P. v. Morgan

Filed 11/3/08 P. v. Morgan CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Shasta)

----

On September 17, 2006, defendant Robin James Morgan attacked his half brother, Steven McGirr, with a metal pipe during a dispute about the presence of a cat in their mobile home. The jury convicted defendant of assault with a deadly weapon. (Pen. Code,  245, subd. (a)(1).)^[1] The trial court suspended sentence and placed him on formal probation upon certain conditions, including time in county jail.

Defendant appeals, contending the trial court erred in instructing the jury and that the evidence was insufficient to support his conviction. We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was the warden and night guard of a large piece of property in Shasta County, where he lived rent-free in a mobile home provided by his employer. He also worked in construction during the day. Under his rental agreement, he was forbidden from having pets in the home.

In May of 2006, defendants half brother, Steven McGirr, moved into the three-bedroom mobile home with him. Shortly thereafter, McGirrs wife, Gabrielle Rigby, also moved in. On the day of the incident, McGirr put a stray cat in the home to catch mice in the kitchen. When defendant arrived home from work around 6:15 p.m., he slammed the back door, said something about a cat and walked over to his pickup truck. Defendant yelled Ill show you what Ill do to cats, and retrieved something from the truck. Rigby walked through the mobile home and stood behind McGirr, who was sitting on the front steps smoking a cigarette.

Defendant, carrying a two-foot-long metal pipe, approached Rigby and McGirr and said, Ill show you what Im going to do. Defendant then struck McGirr in the forehead with the pipe. McGirr began to bleed profusely. His face was completely bloodied and Rigby could see bone through the cut, which required multiple sutures.

When deputies arrived at the scene, approximately an hour after the attack, defendant was not present. He was later apprehended by the Shasta County Sheriffs Department at another location. McGirr had a swollen right forehead above the right eyebrow and a deep cut, which appeared to require stitches and through which the deputy could see several layers of skin. The metal pipe was never found. During prebooking conversations with the deputy, defendant never denied having assaulted McGirr.

Defense

Defendant testified in his own defense. He stated that he saw a cat in the kitchen when he arrived home on the evening in question, and grabbed a pipe from the side of the house to chase the cat out. He took the pipe around to the front of the house to confront Rigby and McGirr about the cat and to make them remove it. When he told them the cat must go, they laughed. Defendant started to enter the front door of the mobile home, but Rigby and McGirr blocked his path. According to defendant, McGirr suddenly stood up from his seated position on the top step and lunged forward, hitting his head on the pipe defendant was holding. Defendant claimed to be unaware that McGirr was injured.

Finding the doorway still blocked, defendant turned and entered the mobile home through the rear door. He chased the cat out, left the mobile home and walked to his truck. Because Rigby had threatened to call the police, defendant did so himself and waited for the police but left before they arrived, stating he was looking for them down [the] road.

In closing argument, defense counsel argued that defendant was not guilty of assault because McGirrs contact with the pipe was not the result of an intentional act, but rather an inadvertent mistake and an accident.

DISCUSSION

I. Sua Sponte Duty to Augment Self-defense Instruction

Apparently on its own initiative, the trial court instructed the jury with CALCRIM No. 3470, which explained the doctrine of self-defense as a defense to assault with a deadly weapon (ADW).^[2] Defendant contends the self-defense instruction was insufficient because it was limited to a situation where defendant believed he was in imminent danger of bodily injury or an unlawful touching. Defendant contends that he also had a right to defend himself against false imprisonment by McGirr and Rigby, even if there was no perceived threat of touching or bodily injury.

The assignment of instructional error is forfeited because [a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. (People v. Sully (1991) 53 Cal.3d 1195, 1218, quoting People v. Lang (1989) 49 Cal.3d 991, 1024.) The record shows that defendant never requested a self-defense instruction, much less a modification to incorporate a defense against false imprisonment.

In any event, the trial court did not err by failing sua sponte to modify the self-defense instruction. ‛[A] trial courts duty to instruct, sua sponte, or on its own initiative, on particular defenses . . . , aris[es] only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendants theory of the case. (People v. Ramsey (2000) 79 Cal.App.4th 621, 631, quoting People v. Barton (1995) 12 Cal.4th 186, 195.) Accident and self-defense are contradictory theories: The former is based on a situation where the act causing injury was not intentional, while the latter justifies an intentional use of force. (People v. Curtis (1994) 30 Cal.App.4th 1337, 1357-1358; compare CALCRIM No. 3470 [Self-defense or Defense of Another] with CALCRIM No. 3404 [Accident].)

Defendant did not request instruction on or rely on a self-defense theory. He relied solely on the entirely separate defense that McGirrs injuries were the result of an accident. Accordingly, defendants assertion that the court erred in failing, sua sponte, to modify the self-defense instruction must fail.^[3]

II. Sufficiency of the Evidence to Support the Conviction

Defendant challenges the sufficiency of the evidence to support his conviction of ADW. In reviewing a claim of insufficient evidence, we draw all inferences in support of the verdict that reasonably can be deduced and must uphold the judgment if, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. (People v. Estrella (1995) 31 Cal.App.4th 716, 724-725.)

Defendant first contends there is insufficient evidence the pipe, which was never recovered, was a deadly weapon. For ADW purposes, a deadly weapon is any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury. [Citation.] . . . [Certain] objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.) When it appears . . . that an instrumentality . . . is capable of being used in a dangerous or deadly manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require, . . . its character as a dangerous or deadly weapon may be thus established, at least for the purposes of that occasion. (People v. Page (2004) 123 Cal.App.4th 1466, 1471.)

When used to inflict serious harm, a metal pipe may be considered a deadly weapon. (See People v. Jurado (2006) 38 Cal.4th 72, 138 [deadly weapon conviction affirmed where the defendant used a metal pipe]; People v. Price (1963) 218 Cal.App.2d 330, 331 [same].)

The record showed that defendant picked up a two-foot-long metal pipe, stated Ill show you what Ill do or Ill show you what Im going to do, and struck the victim in the forehead with enough force to dent his head and create a one-centimeter laceration requiring multiple sutures. A rational jury could easily find the metal pipe was a deadly weapon for purposes of finding defendant guilty of ADW.

Defendant also contends that the prosecution failed to prove that he knew the pipe was a deadly weapon. To support this argument, defendant cites People v. Williams (2001) 26 Cal.4th 779 (Williams) and People v. Rubalcava (2000) 23 Cal.4th 322(Rubalcava). Neither case assists him.

Williams states that to sustain an assault conviction, a defendant must have actual knowledge of the facts sufficient to establish that the defendants act by its nature will probably and directly result in injury to another. (Williams, supra, 26 Cal.4th at p. 782, italics added.) Rubalcava holds that to be guilty of possession of a deadly weapon under section 12020, the individual must knowingly possess the weapon. (Rubalcava, supra, 23 Cal.4th at pp. 331-332.) Neither case supports defendants contention that knowledge of the deadly nature of the weapon is an element of ADW. Failure to cite any relevant authority in support of an assertion results in a forfeiture of the right to appellate review. (People v. Stanley (1995) 10 Cal.4th 764, 793; People v. Diaz (1983) 140 Cal.App.3d 813, 824.) Consequently, we dismiss the argument.^[4]

III. CALCRIM No. 875

The trial court gave the standard instruction regarding ADW, CALCRIM No. 875. This instruction closely tracks language from Williams to describe the mental state required to commit ADW. (Compare CALCRIM No. 875 with Williams, supra, 26 Cal.4th at p. 790.)

Defendant argues that the giving of CALCRIM No. 875 was prejudicially erroneous because it allowed the jury to find defendant guilty of ADW based on negligence.

Defendants argument is squarely based on this courts opinionin People v. Wright (2002) 100 Cal.App.4th 703. In Wright, we criticized the definition of assault in Williams as based on an erroneous interpretation of the law. (Wright, at pp. 706, 711-724.) We concluded that any assault instruction that does not require that the defendant specifically intend to commit a battery would erroneously permit a jury to convict a person of negligent assault. (Id. at pp. 712-721.) Nevertheless, we acknowledged that we were bound by Williams.(Wright, at p. 706.)

Intermediate appellate courts must follow decisions of the states highest court and have no authority to rule otherwise. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Defendant recognizes this principle, but raises the point anyway to preserve his right to petition the California Supreme Court for review, hoping that it will reconsider its holding in Williams. Regardless, we are compelled to reject his challenge to CALCRIM No. 875.

DISPOSITION

The judgment is affirmed.

BUTZ , J.

We concur:

DAVIS , Acting P. J.

RAYE , J.

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^[1] Undesignated statutory references are to the Penal Code.

^[2] The record does not show any request by either the prosecution or defendant for a self-defense instruction. Nevertheless, the trial court read CALCRIM No. 3470 to the jury as follows: The defendant is not guilty of Counts 1 and 2 or the lesser included offenses to Counts 1 and 2 if he used force against the other person in lawful self-defense. The defendant acted in lawful self-defense if: one, the defendant reasonably believed that he was imminent‑‑that he was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully; two, the defendant reasonably believed that the immediate use of force was necessary to defend against that danger; and three, the defendant used no more force than was reasonably necessary to defend against that danger.

^[3] In any event, there was no evidence to support defendants theory that he was falsely imprisoned. False imprisonment is the unlawful violation of the personal liberty of another ( 236), which occurs when the victim is compelled to remain where he does not wish to remain, or to go where he does not wish to go. (People v. Reed (2000) 78 Cal.App.4th 274, 280.) According to defendants testimony, McGirr and Rigby blocked the doorway, preventing him from entering the home through the front door and requiring him to enter through the back. This innocuous behavior did not constitute a false imprisonment, or any other crime.

^[4] Because defendant cites no authority that knowledge of the deadly nature of the weapon constitutes an element of the crime of ADW, we likewise reject his argument that the trial court erred in failing, sua sponte, to instruct the jury on this element.