P. v. Hayden
Filed
2/1/13 P. v. Hayden CA5
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opinion has not been certified for publication or ordered published for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.
EUGENE HAYDEN, SR.,
Defendant and
Appellant.
F062838
(Kern
Sup. Ct. No. BF134948A)
APPEAL from
a judgment of the Superior Court of
Sylvia
Whatley Beckham, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy
Attorney General, for Plaintiff and Respondent.
-ooOoo-
Appellant
Eugene Hayden, Sr., appeals from a judgment of conviction of
(Pen. Code,
title="">[1] § 236) with three prior strike
convictions (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(3)). We will affirm.
STATEMENT OF THE CASE
On April 5,
2011, a Kern County jury returned a verdict finding appellant guilty of felony
false imprisonment as charged in a multi-count information. In a bifurcated proceeding that same day, the
court found that appellant had sustained three prior strike convictions.
On June 23,
2011, the court denied appellant’s motion to exercise its discretion to reduce
the false imprisonment conviction to a misdemeanor and further declined to
dismiss any of the strike priors. That
same day, the court sentenced appellant to 25 years to life in state prison.
On July 11,
2011, appellant filed a timely notice of
appeal.
Testimony of H.G.
In 2010,
60-year-old H.G. was a longtime manager at “Little Village,†a low-income
housing complex operated by the Kern County Housing Authority. Her duties included rent collection,
processing applications for lease renewals, and making preliminary assessments
of possible rules violations.
Appellant’s girlfriend, LaShawn Marshall, had been a tenant at the
complex for at least six years. H.G.
described Marshall as a good tenant who paid her rent and passed her annual
review.
Prior to
April 2010, H.G. had two contacts with appellant. The first occurred in 2009, when appellant
entered H.G.’s office and said he knew her.
H.G. said she had never met appellant before that visit. The second contact occurred in March
2010. Appellant contacted H.G. outside
her office and asked that Marshall be allowed to “transfer†to another housing
unit because a crime had recently occurred near Marshall’s current unit. H.G. said a transfer had to be approved by a
department of the Housing Authority.
Appellant responded by saying that H.G. did have the ability or
authority to carry out the transfer.
H.G. testified that the request for transfer was precipitated by a
murder that occurred in front of Marshall’s apartment.
On April 7, 2010, H.G. was working
in her office at the complex when she saw appellant at the window. Appellant told H.G. he wanted to talk about a
transfer for Marshall, and she admitted him to the office. H.G. and appellant sat down in two chairs in
the reception area, and appellant again asked H.G. about the transfer. H.G. advised appellant that he could look for
“low-income housing that’s in the private sector†if he was not getting a
response from the “administration office.â€
H.G. got up and asked appellant to
leave. Appellant stood up and placed a
beer bottle on a nearby piece of furniture.
He approached H.G., grabbed her around the waist with his left hand, and
twisted her right arm behind her back so that she could not move.
As
appellant stood behind and to the side of H.G., he tried to whisper something
into her ear. He then began to push her
or throw her off balance. H.G. struggled
with appellant and began screaming.
However, appellant’s hold on her body prevented her from moving her arms
and legs. H.G. was wearing a dress and
appellant pulled it up and grabbed her posterior. She said he then placed his hand in her
underwear and touched her sexually. H.G.
testified that these events occurred “fairly quickly,†and she continued to
scream as loudly as she could. Daniel
Fondetti, a maintenance supervisor, entered the office and spoke to appellant,
but appellant continued to restrain H.G.
A second person entered the office, and appellant released his grip on
H.G., who fell backwards. H.G. said
someone walked her back to her office, but she was still crying and
hysterical. An ambulance eventually took
her to the hospital, where she completed a sexual assault examination. H.G. testified that, following her encounter
with appellant, she had bruises on her arm and experienced pain in her
Testimony of Daniel Fondetti
Daniel
Fondetti testified that he had seen appellant around the apartment complex and
said appellant had twice asked him about the procedure for moving a
tenant. Fondetti said he referred
appellant to H.G. During the noon hour
on April 7, 2010, Fondetti and other members of the maintenance team were
eating lunch when they heard H.G. screaming.
Fondetti and a maintenance worker, Lupe Alaniz, went to the office, and
Fondetti saw appellant struggling with H.G.
Although H.G. and appellant were facing away from him, Fondetti could
hear her scream and see her struggle to get away from appellant. Fondetti asked what was going on, and Alaniz
grabbed appellant’s arm. Appellant
released H.G., and she fell forward.
Other members of the maintenance team arrived and surrounded
appellant. Fondetti called 911, and
police arrived minutes later.
Testimony of Guadalupe Alaniz
Guadalupe
Alaniz said Fondetti was his supervisor and H.G. was his manager at the housing
complex. During the noon hour of April
7, 2010, Alaniz and other maintenance crew members heard screaming in the
office. Fondetti checked out the
situation and summoned Alaniz to the reception area of the office. Alaniz saw that appellant’s hands were
wrapped around H.G., who was screaming hysterically. H.G. told Alaniz, “[G]et him off of me.†Alaniz took hold of appellant’s right hand
and twisted appellant’s arm back.
According to Alaniz, appellant did not want to release H.G. and kept
saying that he was just showing how much he “liked her.†According to Alaniz, H.G. repeatedly said
that appellant was going to rape her.
Alaniz said other maintenance team members joined Fondetti and him in
the office. They surrounded appellant
and escorted him outside. Alaniz
comforted H.G., who said she “shouldn’t have let him in.â€
Testimony of John F. Hoffman,
Jr.
Maintenance
team member John F. Hoffman, Jr., testified that he and fellow employees were
in the lunch room when they heard screaming in the office during the noon hour
of April 7, 2010. Hoffman said he and
his co-workers immediately went to the office and asked appellant to get off
H.G., but appellant did not comply for a “minute or two.†Hoffman said when maintenance team members
asked appellant to leave the premises, appellant became “a little
confrontational.†Hoffman said he helped
H.G. go into her office, but she collapsed on the floor. Hoffman and Alaniz then helped her into a
chair. Hoffman said she was hysterical,
gasping for air, and crying. She
repeatedly said that appellant tried to rape her.
Testimony of Irving Garcia
Irving
Garcia testified that he was the last member of the maintenance crew to arrive
at the office during the noon hour on April 7, 2010. According to Garcia, appellant repeatedly
said that H.G. was his friend, and that he was going outside. Garcia told appellant he had to leave the
office. Appellant moved slowly but
finally stepped outside. The police
arrived a few minutes later and took appellant away. After appellant left, paramedics carried H.G.
out of the office. Garcia said she was
breathing deeply and crying.
Testimony of Barton Garrison
Maintenance
team member Barton Garrison also went to the office during the noon hour on
April 7, 2010. He saw appellant hold
H.G.’s left hand with his right hand and said she was screaming and struggling
to get away from appellant. Garrison
said Fondetti and other employees were telling appellant to let her go. According to Garrison, appellant did not
immediately comply with their demands for release but eventually let H.G. go
free. Garrison said he heard appellant
say that H.G. was his friend, that he was not going to hurt her, and that he
only wanted to talk to her. After
appellant went outside, appellant and someone named “Jesse†began arguing with
one another. The two men engaged in a
pushing match until police showed up and took appellant away. After appellant departed the scene, Garrison
went back inside and saw H.G. on the floor in front of her office. She was very upset, and Garrison could not
understand much of what she was saying.
Testimony of Mardi Sharples
Mardi
Sharples, an asset manager for the Housing Authority, testified she was a
friend of H.G.’s, and that they had arranged to meet at the complex and go to
lunch on April 7, 2010. When Sharples
arrived at the complex, everything was chaotic, and she saw appellant
surrounded by maintenance team members in a grassy area outside the
office. Sharples said several police
cars were also present. Appellant tried
to get Sharples’s attention and said, “I wasn’t trying to hurt her.†At Fondetti’s request, Sharples went inside
to be with H.G. H.G. was seated on a
chair inside her private office, and police officers were standing just outside
the office. According to Sharples, H.G.
was hysterical and hyperventilating. Sharples
said her hair and clothes were “messed up†or “[d]isheveled,†and it appeared
that an earring had been “torn out of her ear.â€
Sharples said the officers unsuccessfully attempted to calm H.G. H.G. repeatedly said, “[H]e tried to rape
me.†An ambulance took H.G. to the
hospital and Sharples followed in her car.
Testimony of Nancy Gutcher
Registered
Nurse Nancy Gutcher testified that she conducted a sexual assault examination
of H.G. at 2:15 p.m. on April 7, 2010.
According to Gutcher, H.G. said she was working in an office when a man
came in, grabbed her left upper arm and held her so that she could not
move. H.G. told Gutcher the man
restrained her with his arms and twisted her upper right arm behind her back. According to Gutcher, H.G. said she had
tenderness on her arms and right shoulder joint. Gutcher observed bruising on H.G.’s upper
arms and right shoulder.
Testimony of David Kessler
Kern County
Deputy Sheriff David Kessler testified he was dispatched to the Housing Authority
office shortly after noon on April 7, 2010.
He saw other units at the scene upon his arrival and observed a male
subject being surrounded by other subjects on a grassy area. Deputy Kessler went inside the office and
took a statement from H.G. He described
H.G. as “hysterical†and said she accused a man of trying to rape her. H.G. explained the man who tried to rape her
came to the office to talk about his girlfriend, a tenant in the complex. H.G. said she let the man in and he, in turn,
removed a bottle of beer from his back pocket and drank from it. H.G. told Kessler she struggled with the man
in the reception area of the office, and he grabbed her right arm and twisted
it behind her back. H.G. also said the
man wrapped his other arm around her front and held onto her. H.G. told Kessler that she knew the man as
“Gene†and said she had seen him around the complex.
Testimony of Mark Warren and
Jason Colbert
Kern County
Deputy Sheriff Mark Warren testified he was dispatched to the scene shortly after
noon on April 7, 2010, and assisted Deputy Jason Colbert in arresting
appellant. Deputy Warren testified that
he interviewed a number of witnesses at the scene. According to Warren, Hoffman heard appellant
say that he was not trying to hurt or rape H.G.
Warren removed two cell phones from appellant’s person, and Colbert
booked the devices into evidence. Deputy
Colbert testified he was dispatched to the scene and was present at the time
appellant was placed under arrest.
Testimony of Ernest Scott Kinney
Defense
investigator Ernest Scott Kinney testified that he collected appellant’s
personal property from the Kern County Jail on November 30, 2010. He found H.G.’s business card in appellant’s
wallet. The card had a phone number
printed on the front side and a different number handwritten on the reverse
side. That same day, Kinney met with
district attorney investigator Kadell and examined two cell phones that
officers had seized from appellant’s person.
Kinney determined that someone had made calls to the numbers on the
business card during the 10:00 a.m. hour on April 7, 2010.
Kinney
interviewed H.G. on September 8, 2010.
H.G. said appellant “snapped†as if he were under the influence of
PCP. She also said that appellant had a
weapon but did not give details.
According to H.G., appellant twisted her arms behind her back and placed
one of his arms around her neck to choke her.
H.G. said her coworkers entered the office while she was being
choked. Kinney said H.G. blamed herself
for what occurred because she admitted appellant into her office. The defense played a compact disk of Kinney’s
interview with H.G. and gave jurors a transcript of the interview.
Testimony of Kim Millinder
Kern County
Sheriff’s Detective Kim Millinder testified that she interviewed H.G. and two
witnesses and prepared a report.
Detective Millinder testified she interviewed every witness who was
listed in the initial report and questioned H.G. to determine whether she had a
prior, consensual sexual relationship with appellant. Troy Trimble, a Housing Authority
investigator, testified that a homicide had occurred near the apartment of
LaShawn Marshall in early 2010. Trimble
said appellant had talked to him about relocating Marshall and her
children. Trimble testified that he
tried to help appellant in getting Marshall relocated.
Testimony of Kaytricia Hayden
Kaytricia
Hayden testified that she was the daughter of appellant and Loretta Oats. Kaytricia said she resided with her mother at
the “Little Village†housing project into her teen years. Kaytricia said her father lived at the
complex “off and on.†Kaytricia knew
H.G., had spoken with her a number of times, and would visit with H.G. in the
office when it was time to pay rent.
According to Kaytricia, H.G. would ask about appellant’s well-being, and
Kaytricia believed that H.G. liked her father.
Kaytricia said she had seen H.G. and appellant together in the office of
the complex more than 50 times.
Testimony of LaShawn Marshall
LaShawn
Marshall testified that she had two daughters with appellant, and that she had
lived in the “Little Village†complex for 13 years. She said appellant visited her in her
apartment but did not live there. Between
2005 and 2011, Marshall would see H.G. each August to renew her lease with the
Housing Authority. Marshall said she saw
H.G. walk by her apartment on four occasions prior to appellant’s arrest in
connection with this case. The third
occasion took place after a male neighbor was shot and killed. Several weeks before appellant’s arrest,
Marshall and appellant went to the office because appellant said H.G. was going
to prepare some transfer papers.
Marshall said H.G. stuck her head outside the office door and spoke to
appellant.
Testimony of Appellant
Appellant
testified on his own behalf and admitted several convictions for robbery about
15 to 20 years prior to the instant case.
Appellant said he had never been convicted of a sexual offense. He also testified that he had known H.G. for
27 or 28 years, and that she had been interested in him “as a man†since he was
in his late teens. Appellant claimed
that H.G. had given him the business card that bore her cell phone number on
the reverse side. He said he programmed
her number into his cell phone but used another name so that his girlfriend
would not be aware it. According to
appellant, he and H.G. had several contacts in the weeks leading to his arrest,
and that they had engaged in flirting.
Appellant said he spoke to H.G. inside her office on March 15,
2010. They discussed a transfer for
Marshall, but H.G. refused, and appellant believed she was mad because Marshall
and appellant were “together.â€
Appellant
testified that he called H.G. in advance of their meeting on April 7,
2010. Appellant rode his bicycle to
H.G.’s office, and he had two beers on his person. One was in his hand and the other was in his
pocket. When he arrived, Fondetti and
another male were outside the office and there were three women inside the
office. H.G. opened the outer door, and
the two of them walked into her office.
She shut the inner door and told appellant he could not bring beer into
the office. He drank both beers despite
her admonition. At one point in their
conversation, H.G. asked appellant whether he had been at, what she referred to
as, his “baby mama’s house.†He said he
had not been at Marshall’s house, but H.G. accused him of lying. When appellant removed a keychain from his
belt hoop and toyed with the keys, H.G. said one of the keys was for her
complex. Appellant said that H.G.
demanded to see the keys and they scuffled over the keychain. During the scuffle, H.G. was bent over and
started screaming. Fondetti told
appellant to let go of H.G., but appellant claimed he could not do so because
his finger was caught in the key loop that H.G. was struggling over.
When
someone asked how appellant gained entry to the office, appellant said H.G.
“let me in here.†Fondetti asked H.G.
whether she was all right and, according to appellant, H.G. hollered, “Get him
[appellant] out of here.†Appellant said
he did not hear H.G. accuse him of rape.
Appellant said he took his empty beer bottle outside and placed it next
to his bicycle. He also said he left the
opened beer inside the office. Deputy
Colbert asked appellant whether he had an intimate relationship with H.G., and
appellant answered and referred to her as a friend, but he denied having sex
with her. Appellant said he advised
Deputy Colbert that he had consumed several beers. Appellant denied that he was drunk or under
the influence of drugs that day. He
further denied that he placed his hands under H.G.’s dress or twisted her arm
behind her back. Appellant said he did
not think to tell Colbert that he and H.G. struggled over the keys.
Fondetti
reaffirmed that he saw appellant assaulting H.G. in the hallway outside of
H.G.’s office. He did not see H.G. and
appellant together inside her office. He
did not see other females in the reception area of the office. Fondetti said he did not see a beer bottle in
appellant’s hands or a keychain on appellant’s belt when appellant left the
office. Fondetti also testified that he
did not hear the rustling of keys.
Deputy
Colbert testified that he spoke to appellant on the day of the charged
offenses, and appellant claimed to have engaged in sexual intercourse with H.G.
about a month earlier. Appellant claimed
he engaged in sex with H.G. because he wanted “better housing†for the mother
of his children. According to Colbert,
appellant later changed his story and denied having intercourse with her. Colbert testified that appellant never said
anything about a set of keys.
DISCUSSION
THE
JUDGMENT OF CONVICTION WAS SUPPORTED BY SUFFICIENT EVIDENCE OF VIOLENCE OR
MENACE BEYOND THE FORCE NECESSARY TO EFFECT THE RESTRAINT.
Appellant contends the judgment must be reversed or the
level of the offense reduced because there was insufficient evidence to show
that he engaged in violence or menace beyond the force necessary to effect the
restraint.
Specific Contention
Appellant acknowledges that the jury found him guilty of
false imprisonment by means of violence or menace. He specifically concedes: “Here, the evidence amply established the
commission of false imprisonment.â€
However, viewing the evidence in the light most favorable to the
verdict, appellant contends there is insufficient evidence of
constituting menace above that force necessary for the restraint. The evidence does not show that appellant
used force beyond that necessary to effect the restraint and, therefore, the
evidence is insufficient to support a felony conviction for false imprisonment
by violence. Because there is lacking
evidence on a necessary element of the alleged offense, the conviction must be
reversed on grounds of insufficient evidence.
Alternatively, the verdict may be modified to reflect the lesser
included offense of misdemeanor false imprisonment and the matter should be
remanded for resentencing.â€
Law of False Imprisonment
Section 236 defines the offense of
misdemeanor false imprisonment as “the unlawful violation of the personal
liberty of another.†(See, e.g.,
480, 484 (Matian).) “The crime of false imprisonment becomes a felony
‘[i]f such false imprisonment be effected by violence, menace, fraud, or deceit
.…’ (Pen. Code, § 237.)†(Matian,
supra, 35 Cal.App.4th at p. 484.)
“[T]he essential element of false imprisonment is restraint of the
person. Any exercise of express or
implied force which compels another person to remain where he does not wish to
remain, or to go where he does not wish to go, is false imprisonment. [Citation.]â€
(People v. Bamba (1997) 58
Cal.App.4th 1113, 1123 (Bamba).)
“Force is an element of both felony and
misdemeanor false imprisonment.
Misdemeanor false imprisonment becomes a felony only where the force
used is greater than that reasonably necessary to effect the restraint. In such circumstances the force is defined as
‘violence’ with the false imprisonment effected by such violence a
felony.†(People v. Hendrix (1992) 8 Cal.App.4th 1458, 1462;
137, 140.)
Thus, “the use of violence–i.e.,
excessive force–or menace†elevates the offense to a felony. (People
v. Babich (1993) 14 Cal.App.4th 801, 808 (Babich).) In this context,
“ ‘violence’ means ‘ “the exercise of physical force used to restrain
over and above the force reasonably necessary to effect such
restraint.†’ [Citations.] [Also in] this context, ‘menace’ means
‘ “a threat of harm express or implied by word or by act.†’ [Citations.]â€
(Bamba, supra, 58 Cal.App.4th
at p. 1123; People v. Dominquez
(2010) 180 Cal.App.4th 1351, 1359; Matian,
supra, 35 Cal.App.4th at p. 484.)
Distinguishing Matian, this
court has held: “An express or implied
threat of harm does not require the use of a deadly weapon or an express verbal
threat to do additional harm. Threats
can be exhibited in a myriad number of ways, verbally and by conduct.†(People
v. Aispuro (2007) 157 Cal.App.4th 1509, 1512-1513 [opn. of Kane, J.].)
“All elements of misdemeanor false
imprisonment are also elements of the felony; the felony cannot be committed
without necessarily committing the misdemeanor.
The misdemeanor is therefore a lesser included offense of the
felony. [Citation.]†(Babich,
supra, 14 Cal.App.4th at p. 807; Matian,
supra, 35 Cal.App.4th at p. 487.)
Law of Sufficiency of
the Evidence
“In assessing a claim of insufficiency of evidence, the
reviewing court’s task is to review the whole record in the light most
favorable to the judgment to determine whether it discloses substantial
evidence that is–evidence that is reasonable, credible, and of solid value–such
that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578 [].) The federal standard of review is to the same
effect: Under principles of federal due
process, review for sufficiency of evidence entails not the determination
whether the reviewing court itself believes the evidence at trial establishes
guilt beyond a reasonable doubt, but, instead, whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [].) The standard of review is the same in cases
in which the prosecution relies mainly on circumstantial evidence. (People
v. Stanley (1995) 10 Cal.4th 764, 792 [].)
‘ “Although it is the duty of the jury to acquit a defendant if it
finds that circumstantial evidence is susceptible of two interpretations, one
of which suggests guilt and the other innocence [citations], it is the jury,
not the appellate court[,] which must be convinced of the defendant’s guilt
beyond a reasonable doubt. ‘ “ If
the circumstances reasonably justify the trier of fact’s findings, the opinion
of the reviewing court that the circumstances might also reasonably be
reconciled with a contrary finding does
not warrant a reversal of the judgment.†’
[Citations.]†’ (
v. Rodriguez (1999) 20 Cal.4th 1, 11.)
“ ‘ “A reviewing court neither reweighs evidence nor
reevaluates a witness’s credibility.†’ †(People
v. Booker (2011) 51 Cal.4th 141, 172.)
Analysis
Appellant contends the force he used to restrain H.G. was
“an uninvited bear hug, pinning her arms to her sides or holding them behind
her back (according to H.G.), and bending her slightly forward as if she could
be knocked off her feet.†Appellant
submits there was no additional force beyond that used to restrain. H.G. testified that she asked appellant to
leave her office. He responded by
pulling a beer bottle from his rear pocket and placing it on a desk. H.G. said that appellant approached her and
grabbed her around her waist with his left hand. At a later point he grabbed her right arm
with his right hand and twisted it behind her back. H.G. said she felt her arm being twisted
behind her back and added, “I was in a position where I couldn’t move.†H.G. explained that her body was turned to
the side when appellant put her arm behind her back. H.G. said she tried to get loose, but
appellant “was kind of pushing me, pushing me as if to throw me off balance and
towards the rear of where we were standing.â€
H.G. said she contemplated a counterattack against appellant but
explained, “I was in a paralyzing hold, a hold where I could not move either of
my arms and even my legs.†In response
to the prosecutor’s questions, she reiterated that appellant used one of his
arms to hold her arm behind her back and used his other arm to grip her “around
the waist and to the side.†H.G. added
that she was in “a paralyzing position†and was bent over “[a] little bit.â€
The direct evidence of a single witness entitled to full
credit is sufficient for proof of any fact.
(Evid. Code, § 411.) When a
rational fact finder could conclude that a criminal defendant’s acts or words
expressly or impliedly threatened harm, the fact finder may find that there is
menace sufficient to make false imprisonment a felony. (People
v. Wardell (2008) 162 Cal.App.4th 1484, 1491.) Appellant fails to address the role of menace
in this case. Instead, he focuses solely
on the element of force, asserting that “H.G. was restrained of her liberty by
the way appellant held her and nothing more; there was no additional
force.†Appellant is mistaken. From H.G.’s testimony, the jury could
reasonably conclude that appellant initially restrained H.G. by grabbing her
waist with his left hand and then employed additional force by taking her right
arm with his right hand and twisting it behind her back. Appellant essentially characterizes his
conduct as a single exertion of force, i.e., “an uninvited bear hug, pinning
her arms to her sides or holding them behind her back …, and bending her
slightly forward as if she could be knocked off her feet.â€
Appellant’s characterization of his conduct is not
controlling. In California, it is the
exclusive province of the jury to determine the credibility of a witness and
the truth or falsity of the facts upon which a determination depends. (People
v. Zamudio (2008) 43 Cal.4th 327, 357.)
“A reversal for insufficient evidence ‘is unwarranted unless it appears “that
upon no hypothesis whatever is there sufficient substantial evidence to
support†’ the jury’s verdict.
[Citation.]†(
“In making our determination, we do not reweigh the evidence; the
credibility of witnesses and the weight to be accorded to the evidence are
matters exclusively within the province of the trier of fact.†(People
v. Stewart (2000) 77 Cal.App.4th 785, 790.)
The jury could reasonably conclude that
appellant’s hold of H.G. around the waist was the force necessary to restrain
her and that his twisting of her arm behind her back, his bending over the top
of her, and his pushing her forward constituted force beyond that necessary to
restrain her. The judgment of conviction
of felony false imprisonment was supported by substantial evidence.
II.
THE
TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR BY FAILING TO INSTRUCT THE JURY SUA
SPONTE ON ACCIDENT OR MISFORTUNE.
Appellant contends the trial court
committed reversible error by failing to instruct sua sponte on accident or
misfortune (CALCRIM No. 3404).
Appellant’s Specific
Contention
Appellant acknowledges the jury found him
guilty of false imprisonment by violence or menace. However, he maintains there was evidence to
explain “that what appeared to be a violent or menacing restraint of the
alleged victim was actually the result of an accident or appellant’s misfortune
in having his finger stuck in a ring of keys which the alleged victim grabbed
and would not relinquish.†Based on this
evidence, appellant contends the trial court had a sua sponte duty to instruct
the jury on the defense of accident or misfortune. Appellant acknowledges that since the time of
trial, the Supreme Court has overruled cases which required sua sponte
instruction on accident. Therefore, he
argues in the alternative that his trial counsel was ineffective by failing to
request an instruction on accident.
Law of Accident
Section 26 states in part: “All persons are capable of committing crimes
except those belonging to the following classes: …“Five – Persons who committed the act or
made the omission charged through misfortune or by accident, when it appears
that there was no evil design, intention, or culpable negligence.â€
CALCRIM
No. 3404
title="">[2] states in relevant part:
“[The defendant is not
guilty of ________________ <insert
crime[s]> if (he/she) acted [or failed to act] without the intent
required for that crime, but acted instead accidentally. You may not find the defendant guilty of
______________ <insert crime[s]>
unless you are convinced beyond a reasonable doubt that (he/she) acted with the
required intent.]â€
In
People v. Anderson (2011) 51 Cal.4th
989, 996-999 (Anderson), arising from
a November 2003 murder committed during the course of a felony robbery, the
Supreme Court held a trial court has no obligation to provide a sua sponte
instruction on accident where the criminal defendant’s theory of accident is an
attempt to negate the intent element of the charged crime. The Supreme Court observed: “A trial court’s responsibility to instruct
on accident therefore generally extends no further than the obligation to
provide, upon request, a pinpoint
instruction relating the evidence to the mental element required for the
charged crime.†(Id. at p. 997.)
Analysis
Appellant implies that the rule of
inapplicable here because “appellant’s testimony was offered to rebut more than
the mens rea element, i.e., specific intent to restrain, confine or compel a
person to stay. The defense evidence was
offered also to rebut the part of the actus reus for the charged offense, i.e.,
restraint, confinement or compelling the alleged victim to stay
as opposed to mere force.†(Italics in
original.)
We initially note that the premise of
appellant’s contention is not supported by case law. “The accident defense is a claim that the
defendant acted without forming the mental
state necessary to make his actions a crime.†(People
v. Gonzalez (1999) 74 Cal.App.4th 382, 390, italics added, citing
102, 110 [], disapproved on another point in Anderson, supra, 51
Cal.4th at p. 998, fn. 3).) We further
note that the trial court properly instructed the jury on the formation of
intent by giving CALJIC Nos. 3.30 [concurrence of act and general criminal
intent], 3.31.5 [mental state], and 9.60 [false imprisonment by force and
violence (§ 236)].
In reading CALJIC No. 3.30, the court
stated: “In the crimes charged in counts
3 and 4 [false imprisonment] … there must exist a union or joint operation of
act or conduct and general criminal intent.
General criminal intent does not require an intent to violate the
law. When a person intentionally does
that which the law declares to be a crime, he is acting with general criminal
intent even though he may not know that his act or conduct is unlawful.†In reading CALJIC No. 3.31.5, the court
stated that in the crime charged in count four, “there must exist a union or
joint operation of act or conduct and a certain mental state in the mind of the
perpetrator. Unless this mental state
exists, the crime to which it relates is not committed.†In reading CALJIC No. 9.60, the court stated
as to count four: “In order to prove
this crime, each of the following elements must be proved: one, a person intentionally and unlawfully
restrained, confined, or detained another person, compelling her to stay or go
somewhere; two, the other person did not consent to the restraint, confinement,
or detention; and, three, the restraint, confinement, or detention was
accomplished by violence or menace.â€
Appellant has not cited, and we have been
unable to find, any case authority applying the defense of accident to the
actus reus of a charged offense.
Although CALJIC Nos. 3.30, 3.31.5, and 9.60 did not use the term “accident,â€
these instructions adequately addressed the mental element of false
imprisonment. Assuming the existence of
a requirement to request an instruction on accident or misfortune, appellant
alternatively contends his trial counsel was ineffective by failing to request
CALJIC No. 4.45 (or, presumably, its more recent counterpart, CALCRIM No.
3404).
“The burden of proving ineffective
assistance of counsel is on the defendant.â€
(People v. Babbitt (1988) 45
Cal.3d 660, 707.) A criminal defendant
must show both deficient performance “that trial counsel failed to act in a
manner to be expected of reasonably competent attorneys acting as diligent
advocates,†and prejudice “that it is reasonably probable a more favorable
determination would have resulted in the absence of counsel’s failings.†(People
v. Price (1991) 1 Cal.4th 324, 386.)
The defendant “must carry his burden of proving prejudice as a
‘demonstrable reality,’ not simply speculation as to the effect of the errors
or omissions of counsel.†(
937.) “ ‘It is not enough for the
defendant to show that the errors had some conceivable effect on the outcome of
the proceeding....’ †(
217.) When a defendant cannot establish
the prejudice prong of this test, it is unnecessary to consider whether
counsel’s performance was deficient. (
disapproved on other grounds in People v.
Doolin (2009) 45 Cal.4th 390.)
Thus, appellant must demonstrate a reasonable probability
that a more favorable determination would have resulted had counsel requested a
jury instruction on accident. A review
of the record reveals that appellant has failed to carry this burden. First, the court thoroughly instructed the
jury on the mental element of false imprisonment as charged in count four by
giving CALJIC Nos. 3.30, 3.31.5, and 9.60.
Second, the graphic testimony of H.G. militated against the giving of an
instruction on accident. As noted in
issue I ante, H.G. testified that she
asked appellant to leave her office.
H.G. said that appellant approached her and grabbed her around her waist
with his left hand. At a later point he
grabbed her right arm with his right hand and twisted it behind her back. H.G. said she felt her arm being twisted
behind her back and added, “I was in a position where I couldn’t move.†H.G. explained that her body turned to the
side when appellant put her arm behind her back. H.G. said she tried to get loose, but
appellant “was kind of pushing me, pushing me as if to throw me off balance and
towards the rear of where we were standing.â€
H.G. said she contemplated a counterattack against appellant but
explained, “I was in a paralyzing hold, a hold where I could not move either of
my arms and even my legs.†In response
to the prosecutor’s questions, she reiterated that appellant used one of his
arms to hold her arm behind her back and used his other arm to grip her “around
the waist and to the side.†H.G. added
that she was in “a paralyzing position†and was bent over “[a] little bit.â€
For his part, appellant testified that H.G. approached him
in her office and asked to see the keys he was holding in his right hand. Appellant said H.G. grabbed his keys as he
prepared to leave her office. He said
his finger was still in the loop when she grabbed the keys. According to appellant, the loop twisted or
twirled when she grabbed the keys.
Appellant said this commenced a scuffle over the keys, which caused H.G.
to bend over. Appellant admitted that he
and H.G. wrestled over the keys.
Appellant said he finally “got the keys and snatched them from her and
stuff.†Appellant said he heard Fondetti
telling him to let go of H.G. However,
he did not comply “[b]ecause she had my finger and had my keys still.†Appellant admitted that he was still tangled
with H.G. when her coworkers entered the office. Appellant’s characterization of his encounter
with H.G. as some sort of informal wrestling match over a keychain between
longtime acquaintances simply did not square with H.G.’s vivid description of
her arm being twisted behind her back.
Moreover, Lupe Alaniz testified he saw appellant on top of H.G., and
that she was hunched over at the waist.
Although Alaniz could not see appellant’s hands, he did see appellant’s
arms. Alaniz said appellant was standing
behind H.G. with his left arm extended over the left side of body and his right
arm “tucked in the front. So he actually
had his hands wrapped around her.â€
Although H.G. was screaming and accusing appellant of rape, appellant
repeatedly said that he was showing H.G. how much he liked her. Alaniz said he tried to get appellant off of
H.G. and eventually “got his right hand, and I twisted his arm back.â€
Given the disparate versions of events, defense counsel
could have reasonably concluded that it was far more advantageous for
appellant’s defense to rely on the law set forth in CALCRIM No. 3476 [right to
defend personal property] than to characterize the incident as an “accident,â€
which a jury may have rejected out of hand.
Finally, even if the court had instructed the jury in the concept of
“accident,†it is not reasonably likely that the jury would have characterized
appellant’s encounter with H.G. as some sort of chance happening with no deliberate
intent.
Appellant’s trial counsel did not render ineffective
assistance by declining to request CALCRIM No. 3404 under the facts and
circumstances of this case.
III.
THE
SENTENCE OF 25 YEARS TO LIFE IN STATE PRISON DID NOT CONSTITUTE CRUEL AND
UNUSUAL PUNISHMENT.
Appellant contends the trial court did
not rationally balance the mandate of the “Three Strikes†law for increased
punishment with appellant’s constitutional protection against cruel and unusual
punishment.
Appellant’s Specific
Contention
Appellant offers a summary of his history
in the reply brief on appeal. He states:
“Appellant’s first strike was based on appellant being convicted of robbery on
August 11, 1983, at the age of 18, and sentenced to two years in prison on
September 6, 1983. Appellant was paroled
on August 24, 1984, and discharged from parole on September 23, 1985, at the
age of 20, without any violation. The
second and third strikes are based on appellant’s convictions for two counts of
second degree robbery on January 19, 1996, committed when appellant was 31
years old. On April 10, 1996, appellant
was sentenced to an aggregate term of 11 years.
Appellant was paroled on December 27, 2004, at the age of 40. Appellant was arrested on July 29, 2005, and
parole was revoked on August 16, 2005.
Appellant was re-paroled on September 27, 2005, and discharged [on]
parole on February 25, 2008, without further violation. [¶]
Appellant was 46 years old at the time of sentencing in this case, on
June 23, 2011. It was nearly 30 years since
appellant’s first robbery conviction when he was a teenager, and 15 years since
the two additional robbery convictions.
Appellant had not consistently committed felony offenses, as most of his
convictions were for misdemeanors or mere infractions.â€
Appellant contends the trial court abused
its discretion by denying his request to strike his prior strike convictions or
reduce his section 236 conviction to a misdemeanor and further contends the
“life sentence the court imposed after denying the motion constituted cruel and
unusual punishment.â€
Procedural History
The probation officer’s report filed June
23, 2011, set forth the following criminal history for appellant:
(1)
A
1974 juvenile adjudication for trespass, with a disposition of wardship and
probation;
(2)
A
1976 juvenile adjudication for trespass, with a disposition of continued
probation;
(3)
A
1977 juvenile adjudication for petty theft, with a disposition of continued
probation;
(4)
A
1981 juvenile adjudication for burglary and carrying a concealed weapon, with a
disposition of continued probation and commitment to a forestry camp;
(5)
A
1983 adult conviction for being under the influence of a controlled substance
(Health & Saf. Code, § 11550, subd. (b)), resulting in three years
misdemeanor probation and 60 days in county jail;
(6)
A
1983 conviction for robbery (§ 211), his first strike, resulting in a
two-year prison term and parole on August 24, 1984;
(7)
1990
convictions for violation of a driver’s license law (Veh. Code, § 12500)
and falsely identifying himself to an officer (§ 148.9), resulting in
probation and a jail term;
(8)
A
1990 conviction for being under the influence of a controlled substance,
resulting in probation and a jail term;
(9)
1991
convictions for reckless driving (Veh. Code, § 23103, subd. (a)),
violating a stop sign law (Veh. Code, § 12500, subd. (a)), and violating a
driver’s license law, resulting in probation and a fine, with a subsequent
probation violation resulting in a jail term in 1992;
(10)
1991
convictions for a license violation (Veh. Code, § 12500, subd. (a)) and
failure to stop (Veh. Code, § 22450), resulting in a fine;
(11)
1992
convictions for a license violation (Veh. Code, § 12500, subd. (a)),
taillight violation (Veh. Code, § 24601), and giving false information to
an officer (Veh. Code, § 31), resulting in probation and a fine, followed
by a violation of probation and jail time;
(12)
A
1992 conviction for driving with a revoked or suspended license (Veh. Code,
§ 14601.1) resulting in probation and fine followed by a violation of
probation and jail time;
(13)
1992
convictions for driving with a revoked or suspended license with a prior (Veh.
Code, § 14601.1), operating a motorcycle without a helmet (Veh. Code,
§ 27803), and driving without a registration (Veh. Code, § 4000,
subd. (a)), resulting in probation followed by a probation violation and jail;
(14)
A
1993 conviction for driving without a license (Veh. Code, § 12500, subd.
(a)), resulting in jail and a fine;
(15)
A
1993 conviction for possession of a concealed weapon (former Pen. Code,
§ 12020, subd. (a)), resulting in felony probation and jail followed by a
probation violation;
(16)
A
1994 conviction for driving with a revoked or suspended license (Veh. Code,
§ 14601.1, subd. (a)), resulting in probation and jail;
(17)
1994
convictions for reckless driving (Veh. Code, § 23103, subd. (a)) and
driving with a revoked or suspended license (Veh. Code, § 14601.1, subd.
(a)), resulting in probation and jail; and
(18)
1995
convictions for two counts of second-degree robbery (§ 212.5, subd. (c))
with a prior serious felony conviction (§ 667, subd. (a)) and a prior
strike conviction (§ 667, subd. (e)), resulting in 11 years in state
prison, parole, a violation of parole, further parole, and discharge from
parole.
At the hearing on June 23, 2011, the
court considered appellant’s request to dismiss his strike priors or reduce his
section 236 conviction to a misdemeanor.
After reviewing the pleadings and a redacted handwritten letter from
appellant, and considering the respective arguments of counsel, the court
expressly acknowledged that it was “well aware†of its discretion under section
1385 and denied the request to dismiss strikes and/or reduce the section 236
conviction to a misdemeanor. The court
stated:
“And the Court must
consider whether, in light of the nature and circumstances of the present
felony and prior serious and/or violent felony convictions and the particulars
of the defendant’s background, his character and prospects, a defendant may be
deemed outside of the scheme[’s] spirit in whole or in part and, hence, should
be treated as though he had not previously been convicted of one or more
serious and/or violent felonies.
“There’s been a lot of
discussion about whether [H.G.] – the victim’s version of the event is more
believable, whether the defendant’s version of the event is more believable
with regard to trying to get his keys back.
The jury heard all this evidence.
And the jury’s verdict is consistent with accepting both the victim’s
version as well as the witnesses who came into the room and saw the defendant
and the victim struggling. All that
evidence is substantial evidence to support that this was a violent felony and
supported a felony conviction for the violence.
“And the defendant has a
criminal history that’s already been described both in the written documents as
well as the argument of counsel. The
defendant is clearly on the revolving-door plan with regard to his having been
in and out of custody since about 1974, when he was first made a ward of the
Court in the Juvenile Court.
“We don’t have a
situation where a person committed some violent crimes when he was young,
served his time, then became a productive member of our community and had a
lengthy period of time where he has proven that he has reformed, that he has
rehabilitated, that he is back on track to be a productive and law-abiding
citizen. And the defendant doesn’t come
close to meeting that type of a description.
[¶] So considering all the
circumstances, I am exercising my discretion and denying the [
Law of “Three Strikesâ€
Appellant initially contends the trial
court abused its discretion by failing to rationally balance all relevant
factors with the mandate for increased punishment when it declined to strike
any of his prior strike convictions or reduce his section 236 conviction to a
misdemeanor.
Section 1385 grants trial courts the
discretion to dismiss a prior strike conviction if the dismissal is in
furtherance of justice. (§ 1385, subd.
(a); Romero, supra, 13 Cal.4th at pp.
529-530.) “ ‘A court’s discretion
to strike [or vacate] prior felony conviction allegations [or findings] in
furtherance of justice is limited. Its
exercise must proceed in strict compliance with … section 1385[, subdivision
](a) .…’ †(
148, 158.) The Three Strikes law “was
intended to restrict courts’ discretion in sentencing repeat offenders.†(Romero,
supra, 13 Cal.4th at p. 528; People
v. Garcia (1999) 20 Cal.4th 490, 501.)
The Three Strikes law establishes “ ‘a sentencing requirement to be
applied in every case where the defendant has at least one qualifying
strike’ †unless the sentencing court finds a reason for making an
exception to this rule. (
377.) Under California law, there are
“stringent standards that sentencing courts must follow in order to find such
an exception.†(Ibid.) To dismiss a prior
strike conviction, “the court in question must consider whether, in light of
the nature and circumstances of [the defendant’s] present felonies and prior
serious and/or violent felony convictions, and the particulars of his
background, character, and prospects, the defendant may be deemed outside the
scheme’s spirit, in whole or in part, and hence should be treated as though he
had not previously been convicted of one or more serious and/or violent
felonies.†(People v. Williams, supra, 17 Cal.4th at p. 161.)
A trial court’s decision not to dismiss a
prior strike conviction is reviewed “under the deferential abuse of discretion
standard.†(People v. Carmony, supra, 33 Cal.4th at p. 374.) An abuse of discretion is established by
demonstrating that the trial court’s decision is “ irrational or
arbitrary. It is not enough to show that
reasonable people might disagree about whether to strike one or more of his
prior convictions.†(
305, 310.) When the record shows the
trial court considered relevant factors and acted to achieve legitimate
sentencing objectives, the court’s decision will not be disturbed on appeal. (Ibid.)
Given the trial court’s consideration of
the pleadings, the redacted handwritten letter from appellant, and the
respective arguments of counsel, we cannot say that the trial court’s decision
was irrational or arbitrary. The court
did not abuse its discretion by declining not to dismiss a prior strike
conviction or reduce appellant’s section 236 conviction to a misdemeanor.
Law of Cruel and Unusual
Punishment
Appellant goes on to argue that the
sentence the court imposed after declining to exercise its discretion under
section 1385 “constitutes cruel and unusual punishment for the offense
committed by this offender.â€
1. The State Constitution
A statutory punishment may violate the
constitutional prohibition against cruel and unusual punishment if it is
grossly disproportionate to the offender’s culpability. (People
v. Dillon (1983) 34 Cal.3d 441, 477-478.)
The defendant must show the sentence is out of all proportion to the
offense and “that it offends fundamental notions of human dignity.†(In re
Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) This is done by analyzing the nature of the
offense and the offender, comparing the punishment with the penalty for more
serious crimes in the same jurisdiction, and comparing the punishment with the
penalty for the same offense in other jurisdictions. (Id.
at pp. 425-427.)
The purpose of the Three Strikes law is
not to subject a criminal defendant to a long sentence merely on the basis of
the latest offense. Rather, the purpose
is to punish recidivist behavior. (
1424, 1431; People v. Kinsey (1995)
40 Cal.App.4th 1621, 1630-1631.)
Habitual offender statutes have withstood constitutional scrutiny based
on assertions of cruel and unusual punishment, as well as claims of
disproportionate sentence. (See
385, 398-400, disapproved on other grounds in People v. DeLoza (1998) 18 Cal.4th 585.)
As respondent has noted, a number of
courts have affirmed lengthy three strikes prison terms. The courts generally reason that a life term
is not cruel and unusual based on the defendant’s status as a habitual criminal
in combination with his or her current offense.
(E.g., People v. Ingram (1995)
40 Cal.App.4th 1397, 1415-1416 (Ingram),
disapproved on other grounds in People v.
Dotson (1997) 16 Cal.4th 547, 559-560, fn. 8.)
Appellant’s substantial criminal history
and inability to remain free from criminal activities makes him a strong
candidate for punishment under the Three Strikes law. In Ingram,
this court upheld a defendant’s 61-year sentence under the Three Strikes law
and enhancement statutes against a cruel-and-unusual-punishment-based
challenge. Such a defendant “is
precisely the type of offender from whom society seeks protection by the use of
recidivist statutes. There is no
indication defendant desires to reform or to change his criminal
behavior.†(Ingram, supra, 40
Cal.App.4th at p. 1415; accord, People v.
Cooper (1996) 43 Cal.App.4th 815, 826 (Cooper)
[25-year-to-life term for defendant with a lengthy criminal history, convicted
of a nonviolent, nonserious felony, was not cruel or unusual given defendant’s
“intractable recidivism, coupled with his current offense .…]â€)
The habitual nature of appellant’s
conduct is critical in assessing his culpability. In enacting section 667, “the Legislature
clearly intended to segregate habitual serious felony offenders who, like
[appellant], have not been rehabilitated or deterred from further criminal
conduct as a result of imprisonment.†(
1415-1416.) The point at which the
criminal propensity will be sanctioned and the extent of the sanction are
largely within legislative discretion; such recidivist measures have been long
recognized as constitutional. (
275, 284-285 (Rummel);
537-540.)
We considered arguments similar to those
raised by appellant in the case of Cooper,
supra, 43 Cal.App.4th 815. The
lengthy discussion of the issues raised in Cooper
is applicable to the present case, except for minor differences in the
circumstances pertaining to each defendant, and we adopt it as controlling
here. As this court pointed out in
just for the current offense but for appellant’s recidivism. (Id.
at p. 825.) As we observed in
recidivism, coupled with his current offense, justify the term imposed.†(Id. at
p. 826.)
We reject appellant’s claim that his
sentence under the Three Strikes law constitutes cruel and/or unusual
punishment under the California Constitution.
Constitution
Appellant also contends his sentence is
unconstitutionally disproportionate under the Eighth Amendment. We disagree.
The United States Supreme Court addressed
the question of whether the Eighth Amendment includes a proportionality
guarantee in noncapital cases in Harmelin
v. Michigan (1991) 501 U.S. 957.
While Harmelin did not include
a majority opinion with respect to the issue, two justices concluded the Eighth
Amendment contains no proportionality guarantee (id. at p. 965 (opn. of Scalia, J.)). Three other justices concluded the amendment
forbids only those sentences which are “ ‘grossly disproportionate’ â€
to the crime (id. at p. 1001 (opn. of
Kennedy, J.)). Even those justices
recognizing a guarantee of proportionality review stressed that, outside the
context of capital punishment, successful challenges to particular sentences
are “ ‘ “exceedingly
rare†’ †because of the “relative lack of objective standards
concerning terms of imprisonment .†(
To the extent that review of
proportionality of a sentence is applicable for Eighth Amendment purposes, we
reject appellant’s argument for the same reason that his state constitutional
claim fails. In addition, we find the
case of Rummel, supra, 445 U.S. 263,
to be instructive. In
States Supreme Court addressed the constitutionality of a Texas recidivist
statute requiring life imprisonment upon conviction of a third felony. Over the course of nine years, defendant
Rummel had been convicted of fraudulent use of a credit card to obtain $80
worth of goods or services, passing a forged check in the amount of $28.36 and
obtaining $120.75 by false pretenses. (
“grossly disproportionate†to the three felonies committed. In response, the Supreme Court concluded the
mandatory life sentence did not constitute cruel and unusual punishment under
the Eighth and Fourteenth Amendments. (
committing a relatively minor felony after committing two other relatively
minor felonies.
In Ewing
v. California (2003) 538 U.S. 11,
29-31 (Ewing), the United States
Supreme Court held that the cruel and unusual punishment clause of the federal
Constitution contains a narrow proportionality principle that prohibits grossly
disproportionate sentences. (
court nevertheless upheld a 25-year-to-life sentence under the Three
Strikes law for a defendant with prior burglary and robbery convictions who
shoplifted three golf clubs. (
v. Andrade (2003) 538 U.S. 63, 66-68, 77, the Supreme Court held two
consecutive terms of 25 years to life under the California Three Strikes law
for thefts of videotapes were not grossly disproportionate.
Even if we were to accept appellant’s
assertion that the instant felonies were relatively minor, we note the sentence
imposed on appellant was for committing the current offense after committing
multiple previous serious felonies.
Appellant’s sentence of 25 years to life in state prison does not run
afoul of the Eighth Amendment.
DISPOSITION
The
judgment is affirmed.
_____________________
Poochigian, J.
WE CONCUR:
______________________
Levy, Acting P.J.
______________________
Franson, J.
name="_ftn1" title="">[1] All further
statutory references are to the Penal Code unless otherwise indicated.
name="_ftn2" title="">[2] Appellant cites to former CALJIC No. 4.45 [accident
and misfortune] in his discussion.
CALJIC No 4.45 stated: “When a
person co
