, we find the remarks could not reasonably be construed in the manner suggested by defendant. (See People v. Combs (2004) 34 Cal.4th 821, 854-855.) When taken in context (notably, defendant’s brief omits some passages of the argument) we conclude the argument was intended to highlight the fact that while some letters of a word puzzle could be missing, the solution could still be clear beyond a reasonable doubt. This is entirely permissible.
Further, because we presume that jurors followed the court’s various admonitions and instructions, any ambiguity that could possibly have been created by the prosecutor’s argument was cured by the court’s instructions and admonitions to the jury. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) The court gave the reasonable doubt instruction twice, before opening statements and as part of its general charge to the jury.
B. Instructional Error
Defendant raises a number of claims of instructional error. The 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. [Citations.]” (People v. Burgener (1986) 41 Cal.3d 505, 538, overruled on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 753.) Moreover, “Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court’s instructions. [Citation.]” (People v. Sanchez (2001) 26 Cal.4th 834, 852.) “There is no error in a trial court’s failing or refusing to instruct on one matter, unless the remaining instructions, considered as a whole, fail to cover the material issues raised at trial. As long as the trial court has correctly instructed the jury on all matters pertinent to the case, there is no error. The failure to give an instruction on an essential issue, or the giving of erroneous instructions, may be cured if the essential material is covered by other correct instructions properly given. [Citations.]” (People v. Dieguez (2001) 89 Cal.App.4th 266, 277.)
1. Child Abuse
With respect to count four, the jury was instructed with Judicial Council of California Criminal Jury Instructions (2006), CALCRIM No. 821, as follows: “The defendant is charged in Count 4 with child abuse likely to produce great bodily harm or death. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully inflicted unjustifiable physical pain or mental suffering on a child. [¶] 2. The defendant inflicted pain or mental suffering on the child under circumstances or conditions likely to produce great bodily harm or death. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. [¶] A child is any person under the age of 18 years. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] Unjustifiable physical pain or mental suffering is pain or suffering that is not reasonably necessary or is excessive under the circumstances. [¶] A child does not need to actually suffer great bodily harm. But if a child does suffer great bodily harm, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed the offense.”
The jury was also instructed on the lesser-included offense of misdemeanor child abuse pursuant to CALCRIM No. 823: “The defendant is charged in Count 4 as a lesser included offense of simple child abuse. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] The defendant willfully inflicted unjustifiable physical pain or mental suffering on a child; [¶] Someone commits an act willfully when he or she does it willingly or on purpose. [¶] A child is any person under the age of 18 years. [¶] Unjustifiable physical pain or mental suffering is pain or suffering that is not reasonably necessary or is excessive under the circumstances.” The court also gave a “Child Endangerment Special Instruction” which instructed the jury on the definition of “likely” as it applies to the felony charge. It is not pertinent here.
Defendant complains these instructions did not inform the jury they were required to find that he caused the “unjustifiable physical pain or mental suffering.” He asserts: “Whether [defendant’s] conduct proximately caused the children to suffer pain or mental suffering was a matter that was closely and openly associated with this case. According to the testimony, [defendant’s] conduct was directed toward the children’s mother . . . not toward them. There was no testimony that [defendant] deliberately tried to injure [the children]. Thus any pain and suffering the children may have endured was an indirect consequence of the conflict between the two adults.” He further argues that the nature of the physical or mental suffering the children experienced was an issue, and claims a lack of evidence to connect the children’s subsequent behavior with the incident.
Defendant’s argument is misplaced. The language of the instruction requires that defendant “willfully inflicted unjustifiable physical or mental suffering on a child.” In this context, “inflicted” is no different than “caused.” No reasonable juror could conclude a person was guilty of the crime unless he or she was the cause of unjustifiable suffering.
Defendant’s claim that proximate cause was lacking because “any pain and suffering the children may have endured was an indirect consequence of the conflict between the two adults” fundamentally misapprehends the nature of proximate cause. Proximate cause does not, in this case, require an intent to cause suffering. As the jury was properly instructed, the only intent required is the intent to perform the act. Here, the “conflict” between the adults would not have occurred but for defendant’s acts. There was no arguable secondary or intervening cause. (See People v. Morse (1992) 2 Cal.App.4th 620, 639.)
With respect to the factual evidence of a connection between the incident and the children’s later behavior, that is a question of substantial evidence, which we address post in section C. It is not a question of instructional error, and we find none with respect to count four.
2. Assault with a Firearm
With respect to count two, assault with a firearm, the jury was instructed with CALCRIM No. 875: “The defendant is charged in Count 2 with assault with a firearm. To prove that the defendant is guilty of this crime, the People must prove:
[¶] 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. [¶] 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 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 touching does not have to cause pain or injury of any kind. [¶] The touching can be done indirectly by causing an object or someone else to touch the other person. [¶] The People are not required to prove that the defendant actually touched someone. [¶] The People are not required to prove that the defendant actually intended to use force against someone when he acted.”
Defendant argues that the court’s instruction on assault with a firearm was deficient in two ways. First, he claims the instruction actually given as to the nature of the assault was incorrect. Next, he asserts the court erroneously refused a special instruction advising the jury that assault with a firearm required more than willful conduct, but the intent to commit a battery. He argues there was evidence that he was unaware the gun was loaded.
We need not belabor this issue. The instruction is legally correct; assault with a deadly weapon is a general intent crime. “[A]ssault 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.” (People v. Williams (2001) 26 Cal.4th 779, 790.) Further, the least touching may indeed constitute battery. (People v. Myers (1998) 61 Cal.App.4th 328, 335.)
The question of whether there was sufficient evidence that defendant knew the gun was loaded is, as one might suspect, an issue of substantial evidence, not instructional error. (Defendant does not raise it as such, but if he did we would find there was substantial evidence.) In any event, the jury was properly instructed on this count, and no special instruction was necessary.
3. Criminal Threats
The jury was instructed with CALCRIM No. 1300: “The defendant is charged in Count 3 with having made a criminal threat. To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to [Araceli].
[¶] 2. The defendant made the threat to [Araceli] orally. [¶] 3. The defendant intended that his statement be understood as a threat. [¶] 4. The threat was so clear, immediate, unconditional, and specific that it communicated to [Araceli] a serious intention and the immediate prospect that the threat would be carried out. [¶] 5. The threat actually caused [Araceli] to be in sustained fear for her own safety or for the safety of her immediate family. [¶] And, 6. [Araceli]’s fear was reasonable under the circumstances. [¶] . . . [¶] Sustained fear means fear for a period of time that is more than momentary, fleeting, or transitory.”
The court also instructed the jury on the lesser-included offense of attempted criminal threats under CALCRIM No. 460: “The defendant is charged as a lesser included offense to Count 3 with attempted criminal threats. To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant took a direct but ineffective step toward committing a criminal threat. [¶] And, 2. The defendant intended to commit a criminal threat. [¶] A direct step requires more than merely planning or preparing to commit a criminal threat or obtaining or arranging for something needed to commit a criminal threat. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to commit a criminal threat. It is a direct movement towards the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt. [¶] To decide whether the defendant intended to commit a criminal threat, please refer to the separate instructions that I have given you on that crime, CALCRIM 1300, above.”
Defendant argues that the court had a sua sponte responsibility to instruct the jury that if the victim (Araceli) was not in sustained fear, the crime could only be an attempt. At the outset, we note that trial courts are not required to modify standard instructions without a request from the defendant. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1142.)
Even if there were such a duty, such an instruction was not necessary here. The sustained fear requirement was thoroughly set out in CALCRIM No. 1300. It would be clear to any reasonable juror that if they did not believe Araceli was in sustained fear, the crime could at most be an attempt. Thus, “the court’s instructions, when considered as a whole, properly guided the jury’s consideration of the evidence. [Citation.]” (People v. Rodrigues, supra, at pp. 1142-1143.)
C. Substantial Evidence of Misdemeanor Child Abuse
The standard of review is whether, after reviewing the evidence in the light most favorable to the judgment, a rational fact finder could have concluded defendant was guilty beyond a reasonable doubt. (People v. Rowland (1992) 4 Cal.4th 238, 269.) “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) Evidence is substantial when it is of ponderable legal significance, reasonable in nature, credible, and of solid value. (People v. Ramsey (1988) 203 Cal.App.3d 671, 682.)
Defendant asserts the record contains no evidence that defendant inflicted pain or mental suffering on a child within the meaning of section 273a, subdivision b, which states: “Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor.”
Defendant argues that by agreeing to have the jury instructed only on the “inflicts . . . unjustifiable pain or mental suffering” prong, the prosecution was required to prove a physical assault, rather than, for example, pain or mental suffering caused by trauma. We disagree. While a novel theory, defendant offers no case authority that section 273a, subdivision (b), requires such a reading. The elements of child abuse are (1) willful conduct that (2) takes place in circumstances that may cause physical or mental pain or suffering. (See People v. Lee (1991) 234 Cal.App.3d 1214, 1220-1221 [discussing subdivision (a)].) Those elements are amply satisfied here. Indeed, absent his theory regarding the requirement of a physical assault, he does not argue a lack of substantial evidence.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J., ARONSON, J.