P. v. Locke
Filed 3/19/13 P. v. Locke CA5
NOT TO BE PUBLISHED IN THE
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opinion has not been certified for publication or ordered published for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.
TYRIK LOCKE,
Defendant and
Appellant.
F063520
(Madera
Super. Ct. No. MCR033665)
APPEAL from
a judgment of the Superior Court of
Kendall
Dawson Wasley, 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, Louis M. Vasquez, Leanne LeMon,
and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant/defendant
Tyrik Locke (defendant) was charged with count I, battery causing great bodily
injury (Pen. Code,
title="">[1] § 243, subd. (d)), and count II, criminal
threats (§ 422), based on an incident where defendant punched and
threatened Monica Galvan. After a jury
trial, defendant was convicted as charged in count I and, as to count II, he
was convicted of the lesser included offense of attempting to make a criminal
threat (§§ 664/422). He was
sentenced to three years in prison.
On appeal, defendant contends his
conviction for attempted criminal threats
must be reversed because the jury was not properly instructed on the elements
of the offense. He also contends the
court should have granted his motion to instruct the jury about accident as a
defense to battery. We will affirm.
Defendant
Tyrik “Ti†Locke, Monica Galvan, Robert “Bobby†Morales, and “Rick†Alvarez had
known each other for many years. Galvan
was not dating defendant or the others.
On the
evening of June 23, 2008, Galvan joined defendant, Morales, and Alvarez
for an evening at Chukchansi Casino to celebrate their recent birthdays. Morales drove the group from Fresno to the
casino in his two-door Honda Accord coupe.
They spent several hours socializing and drinking, and everyone got
along with one another. They had smoked
marijuana earlier in the evening.
After
several hours, Galvan and the three men left the casino. As they walked to Morales’s car, defendant
and Galvan were “kind of flirting a little bit.†The flirting stopped when defendant
approached and talked to another woman.
Defendant then joined the others in Morales’s car. Morales was the driver, and defendant sat in
the front passenger seat. Galvan sat
behind the driver, and Alvarez was behind defendant.
As Morales
drove back to Fresno, Galvan asked defendant about the woman. Galvan described it as “friendly banter†and
“not anything aggressive.†Galvan and
defendant were exchanging “friendly insults†with each other.
As the drive continued, however,
Galvan testified that defendant became upset and “proceeded to get a little
irate†at her. Defendant turned around
to look over his shoulder at Galvan. He
became “[p]rogressively†angry, started yelling, and then went “on a rampage.â€
Galvan tried to calm defendant, and
explained that she did not mean to offend him.
However, defendant became more upset and continued his verbal rant. Defendant turned around in the front seat so
that he faced her in the backseat.
Defendant said “very, very ugly, ugly†and hurtful things to her. Galvan thought defendant was intoxicated
because he did not seem like himself.
Galvan testified that neither Morales nor Alvarez intervened.
Galvan testified that defendant
yelled at her for about 20 to 25 minutes.
Defendant turned around and was about halfway into the backseat. Galvan looked down and tried to ignore
him. Galvan testified that defendant
suddenly punched her in the mouth and nose.
Galvan did not see the punch coming since she was looking down. “My nose was split all the way up and my
teeth were broken,†and her two front teeth fell into her hand. Galvan looked up and saw defendant kneeling
on the front seat, facing her, and he was “trying to get to me again.â€
Galvan was
crying and screaming at defendant, “ ‘Look at – look what you
did.’ †Alvarez, who was sitting
next to Galvan in the back seat, got completely on top of Galvan to protect her
from defendant. Alvarez grabbed
defendant’s left arm, and used his weight to push Galvan down to the
floor. Galvan believed Alvarez saved her
life. Morales, the driver, grabbed
defendant’s right arm, and kept driving as he held onto defendant.
Galvan
testified that it took another 8 to 10 minutes to get to Fresno. During that time, defendant repeatedly
said: “ ‘I’m going to kill this
bitch.’ †Galvan was afraid because
defendant “was really trying to kill me and I thought he was.â€
Galvan
testified that when they arrived in Fresno, Morales pulled into the shopping
center where Alvarez had parked his car earlier in the evening. Morales opened his driver’s door while the
car was still rolling. Morales and
Alvarez pulled Galvan out of the backseat without moving the driver’s seat
forward. Alvarez held Galvan, took her
to his car, and drove her home. Galvan
called the police as soon as she got home.
Initial investigation
On
June 24, 2008, Officer Glenn Turk responded to Galvan’s residence and
interviewed her about the assault.
Galvan was “still upset from being assaulted.†There was dried blood on her nose, and she
had at least two chipped teeth. Turk
testified her facial injuries were consistent with being punched.
Officer
Turk testified that Morales arrived at Galvan’s residence during the
interview. Turk separately interviewed
Morales, who was quite a bit calmer than Galvan. Morales said that defendant had been very
drunk that night. Morales said that
Galvan and defendant argued because she thought defendant “could do betterâ€
than the women who he was dating, and defendant kept calling Galvan a
“bitch.†Morales said that defendant
threatened Galvan. Galvan kept asking
defendant why he was “disrespecting her.â€
Morales saw defendant punch Galvan once in the face with his fist. Morales and Alvarez held back defendant
because he was trying to hit her again.
Morales said they held down defendant until he finally stopped
resisting.
On June 30,
2008, Sergeant Jason Clark interviewed Morales, who said that defendant and
Galvan argued in the car; defendant turned around in the front seat and faced
Galvan in the back seat; Morales knew something happened based on things that
defendant and Galvan said. Alvarez tried
to shield Galvan, and Morales grabbed defendant’s arm to hold him back. Defendant continued to yell at Galvan, and he
repeatedly told her to shut up. During
this second interview, Morales did not say anything about defendant making
threats to Galvan.
Additional prosecution evidence
Galvan
testified she went to the emergency room for her
subsequently needed multiple dental treatments to deal with her broken and
chipped teeth. She also suffered a gash
on her nose, with the skin split open “quite deeply†from the bottom of the
inner nostril almost to her sinuses.
Galvan testified that a couple of
days after the assault, Alvarez told her that defendant was getting
scared. Alvarez advised Galvan that
defendant offered to pay for the damage to Galvan’s teeth. Galvan testified that she replied no, that
she had “just spent $10,000 on my teeth six months prior [for unrelated dental
work] and hell no, not even for $100,000 I would ever .…†Galvan denied that she made a statement that
“this could go away†for $10,000.
Galvan testified that when she was
interviewed by the police, she gave them Alvarez’s contact information. After the police interviewed Alvarez, he called
her and he “cursed me out to the highest†for “sending the cops to his
house.†Galvan testified that she was no
longer friends with Morales or Alvarez because they remained friends with
defendant, and she felt betrayed.
Morales’s trial testimony
Morales testified as a prosecution
witness that defendant was still his friend, and he did not want to
testify. Morales claimed that he could
not recall making any prior statements about the incident, or saying that defendant
punched Galvan in the face. Instead,
Morales testified that defendant and Galvan had a friendly disagreement during
the drive back to Fresno. He did not get
involved because it was personal between them.
Morales testified that at some point, Galvan’s attitude changed, she
became “more violent†towards defendant, and they were “verbally aggressive
towards each other.†Morales testified that defendant did not sit
up on his seat. Morales knew something
happened but did not see it, and he never saw any blood. Morales could not recall holding defendant’s
arm or restraining him.
Morales testified that defendant never threatened to kill Galvan. Morales further testified that on a later
occasion, he was at Galvan’s apartment and heard her say: “ ‘For $10,000, this can go
away.’ â€
EVIDENCE
Testimony of Alvarez
Alvarez
testified as a defense witness and said that he did not want to appear at
trial. Alvarez testified that during the
drive from the casino, everyone was joking and insulting each other. Galvan criticized “the genre of girls
[defendant] liked,†and things became a little tense between them. Defendant responded about “the genre of guys
she liked,†and Galvan did not like that.
Defendant might have called her a “bitch,†and Galvan used a racial
expletive toward him. Alvarez never saw
defendant get out of his seat or try to get into the back seat. He thought defendant was rolling a marijuana
joint on his lap. He never saw defendant
punch Galvan. However, something
happened and her teeth came out.
Alvarez
denied that he had to protect Galvan from defendant. Alvarez said he never got on top of her, and
he never saw any blood. Defendant and
Galvan exchanged more words. Galvan was
upset and things remained tense. When
they arrived in Fresno, Alvarez drove Galvan back to her house and tried to
calm her down. Galvan was upset because
of how her teeth looked.
Alvarez admitted that after the
police interviewed him, he called Galvan and complained that she gave his name
to the officers. He never cursed or
yelled at her. He knew Galvan was angry
at him, but he did not know why.
Defendant’s trial testimony
Defendant
testified that he did not drink any alcohol when he was at the casino, and he
could not recall anyone else drinking.
However, he gave some money to Galvan so she could buy drinks. During the ride back to Fresno, he moved his
front seat forward to give Alvarez more room in the backseat. Defendant wore his seatbelt during the trip.
Defendant testified that they
talked and joked during the drive.
Galvan made jokes about the type of women who defendant was dating, and
she used a racial expletive but not in a derogatory manner. However, he revealed a secret that had been
between defendant and Galvan, and Galvan became upset. Galvan told defendant not to say that anymore. She yelled at him not to call her a “bitch,â€
and threatened to slap him if he did so again.
Defendant
testified that he was being “childish†and “just egged her on.†Galvan screamed at him. He felt Galvan get out of her seat and come
up from behind him. He saw a sudden
movement from his peripheral vision, and thought she was going to slap
him. He “threw up†his elbow as “more of
a flinch†or reaction as opposed to trying to hit someone. “I felt she was going to slap me, so I just
put my elbow up to protect my face.â€
Defendant said he was “absolutely not†trying to hit her in the face.
Defendant testified he looked into the backseat and saw defendant
holding her mouth. The car became quiet
because they were concerned about Galvan’s “well-being at that point,†although
they did not take her for any medical treatment. Defendant testified he did not get out of his
seat or threaten Galvan. Defendant
testified that when they arrived in Fresno, Galvan did not climb out of the
backseat while the car was still rolling.
Defendant
testified he was still friends with Morales and Alvarez, but he no longer had
any contact with Galvan. It was
stipulated that defendant was convicted of a misdemeanor crime of
I. Instructions on attempted criminal threat
Defendant was charged in count II
with criminal threat, based on his statements to Galvan in the car. The jury was instructed that attempted
criminal threat was a lesser included offense of count II. Defendant was found not guilty of a criminal
threat but convicted of the lesser included offense of an attempted criminal
threat.
On appeal, defendant contends his due
process rights were violated, and his conviction for attempted criminal
threat must be reversed, because the court failed to fully instruct the jury on
the elements of the lesser included offense – particularly whether the
defendant’s intended threat “reasonably could have caused [the victim] to
suffer sustained fear.â€
A.
threats
We begin with the statutory
definitions of the relevant offenses. In
order to prove the offense of criminal threat in violation of section 422, the
prosecution has the burden of proving five elements:
“(1) [T]hat
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.
[Citation.]†(People v. Toledo (2001) 26 Cal.4th 221, 227-228 (
(2004) 33 Cal.4th 620, 630.)
Section 422
is not unconstitutionally overbroad because it is narrowly tailored to true
threats, which are not protected by the First Amendment. (Toledo,
supra, 26 Cal.4th at p. 233.)
B.
criminal threat
The
California Supreme Court has held that “there is a crime of attempted criminal
threat in this state, defined through the interplay of section 422 and the
statutory provisions relating to attempts,†i.e., sections 21a and 664. (Toledo,
supra, 26 Cal.4th at p. 230.) Section 664, which defines attempt, “provides
that ‘[e]very person who attempts to commit any crime’ (italics added)
is subject to the criminal punishment set forth in that provision, and this
language on its face thus includes those who attempt to commit the crime of
criminal threat set forth in section 422.â€
(Id. at p. 230.)
“[A] defendant properly may be found guilty of attempted
criminal threat whenever, acting with the specific intent to commit the offense
of criminal threat, the defendant performs an act that goes beyond mere
preparation and indicates that he or she is putting a plan into action. Furthermore, in view of the elements of the
offense of criminal threat, a defendant acts with the specific intent to commit
the offense of criminal threat only if he or she specifically intends to
threaten to commit a crime resulting in death or great bodily injury with the
further intent that the
the person threatened a gravity of purpose and an immediate prospect of
execution so as to reasonably cause the person to be in sustained fear for
his or her own safety or for his or her family’s safety.†(Id.
at pp. 230-231, italics added.)
attempted criminal threat was not unconstitutionally overbroad, and explained
that such an argument “misconceives the general circumstances to which the
crime of attempted criminal threat ordinarily will apply.†(Toledo,
supra, 26 Cal.4th at p. 233.)
of potential circumstances†which fell within the offense of attempted criminal
threat, and provided three examples “of some of the most common situations that
would support a conviction of attempted criminal threat.†(Toledo,
supra, 26 Cal.4th at pp. 231,
234.) First, “if a defendant takes all
steps necessary to perpetrate the completed crime of criminal threat
crime is not completed only because the written threat is intercepted before
delivery to the threatened person, the defendant properly may be found guilty
of attempted criminal threat.†(
Second, “if a defendant, with the
requisite intent, orally makes a sufficient threat directly to the threatened
person, but for some reason the
threatened person does not understand the threat, an attempted criminal
threat also would occur.†(
Third, “if a defendant, again
acting with the requisite intent, makes a sufficient threat that is received
and understood by the threatened person, but, for whatever reason, the threat
does not actually cause the threatened person to be in sustained fear
for his or her safety even though, under the circumstances, that person
reasonably could have been placed in such fear, the defendant properly may be
found to have committed the offense of attempted criminal threat.†(Toledo,
supra, 26 Cal.4th at p. 231, italics
in original.)
Toledo
explained that in these situations, “only a fortuity, not intended by the
defendant, has prevented the defendant from perpetrating the completed offense
of criminal threat itself.†(
“[I]n most instances the crime of attempted criminal
threat will involve circumstances in which the defendant in fact has engaged in
all of the conduct that would support a conviction for criminal threat,
but where the crime of criminal threat has not been completed only because of
some fortuity outside the defendant’s control or anticipation (for example,
because the threat is intercepted or not understood, or because the victim for some reason does not actually suffer the
sustained fear that he or she reasonably could have sustained under the
circumstances). In each of these
situations, a defendant who is convicted of attempted criminal threat will be
held criminally responsible only for speech that clearly is not
constitutionally protected, and thus it is evident that in these instances a
conviction of attempted criminal threat will pose no constitutional
problems.†(Id. at p. 234, first italics in original, second italics added.)
With these standards in mind, we
turn to the instructions given in this case and defendant’s claim of error.
C.
In the instant case, defendant was charged in count II with the crime
of criminal threat in violation of section 422.
The jury was instructed that count II, criminal threat, and attempted
criminal threat as a lesser included offense, required a specific intent or
mental state, that the person “must not only intentionally commit the
prohibited act, but must do so with a specific intent and/or mental state. The act and the specific intent and/or mental
state required are explained in the instructions for that crime.†(CALCRIM No. 252.)
As to count II, the jury was
instructed with CALCRIM No. 1300, that the prosecution had the burden of
proving the following elements of violating section 422, criminal threat:
“[O]ne, the defendant willfully threatened to kill or
unlawfully cause great bodily injury to Monica Galvan; the defendant made the
threat orally; the defendant intended that his statement be understood as a
threat; and intended that it be communicated to Monica Galvan; the threat was
so clear, immediate, unconditional, and specific, that it communicated to
Monica Galvan a serious intention and the immediate prospect that the threat
would be carried out; the threat actually caused Monica Galvan to be in
sustained fear for her own safety; and Monica Galvan’s fear was reasonable
under the circumstances.
“Someone commits an act
willfully when he or she does it willingly or on purpose. In deciding whether a threat was sufficiently
clear, immediate, unconditional and specific, consider the words themselves as
well as the surrounding circumstances.
Someone who intends that a statement be understood as a threat does not
have to actually intend to carry out the threatened act. [¶] … [¶]
“Sustained fear means fear for
a period of time that is more than momentary, pleading or transitory. An immediate ability to carry out the threat
is not required.â€
The jury was also instructed with CALCRIM No. 460, that attempted
criminal threat was a lesser included offense of count II, and that the
prosecution had the burden of proving the following elements:
“To prove that the defendant is
guilty of this crime, the People must prove that one, the defendant took a direct but ineffective step towards
committing criminal threats; and, two, the defendant intended to commit
criminal threats. A direct step
requires more than mere planning or preparing to commit the criminal threats or
obtaining or arranging for something needed to commit criminal threats. A direct step is one that goes beyond
planning and preparation and shows that a person is putting his or her plan into
action. A direct step indicates a
definite and unambiguous intent to commit criminal threats. It is a direct movement towards the
commission of the crime after preparations are made. It is an immediate step that puts the plan in
motion so that the plan would have been completed if some circumstance outside
the plan had not undirected the attempt.
“The person who attempts to
commit criminal threats is guilty of attempted criminal threats even if after
taking a direct step towards committing the crime, he or she abandoned further
efforts to complete the crime or if his or her attempt failed or was
interrupted by someone or something beyond his or her control. On the other hand, if a person freely and
voluntarily abandons his or her plans before taking a direct step towards
committing criminal threats, then that person is not guilty of attempted
criminal threats. To decide whether the defendant intended to commit the criminal
threats, please refer to the separate instruction [on criminal threats].†(Italics added.)
D.
jury’s question about count II
During deliberations, the jury asked
the following question:
“[W]e request a clarification of what Penal Code 664
differs from [section] 422 in writing.â€
The court stated
that the jury had attached CALCRIM No. 1300, the definition of criminal
threats, to the question.
The court interpreted the jury’s
question as meaning that it wanted to know “the difference between Count 2 and
the lesser included of Count 2, the attempted 422. They do have a jury instruction they have my
copy.…†The court decided to answer the
jury’s question by again providing it with CALCRIM No. 460, and explaining that
it was the instruction that defined attempted criminal threats. Neither the district attorney nor defense
counsel objected.
The court gave the following written response to the jury, and attached
CALCRIM No. 460 to the written response:
“Attached to this is jury instruction number 460, which
describes the crime of [sections] 664/422, attempted criminal threats.â€
The jury found defendant not guilty of count II, criminal threats, but
guilty of attempted criminal threats as a lesser included offense.
E.
Defendant
contends the jury instructions in this case were erroneous based on
590 (Jackson), which interpreted
attempt, and that the jury in this case should have been instructed that any
fear felt by the victim was reasonable in order to convict defendant of
attempt.
In Jackson, the landlords asked the defendant to leave the apartment
where he had been staying. He refused
and threatened to get a rifle and “ ‘blow’ †the “ ‘heads
off’ †of the two landlords. (
The defendant was charged with two counts of criminal threats. The jury was instructed that attempted
criminal threats were lesser included offenses and received the pattern
instructions for attempt and the substantive offense. (Id. at pp. 593, 598-599.) The defendant was not convicted of the charged
offenses but was convicted of two counts of attempt as lesser included
offenses. (Id. at p. 593.)
Jackson
addressed the defendant’s appellate arguments that the
to instruct the jury sua sponte that, “in order to find him guilty of attempted
criminal threat, it must find that ‘it would have been reasonable for a person
to have suffered sustained fear as a result of the threat under the
circumstances of this case.’ †(
The People responded that when a defendant has done everything he needs
to do to complete the crime of criminal threat, but did not achieve his
intended result, he has committed an attempted criminal threat regardless of whether the intended threat
reasonably could have caused the target to suffer sustained fear. (Id. at pp. 595-596.)
Jackson rejected the People’s argument
“because the Supreme Court’s definition of the crime of attempted criminal
threat expressly includes a reasonableness element,†based on its interpretation
of Toledo. (Jackson,
supra, 178 Cal.App.4th at p. 596.)
erroneous because the reasonableness element was included only in the
instruction which defined the substantive offense, and not in the separate
instruction on attempt. (
consider whether the intended threat reasonably could have caused sustained
fear under the circumstances.†(
from the point of view of a reasonable person under the circumstances of the
case, we can insure that punishment will apply only to speech that clearly
falls outside First Amendment protection.â€
(Id. at p. 598.)
Jackson
held the instructional error was prejudicial because the jury must have found
that the defendant made threats and intended them to be taken as threats, but
also found “that one or both of the last two elements of the completed crime
was missing,…†(Jackson, supra,
178 Cal.App.4th at p. 600.) Jackson
noted that the evidence would have supported findings that one or both elements
were missing. (Ibid.) Thus, the jury could have concluded that the victims did not suffer sustained fear,
i.e., the jury might not have believed the victims’ testimony that they feared
for their lives. Such a scenario would
have supported a conviction of attempted criminal threats only upon a finding that a reasonable
person could have suffered fear in those circumstances, something the jury was
not asked to decide. (
have concluded that the victims’ fear
was unreasonable under the circumstances, i.e., the victims were safely
inside the house with a telephone to call the police while the defendant sat
out front. This alternate scenario would
have been legally insufficient to support an attempted criminal threat
conviction. (Ibid.)
Jackson
thus expanded on Toledo by
affirmatively requiring the trial court to instruct the jury that, on a charge
of attempted criminal threat, it must decide whether the “intended threat
reasonably could have caused sustained fear under the circumstances.†(
Jackson reversed the
defendant’s conviction because such an instruction was not given, and the jury
could have concluded that defendant’s statements could not have reasonably
caused the victims to suffer sustained fear.
(Id. at p. 600.)
F.
Analysis
Defendant contends that the court
erroneously instructed the jury with the pattern instructions of CALCRIM
Nos. 1300 and 460, as to the elements of attempted criminal threat. Defendant argues that Jackson required the court to separately instruct the jury that to
convict him of attempt, it had to find that it would have been reasonable for a
person to have suffered sustained fear as a result of the threat under the
circumstances of the case. Defendant
further argues the claimed error is prejudicial because the jury in this case
could have reached the same conflicting conclusions as the jury in
Jackson
is distinguishable from the instant case.
Jackson noted that the jury in
that case may have found the defendant’s statements – that he was going to blow
off the landlords’ heads – did not reasonably cause the victims fear under the
circumstances because they were “safely inside the house with a telephone to
call the police while defendant sat out front,†and further characterized
defendant’s statements as “outlandish.â€
(Jackson, supra, 178 Cal.App.4th at p. 600.)
In contrast, defendant’s statements in the instant case – that he was
going to kill Galvan – were made in the close confines of a compact car,
immediately after he had turned around in the front seat and punched Galvan as
she sat in the back seat. Unlike the
victims in Jackson, Galvan was not in
a place of safety or able to call for help, and she was completely at the mercy
of Morales and Alvarez, who apparently protected her until they reached
Fresno. Given defendant’s violent
physical and verbal behavior, and the injuries sustained by Galvan, it could
only have been reasonable for a person in Galvan’s situation to feel fear at
the time that defendant made the statements.
In light of the evidence, defendant’s conviction for attempt cannot be
attributed to the omission of a specific jury instruction requiring the jury to
find the victim’s fear was reasonable, and any error would be harmless. (People
v. Flood (1998) 18 Cal.4th 470, 502-503.)
We thus conclude that to the extent
the jury instructions may have been incorrect, any error is necessarily
harmless under any standard given the nature and circumstances of the threat in
this case.
II. Instructions on accident
Defendant next contends the court
should have granted his motion to instruct the jury on accident as a defense to
count I, battery causing serious bodily injury.
Defendant contends his trial testimony supported the instructional
request because he testified that he “flinched†in reaction to Galvan’s
movements in the backseat, thus negating his intent.
A.
trial testimony
As set forth ante, defendant testified at trial to a vastly different version of
events from Galvan’s description of what happened in the car. Defendant testified that Galvan was
screaming at him because he had revealed a secret that had been between
them. Defendant felt Galvan “was coming
up behind me because she was upset about the comment I made, she said that if I
said the bitch word again, that she would slap me.†Defendant testified that he “just egged her
on†and he was “being childish.â€
“Q And then what?
“A I – as I proceeded to egg her on,
elbow up and –
“Q Okay.
“A And I looked back and she was holding
her mouth.
“Q You say you felt a sudden movement. Was it kind of moving in the air or was it a
sight through your peripheral vision?
“A It was a little bit of both. Like I said, it’s – I already felt her out of
her seat. Besides her, you know, her –
her voice escalated. You can tell when
somebody’s right behind you or if they’re further away.
“Q Okay.
[¶] Now, you say you threw your
elbow out, were you trying to hit somebody or was it just a flinch?
“A It
was more of a flinch because I thought that she was going to slap me because I
called her a bitch one last time. And I
didn’t just call her a bitch, I – I used it in an egg-ish kind of fashion. I said ‘bitch’ and I felt that she was going
to slap me, so I just put my elbow up to protect my face.
“Q Was that a conscious decision that,
okay, you’re going to stick your elbow in somebody’s face, or was it more of
just a flinch?
“A Just a flinch.
“Q Were you trying to hit her in the mouth?
“A Oh, absolutely not.†(Italics added.)
On cross-examination, defendant
testified that Galvan said she was “going to slap me†just before he felt “the
sudden movement†behind him. Defendant
felt Galvan’s “presence lunging forward,†but he never felt slapped.
“Q Now, you
stated that you threw your elbow up and you stated that was to block?
“A It was a
reaction, a flinch.â€
Defendant testified that he tried to protect the side of his
face from Galvan.
B.
instructions
During the instructional phase, the
court asked the parties whether it should give CALCRIM No. 3404 on
“accident.†The court read the proposed
instruction:
“ ‘The defendant is not guilty of the crimes
charged in the Information or any lesser included offenses if he acted without
the intent required for that crime but acted instead accidentally. You may … not find the defendant guilty of the
crimes unless you are convinced beyond a reasonable doubt that he acted with
the required intent.’ â€
The prosecutor objected to CALCRIM
No. 3404 because defendant testified he was “moving to block himself from
being hit. It was not an accidental
movement.†Defense counsel said that it
was “unclear exactly … what was going on, but I think there was an element of
defending self from this person suddenly showing up and there was also an
element of accident. He didn’t mean to
actually make contact with her.†Defense
counsel believed the court should instruct on both accident and self-defense.
The court replied that defendant said he “raised his arm to protect
himself. It sounds like
self-defense. It doesn’t sound like an
accident. It’s not like he was leaning
over to tie his shoe and bumped somebody’s head. This is where he put his arm in that location
so that anybody coming forward would be hit or would be blocked. It does not appear to sound like an accident
to me.â€
Defense counsel argued that defendant said “it was a flinch,†and “a reasonable
jury could find either way.†The court
replied that defendant testified “the purpose of that flinch, it wasn’t an
action that just occurred without thinking.
He put his hand there in order to block … any blows that might come
towards him. I mean, to me, it sounded
intentional is what he was saying.â€
Defense counsel again argued that defendant said he moved without
thinking. The prosecutor replied that it
might have been a reflex motion, but defendant was trying to cover his face and
he never admitted being in contact with the victim.
The court decided to instruct the jury on self-defense, but held that
the accident instruction was not supported by the evidence.
C.
grant his motion to instruct the jury about accident pursuant to CALCRIM No.
3404. A court does not have a sua
sponte duty to instruct on an accident defense, but it must give a pinpoint
instruction on the defense when it is requested and supported by the evidence. (People v. Anderson (2011) 51 Cal.4th
989, 996-998 (Anderson).) “In
determining whether the evidence is sufficient to warrant a jury instruction,
the trial court does not determine the credibility of the defense evidence, but
only whether ‘there was evidence which, if believed by the jury, was sufficient
to raise a reasonable doubt .…’
[Citations.]†(
982-983.) Given defendant’s
instructional request in this case, we must thus determine whether there was
substantial evidence to support CALCRIM No. 3404, and the court should have
given the instruction as a defense to the charged offense of battery.
The crime of assault requires that
the defendant commit an act that by its nature will probably result in the application
of wrongful physical force on another, and the crime of battery requires that
the defendant actually apply this force on another. (People v. Williams (2001) 26 Cal.4th
779, 782 (Williams); People v.
Marshall (1997) 15 Cal.4th 1, 38; People v. Colantuono (1994) 7
Cal.4th 206, 214 & fn. 4, 216 (Colantuono).) Assault and battery are general intent
crimes, requiring that the defendant commit the proscribed act willfully, i.e.,
on purpose. (Williams, supra, 26
Cal.4th at pp. 782, 785; Colantuono, supra, 7 Cal.4th at pp. 213-214; People v. Lara (1996) 44 Cal.App.4th 102, 107 (
Further, the defendant must have had knowledge of facts that
would lead a reasonable person to realize the application of force was likely
to result from the act. (
Section 26 provides: “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€
(Italics added.) “The accident
defense amounts to a claim that the defendant acted without forming the mental
state necessary to make his or her actions a crime. [Citations.]†(Lara,
supra, 44 Cal.App.4th at p.
110.) “The defense appears in
No. 3404, which explains a defendant is not guilty
of a charged crime if he or she acted ‘without the intent required for that
crime, but acted instead accidentally.’ â€
(Anderson,
be raised to rebut the mental element of the charged offense. (Anderson,
supra, 51 Cal.4th at p. 998.) Thus, an accident defense can apply to
charges of assault or battery when the defendant unwillingly or unknowingly
(i.e., accidentally) directed force towards, or touched, the victim. (Lara,
supra, 44 Cal.App.4th at p. 106; People
v. Gonzales (1999) 74 Cal.App.4th 382, 385, 390, disapproved on other
grounds in Anderson,
[accident instruction supported by evidence showing defendant accidentally
struck victim with door when he entered room as victim was leaving].)
As applied to the instant case, defendant tried to characterize the movement
of his arm as an alleged “flinch,†but he repeatedly admitted that he raised
his arm to protect himself from what he believed was Galvan’s attempt to slap
him in response to his repeated and “childish†name-calling. Even under defendant’s version of the
incident, there are no facts showing his movement towards the victim was
accidental or without knowledge of the relevant facts. Instead, defendant moved his arm out of his
own volition to protect himself based on his belief that Galvan was moving
forward to slap him.
Defendant’s trial testimony did not
support the accident instruction, but the court properly instructed the jury
with CALCRIM No. 3470 on self-defense, as follows:
“The
defendant acted in lawful self-[defense] if, one, the defendant reasonably
believed that he was in imminent danger of being touched unlawfully; two, the
defendant reasonably believed that the immediate use of force was necessary to
defend against the danger; and, three, the defendant used no more force than
was reasonably necessary to defend … against that danger.
“Belief
in future harm is not sufficient, no matter how great or how likely the harm is
believed to be. The defendant must have
believed there was imminent danger of violence to himself. Defendant’s belief must have been reasonable
and he must have acted because of that belief.
“The
defendant is only entitled to use that amount of force that a reasonable person
would believe is necessary in the same situation. If the defendant used more force than was
reasonable, the defendant did not act in lawful self-defense.
“When
deciding whether the defendant’s belief was reasonable, consider all of the
circumstances as they were known to you and appeared to the defendant and
consider … what a reasonable person in a similar situation with similar
knowledge would have believed.
“If
the defendant’s belief were reasonable, the danger does not need to have
actually existed.
“A
defendant is not required to retreat. He
is or she is entitled to stand his or her ground and defend himself and if reasonably
necessary to pursue an assailant until the danger of unlawful touching has
passed.
“This
is so even if safety could have been achieved by [retreating].
“The
People have the burden of proving beyond a reasonable doubt that the defendant
did not act in lawful self-defense.…â€
The judgment is affirmed.
_____________________
Poochigian, J.
WE CONCUR:
_____________________
Cornell, Acting P.J.
_____________________
Kane, J.
further statutory citations are to the Penal Code unless otherwise indicated.
section II, post, we will fully
address defendant’s trial testimony about what happened in the car, and whether
the court should have instructed on accident as a defense to count I, battery
causing serious bodily injury.
