Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF145580. J. Thompson Hanks, Judge.
Patrick J. Hennessey, 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, Peter Quon, Jr. and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
A jury found defendant Michael Zane Zarif guilty of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)) (count 3) and possession of ammunition by a felon (§ 12316, subd. (b)) (count 4). In a bifurcated proceeding, the trial court found true that defendant had suffered two prior prison terms (§ 667.5, subd. (b)), one prior serious felony conviction (§ 667, subd. (a)), and one prior serious and violent felony conviction (§ 667, subds. (c)-(i)). As a result, defendant was sentenced to a total term of eight years in state prison as follows: the upper term of three years on count 3 (doubled to six years pursuant to the prior strike allegation), plus consecutive one-year terms for each of the two prior prison term allegations; imposition of a four-year middle term on count 4 was stayed; the court also stayed a five-year term for the prior serious felony conviction (§ 667, subd. (a)).
All future statutory references are to the Penal Code unless otherwise stated.
The jury found defendant not guilty of attempted murder (§§ 664, 187, subd. (a)) (count 1) and assault with a firearm (§ 245, subd. (a)(2)) (count 2).
On appeal, defendant contends: (1) the trial court erred by failing to sua sponte instruct the jury with the defense of transitory possession as embodied in CALJIC No. 12.50 in regard to the charges of felon in possession of a firearm and felon in possession of ammunition; and (2) the trial court erred by refusing to give defendant’s proffered instruction on the victim’s prior threats against defendant and the reasonableness of defendant’s conduct in light of these threats. We reject this contention and affirm the judgment as modified.
Although not raised by either party, we note that the trial court erred in staying defendant’s sentence for his prior serious felony conviction (§ 667, subd. (a)).
I
FACTUAL BACKGROUND
Around 5:30 a.m. on August 5, 2008, Tyrone Butler, his girlfriend, and his girlfriend’s two-year-old child were evicted from their residence. Around 11:00 that morning, while pushing the baby in a shopping cart, Butler and his girlfriend saw defendant and another individual driving a blue Saturn automobile in downtown Riverside. Butler had known defendant for several years and made arrangements with defendant for him and his girlfriend to stay the night at defendant’s apartment in exchange for $30.
Around 10:30 p.m. that night, another individual, whom Butler only knew as “Sic, ” arrived at the apartment to see defendant. Sic was the individual who had been with defendant earlier, in the blue Saturn. Butler told defendant and Sic he had a fake gun that he carried in his backpack for protection. Butler showed defendant and Sic the gun. They initially thought the gun was real, but Butler told them it was a fake and showed them by taking out the clip. Defendant and Sic saw that the clip was not for a real gun. They asked Butler if they could use the gun to commit a robbery. They already had one gun, which Butler believed belonged to Sic, but desired a second gun. When Butler refused to allow defendant and Sic to use his fake gun, defendant became angry. Defendant and Sic then left the apartment and were gone for “three, four hours.”
Butler was a reluctant witness and had to be subpoenaed to come to court to testify. He did not want prosecution in this case. He testified that “[defendant and Sic] didn’t know [that the gun was fake].” However, six days after Butler had been shot, he told a detective that defendant knew Butler’s gun was a fake. Butler’s gun was an “air soft gun.”
About 2:30 or 3:00 a.m. the next morning, defendant and Sic returned to the apartment. Butler’s girlfriend had been sleeping in defendant’s bedroom (the rented bedroom) when she was awakened by yelling. She complained to Butler that she had not paid for all the commotion. Defendant was irate because he saw “red stuff on his shirt in his room, ” believing it was menstrual blood. Defendant believed that Butler may have been “messing with [defendant’s] woman, ” who was also at the house.
Butler’s girlfriend packed her belongings and started to leave. Butler tried to convince his girlfriend to stay because he had paid for the night and he “didn’t get what [they] were due.” Butler and his girlfriend went downstairs and got into defendant’s girlfriend’s car; defendant’s girlfriend was to drive them to Rubidoux. When Butler and his girlfriend saw that defendant and Sic were trying to hide a gun under the dashboard of defendant’s girlfriend’s car, Butler and his girlfriend got out of the car and went back upstairs to defendant’s bedroom. Butler’s girlfriend told Butler to resolve the misunderstanding, that defendant thought Butler had been “messing with his girl, ” “because this is not what [they] paid for.” Butler grabbed his fake gun, placed it in his waistband, and went downstairs to talk to defendant.
When Butler found defendant by the pool area of the apartment complex, he saw that defendant and Sic were “whispering... like, they were plotting to do something crazy.” Butler walked up to defendant and told him that he wanted to speak with him, but defendant and Sic ignored him. Butler told defendant that he did not like what had been going on, with defendant coming back to the apartment yelling and waking up Butler’s girlfriend, who got upset at Butler. Defendant began “creeping a little bit towards [Butler].” Butler responded, “Don’t walk up on me like that.” Defendant and Butler began to argue. When defendant continued to “creep up” on Butler, Butler took out the Airsoft gun from his waistband and told defendant not to “walk up on” him. Butler did not point the gun at defendant but he yelled at defendant and cocked the gun. Sic told Butler to hold on and that he did not have to do that. Butler replied that he was not going to shoot defendant, but he was going to “pistol-whip” him. Butler told defendant that he did not want any more problems and that his girlfriend should be allowed to get her “beauty rest” without being disturbed, since they paid for the room, or else he would be coming back to defendant.
Butler thereafter left and went upstairs. His girlfriend was sitting on the bed and told him that she could not find her food stamp card. Butler told his girlfriend that he would look for the card in defendant’s girlfriend’s car. When Butler went downstairs, he found defendant and Sic standing in front of defendant’s girlfriend’s vehicle. Butler had the fake gun in his waistband but did not take it out. Defendant and Sic asked Butler, “[W]hat’s wrong?” Butler told them that his girlfriend could not find her food stamp card and that he was going to look in defendant’s girlfriend’s car. When Butler said, “I bet it’s in there, ” defendant responded, “Don’t you trust me[?]” Defendant appeared offended that Butler was going to search the car and that Butler was accusing defendant of taking the food stamp card.
As Butler walked towards the car, defendant pointed Sic’s gun at Butler and said, “Don’t ever point a pistol at me again.” Butler replied, “I didn’t point it at you. I threatened to pistol-whip you.” At some point, Butler’s girlfriend came downstairs and stood in front of Butler. Butler moved her aside and told defendant to “[g]o ahead” and shoot, “trying to call his bluff.” Defendant then shot Butler in the chest and fled the scene with his girlfriend in her car.
On August 8, 2008, Riverside County Sheriff’s Detective David Smith spoke to Butler. Butler reluctantly identified defendant as the person who had shot him. Detective Smith spoke with Butler a second time four days later. At that time, Butler informed Detective Smith that defendant knew Butler’s gun was a fake and explained that he had shown defendant and Sic the Airsoft gun and that they had initially believed the gun was real, but Butler told them it was a fake and showed them the clip, which was not for a real gun. Butler acknowledged that he had his fake gun in his waistband when he confronted defendant about the missing food stamp card, but he had not pulled it out or pointed it at defendant. Butler also told the detective that defendant wanted to use Butler’s Airsoft gun in a robbery, but Butler would not let him, which had upset defendant.
A warrant for defendant’s arrest was issued. After attempting to flee and elude the police, defendant was arrested on August 27, 2008. Defendant waived his constitutional rights and agreed to speak with Detective Smith. He denied shooting Butler and claimed that he was in Los Angeles on the date of the shooting. He also denied shooting anyone in self-defense or using a gun in self-defense. In fact, he repeatedly denied shooting anyone or even having a gun.
The taped interview was played for the jury at trial.
II
DISCUSSION
A. CALJIC No. 12.50
Defendant contends the trial court erred by failing to sua sponte instruct the jury with CALJIC No. 12.50, the instruction on the defense of transitory possession in regard to the charges of felon in possession of a firearm and ammunition.
“It is settled that, even in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case.” (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) The transitory possession defense derives from the holding in People v. King (1978) 22 Cal.3d 12 (King). As set forth in CALJIC No. 12.50, the defense applies where the defendant, (1) having reasonable and actual grounds to believe that he or she-or others-were in imminent peril of great bodily harm; (2) and having a firearm “made available” to him or her “[w]ithout preconceived design”; (3) took temporary possession of the firearm “for a period of time no longer than that in which the necessity or apparent necessity to use it in self-defense”; and (4) the firearm use “was reasonable under the circumstances” and the only resort, where “no alternative means of avoiding the danger were available.” (CALIC No. 12.50; see also King, at p. 24.)
In King, the defendant was an invited guest at a party when intruders persistently attempted to force their way into the apartment. (King, supra, 22 Cal.3d at pp. 16-18.) Several frightened women and a disabled male guest took shelter in a back bedroom of the apartment because the intruders blocked the way out. After the intruders threw a barbecue grill through the front window, showering the defendant with shards of glass, the defendant’s friend took a gun out of her purse and handed it to the defendant. (Id. at p. 18.) The defendant stepped outside on the balcony and fired several shots into the air to warn the intruders to leave. (Ibid.) The intruders initially retreated down the stairs, only to return in an attempt to break into the apartment again. The defendant then fired over the heads of the oncoming men, injuring one of them. (Id. at pp. 18-19.) The defendant was found guilty of violating section 12021 and appealed, arguing the trial court erred in refusing that the jury be instructed on self-defense. (King, at pp. 15, 19-20.) The Supreme Court held that “in enacting section 12021 the Legislature did not intend to deny persons described by that section the right to use a... firearm in defense of self or others in emergency situations.” (Id. at p. 15.)
Under King, when a convicted felon “is in imminent peril of great bodily harm or reasonably believes himself or others to be in such danger, and without preconceived design on his part a firearm is made available to him, his temporary possession of that weapon for a period no longer than that in which the necessity or apparent necessity to use it in self-defense continues, does not violate section 12021.” (King, supra, 22 Cal.3d at p. 24.) Such a defendant “ha[s] a right to an instruction that if his possession of the weapon in question was solely for the purpose of self-defense, and was not preplanned, and did not continue beyond the existence of the circumstances giving rise to the right to self-defense, that possession [i]s not proscribed by section 12021.” (Id. at p. 26.)
Thus, a felon is only permitted to possess a firearm when in “imminent” danger, and cannot obtain the firearm by “preconceived design” or keep it longer than necessary to actually use it. (King, supra, 22 Cal.3d at p. 24.)
In People v. McClindon (1980) 114 Cal.App.3d 336 (McClindon), the court of appeal rejected the defendant’s claim that he was entitled to a self-defense instruction pertaining to his possession of a firearm. The defendant, who was a felon, kept a firearm near his bed for protection. One night, he and his wife were awakened by a noise near their bedroom window. (Id. at p. 339.) The defendant’s wife became hysterical, and the defendant yelled, “‘What in the devil is going on out there?’” (Ibid.) The defendant then fired three gunshots out the window. (Ibid.) Upon his conviction for possessing a firearm as a felon, the defendant claimed that the trial court erred by failing to give an instruction on self-defense pursuant to King. (McClindon, at p. 339.) In rejecting this claim, the McClindon court reasoned, “King clearly is not applicable here. [The defendant’s] possession of the pistol was admittedly not brief and further it was not without design or prior possession. [The defendant] admitted that he had possession of the firearm for approximately five months and that he kept it by his bed for protection because he did not want to shoot anybody with his rifle.” (Id. at p. 340.)
In this case, there was no evidence to suggest that defendant’s possession of the gun was brief or possessed to prevent imminent danger. The evidence, as set out above, reveals that defendant had possession of the gun prior to the shooting. Hours before the shooting, defendant and his companion informed Butler that they had a gun. After Butler told defendant and Sic that he had a fake gun, defendant and Sic asked Butler if they could use Butler’s gun to commit a robbery. They explained that they already had one gun but desired a second gun. Later in the evening, Butler saw the gun under the dashboard of defendant’s girlfriend’s car. Subsequently, defendant used the same gun to shoot Butler.
In addition, the evidence demonstrates that defendant was not facing imminent peril when Butler confronted defendant about the missing food stamp card. Initially, we note the evidence shows defendant knew that Butler’s gun was not real. Earlier in the evening, when defendant had asked to use Butler’s gun as a second gun to commit a robbery, Butler removed the clip from the gun and showed defendant that it was not a real gun. In any event, even if defendant did not know Butler’s gun was a fake, when Butler confronted defendant the second time about the missing food stamp card, there was no evidence to demonstrate that Butler had physically threatened defendant or had pointed his Airsoft gun at defendant, or that defendant was in imminent danger. Rather, defendant appeared offended either that Butler was going to search the car or that Butler was accusing him of taking the food stamp card. Defendant also appeared to be angry about Butler’s earlier confrontation. As Butler walked toward the car, defendant pointed the gun at Butler and continued to point the gun at Butler even after Butler’s girlfriend stood in between them. Defendant continued to point the gun at Butler even after Butler moved his girlfriend aside. After Butler told defendant to “[g]o ahead” and shoot, defendant shot Butler in the chest and fled the scene in his girlfriend’s car. Defendant’s conduct in this case is a far cry from that of the defendant in King.
Moreover, defendant repeatedly denied shooting anyone or using a gun in self-defense. In fact, defendant informed the detective that he was not even present in the area at the time of the shooting.
As in McClindon, supra, 114 Cal.App.3rd at page 340, the evidence in this case clearly establishes that defendant’s possession of the firearm was neither temporary nor without predesign. We reject defendant’s argument that because he had been subjected to Butler’s earlier threats he was entitled to possess and use the gun for his own protection. King establishes a narrow exception to section 12021’s prohibition for the immediate use of a firearm by a felon due to an imminent threat without prior possession. (King, supra, 22 Cal.3d at pp. 26-27.) Defendant’s possession of the firearm in this case falls far outside this exception.
The trial court did not err in not sua sponte instructing the jury pursuant to CALJIC No. 12.50 regarding a felon’s right to use a firearm in self-defense.
B. Failure to Instruct Jury with Requested Instruction
Defendant requested that the jury be instructed on antecedent threats by Butler, pursuant to CALJIC No. 5.50.1, which provides in relevant part: “Evidence has been presented that on [a] prior occasion the alleged victim [threatened] the defendant. If you find that this evidence is true, you may consider that evidence on the issues of whether the defendant actually and reasonably believed [his] life or physical safety was endangered at the time of the commission of the alleged crime. [¶] In addition, a person whose life or safety has been previously threatened... by [another] is justified in acting more quickly and taking harsher measures for self protection from an assault by [that person], than would a person who had not received threats from... the same person.”
Defendant argued that there was sufficient evidence to warrant this instruction based upon Butler’s prior threat to pistol-whip defendant. The trial court found no evidence to support the instruction, because Butler had not initiated an assault upon defendant when Butler confronted defendant the second time; it was defendant who pointed the gun at Butler the second time. The court noted, “This is more contemporaneous and this instruction is not intended for the contemporaneous situation which is the basis of [defendant’s] self-defense.” The court further stated, “Because of the first comments, in other words, when Mr. Butler said, ‘I’m going to pistol-whip you, ’ then leaves, when he comes back, then the position would be I have to-is to shoot him now because he’s going to pistol-whip me. I don’t think this applies....”
Defendant contends the trial court prejudicially erred by refusing to instruct the jury with the requested instruction. We disagree.
It is well settled that, upon a defendant’s request, and when supported by substantial evidence, the trial court must instruct that the jury may consider “the effect of the victim’s antecedent threats or assaults against the defendant on the reasonableness of [the] defendant’s conduct. [Citations.]” (People v. Garvin (2003) 110 Cal.App.4th 484, 488.) A pinpoint instruction may be necessary or helpful in such circumstances to assist the jury in evaluating the significance of otherwise unrelated events in the past, and the effect these past events had on the reasonableness of the defendant’s response to the victim’s present conduct.
However, the same reasoning does not logically apply to a victim’s threats to a defendant, which constituted an integral part of the events just preceding the shooting. In a case where a defendant claims self-defense based on threatening conduct by a victim, at most minutes before the shooting, jurors do not need a special pinpoint instruction to understand the significance of the victim’s assaultive conduct immediately prior to the shooting. The standard CALJIC self-defense instructions, which were given to the jury in this case, were sufficient to cover the topic. (See CALJIC Nos. 5.30, 5.50, 5.51, 5.52.)
Even assuming that defendant was entitled to have the jury instructed with CALJIC No. 5.50.1, we find any error to be harmless. (See People v. Gonzales (1992) 8 Cal.App.4th 1658, 1664-1665 [trial court’s failure to give requested instruction on effect of antecedent assault was harmless].) As in Gonzales, counsel “thoroughly aired this subject in argument.” (Id. at p. 1664.) Also as in Gonzales, “[t]he concept at issue here is closer to rough and ready common sense than abstract legal principle. It is also fully consistent with the otherwise complete self-defense instructions given by the court. It is unlikely the jury hearing the evidence, the instructions given and the argument of counsel would have failed to give [defendant’s] position full consideration.” (Id. at p. 1665, fn. omitted.) In deciding whether defendant acted in self-defense, the jurors were not precluded from considering prior threats of violence by Butler, of which defendant was aware. (People v. Spencer (1996) 51 Cal.App.4th 1208, 1220-1221.) In fact, the jury more than likely considered Butler’s prior threats against defendant, as evidenced by the jury’s not guilty verdicts on the attempted murder and aggravated assault charges. Defendant’s convictions for felon in possession of a firearm and ammunition were the result of his possession of the gun prior to the shooting; and, as explained ante, defendant was not entitled to the instruction on the defense of transitory possession in regard to these charges since there was no evidence to show defendant possessed the gun briefly or possessed it while in “imminent peril... without preconceived design.” (King, supra, 22 Cal.3d at p. 24.) Defendant plainly cannot show that he was prejudiced by the court’s refusal to give the requested instruction regarding antecedent threats, under any standard. (See Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]; People v. Watson (1956) 46 Cal.2d 818, 835-836.)
C. Staying of Prior Serious Felony Conviction
The trial court sentenced defendant to a total term of eight years in state prison as follows: the upper term of three years on the felon in possession of a firearm conviction (doubled to six years pursuant to the prior strike allegation), plus consecutive one-year terms for each of the two prior prison term allegations; imposition of a five-year term for the prior serious felony conviction (§ 667, subd. (a)) was stayed.
A prison sentence for a serious felony conviction is subject to a five-year consecutive enhancement if the defendant suffered a prior serious felony conviction. (§ 667, subd. (a)(1).) It has been held that “[w]hen the truth of the allegation of conviction of a crime qualifying for a five-year enhancement has been established, it is mandatory that the enhancement be imposed.” (People v. Turner (1998) 67 Cal.App.4th 1258, 1269, italics added.) Thus, courts lack discretion to strike or stay allegations of prior serious felony convictions under section 667, subdivision (a)(1). (People v. Samuels (1996) 42 Cal.App.4th 1022, 1029; People v. Ramirez (1995) 33 Cal.App.4th 559, 569-572; People v. Valencia (1989) 207 Cal.App.3d 1042, 1045; § 1385, subd. (b).)
The trial court therefore erred by staying the section 667, subdivision (a) prior serious felony conviction. The staying of the prior serious felony enhancement constituted an unauthorized sentence. An unauthorized sentence discovered by an appellate court is subject to correction. (See People v. White Eagle (1996) 48 Cal.App.4th 1511, 1521.)
However, defendant correctly points out that the five-year enhancement under section 667, subdivision (a) did not apply here because defendant was not convicted of a serious felony within the meaning of section 1192.7, subdivision (c)(1). Although defendant was originally charged with attempted murder (§§ 664/187) and assault with a firearm (§ 245, subd. (a)(2)), both serious felonies under section 1192.7, subdivision (c)(1), he was acquitted of these charges. In addition, the offenses of which defendant was convicted felon in possession of a firearm (§ 12021, subd. (a)) and felon in possession of ammunition (§ 12316, subd. (a)) are not serious felonies or specifically named offenses included in the numerous categories of section 1192.7, subdivision (c). (See § 1992.7, subd. (c).)
In order to enhance a defendant’s sentence pursuant to section 667, certain factual circumstances must be pleaded and proved. (§ 1170.1, subd. (e); People v. Jackson (1985) 37 Cal.3d 826, 835, fn. 12.) First, defendant must have a prior conviction of a serious felony. There is no dispute that defendant’s prior 2001 conviction for residential burglary constitutes a serious felony for purposes of section 667. (§ 1192.7, subd. (c)(18).) Second, the offense for which defendant is being sentenced must also be a serious felony.
An argument, nonetheless, can be made that defendant’s present offenses constituted “serious” felonies under section 1192.7, subdivision (c)(8) and (23). Subdivision (c)(8) provides that “any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm” is a serious felony Subdivision (c)(23) provides that “any felony in which the defendant personally used a dangerous or deadly weapon” is a serious felony. Under these provisions of section 1192.7, “any felony” “may be found to constitute a serious felony if the prosecution properly pleads and proves that defendant personally used a deadly or dangerous weapon in the commission of the offense” (People v. Equarte (1986) 42 Cal.3d 456, 465) or defendant personally inflicted great bodily injury in the commission of the offense.
Here, because the jury rejected the serious felony offenses of attempted murder and assault with a firearm, and the attendant firearm use and great bodily injury enhancements were therefore stricken, arguably the prosecution never proved that defendant personally used a deadly weapon or that defendant personally inflicted great bodily injury. Further, there was no allegation in the charging document that the felon in possession of a firearm and felon in possession of ammunition charges were serious felonies. Thus, there was no notice that the prosecutor would seek these enhancements as attached to those counts. Moreover, the probation report did not cite the enhancements with respect to those counts in recommending the sentence to be imposed.
Based on the foregoing, we find that the section 667, subdivision (a) five-year enhancement did not apply and is ordered stricken.
III
DISPOSITION
The judgment is modified to strike the stayed five-year term on the prior serious felony conviction under section 667, subdivision (a)(1). The trial court is directed to amend the minute order of the sentencing hearing and the abstract of judgment accordingly and forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment, as so modified, is affirmed.
We concur: RAMIREZ, P.J., CODRINGTON, J.
Judge of the Riverside Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.