P. v. Aguirre

>

>P. v.
Aguirre















Filed
9/2/10 P. v. Aguirre CA5

















NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.





IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT


>

THE PEOPLE, Plaintiff and Respondent, v. DANIEL LEOPOLDO AGUIRRE, Defendant and Appellant.

F057720 (Super. Ct. No. F07907555) >OPINION

APPEAL from
a judgment of the Superior Court of Fresno
County. John F. Vogt, Judge.

Nuttall
& Coleman, Roger T. Nuttall and Gregory W. Fox for Defendant and Appellant.

Edmund G.
Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and
Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant
Daniel Leopoldo Aguirre was convicted of making a criminal threat against his
uncle and committing a battery upon his aunt.
On appeal, he contends the trial court erred by refusing to instruct on self-defense as a defense to making a
criminal threat. We will modify the
judgment to strike the prior prison term enhancement, and affirm the judgment
in all other respects.

PROCEDURAL SUMMARY

On May 8,
2008, the Fresno County District Attorney charged defendant with six crimes
arising from two incidents on July 8, 2007.
Counts one, three, and five related to the first incident, not relevant
to this appeal. Counts two, four, and
six related to the second incident, upon which this appeal is based: assault with a firearm (Pen. Code,
§ 245, subd. (a)(2);^[1] count 2); making a criminal threat (§ 422; count 4); and
misdemeanor battery (§ 242; count 6).
The information alleged that defendant personally used a firearm in
connection with counts 2 and 4 (§ 12022.5, subd. (a)), that he had
suffered a prior conviction within the meaning of both the “Three Strikes” law
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and section 667,
subdivision (a)(1), and that he had served a prior prison term (§ 667.5,
subd. (b)).

A jury
found defendant guilty on counts 4 and 6, but not guilty on count 2.^[2] The jury found true the firearm use
allegation in connection with count 4.
The trial court found true the prior conviction and prison term
allegations.

The trial
court sentenced defendant to 12 years in prison, as follows: a two-year mid-term on count 4, doubled
pursuant to the Three Strikes law; a five-year term pursuant to section 667,
subdivision (a)(1), plus a consecutive three-year term on the firearm enhancement. The court imposed and stayed (§ 654) a
one-year term on the prior prison term.

FACTS

Nadine and
Mark were defendant’s aunt and uncle.
They lived next door to defendant’s grandmother. Nadine and Mark believed they had a good
relationship with defendant.

On the
evening of July 8, 2007, Nadine and Mark were in their living room with some
friends when defendant came to their window and asked Mark to come
outside. Mark was busy, so he said, “No,
I’m not going to come out.” He told
defendant they had company.

Defendant
responded with loud obscenities, “Fuck you, come outside[.]” Mark refused again and said, “I’m really not
coming outside now.” He told defendant
he should not talk to him like that.
Mark just let defendant continue “mouthing off” outside. Nadine, however, went to the front door and
asked defendant what the problem was.
When she opened the door, she asked defendant, “What’s wrong with
you[‌]” and he answered, “Fuck you, bitch.
Shut your fuckin’ mouth. Get your
fuckin’ ass back in the house.” He told
her to mind her own business.

When Mark
heard this, he got up. He was not going
to tolerate defendant speaking to Nadine in this manner. At that moment, defendant hit Nadine hard on
the cheek with his closed fist. Nadine
stumbled backward. Mark got up and asked
Nadine, “Did he hit you‌” She said he did. Mark was upset and he rushed to the door,
intending to hit defendant. Mark said he
would not put up with this. When Mark
got to the door, defendant pointed a gun at his face, holding it just a few
inches away, and asked him, “Do you want to die today‌” Mark stopped abruptly. He thought he was dead. A friend grabbed Nadine and pulled her away
from the door when she saw the gun. Mark
went numb and limp, but he was able to slam the door closed. As he caught his breath, he realized some of
his children were outside and he had to get them. He was afraid, but when he opened the door,
defendant was gone. Mark saw him riding
his bicycle down the street. Mark told
the children to get inside and he closed the door after them.

Defense Evidence

Defendant testified
that he was agitated because he had been involved in an altercation. He had also been drinking and taking
narcotics. He went to his grandmother’s
garage to get a gun he kept there, just in case he encountered problems when he
returned to the scene of the fight. His
gun was not loaded; he had no bullets for it.

As
defendant left through the side gate, he noticed the van at Nadine and Mark’s
house next door, and he decided to ask them for a ride to a friend’s
house. Nadine and Mark often gave him
rides. Defendant called to Mark through
the window, which was how they usually contacted each other. Mark disregarded him, which made defendant
upset. Defendant said, “Hey, you know, I
need to talk to you. Come out here. It’s important.” But Mark refused and said, “[N]ot right
now.” Defendant said, “You need to come
out here. I really need to talk to you.”

At that
point, Nadine opened the front door. She
was upset and she asked defendant, “What the fuck’s going on‌” Defendant slapped her and said, “I don’t want
you.” Mark jumped up in a rage and
lunged at defendant with his fists up.
Defendant did not mean to make Mark mad and he immediately felt remorse
for what he had done to Nadine.
Defendant had heard that Mark could fight well, and he had never seen
him so mad. Defendant reached into his
pocket, pulled out his gun, and pointed it at Mark, “just to diffuse the
situation.” He did not say anything when
he pulled the gun out; he said “nothing,” “not one word.” When defendant pointed the gun at Mark, he
stopped. When the incident was over,
defendant left.

At trial,
defendant acknowledged that he should not have struck Nadine and that it was a
mistake. He knew it was a product of his
agitation and his drug use, but he agreed that was no excuse. He explained that he pulled out the gun
because he thought Mark was going to hit him.
If Mark had not charged him, he would not have pulled out the gun. Defendant did not intend to shoot Mark. He had no bullets and he thought his gun
probably did not even work.

On cross-examination, defendant testified he
had been doing drugs all day, and he was upset from the recent fight. He was under the influence and “pretty amped
up.” He wanted to speak to Mark, not
Nadine, so he was upset when Nadine came to the door. She seemed upset—asking him, “What the fuck
is going on‌”—but she did not hit him or make any movements suggesting she was
going to hit him. When defendant slapped
Nadine, Mark got up, rushed to the door, and charged defendant. Mark was upset and he looked like he wanted
to hit defendant. As Mark approached the
door, defendant started pulling the gun out of his pocket. He did not know what to do. He thought, “[O]h, shit, what did I get
myself into because … [Mark] was looking real mad.” Defendant pulled the gun out, raised it, and
pointed it at Mark. He did not ask Mark
if he wanted to die. Mark stopped and
did not hit defendant. Defendant then
left.

DISCUSSION

Defendant cites no authority that a
defendant may successfully raise self-defense to a charge of making a criminal
threat in violation of section 422. We
need not decide this issue here because we conclude any error in refusing to
instruct on self-defense was harmless.

Defendant
argues that the error cannot be deemed harmless in light of the jury’s
acquittal on count 2, the assault based on defendant’s pointing the gun at
Mark, which was closely connected to defendant’s threat against Mark’s
life. Contrary to defendant’s suggestion,
however, the jury’s acquittal of the assault charge does not establish that the jury determined defendant was justified in
defending himself against Mark’s response.

First, defendant’s conduct toward
Mark—the assault and the threat—could not be justified as self-defense. As defendant admitted, he was indisputably
the initial aggressor in the situation, striking Nadine without
provocation. When Mark came to Nadine’s
defense, defendant, as the initial aggressor, was “bound to retreat and not to
stand his ground. [Citations.]” (People
v. Bolton (1979) 23 Cal.3d 208, 214.)
Instead, he pointed a gun at Mark and threatened to kill him. In other words, defendant set in motion the
circumstances that led to Mark’s lawful response to defend Nadine from defendant’s
attack. “It is well established that the
… self-defense doctrine … may not be invoked by a defendant who, through his
own wrongful conduct (e.g., the initiation of a physical assault or the
commission of a felony), has created circumstances under which his adversary’s
attack or pursuit is legally justified.
[Citations.]” ( >In re Christian S. (1994) 7 Cal.4th
768, 773, fn. 1.) In sum, as the
initial aggressor, defendant was not entitled to rely on self-defense—to
justify either the assault or the criminal threat—and we presume the jurors
understood and followed the instructions that explained these concepts (e.g.,
CALCRIM Nos. 3470, 3471, 3472). (People
v. Hovarter (2008) 44 Cal.4th 983, 1005.)^[3]

Second, it is highly likely
that the jurors instead acquitted defendant of the assault charge because they
determined defendant’s gun was not loaded and he therefore lacked the present ability to commit a violent
injury on Mark. “An assault is an
unlawful attempt, coupled with a present
ability, to commit a violent injury on the person of another.” (§ 240, italics added.) Thus, “[t]he threat to shoot with an unloaded
gun is not an assault, since the defendant lacks the present ability to commit
violent injury.” (People v. Fain (1983) 34 Cal.3d 350, 357, fn. 6; >People v. Wolcott (1983) 34 Cal.3d
92, 99 [if a person points an unloaded gun at another, without any intent or
threat to use it as a club or bludgeon, he does not commit assault]; >People v. Sylva (1904) 143 Cal. 62,
64 [pointing an unloaded gun at another, accompanied by a threat to discharge
it, without any attempt to use it in a manner other than by shooting, does not
constitute an assault because there is no present ability to commit a violent
injury in the manner in which the injury is attempted to be committed]; People
v. Lee Kong (1892) 95 Cal. 666, 669 [same].)

Here, defendant pointed a gun at
Mark and threatened to kill him. (He
never attempted to use the gun as a club or bludgeon.) Defendant testified that his gun was
unloaded, he had no bullets for it, and he thought it probably did not even
work. The jurors obviously found
defendant credible to some extent (they acquitted him of four of the six
counts), and if they believed this particular testimony, they could not convict
him of assault, as they were instructed (CALCRIM No. 875 [listing present
ability to apply force as an element of the crime]).^[4]

For these reasons, we conclude the
trial court was not required to instruct on self-defense with regard to the
criminal threat, and even if error, the failure to so instruct was harmless
because there was no reasonable possibility that the failure affected the
result. (People v. Watson (1956)
46 Cal.2d 818, 836; see, e.g., People v. Randle (2005) 35 Cal.4th 987, 1003, overruled on another ground in >People v. Chun (2009) 45 Cal.4th 1172,
1201 [applying Watson in context of
failure to instruct on imperfect defense of others]; People v. Blakeley (2000) 23 Cal.4th 82, 93 [same, in
context of unreasonable self-defense].)

Lastly, we
note that defendant’s prior prison term enhancement should not have been
stayed. (People v. Jones (1993) 5 Cal.4th 1142, 1145-1153 ( >Jones).)
In Jones, the trial court imposed an enhancement under section 667,
subdivision (a),
and also under section 667.5, subdivision (b), based upon one prior felony
offense of kidnapping. (Id. at
p. 1145.) The Supreme Court
determined that “in enacting what is now subdivision (a) of section 667, the
voters did not intend that a defendant’s sentence would be enhanced for both a
prior conviction (under the new statute) and
the resulting prison term (under § 667.5).” (People v. Murphy (2001) 25 Cal.4th
136, 156.) Therefore, the court
“construed section 667 to bar the cumulative imposition of both enhancements” (People
v. Baird (1995) 12 Cal.4th 126, 134), and remanded the case to the trial
court with directions to strike the one-year enhancement imposed under section 667.5,
subdivision (b). (Jones, supra,
5 Cal.4th at p. 1153.) Accordingly, we
will order the abstract of judgment modified by striking the section 667.5,
subdivision (b) enhancement.

DISPOSITION

The
abstract of judgment is ordered modified by striking the Penal Code
section 667.5, subdivision (b) enhancement. As so modified, the judgment is
affirmed. The clerk of the superior
court shall forward a copy of the modified abstract to the Department of Corrections and Rehabilitation.





_

Kane, J.

WE CONCUR:





_

Wiseman, Acting P.J.





_

Cornell, J.





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