Opinion
G041563
7-9-2009
THE PEOPLE, Plaintiff and Respondent, v. LARRY JEROME SWAYZER II, Defendant and Appellant.
Stephen S. Buckley and Christian C. Buckley, 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, Lilia E. Garcia and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
A jury convicted defendant Larry Jerome Swayzer II of (1) inflicting corporal injury on Sophia Lopez, a cohabitant (Pen. Code, § 273.5, subd. (a)), while personally using a deadly and dangerous weapon (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)), and (2) assaulting her with force likely to cause great bodily injury (§ 245, subd. (a)(1)). The jury acquitted him of two charges relating to a separate incident, and the court granted defendants section 1118.1 motion for acquittal on a fifth charge. The court placed defendant on five years of formal probation, on condition, inter alia, that he serve one year in county jail.
All statutory references are to the Penal Code unless otherwise stated.
On appeal defendant contends his speedy trial rights were violated by a one-day delay in trial, the court improperly imposed the weapon use enhancement, and two probation conditions were unconstitutionally vague. We modify the challenged probation conditions, but in all other respects we affirm the judgment.
FACTS
Lopez began dating defendant in the spring of 2005 and was living with him on June 15, 2006, in defendants small two-bedroom house. On that day, in the late afternoon, Lopez returned from work and defendant picked her up at the bus stop and drove her home. Lopezs "little brother" and her two-year-old son were also at the house.
Sometime that evening Lopez and defendant began arguing. Defendant was "going to leave, [but Lopez did not] want him to leave, so he told [her] that [she] had to leave." Eventually he told her to pack her "stuff" and they both started packing her belongings. He kept pushing her away so she punched him with a closed fist. They started fighting "because he wanted [her] out, and [she] didnt want to leave." The fighting stopped when he walked away from her. She told him she hated him and he replied he did not care. She deliberately took her time packing.
Later, she and her brother were in the kitchen. Defendant said something that angered her, so she "picked up a bag of grocery cans, and . . . threw it at him." The cans were full of vegetables, so the bag was very heavy. It did not hit defendant. Defendant came into the kitchen. Lopez hid behind her brother who was around 15 years old at the time. Lopez picked up another bag of grocery cans and hit defendant on the head with it. Defendant "started bleeding" and "got upset."
They "started fighting again." In the middle of the fight, defendant shot Lopez in the hip and on the forehead with a "plastic bee-bee" from "a plastic bee-bee gun" that she had bought for defendant from an ice cream truck so she could "mess with him." The gun was "a plastic toy." Defendant also hit Lopez on the head with the bee-bee gun. When Lopez grabbed the top of the bee-bee gun "to try to take it from him," she "broke the top half . . . off" since it was plastic. She threw it at him and they continued fighting. Then defendant stopped fighting.
Paramedics and police officers arrived at the scene in response to a neighbors telephone call. Lopez felt "dizzy and lightheaded." She was bleeding from "little cuts in [her] head." She had fresh "contusions to the face, swelling, [and] blood on her skin and clothes." Lopez told an officer that defendant "wanted her to leave the residence" so she began to pack her belongings, but defendant felt "she was taking too long." Defendant hit Lopez "all over" her body with a closed fist, assaulting her about 30 times, and shot her four or five times with a bee-bee gun in the forehead, legs and buttocks. When Lopez tried to take the bee-bee gun away from defendant, he hit her on the head with it.
An officer observed defendant to appear "nonchalant" and intoxicated. He had a laceration above his eye. At the police station, defendant waived his rights under Miranda v. Arizona (1966) 384 U.S. 436. With respect to the bee-bee gun, defendant stated he and Lopez "had been shooting each other and that they do it all the time." They both had one and "just play[ed] around with them." Defendant stated that he "messed up."
At the hospital, a doctor observed abrasions and contusions on Lopezs face, neck and scalp that appeared to be "assault wounds." The most serious injury was to her "peri temporal area," because such injuries can "threaten the eye itself."
The police never saw the plastic bee-bee gun and never collected it for evidence, nor did they find any plastic bee-bees, "because the residence was locked, and no one had a key to make entry." The bee-bee gun was not air-powered; rather it propelled "really tiny" pellets by virtue of a spring inside the gun. Being shot with these pellets did not "really hurt" and did not leave a mark unless the victim was hit from "up close."
DISCUSSION
Defendant Fails to Show He Was Prejudiced by any Denial of His Speedy Trial Rights
Defendant contends his "case should have been dismissed prior to trial because it was continued beyond the statutorily prescribed deadline without good cause by utilizing a procedure [the Court of Appeal] has previously recognized as a `sham." Defendant argues "that a delay caused by improper court administration and congestion does not amount to good cause," citing People v. Johnson (1980) 26 Cal.3d 557 (Johnson), and concludes the trial court abused its discretion by finding good cause for a continuance.
Defendant contends Division Two of the Fourth Appellate District, in an unpublished January 2008 order (Bond v. Superior Court (Jan. 23, 2008, E044398)), found the Riverside Superior Court engaged in "a sham practice designed to gain an additional day to bring a criminal defendant to trial." Taking judicial notice of that court document (Evid. Code, § 452, subd. (d)), we note that in the Bond case, unlike the one before us, the defendant petitioned for a writ of mandate/prohibition directing the trial court to grant his motion for dismissal of the action. The appellate court issued the requested writ.
The People counter that, because defendant raises this issue after judgment, he must show he was actually prejudiced by the one-day delay and cannot do so.
The relevant timeline of events prior to defendants trial is as follows. On September 18, 2007, the defense announced ready for trial. The trial was trailed to September 19, which was day one of 10. The parties stipulated the last day for trial was September 28.
On September 19, trial was trailed to September 27. On September 27, the defense was unavailable for trial. Trial was set for October 2, with the last day for trial set at October 12.
On October 2, the parties announced ready for trial. The trial was trailed to October 10.
On October 10, the trial was trailed to October 12.
On October 12 (the last date for trial), in Judge Roger Luebs courtroom, the parties announced ready for trial. Judge Lueb stated that, after an exhaustive search for an available courtroom, he had "no reasonable belief that there [would] be a department that can accept this case to start trial today except for Judge [Gary] Tranbarger . . . ." Judge Lueb thus assigned the case to Judge Tranbarger, "the last judge available." The People immediately filed an affidavit pursuant to Code of Civil Procedure section 170.6 declaring that Judge Tranbarger was "prejudiced against the interests of the People." (At that point, the People had already provided the affidavit to the clerk.) The court accepted the affidavit and, "pursuant to the Bryant case," trailed the trial one day to October 15, 2007, which was set as the last date for trial.
Defense counsel, however, had another "priority" client who was in custody on his 60th day.
In Bryant v. Superior Court (1986) 186 Cal.App.3d 483 (Bryant), the Peoples "unforeseeable peremptory disqualification" (id. at p. 501) of "the only available trial judge" (id. at p. 485), where "neither the trial court nor the parties had any advance notice as to the identity of the trial judges who would be ultimately assigned" (id. at p. 502), constituted good cause for a one-day delay that did not result "from a demonstrated chronically overburdened system but rather from exceptional circumstances." (Id. at p. 501.)
Defendant objected. Defense counsel stated: "Mr. Swayzer is on his last day under . . . section 1382. Its my belief that this trial assignment constitutes a sham trial assignment . . . . [Y]esterday, I believe, there were seven cases where this same procedure was followed. I suspect there will be several more cases under which it is followed today, and this procedure was followed last Friday for, I believe, six cases, and then on Monday for, I believe, ten cases. [¶] [T]his is [an] assignment, a 170.6 continuance, that is based upon court congestion, which several Court of Appeals decision[s] have found does not constitute good cause for continuance . . . ."
On October 15, the first day of trial, in Judge Paul Dickersons courtroom, defendant filed a motion in limine seeking a dismissal of the action for violation of his speedy trial rights under section 1382, subdivision (a)(2). Defendant argued that because he demonstrated he was not brought to trial on time, the People had the burden of showing good cause to avoid dismissal. Defendant argued "calendar congestion cannot constitute good cause absent exceptional circumstances." Defendant asserted "the District Attorneys office has for several months pursued a policy of filing an affidavit of prejudice against Judge Tranbarger whenever assigned to his courtroom." He complained "the exercise of the peremptory disqualification in [his] case was part of a continuous, routine procedure being followed by the master calendar court and the District Attorneys office." Defendant cited 10 cases that had been "continued beyond their statutory last day on October 9, 2007 as a result of the policy adopted by the Calendar Court and the District Attorneys Office," as well as several cases continued on October 5 and again on October 11 and 12.
Section 1382, subdivision (a)(2) requires a court to order an action dismissed when a defendant in a felony case "is not brought to trial within 60 days of the defendants arraignment on an . . . information," "unless good cause to the contrary is shown," or the "defendant enters a general waiver of the 60-day trial requirement" or "requests or consents to the setting of a trial date beyond the 60-day period," in which case "the defendant shall be brought to trial on the date set for trial or within 10 days thereafter."
On the first day of trial, Judge Dickerson chose to defer consideration of defendants section 1382 motion, stating he would give defense counsel an opportunity to argue the motion the next day. Judge Dickerson then commenced voir dire proceedings. Defense counsel objected "to going forward because of the speedy trial issues." The court confirmed that defendant had not waived his speedy trial right, and stated it was the courts "choice to do it this way."
On the second day of trial, voir dire proceedings resumed. Later that day, out of the jurys presence, Judge Dickerson considered defendants motion for dismissal for violation of his speedy trial right. Judge Dickerson noted that Judge Luebs had found "good cause to trail this one day because the People papered Judge Tranbarger." Judge Dickerson concluded it would be inappropriate for a superior court judge to change another superior court judges ruling. The court found defendants appropriate remedy would be, if Judge Luebs "denied [defendants] motion, to immediately take a writ to the Fourth District Court of Appeal." Judge Dickerson then denied defendants motion.
Defense counsel argued: "The problem with that formulation is that there is no writ remedy from a continuance on the day that the continuance is entered. The motion only becomes timely and reviewable upon challenge, subsequent to the illegal continuance beyond the last day, and subsequent to the denial of the 1382 motion to dismiss. [¶] So, essentially, this court is denying even the determination on whether or not the 1382 motion can be heard — or is not making a determination, is simply deferring to the prior court, which isnt a writable, or appealable order, in and of itself."
We review the law on section 1382 motions for dismissal of actions for nominal delays of trial. In Johnson, supra, 26 Cal.3d 557, our Supreme Court explained that — at least with respect to incarcerated defendants (id. at p. 569) — "`[u]nreasonable delay in run-of-the-mill criminal cases cannot be justified by simply asserting that the public resources provided by the States criminal-justice system are limited and that each case must await its turn." (Id. at p. 571.) But court congestion may be good cause for delay "`when "attributable to exceptional circumstances,"" such as "`when certain unique, nonrecurring events have produced an inordinate number of cases for court disposition." (Id. at p. 571, italics added.) Thus, the critical inquiry is whether court congestion is attributable to chronic conditions as opposed to exceptional circumstances. (Id. at p. 572.) Johnson concluded the trial court erred by summarily denying the defendants speedy trial claim, because the court "accepted the public defenders recital of conflicting obligations without inquiring whether the conflict arose from exceptional circumstances . . . ." (Id. at p. 573.) Nonetheless, our Supreme Court affirmed the judgment against defendant because he sought "post-conviction review of denial of a speedy trial" and failed to prove prejudice. (Id. at p. 562, italics added.) "Upon appellate review following conviction . . ., a defendant who seeks to predicate reversal of a conviction upon denial of his right to speedy trial must show that the delay caused prejudice." (Id. at p. 574, italics added.)
"Prejudice becomes an issue for a statutory speedy trial claim only when the defendant waits until after the judgment to obtain appellate review." (People v. Martinez (2000) 22 Cal.4th 750, 769 (Martinez).) Thus, "a trial court ordinarily should rule on a statutory speedy trial claim, and the defendant should seek appellate review of denial of such a claim, before the trial is held." (Ibid.) Non-statutory speedy trial claims under the state constitution, whether raised before or after trial, also require the defendant to show prejudice. (Ibid.) Prejudice is also an important factor in such claims under the federal Constitution. (Barker v. Wingo (1972) 407 U.S. 514, 532.)
Defendant argues he should be excused from showing actual prejudice because his "attempt to obtain relief from the error prior to the trial was denied." He points out voir dire had already commenced by the time he "was afforded the opportunity to argue his motion" and asserts his counsel "was not free to appeal the denial of his section 1382 motion for dismissal until it was actually denied, which occurred after the start of trial."
The critical time to seek writ review of the denial of a section 1382 motion, however, is before conviction, not before the start of trial. (Johnson, supra, 26 Cal.3d at p. 574.) Defendant does not explain why he failed to petition for writ relief prior to his conviction. Statutory authority exists for such relief: "If in a felony case the superior court . . . continues the hearing of any matter without good cause, and good cause is required by law for such a continuance, either party may file a petition for writ of mandate or prohibition in the court of appeal seeking immediate appellate review of the ruling . . . granting the continuance." (§ 1511.) "`[T]he remedy for a defendant whose motion for a dismissal has been improperly denied is an application for a writ of habeas corpus [or, as has been noted, of mandate or prohibition] before judgment of conviction." (People v. Wilson (1963) 60 Cal.2d 139, 152 (Wilson).) Defendant asserts seeking a writ remedy "would have further delayed his already improperly delayed trial." But section 1511 mandates a speedy resolution of such petitions: "Such a petition shall have precedence over all other cases in the court to which the petition is assigned . . . ." (Ibid.) Defendant also suggests it may have been impossible for him to suspend his trial to petition for a writ, but this argument ignores Judge Dickersons express invitation to defendant to immediately petition for a writ.
Finally, defendant contends he suffered prejudice from the denial of his motion for dismissal because, had the case been dismissed and the charges refiled, he (1) "would have been in a favorable position for negotiation," and (2) "the subsequent trial would have presumably been free of the prosecutorial discovery violations and the substantial prosecutorial misconduct of introducing evidence of the victims pregnancy during the second charged encounter (Counts 3 through 5) directly in contravention of the trial courts ruling prohibiting any mention of the pregnancy as unduly prejudicial." These assertions of prejudice are speculative and insufficient. Defendant does not contend the alleged prosecutorial discovery violations or misconduct flowed from the trial delay (nor does he support his assertions with sufficient argument and support). The one-day delay did not affect "the fairness of the subsequent trial itself." (Wilson, supra, 60 Cal.2d at p. 151.) "This is not a case in which the statute of limitations would have been a bar to new charges, or one in which a dismissal would itself have barred refiling." (Johnson, supra, 26 Cal.3d at p. 574.) Nor is this an instance where "material witnesses were missing or had poor memories or there was other prejudice caused by postcomplaint delay in the context of the case as a whole." (Martinez, supra, 22 Cal.4th at p. 770.)
In sum, there is no cause to reverse the judgment based on defendants claim he was denied his right to a speedy trial.
The Dangerous Weapon Use Enhancement was Properly Imposed
With respect to count 1 (infliction of injury on a cohabitant resulting in a traumatic condition), the jury found defendant personally used a "deadly and dangerous weapon" within the meaning of section 12022, subdivision (b)(1), which provides: "Any person who personally uses a deadly or dangerous weapon in the commission of a felony . . . shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense." On appeal defendant contends the weapon use enhancement "must be stricken because it was an element of the charged offense, the jury was improperly instructed, and [the plastic toy pistol was] not a deadly or dangerous weapon." (Defendant describes the gun as "a cheap childrens plastic toy pistol that was purchased from an ice cream truck which discharged tiny plastic balls by a simple spring mechanism.")
1. The instruction given to the jury did not make use of the weapon an element of the charged offense
Immediately following the courts instruction on the elements of the crime charged in count 1 (inflicting injury on a cohabitant resulting in a traumatic condition, CALCRIM No. 840), the court instructed the jury as follows: "As charged in Count 1, the alleged conduct you are to consider in determining whether this charge has been proven beyond a reasonable doubt is the act of striking Sofia Lopez with the plastic toy gun. [¶] You must not find the defendant guilty of Count 1 unless you all agree that the People have proved specifically that the defendant committed the conduct described in the preceding paragraph. Evidence that the defendant may have committed the alleged offense in Count 1 in another manner is not sufficient for you to find him guilty of the offense charged." Defendant argues this instruction made his gun use an element of the charged offense because the jury was told it necessarily had to find that defendant used the gun in committing the offense in order to find him guilty of the offense charged in count 1.
In making his argument, defendant fails to acknowledge that the above instruction was given at his request. Defendant requested the district attorney to make an election as to the factual basis for the offense alleged in count 1. This was entirely appropriate, since the evidence disclosed multiple acts by defendant which may have constituted the basis for the charge: hitting her with his fists, shooting her with the bee-bee gun, and hitting her on the head with it. "[C]ases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Here, defendant requested the election; the district attorney responded by electing to rely on the act of hitting Lopez on the head with the toy bee-bee gun; and defendant requested the court use CALCRIM No. 3502 to inform the jury of the prosecutors election. Thus, the jury was instructed they could not convict defendant of the count 1 offense unless they all agreed he struck Lopez with the toy gun. The instruction mirrored CALCRIM No. 3502, modified to fit the facts of this case. Even if defendant had not requested the election and the accompanying unanimity instruction, the court had a sua sponte duty to give it, unless the prosecutor informed the jury of the election. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1536.)
The failure of both appellate defense counsel and the Attorney General to recognize that defendant requested this instruction to assure a unanimous verdict based on a specific factual basis is disappointing.
The instruction did not convert defendants gun use into an "element of the offense" within the meaning of section 12022, subdivision (b)(1). In People v. Hansen (1994) 9 Cal.4th 300, our Supreme Court interpreted similar language in section 12022.5, subdivision (a) (firearm use enhancement), which provided, "`[A]ny person who personally uses a firearm in the commission . . . of a felony shall, upon conviction of that felony . . . be punished by an additional term of imprisonment in the state prison for three, four, or five years, unless use of a firearm is an element of the offense of which he or she was convicted." (People v. Hansen, at pp. 316-317.) Our Supreme Court explained that, simply because a defendant commits a crime by using a firearm, the firearm use is not necessarily an element of the offense: "The phrase `element of the offense signifies an essential component of the legal definition of the crime, considered in the abstract." (Id. at p. 317.) Here, considered in the abstract, the use of a deadly or dangerous weapon is not an element of the offense defined in section 273.5, subdivision (a), inflicting injury on a cohabitant resulting in a traumatic condition. The offense can be committed in many ways not involving the use of a deadly or dangerous weapon.
People v. Hansen, supra, 9 Cal.4th 300, was overruled on a different point in People v. Chun (2009) 45 Cal.4th 1172, 1198-1199.
2. The jury was properly instructed with CALCRIM No. 3145
Defendant next contends CALCRIM No. 3145 improperly instructed the jury to determine his gun use was either harmless or dangerous, with no middle ground. The People reply that defendant waived his instructional error claim by failing to object to it or request a modification below. Nonetheless, defendant contends his instructional challenge was not waived because it involves his substantial rights. (§ 1259 [appellate court may review instruction not objected to below, if defendants substantial rights are affected].) "`"The cases equate `substantial rights with reversible error, i.e., did the error result in a miscarriage of justice?"" (People v. Christopher (2006) 137 Cal.App.4th 418, 426-427.) There was no miscarriage of justice here. CALCRIM No. 3145 is an accurate statement of the law. To the extent defendant desired a modification or clarification, he waived any error by failing to suggest a modification in the trial court.
The jury was charged with the standard CALCRIM No. 3145 instruction as follows: "If you find the defendant guilty of the crime charged in Count 1, you must then decide whether the People have proved the additional allegation that the defendant personally used a deadly or dangerous weapon during the commission of that crime. . . . [¶] A deadly or dangerous weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury. [¶] In deciding whether an object is a deadly weapon, consider all the surrounding circumstances, including when and where the object was possessed, and any other evidence that indicates whether the object would be used for a dangerous, rather than a harmless, purpose. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] Someone personally uses a deadly or dangerous weapon if he or she intentionally does any of the following: [¶] One, displays the weapon in a menacing manner; two, hits someone with the weapon; or, three, fires the weapon. [¶] The People have the burden of proving the allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved."
A "trial court must instruct sua sponte on the general principles of law relevant to the issues raised by the evidence." (People v. Jackson (1989) 49 Cal.3d 1170, 1199.) But when a "standard instruction correctly and adequately explain[s] the applicable law to the jury," a court is "not required to rewrite it sua sponte." (People v. Kelly (1992) 1 Cal.4th 495, 535.) "`The trial court cannot reasonably be expected to attempt to revise or improve accepted and correct jury instructions absent some request from counsel." (Ibid.)
Defendant cites People v. Green (1995) 34 Cal.App.4th 165 for the proposition a party does not waive an instructional issue by "invited error" "unless the record clearly evidences an expressed, deliberate, tactical purpose for waiving the potential error." Green merely states, however, that a partys suggestion of, or acquiescence to, an "erroneous instruction" does not constitute invited error absent "a deliberate tactical purpose" therefore. (Id. at p. 177, italics added; see also U.S. v. Perez (9th Cir. 1997) 116 F.3d 840, 845 [parties submitted "erroneous instructions"].) The instruction here was not erroneous.
Defendant challenges here, but did not question below, a single sentence in CALCRIM No. 3145: "In deciding whether an object is a deadly weapon, consider all the surrounding circumstances, including when and where the object was possessed, and any other evidence that indicates whether the object would be used for a dangerous, rather than a harmless, purpose."
CALCRIM No. 3145 (including the challenged language) is a correct and accurate statement of the law on whether an object is a deadly or dangerous weapon for purposes of the section 12022, subdivision (b) enhancement. In People v. Anderson (2007) 152 Cal.App.4th 919, 952, the Court of Appeal upheld the challenged language, i.e. "`whether the object would be used for a dangerous, rather than a harmless, purpose," against the defendants challenge that it "puts a burden on him to show the object has a harmless purpose." (Ibid.) The appellate court stated, "The language in question cannot reasonably be read to shift the burden of proof to defendant." (Ibid.) Beyond the burden of proof, in People v. Aguilar (1997) 16 Cal.4th 1023 (Aguilar), our Supreme Court discussed the definition of a "`deadly weapon" for purposes of assault under section 245, subdivision (a)(1): "Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such. [Citations.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue." (Aguilar, at p. 1029.)
Defendant argues CALCRIM No. 3145 does not accord with Aguilars formulation that the "trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue." (Aguilar, supra, 16 Cal.4th at p. 1029.) Not so. A jury following CALCRIM No. 3145s instructions must consider the nature of the object to determine whether it "is inherently deadly or dangerous or . . . used in such a way that it is capable of causing and likely to cause death or great bodily injury." Assessing the "manner" in which the object was used requires the jury to decide whether an object was used in a dangerous or harmless way. Such an inquiry does not require the imposition of a dichotomy between two extremes. Instead, the jury may evaluate where to place a particular use along a continuum of behavior, ranging from safe to hazardous. Ultimately, CALCRIM No. 3145 mandates a "broad factual inquiry" and "comparative analysis" (such as called for by defendant) by instructing jurors to consider all "surrounding circumstances, including when and where the object was possessed, and any other evidence that indicates whether the object would be used for a dangerous, rather than a harmless, purpose."
The instruction was correct. To the extent defendant believed further clarification was necessary, it was incumbent upon him to propose the clarifying language. He failed to do so in the trial court, and, for that matter, has also failed to suggest on appeal exactly what that language should have been. Defendant has thus waived his instructional claim with respect to any modification or clarification.
3. The evidence is sufficient to support the weapon enhancement
Finally, defendant contends insufficient evidence supports the jurys finding the toy pistol was a deadly or dangerous weapon. In evaluating the sufficiency of the evidence, we "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (Johnson, supra, 26 Cal.3d at p. 578.) "In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court `must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (Johnson, at p. 576.)
In People v. Reid (1982) 133 Cal.App.3d 354, an appellate court examined whether a "toy gun . . . made of metal [with] a plastic grip" was a deadly or dangerous weapon for purposes of a section 12022, subdivision (b) enhancement. (People v. Reid, at p. 364, fn. 1.) The Court of Appeal identified "two categories of `dangerous or deadly weapons." (Id. at p. 365.) In the first category are objects which are "weapons in the strict sense of the word, such as guns, dirks, etc." (Ibid.) In the second category are objects whose ordinary uses are not dangerous or deadly to others, "but which may be used as [weapons], such as razors, pocket knives, hat pins, canes, hammers, hatchets, and other sharp or heavy objects." (Ibid.) If an object that is not inherently dangerous "is capable of being used in a dangerous or deadly manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require, its character as a dangerous or deadly weapon may be established, at least for the purposes of that occasion." (Ibid.) "It is much easier to find that a particular item is a dangerous and deadly weapon when it is actually used to deliver blows." (Ibid.) The Court of Appeal found insufficient evidence showed the defendant "intended to use the toy gun as a club" and therefore struck the weapon use enhancement. (Id. at p. 367.)
Similarly, in People v. Godwin (1996) 50 Cal.App.4th 1562, the Court of Appeal found an "absence of any evidence about [a] starter pistols capacities as a deadly or dangerous weapon." (Id. at p. 1574.) "The starter pistol was never shown to be capable of being used in the similar fashion to a firearm so as to be a deadly or dangerous weapon as a matter of law. There was no evidence appellant intended to use the starter pistol as a bludgeon, although it could be used as such." (Ibid.)
Here, substantial evidence supported the jurys finding defendant used the toy gun as a dangerous weapon. He struck Lopez in the head with the toy gun, thus using it as a club or bludgeon. The doctor who examined Lopez at the hospital on the night of the incident testified she suffered "moderate" "injuries that can result from blunt trauma" and that appeared to be "assault wounds." The blunt trauma to the side of her face near her eye — the delicate peri temporal area — could have caused permanent damage or even death. Thus, the evidence showed defendant intended to use the toy gun as a weapon and the toy pistol was capable of being used in a dangerous or deadly manner.
Two Probation Conditions Must Be Modified
Defendant contends two of his probation conditions are unconstitutionally vague and overbroad, and the Attorney General agrees. Although defendant failed to object below to the imposition of these conditions, he may raise his constitutional claims here. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889.) The asserted errors are "`"pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court"" (id. at p. 889), and are "easily remediable on appeal by modification of the condition." (Id. at p. 888.)
The condition prohibiting defendant from owning, possessing or having control of a firearm or deadly weapon must be modified to only prohibit defendant from knowingly doing so. (People v. Lopez (1998) 66 Cal.App.4th 615, 628-630, 634; see also People v. Garcia (1993) 19 Cal.App.4th 97, 101-103.) Similarly, the condition barring defendants association with any unrelated person on probation or parole must also be modified to include a knowledge element. (Ibid.)
DISPOSITION
The probation condition in the November 30, 2007 minute order prohibiting defendant from owning, possessing or having control of a firearm or deadly weapon is modified to read as follows: "Not knowingly own, possess or have control of a firearm or deadly weapon." The probation condition in the same minute order prohibiting defendant from associating with any unrelated person on probation or parole is modified to read as follows: "Not associate with any unrelated person he knows to be on probation or parole."
In all other respects, the judgment is affirmed.
WE CONCUR:
ARONSON, Acting P. J.
FYBEL, J.