Stephanie M. Adraktas, 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, A. Natasha Cortina, Lynne G. McGinnis and Alastair J. Agcaoili, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN356361) APPEAL from a judgment of the Superior Court of San Diego County, David G. Brown, Judge. Affirmed. Stephanie M. Adraktas, 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, A. Natasha Cortina, Lynne G. McGinnis and Alastair J. Agcaoili, Deputy Attorneys General, for Plaintiff and Respondent.
The morning that David M. learned his wife, Sara M., was having a sexual relationship with defendant Timothy Kepley, David sent Kepley a text message saying he was going to tell Kepley's wife about the affair. David and Sara drove to Kepley's house, and David knocked on the door. Kepley retrieved a shotgun, approached David from around the side of his house, pointed the shotgun at David and cocked it, then said, "Get the fuck off my property or I'm going to blow your brains all over the sidewalk." Kepley repeated similar threats. David retreated and called 911.
Kepley was charged with assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and making a criminal threat (§ 422). Each count carried the allegation that Kepley personally used a deadly weapon when he committed the offense. (§ 1192.7, subd. (c)(23).) A jury returned guilty verdicts on both counts, and found true the personal-use allegation. The trial court sentenced Kepley to two years in state prison, but suspended execution of the sentence and placed Kepley on formal probation for three years, with 240 days' custody in local confinement.
All further statutory references are to the Penal Code.
We explain in part III.B., post, why we conclude the special allegation pertains to personal use of a deadly weapon and not personal use of a firearm.
On appeal, Kepley contends (1) insufficient evidence supports his conviction for making criminal threats; (2) his trial counsel rendered ineffective representation by failing to request a jury instruction on brandishing as a lesser related offense to assault with a firearm; and (3) the trial court erred in instructing the jury regarding the assault with a firearm count and the personal-use allegation. We reject these contentions, and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Prosecution Case
Kepley testified he is not technically married, but considers his long-term, live-in girlfriend to be his wife.
As of February 2016, David and Sara had been married for about 12 years. David had been in the United States Marine Corps, serving eight years as a military policeman and deploying for three combat tours before being honorably discharged. He received awards for marksmanship, and was very familiar with firearms.
Sara met Kepley online in late 2015 when they were randomly paired together while playing the online crossword game "Words with Friends." Kepley initiated text messages with Sara through the online game, which progressed to daily communications by normal text message and phone.
Kepley and Sara discussed personal matters, including their children and their marriages. Kepley told Sara he had an "open relationship." Sara mentioned that David had PTSD, and that it was straining their marriage. However, she never told Kepley that David's PTSD made him violent or caused him to act out, nor did she ever say David was otherwise a violent or jealous person.
On February 26, 2016 (the night before the incident), David and Sara got into an argument. Around 6:00 p.m., Sara left the house to "clear her head." She intended to spend the night at her mother's house, but instead went to a bar and drank "a lot." She ended up staying the night at Kepley's house and having sex with him.
Meanwhile, David became concerned because he was unable to reach or locate Sara. In checking their cell phone records, David noticed multiple text messages and long calls involving a phone number he did not recognize. David called the number, and Kepley answered. Kepley explained he was platonic friends with Sara, that they had previously discussed her marriage, and that he did not know her whereabouts that evening. David described the call as "very sociable, friendly, [and] amicable," and he denied ever threatening Kepley.
When Sara came home the next morning, she and David had sex. She then told him what had happened the night before with Kepley. David felt "crushed," "betrayed," and "very, very sad," but he was "not angry." Sara assured him the affair was over and it would never happen again. David told Sara they should go to Kepley's house "to make sure that everybody was on the same page"—that is, to make sure Janet knew of the affair, and to let everyone know that David and Sara had decided to work through their marital problems. Before leaving for Kepley's house, David sent him three text messages, which said: "Hey, you fucked my wife last night," "We are going to tell your wife," and "You fucking worm."
Around 1:30 p.m., David and Sara drove to Kepley's home. David walked to the front door, while Sara stood a few feet behind him. When David knocked with a "normal Avon lady knock," Kepley looked out the window but did not answer the door. David knocked again.
Less than a minute later, Kepley exited the house through a side gate, holding a shotgun. He seemed angry and agitated. Kepley walked quickly toward David and pointed the shotgun at his chest. According to David's trial testimony, Kepley said, " 'Get the fuck off my property or I'm going to blow your brains all over the sidewalk." Kepley cocked the shotgun and repositioned the barrel a few inches from David's face. Kepley then said, "I'm going to splatter your brains all over the sidewalk."
After Kepley's second threat, David "really . . . thought this was it"—Kepley was going to kill him. David's "entire life, literally, flashed before [his] eyes." David's first instinct was to attempt to disarm Kepley, but David "absolutely" thought there was a chance he could get shot, and he was also concerned Sara could get hurt. David asked Kepley, "What the 'F' are you doing? You pull a gun on me? I knock on your door, and you pull a gun on me? What the hell is the matter with you?"
Wanting Kepley to get it over with, David told him to "pull the trigger." Kepley started shaking and "the look in his eyes went from anger more to panic . . . . It was almost that of a scared person." Based on Kepley's eyes, David "didn't believe he had what it took." But David thought there was still "a possibility" he could get shot, and he was "[a]bsolutely" still afraid for his life.
David backed up, with his hands raised. He told Kepley he was leaving, and that he was going to call the police. David called 911 when he reached his car. When the recorded 911 call was played for the jury, David said he sounded "panicky and in shock." He was "shaky" and "shaken" for "[a]t least the rest of the day."
For example, David told the 911 operator Kepley was knocking on the front door.
Sara testified similarly about Kepley's threats and David's reactions. When Kepley approached and pointed the shotgun at David's chest, Kepley said, "Get the fuck off my property." She feared for David's safety. As David backed up with his hands raised, Kepley continued advancing on him. Kepley then said, "I'll fucking kill you," and "something about splattering." When Sara heard David say "shoot me," she thought he was "in shock." Kepley went back inside his house when David said he was going to call the police. Sara said the confrontation lasted "[a] couple minutes."
Several police officers responded to David's 911 call. They found in Kepley's garage a loaded shotgun with a shell in the firing chamber.
The Defense Case
Kepley, who was the only defense witness, testified he acted in self-defense. He disputed the prosecution theory that the confrontation occurred because he was trying to conceal his affair with Sara.
Kepley explained that during his conversations with Sara, she mentioned David's military experience, his PTSD diagnosis, and that he had jealousy issues. Kepley acknowledged Sara had not told him these things in a threatening way, but added that she joked that "if the shit hits the fan, [Kepley would] be in trouble" because David knows how to fight and is much larger than Kepley (6 feet tall and 200 pounds, versus five feet seven inches tall and 150 pounds).
Kepley admitted he had sex with Sara at his home the night before the incident, while Janet was working an overnight shift and their son was asleep. Sara stayed the night, but left before Janet returned from work or the son woke up. Kepley testified he and Janet had an open relationship, and that he had disclosed to her when he began texting Sara that he thought something might develop between them.
Janet got home from work around 9:00 a.m., spent some time with her son, then went to sleep in her bedroom around 10:00 a.m. Kepley had not yet told her what had happened with Sara the night before.
As Kepley and his son watched a movie on TV, Kepley heard a knock on the door "like a policeman's knock." He looked out a window and saw Sara looking "unkempt, which never happens with her," and a man at the front door whom he presumed to be David. Kepley took his son to the room where Janet was sleeping, told her, "There's something serious," then went back by the front door and listened to what was happening.
The knocking sound moved to a side window, and Kepley heard David yell a goading comment. Kepley had not yet seen David's text messages from that morning, and was scared David "would do something horrible" to Kepley's family. Kepley retrieved his shotgun from the garage, made sure it was loaded, and returned to the central point of his house. David was now knocking progressively louder on the front door, to the point that it "was bowing inwards a little bit."
Kepley exited his house, went through a "side gate door and around the corner," pointed his shotgun at David, and yelled, "Get the fuck off of my property. Never fucking come back." Kepley testified he "wanted to scare [David] so bad he would never return . . . ." As David retreated with his hands raised, Kepley followed, reiterating, "Get the fuck off my property. What the fuck are you doing? Get the fuck off my property." Kepley testified he never said he was going to kill David or "splatter his brains on the sidewalk." In between Kepley's admonitions to leave, David said things like, "[Y]ou're a fucking piece of shit," "You're a worm," and "Why don't you just fucking shoot me?"
When David reached the street, Kepley lowered his shotgun, and David said he was going to call 911. Kepley responded, "[D]o whatever you need to do," then "threw" his shotgun "kind of haphazardly" into a pile of "garage sale stuff" in his garage.
When police arrived, Kepley "was . . . really scared" to tell them the truth about the shotgun, so he told them he had used a "stick" to scare off David. Kepley admitted at trial that he had used a loaded shotgun.
The Prosecution's Rebuttal Case
Janet testified for the prosecution. She confirmed she and Kepley had an open relationship, and that he had disclosed he was talking with Sara. However, he had not told Janet before the shotgun incident that he had had sex with Sara in their home the night before, which violated the "rules" because their son was home.
Janet remembered Kepley looking "serious," but not "scared," when he brought their son into her room while she was sleeping. She fell back asleep, and did not hear any banging or yelling.
One of the responding police officers, Jesse Flores, testified that he spoke with David upon arriving at the scene. The officer described David as "clearly in distress, panic," with "his mind . . . moving faster than his mouth."
Officer Flores also spoke with Janet, who "had no idea why [the police] were there." When the officer told Janet that Kepley "had had an affair in her house last night while she was gone," Janet started crying and said she was "in shock" and "had questions about [the] . . . future of their relationship." She said she had no idea who Sara was, and said nothing about being in an open relationship. Janet authorized the police to search the home, which led to the discovery of Kepley's loaded shotgun.
Finally, Officer Flores testified that when he interviewed Sara at the crime scene, she said she heard Kepley use the word "spatter," conveying "something to the effect" of "I'll spatter your brains or blow your head off."
Jury Verdict and Sentence
After deliberating for just over two hours, the jury found Kepley guilty of assault with a firearm and making a criminal threat, and found true the allegation that he personally used a deadly weapon in the commission of each offense. The trial court sentenced Kepley to a two-year suspended prison term, placed him on formal probation for three years, and ordered him confined in local custody for 240 days.
I. Substantial Evidence Supports the Conviction for Making a Criminal Threat
Kepley contends we must reverse his conviction for making a criminal threat because there was insufficient evidence that he made an unconditional threat or that David felt sustained fear. We disagree.
A. Relevant Legal Principles
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one. ' "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" ' [Citations.] [¶] ' "Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citation.]" ' " (People v. Smith (2005) 37 Cal.4th 733, 738-739.)
In order to prove the crime of making a criminal threat under section 422, "the prosecution must establish all of the following: (1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat—which may be 'made verbally, in writing, or by means of an electronic communication device'—was 'on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 227-228, quoting section 422, subd. (a), italics added.)
Kepley contends there is insufficient evidence that his threats to David (as recounted by David) were "unconditional and immediate[,] as required by the statute," because they were conditioned on David not leaving Kepley's property. Kepley misstates the record and the law. Although the record shows Kepley clearly conditioned some of his death threats on David's refusal to leave his property (e.g., "Get off my fucking property or I'm going to splatter your brains" (italics added)), David testified that not all of the death threats were so conditional (e.g., "I'm going to splatter your brains all over the sidewalk"). Sara also testified that as David was retreating, Kepley repeated, "I'll fucking kill you" and said something about "splattering." Therefore, at least two of Kepley's death threats were not conditioned on David not leaving Kepley's property.
In any event, section 422 does not require that the threat be absolutely unconditional. (People v. Bolin (1998) 18 Cal.4th 297, 339-340 (Bolin).) Rather, it need only be " 'so . . . unconditional . . . as to convey to the person threatened, a gravity of purpose and immediate prospect of execution . . . .' " (Ibid.) " 'The use of the word "so" indicates that unequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances to convey gravity of purpose and immediate prospect of execution to the victim.' " (Id. at p. 340.) "[A]ll of the surrounding circumstances should be taken into account to determine if a threat falls within the proscription of section 422. This includes the defendant's mannerisms, affect, and actions involved in making the threat as well as subsequent actions taken by the defendant." (People v. Solis (2001) 90 Cal.App.4th 1002, 1013.) Applying these principles, courts have upheld criminal threats conditioned on not calling the police (see People v. Dias (1997) 52 Cal.App.4th 46, 49-51), or on not testifying against a criminal defendant (see People v. Brooks (1994) 26 Cal.App.4th 142, 144).
Considering all the circumstances, substantial evidence supports the jury's finding that Kepley made a criminal threat that was sufficiently unconditional. Kepley rapidly approached David; pointed a shotgun at him, cocked it, and repositioned it in David's face; repeatedly threatened David; and pursued David as he retreated. The trial court properly instructed the jury regarding (1) the required degree of unconditionality (see CALCRIM No. 1300); (2) Kepley's rights to defend himself, others, and his property (see CALCRIM Nos. 3470, 3476); and (3) Kepley's right to eject a trespasser (CALCRIM No. 3475). By returning a guilty verdict, the properly instructed jury necessarily rejected Kepley's defense theories and found the evidence of his criminal threats sufficiently unconditional.
The court instructed the jury, in part: "To prove that the defendant is guilty of this crime, the [P]eople must prove that: [¶] . . . [¶] . . . The threat was so . . . unconditional . . . that it communicated to David [M.] a serious intention and the immediate prospect that the threat would be carried out . . . ."
Kepley also claims there is insufficient evidence that David suffered "sustained fear" (§ 422, subd. (a)) because David (1) testified he could see in Kepley's eyes that he didn't have what it took to pull the trigger, (2) goaded Kepley during the confrontation, and (3) thought he could use his military experience to disarm Kepley. Substantial evidence supports the jury's finding on this element.
To be sure, David testified that when he told Kepley to "pull the trigger," the look in Kepley's eyes suggested he did not have "what it took" to pull the trigger. However, David also testified he still believed he could get shot and was still "absolutely" afraid for his life. Sara testified she thought David was in shock when he told Kepley to pull the trigger. David said of his recorded 911 call that he still sounded "so panicky and in shock." When Officer Flores arrived still moments later, he observed David to be "clearly in distress, panic," with "his mind . . . moving faster than his mouth." And Sara testified David looked "shaky" and "shaken" for at least the rest of the day. It is reasonable to infer his shakiness was from Kepley's death threats, and not from learning his wife had just had an affair (as Kepley suggests). Thus, despite David's observation about the look in Kepley's eyes, substantial evidence supports the finding David experienced sustained fear.
As for David's goading comments during the confrontation, he explained to the jury that he thought "the only . . .way . . . of getting out of [the situation] was either through intimidation or trying to get [Kepley] to think about something else or trying to talk some sense into him." Sensing the latter two methods would not work, David decided the only available avenue was to "talk him down the other way by talking smack." David's explanation does not indicate he was not in fear; rather, it shows he was motivated by his fear to extricate himself from the situation.
Regarding David's belief he could disarm Kepley, David testified that despite his superior size and training, he thought he or Sara might get shot in the process. This does not negate a finding David was in sustained fear.
Kepley similarly argues it would have been unreasonable for David to experience sustained fear because he was the "initial aggressor" who sent hostile text messages and went to Kepley's house. But David testified he just wanted to talk things out and "make sure that everybody was on the same page." In addition, the jury rejected Kepley's defense theories premised on David being the aggressor.
Finally, citing In re Ricky T. (2001) 87 Cal.App.4th 1132, Kepley claims his threats were mere " 'emotional outburst[s]' " immune from liability under section 422. His reliance on In re Ricky T. is misplaced. There, the appellate court found a lack of substantial evidence of sustained fear where a high school student made impulsive, nonspecific threats "to get" or "kick [the] ass" of a teacher who had accidentally struck the student while opening a door. (Id. at pp. 1135, 1137.) By contrast, Kepley acted deliberately—he retrieved a shotgun from his garage, ensured it was loaded, left the safety of his home, and confronted David by pointing the loaded shotgun in his face and repeatedly stating he would kill David or splatter his brains on the sidewalk. Indeed, Kepley testified his threats were calculated to induce fear in David so that he would leave and never return.
In sum, substantial evidence supports Kepley's conviction for making a criminal threat.
II. No Ineffective Representation For
Not Requesting an Instruction on a Lesser Related Offense
Kepley contends his trial counsel rendered ineffective representation by not requesting an instruction on the misdemeanor of brandishing a firearm (§ 417) as a lesser related offense to the charged felony of assault with a firearm. The contention lacks merit.
During the jury instruction conference outside the presence of the jury, the prosecutor asked whether the court would be instructing the jury on the lesser related offense of brandishing a firearm. He clarified the offense was not a lesser included offense on which the court was obligated to instruct; rather, the court could decline to give the instruction if either counsel objected. If the instruction were given, the prosecutor would simply add a verdict form that gave jurors the option of convicting Kepley for brandishing if they acquitted him of assault with a firearm. The prosecutor said he was not wedded to the idea of giving the instruction, and thought it "would, if anything, benefit the defense."
The trial court admitted it was, "procedurally, . . . a little confused." The court confirmed with the prosecutor that "if the defense objects [to the instruction], then it shouldn't come in." The court gave defense counsel the opportunity to weigh in then, or to "ponder it a tad bit and we can move on." Defense counsel elected to "think on it."
Shortly thereafter, defense counsel announced her decision not to request the instruction:
"[DEFENSE COUNSEL]: I'll make this easier for everybody. I ask that the court not give the brandishing instruction. I think it confuses the evidence, and it adds more jury instructions.
"[THE COURT]: That's not the point. You have to make a tactical decision. You are making the tactical decision?
"[DEFENSE COUNSEL]: I am, yes."
B. Relevant Legal Principles
1. Ineffective Assistance of Counsel
"The constitutional standard for determining whether counsel has failed to provide adequate legal representation is by now well known: First, a defendant must show his or her counsel's performance was 'deficient' because counsel's 'representation fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms.' [Citations.] Second, he or she must then show prejudice flowing from counsel's act or omission. [Citations.] We will find prejudice when a defendant demonstrates a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.] 'Finally, it must also be shown that the [act or] omission was not attributable to a tactical decision which a reasonably competent, experienced criminal defense attorney would make.' " (People v. Gurule (2002) 28 Cal.4th 557, 610-611; see Strickland v. Washington (1984) 466 U.S. 668, 687-692.)
"Defendant's burden is difficult to carry on direct appeal. We reverse on the ground of inadequate assistance on appeal only if the record affirmatively discloses no rational tactical purpose for counsel's act or omission." (People v. Montoya (2007) 149 Cal.App.4th 1139, 1148.) " 'In some cases, . . . the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged. In such circumstances, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal.' " (People v. Avena (1996) 13 Cal.4th 394, 418-419.) " 'A reviewing court will not second-guess trial counsel's reasonable tactical decisions.' " (People v. Riel (2000) 22 Cal.4th 1153, 1185.) " 'In the usual case, where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions.' " (People v. Jones (2003) 29 Cal.4th 1229, 1254.)
2. Lesser Related Offenses
"Lesser included offenses are distinguished from lesser related offenses . . . ." (People v. Robinson (2016) 63 Cal.4th 200, 207, fn. 3, first italics added.) " '[A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.' " (People v. Hicks (2017) 4 Cal.5th 203, 208-209.) "If a lesser offense shares some common elements with the greater offense, or if it arises out of the same criminal course of conduct as the greater offense, but it has one or more elements that are not elements of the greater offense as alleged, then it is a lesser related offense, not a necessarily included offense." (Id. at p. 209.)
"[E]ven absent a request, and even over the parties' objections, the trial court must instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser." (People v. Birks (1998) 19 Cal.4th 108, 118.) "However, a defendant has no right to instructions on lesser related offenses even if he requests the instruction and it would have been supported by substantial evidence." (People v. Valentine (2006) 143 Cal.App.4th 1383, 1387; see People v. Jennings (2010) 50 Cal.4th 616, 668; People v. Foster (2010) 50 Cal.4th 1301, 1343.)
"[I]t has long been held that brandishing is a lesser related offense, rather than lesser included" offense, of assault with a firearm. (People v. Steele (2000) 83 Cal.App.4th 212, 218.)
Kepley has not met his burden of showing that his counsel performed deficiently by declining the instruction on brandishing, or (assuming it was deficient to do so), that Kepley was prejudiced as a result.
Counsel's performance was not deficient because it was an expressly tactical decision. When the issue first arose, counsel elected to "think on it." After having done so, counsel informed the court she had made the expressly "tactical decision" not to request the instruction. Although counsel initially explained she was forgoing the instruction because "it confuses the evidence, and it adds more jury instructions," the trial court rejected those reasons and made counsel confirm she was making a tactical decision. She did so. The record does not reveal counsel's precise rationale. Thus, we must affirm as long as there is at least some conceivable tactical basis for counsel's decision. There is.
Defense counsel's primary trial theory was that Kepley acted in self-defense. Indeed, during her closing argument, defense counsel expressly conceded all but the self-defense elements of the assault with a firearm count. She could reasonably have concluded that adding a lesser related offense would undermine her all-or-nothing strategy. (See, e.g., People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1438 [no deficient representation where counsel did not request an instruction on a lesser related offense where that "offense was inconsistent with [the defendant's] testimony and with his attorney's theory of defense"].) This was not an unreasonable approach.
Kepley cites In re Crace (Wash. Ct. App. 2010) 157 Wash.App. 81 (Crace I) to support the proposition that an all-or-nothing strategy was unreasonable under the circumstances. His reliance on this nonbinding sister-state authority is misplaced. First, Crace I involved a lesser included offense (Crace I, supra, 236 P.3d at pp. 921-922), not a lesser related offense, which implicates materially different instructional duties. Second, the Crace I court found an all-or-nothing approach unreasonable under the circumstances—it refused to adopt a per-se-unreasonable rule—because of the grossly disparate sentencing implications of the charged offense versus the lesser included offense (a third-strike life sentence, versus less than one year). (Id. at p. 931.) Third, Crace I did not involve a truly all-or-nothing strategy because the court had already instructed the jury on a different lesser included offense. (Id. at pp. 921-922.) Finally, a subsequent federal habeas corpus proceeding reveals that the Crace I trial counsel had not requested an instruction on the lesser included offense because he " 'did not consider it.' " (Crace v. Herzog (9th Cir. 2015) 798 F.3d 840, 852.) None of these considerations indicate that an all-or-nothing approach was unreasonable under the circumstances here.
The Attorney General argues the intermediate appellate decision in Crace I was reversed by the Washington Supreme Court "on the very point for which" Kepley cites it. (See In re Crace (2012) 174 Wash.2d 835 (Crace II).) We disagree. Kepley cites Crace I for its conclusions on the deficient performance prong of an ineffective assistance of counsel claim; Crace II reversed on the prejudice prong, and did "not reach the issue of deficient performance." (Crace II, at p. 1108, fn. 6.)
The federal court acknowledged that, "[i]n certain circumstances, it may be reasonable for a defense attorney to opt for an 'all-or-nothing' strategy, forcing the jury to choose between convicting on a severe offense and acquitting the defendant altogether." (Crace v. Herzog, supra, 798 F.3d at p. 852.)
Even if we were to conclude Kepley's trial counsel rendered ineffective representation by not requesting the instruction on brandishing, we are satisfied the result at trial would have been the same regardless of the claimed deficiency. Given that the jury found Kepley guilty of making a criminal threat (thereby rejecting his claim that he never threatened to kill David) and guilty of assault with a firearm (thereby rejecting his self-defense claim), it is not reasonably probable the jury would have found Kepley's conduct less culpable simply because the court also instructed on the lesser related offense of brandishing.
III. No Instructional Error
Kepley contends the trial court committed instructional error because (1) the jury instruction regarding the assault with a firearm count erroneously referred to assault with a deadly weapon, and (2) the operative pleading includes allegations that Kepley personally used a firearm, yet the court instructed the jury only regarding personal use of a deadly weapon. Kepley further contends the combined effect of these instructional errors was prejudicial. We find no reversible error.
A. The Assault With a Firearm Count
Kepley was charged in count 1 of the operative pleading with "assault . . . with a firearm, in violation of . . . section 245[, subdivision] (a)(2)." (Capitalization omitted.) The court instructed the jury regarding the elements of this count as follows (with italics added):
Section 245, subdivision (a)(2) states: "Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than six months and not exceeding one year, or by both a fine not exceeding ten thousand dollars ($10,000) and imprisonment."
"875. Assault with a Firearm
"The defendant is charged in count one with assault with a deadly weapon, in violation of Penal Code section 245, subdivision (a)(2).
"To prove that the defendant is guilty of this crime, the [P]eople 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;
"4. When the defendant acted, he had the present ability to apply force with a firearm;
"5. The defendant did not act in self-defense." [¶] . . . [¶]
"A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion."
The verdict form correctly identifies this count as "assault with a firearm, in violation of . . . section 245[, subdivision] (a)(2), as charged in Count One of the Information." (Some capitalization omitted, italics added.)
Kepley contends the erroneous reference to "assault with a deadly weapon" (instead of with a firearm) in the first paragraph of the jury instruction constitutes reversible error. We disagree.
A more egregious error was deemed not prejudicial in People v. Glover (1985) 171 Cal.App.3d 496 (Glover). There, two witnesses testified the defendant pulled a revolver on them; the defendant claimed it was only a toy. (Id. at pp. 499-501.) The defendant was charged with assault with a firearm, but the jury was instructed with the entire pattern instruction for assault with a deadly weapon, and both the prosecutor and defense counsel erroneously referred to the charge in closing arguments as assault with a deadly weapon. (Id. at pp. 499, 502.) The Court of Appeal acknowledged this was error, but found it was not prejudicial. (Id. at p. 504.) The court explained that "if a jury, having been properly instructed in the general language . . . concerning assault with a deadly weapon, convicts a defendant of assault with a firearm [citation] and there is no evidence from which the jury could have concluded that the assault was by means of any other deadly weapon, it will be clear that the jury resolved the factual question adversely to the defendant." (Id. at p. 507.) Because "there was no evidence whatsoever to suggest that [the] defendant's assault, if any, on [the victims] was with anything other than a handgun," the court affirmed. (Id. at p. 506.)
As in Glover, here "there was no evidence whatsoever to suggest that" Kepley's assault on David "was with anything other than a" shotgun. (Glover, supra, 171 Cal.App.3d at p. 506.) Indeed, Kepley testified he used a loaded shotgun. This, alone, would persuade us that any error was not prejudicial under Glover. But our conclusion is further supported by the following: (1) but for a clerical error in the introductory paragraph, the jury was properly instructed regarding the elements of the charged offense; (2) the verdict form correctly referred to the charged offense; (3) the prosecutor and defense counsel both referred during their closing arguments to assault with a firearm; and (4) other instructions referred to count 1 as being assault with a firearm. On this record, there can be no question but that the jury understood what it was being asked to decide.
B. Personal-use Allegation
Kepley contends that, although an amended information alleged that he personally used a firearm during the commission of each count, the trial court erroneously instructed the jury regarding the elements of personally using a deadly weapon. The Attorney General counters that the jury was properly instructed because Kepley's argument is based on a proposed amended information that was never signed or filed, and the original operative information includes a deadly weapon allegation, as the jury was instructed. The record supports the Attorney General's position.
Section 1192.7, subdivision (c) defines a serious felony as including: "(8) any felony in which the defendant . . . personally uses a firearm; . . . (23) any felony in which the defendant personally used a dangerous or deadly weapon . . . ."
The People's original felony complaint alleged one count each of assault with a firearm and making a criminal threat. The complaint included the allegation that, in the commission of each offense, Kepley "personally used a dangerous and deadly weapon, to wit: [a] shotgun," within the meaning of section 1192.7, subdivision (c)(23). (Italics added.)
The clerk's transcript on appeal includes a motion to dismiss filed by Kepley's trial counsel, which attached a draft of an "amended felony information" that purported to amend only the special allegation to reflect that Kepley "personally used a firearm," not a deadly weapon. (Capitalization omitted, italics added.) The prosecutor's opposition likewise referenced the proposed amendment. However, the clerk's transcript shows that the amendment was neither signed nor file-stamped.
Moreover, after the proposed amendment was drafted, the court file-stamped the original complaint as the operative information. The court's subsequent minutes repeatedly refer to the deadly weapon allegation from the original complaint/information.
Finally, we have confirmed that the superior court file does not contain an amended information that asserts a firearm allegation.
Thus, we are satisfied the jury was properly instructed regarding the deadly weapon allegation asserted in the operative pleading.
However, the Attorney General points out that the verdict forms erroneously asked the jury to determine whether Kepley "personally used a firearm" in the commission of each offense. (Italics added.) This error does not require reversal. (See People v. Flynn (1995) 31 Cal.App.4th 1387, 1392 ["[T]o invalidate the finding on the basis the court [acting as factfinder] inadvertently referred to subdivision (c)(8) of section 1192.7 instead of subdivision (c)(23) would improperly elevate form over substance."].)
First, the operative pleading alleged Kepley "personally used a dangerous and deadly weapon, to wit: [a] shotgun." (Italics added.) Second, the court instructed the jury regarding the elements of a deadly weapon allegation. Third, the prosecutor referred to that instruction during his closing argument, stating, "A firearm is, of course, an inherently deadly weapon." Kepley never contended otherwise at trial. Finally, the court's minutes reflect that the jury made a finding on a deadly weapon allegation. The fact the verdict form erroneously referred to a firearm-use allegation is "a textbook example of clerical error." (See People v. Trotter (1992) 7 Cal.App.4th 363, 370 [court properly corrected clerical error in verdict form where the information alleged the defendant personally used a firearm, but the signed verdict form stated he was armed with a firearm]; see People v. Camacho (2009) 171 Cal.App.4th 1269, 1273 [" ' "There are innumerable authorities which declare that the form of the verdict is immaterial if the intention to convict of the crime charged is unmistakably expressed." ' "].)
In any event, the elements of a deadly weapon allegation and a firearm allegation are "materially similar." (People v. Felix (2008) 160 Cal.App.4th 849, 864.) They differ only in that one defines a deadly weapon (see CALCRIM No. 3145), and the other defines a firearm (see CALCRIM No. 3146). --------
C. Cumulative Error
Kepley contends "[t]he combined effect of all of the instructional errors was prejudicial . . . ." We disagree. Kepley relied almost entirely on a self-defense theory. Thus, the outcome of the trial did not hinge on whether Kepley used a firearm or a deadly weapon—he admitted he pointed a loaded shotgun at David—it hinged on the circumstances of his using it. None of the instructional errors relate to those circumstances. Therefore, none of the instructional errors were prejudicial, either standing alone or cumulatively. (People v. Haley (2004) 34 Cal.4th 283, 317 ["because none of the instructional errors in fact prejudiced [the] defendant, his argument for cumulative prejudice must fail."].)
The judgment is affirmed.
HALLER, Acting P. J. WE CONCUR: AARON, J. GUERRERO, J.