Filed 12/13/13 P. v. Nunez CA
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
JESUS BENAVIDEZ NUÑEZ ,
Defendant and
Appellant.
F065033
(Super.
Ct. No. F11901862)
APPEAL
from a judgment of the Superior Court
of Fresno County. John F. Vogt, Judge.
John
Steinberg, 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 Kathleen A. McKenna, Deputy
Attorney General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant
Jesus Benavidez Nuñez appeals following his convictions for involuntary manslaughter with personal use of
a firearm, child endangerment, and possession of a firearm by a felon. He contends the trial court prejudicially
erred by failing to instruct the jury with CALCRIM No. 3404 regarding the
defense of accident. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On March 30, 2011, defendant and
his fiancée Analia Sandoval arrived at defendant’s sister’s house where they
were staying. It was about 5:15 in the evening and several family members
were out front. After the two got out of
their SUV, defendant confronted one of the three dogs residing at the home.[1]
According
to Sandoval, defendant was trying to get through a walkway to their room in the
back. The dog was barking and growling
in the carport area in front of the home.
Family members testified defendant was teasing the dog by stomping his
feet. Defendant had teased the dogs
previously by stomping his feet or pulling out his gun. On another occasion, he had fired a gun into
the ground near the dogs. On this
occasion, defendant responded by pulling a gun from the waistband of his pants.
At the time
of the incident, at least eight other persons were present in or near the
carport area, including defendant’s sister, victim Leticia Casas, his nieces
Michelle Alvarez and Danielle Casas, his nephew Nathaniel Vallejo, his fiancée,
his son Jesse Nuñez, and J.L. and D.L.
When
defendant pulled the gun from his waistband, it was either pointed toward the
dog or raised in front of him at chest level; he was facing his sister’s
direction. Within a second or two after
pulling out the gun, a single shot was heard.
Leticia Casas was struck by a bullet in the face; she fell to the ground
bleeding from her wound. Defendant
dropped the gun and ran toward his sister.
He appeared shocked or stunned and scared.
Nine-year-old
J.L. had been asked by her mother to retrieve the loose dog. She was trying to grab the dog before it
could reach defendant; she got a hold of the dog’s collar. At that point, defendant was directly in
front of her and Leticia Casas was behind her.
J.L. looked up at defendant and saw a gun. She was scared. She heard a loud bang and felt “a little air
flash[] by [her] hair.”
Leticia
Casas died as the result of an injury to the left carotid artery caused by the
gunshot wound to her head.
A loaded
.38-caliber semiautomatic weapon was located in the carport area by police
officer Robert McGuire shortly after his arrival on scene. Officer Daniel Corona took defendant into
custody; as he did so, defendant yelled, “I didn’t shoot. I didn’t shoot. It fell out of my pocket.”
Homicide
detective Mark Chapman of the Fresno County Sheriff’s Office interviewed
defendant later that evening. Defendant
admitted pulling the trigger. Initially,
defendant claimed he pulled out the gun “possibly to scare the dogs,” then
later said he did so to protect himself from the dogs. He admitted pulling the gun on the dogs once
or twice before and claimed it frightened them off. He did not indicate he had previously fired
the weapon at or near the dogs. Defendant
complained the dogs had been a problem for some time.
Despite
accurately describing the two safeties on his gun, defendant was unable to say
whether or not the safety mechanisms were in place at the time of the incident. Defendant advised he had loaded the gun the
night before, but claimed he did not know there was a round in the chamber. He could not recall or describe which hand he
used to pull the gun from his waistband, he just remembered the gun going off. Defendant admitted using methamphetamine
earlier that day. When he was advised
his sister had died from her injuries, defendant sobbed.
On April 20, 2012, in a second
amended information filed by the Fresno County District Attorney, defendant was
alleged to have committed the following crimes: count 1—involuntary manslaughter by an
unlawful act (Pen.[2] Code, § 192, subd. (b)); count 2—child
abuse or endangerment (§ 273a, subd. (a)); and count 3—possession of a
firearm by a felon (former § 12021, subd. (a)(1)). Further, it was alleged as to count 1 that
defendant personally used a firearm within the meaning of section 12022.5, subdivision
(a). Additionally, as to count 3, it was
alleged that defendant had suffered prior convictions and served a prior prison
term pursuant to section 667.5, subdivision (b). Defendant pled not guilty and denied all
allegations. Subsequently, the parties
entered into a stipulation wherein defendant admitted to the prior convictions
and to having served a prior prison term.
Following
jury trial, defendant was convicted of all counts. The jury also found true the personal use of
a firearm allegation.
On May 25, 2012, defendant was
sentenced to state prison for a total of 15 years. He filed a notice of appeal that same date.
DISCUSSION
Defendant
argues the trial court erred when it refused to give pinpoint instruction
CALCRIM No. 3404 because there was substantial evidence the shooting was
an accident. Moreover, he contends the
error was not harmless because the jury was precluded from considering the
entire defense theory and the record demonstrates the jury struggled with
whether he was acting intentionally when the gun discharged. The People contend the trial court properly
refused to give the instruction because its language duplicated language given
in other instructions, the evidence established defendant acted intentionally
when he drew his weapon, and he was criminally negligent. Additionally, the People assert error, if any,
was harmless.
The Applicable Law
Section 26
provides that “[a]ll persons are capable of committing crimes except those
belonging to the following classes: [¶] …
[¶] … Persons who committed the act … by accident, when it appears that
there was no evil design, intention, or culpable negligence.” Because the so-called defense of accident is
actually a claim the prosecution has failed to prove the intent element of the
crime, the trial court has no sua sponte duty to instruct on the defense of
accident. (People v. Anderson
(2011) 51 Cal.4th 989, 997.) “A trial
court’s responsibility to instruct on accident … 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.” (Ibid.,
italics omitted.)
“A trial
court must give a pinpoint instruction, even when requested, only if it is
supported by substantial evidence. [Citation.]” (People
v. Ward (2005) 36 Cal.4th 186, 214-215.) And, “‘[i]n 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 ….”’”
(People
v. Mentch (2008) 45 Cal.4th 274, 288.)
But where standard instructions fully and adequately advise the jury
upon a particular issue, a pinpoint instruction on that point is properly
refused. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1144.)
The Jury Instruction Conference
The court
and counsel for the parties discussed the jury instructions after the People
had rested their case-in-chief, and the defense elected not to present a
defense case. During that conference, the
following discussion occurred:
“The Court: Okay.
That gets us to 581. Now, wasn’t there
another accident instruction that was requested
“[Prosecutor]: I believe that was just 510.
“The Court: Just 510
“[Prosecutor]: That was the only one that I requested.
“The Court: No. We had one under 34—yeah, instruction
3404. And this one does apply to
criminal negligent crimes. However, all
of that says is that you can’t find the defendant guilty unless you are
convinced that he acted with criminal negligence. That would appear to be consistent with the
instructions that we have here. Let’s
take a look at the use notes for that.
[¶] I think 3404 does apply because it is referenced to 195, which
I believe—195 of the Penal Code that is—
“[Defense counsel]: Which defines accidental and excusable
homicide
“The Court: Uh-huh.
There is nothing inconsistent with that second paragraph in instruction
3404 with the other instructions I’m giving here. All it does is reinforce that they have to be
convinced beyond a reasonable doubt that he acted with criminal negligence, and
that’s true.
“Okay. So let’s go back. We’re giving instruction 251 to lead the
way. That’s followed by 253, which says,
‘To find a person guilty of the crime of involuntary manslaughter a person must
do an act with criminal negligence.’ Criminal negligence is defined in the other
instructions—in instructions on that crime.
“[Prosecutor]: 3404, paragraph 2, is exactly the same
language.
“The Court: It’s exactly the same. Because what I’m instructing immediately
after 253 is that, ‘In order to find the defendant guilty of Count One, the
People must prove beyond a reasonable doubt that, 1, the defendant committed a
crime, 2, the defendant committed the crime with criminal negligence,’ same
thing.
“[Prosecutor]: I don’t see the need to give both 3404 and
253.
“The Court: Not if I’m giving 253 right in front of the
involuntary manslaughter instruction. It’s
exactly the same language that I am giving in 581. And, in fact, I’m telling—I’m using
reasonable doubt in fewer words before telling them that they have to find
criminal negligence. [¶] All
right. So let’s go through 2— or 581.…”
The court later stated to defense counsel its belief
“that within this instruction [CALCRIM No. 581] you
have all the leeway to argue that he did not act with criminal negligence based
on the circumstances known to him, believed by him, and is supported by the
evidence. I mean, I—I believe that you
have—that’s where your defense really is because we have—it’s not an otherwise
lawful act based on the way it’s pled.
“[Defense counsel]: I understand.”
The Instructions Given
Pertinent
to the issue on appeal, the jury was instructed with CALCRIM Nos. 251, 253,
and 581. CALCRIM No. 251 provides:
“The
crimes and other allegations charged in this case require proof of the union, or
joint operation, of act and wrongful intent.
“For
you to find a person guilty of the crimes in this case or to find the specific
allegations true, that person must not only intentionally commit the prohibited
act, but must do so with an intent or mental state. The act and the intent or mental state
required are explained in the instruction for each crime or allegation.”
CALCRIM
No. 253 states:
“For you to find a person guilty of the crimes of
Involuntary Manslaughter and Child Endangerment, a person must do an act with
criminal negligence. Criminal negligence
is defined in the instructions on that crime.”
Finally, CALCRIM
No. 581, pertaining to the crime of involuntary manslaughter provides the
following:
“The
defendant is charged in Count One with involuntary manslaughter [in violation
of … section 192(b)].
“To
prove that the defendant is guilty of this crime, the People must prove beyond
a reasonable doubt that:
“1. The defendant committed a crime;
“2. The defendant committed the crime with
criminal negligence; AND
“3. The defendant’s acts caused the death of
another person.
“[The
People allege that the defendant committed the following crime[s]: Possession of Firearm by a Felon in violation
of … section 12021(a)(1).
“Instruction
2511 tell[s] you what the People must prove in order to prove that the
defendant committed a violation of … section 12021(a)(1), Possession of a
Firearm by a Felon.
“Criminal
negligence involves more than ordinary carelessness, inattention, or mistake in
judgment. A person acts with criminal
negligence when:
“1. He or she acts in a reckless way that creates
a high risk of death or great bodily injury; AND
“2. A reasonable person would have known that
acting in that way would create such a risk.
“In
other words, a person acts with criminal negligence when the way he or she acts
is so different from the way an ordinarily careful person would act in the same
situation that his or her act amounts to disregard for human life or
indifference to the consequences of that act.
“[An
act causes death if the death is the direct, natural, and probable consequence
of the act and the death would not have happened without the act. A natural and
probable consequence is one that a reasonable person would know is likely to
happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider all of the
circumstances established by the evidence.]
“Great
bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or
moderate harm.”
Defendant
requested that CALCRIM No. 3404 be given.
That instruction provides as follows:
“[The defendant is not guilty of ________<
[or failed to act] accidentally without criminal negligence. You may not find the defendant guilty of
________ <insert crime[s]>
unless you are convinced beyond a reasonable doubt that (he/she) acted with
criminal negligence. Criminal negligence
is defined in another instruction.]”
Our Analysis
We conclude
the trial court did not err. The valid
points in the proposed pinpoint instruction, specifically CALCRIM No. 3404,
were adequately covered by other instructions given to the jury, namely, CALCRIM
Nos. 251, 253, and 581. (See
a pinpoint instruction explaining defendant is not guilty if he “acted
accidentally without criminal negligence” should have been given, on this
record nothing in the standard instructions given precluded the jury from
finding defendant acted accidentally. Therefore,
error, if any, was harmless.
As the
trial court correctly noted during the jury instruction conference, the
language in CALCRIM No. 3404 is duplicative of language in other instructions
given. A review of the record confirms
this statement. Therefore, the absence
of CALCRIM No. 3404 and its defense-phrased content did not prejudice
defendant. The jury was fully and
properly instructed with CALCRIM Nos. 251, 253, and 581, and regarding the
mental state concerning a violation of section 192, subdivision (b). (See People
v. Ervin (2000) 22 Cal.4th 48, 89-91 [error in failing to instruct
regarding particular instruction harmless in light of other instructions
given].)
“In determining whether instructional error was harmless,
relevant inquiries are whether ‘the factual question posed by the omitted
instruction necessarily was resolved adversely to the defendant under other, properly
given instructions’ [citation] and whether the ‘defendant effectively conceded
the issue’ [citation]. A reviewing court
considers ‘the specific language challenged, the instructions as a whole[,] the
jury’s findings’ [citation], and counsel’s closing arguments to determine
whether the instructional error ‘would have misled a reasonable jury …’ [citation].”
(People
v. Eid (2010) 187 Cal.App.4th 859, 883.)
Because the
language of CALCRIM No. 3404 was largely duplicative of language provided in
the other instructions given, and because the instructions as a whole explained
to the jury that it could not find defendant guilty of involuntary manslaughter
or child endangerment unless it determined he acted with criminal negligence,
the failure to instruct on the defense of accident could not have misled the jury.
Because the
alleged error here does not involve a failure to instruct on an element of the
crime, the federal standard of Chapman v.
California (1967) 386 U.S. 18, 24 does not apply. (See People
v. Cornwell (2005) 37 Cal.4th 50, 89, disapproved on other grounds in
fn. 22.) Instead, the “failure to give a
pinpoint instruction is reviewed for prejudice under the Watson[[3]]
harmless error standard.” (
810, 830.) Therefore, our inquiry
considers “whether there is a ‘reasonable probability’ that a result more
favorable to the defendant would have occurred absent the error. [Citation.]” (People
v. Aranda (2012) 55 Cal.4th 342, 354.)
Defendant
relies upon People v. Gonzales (1999)
74 Cal.App.4th 382 and People v. Jones
(1991) 234 Cal.App.3d 1303, both disapproved on other grounds in
In
victim was accidentally struck by the defendant when he opened the door to a
bathroom. The court held the failure to
give an accident instruction was prejudicial because during deliberations, the
jurors sent out a question requesting clarification of the meaning of “willful
intent.” (People v. Gonzales, supra,
74 Cal.App.4th at pp. 388, 391.) The
trial court reread several of the pertinent instructions, but the jurors
indicated they were still “troubled” with the concept of “willfully versus
accidentally.” (Ibid.) Thereafter, the
jurors indicated they were deadlocked, and one juror indicated the problem
involved the meaning of “willful intent” as to the crime of corporal injury. (Id.
at p. 389.) Eventually the jurors
reached a verdict without any further instruction on that point. (Id.
at pp. 384, 389.)
from this case. While the jury here had
questions during deliberations, those questions did not relate to the intent connected
to the involuntary manslaughter charge.
It appears
the jury’s first request asked whether Nathaniel Vallejo was to be considered a
victim for purposes of count 2. The
court responded that only J.L. was to be considered a victim for purposes of
that count. The jury’s next request
sought a definition of “displays gun in menacing manner. (Is it intent or actual action).” The request pertains to the special
allegation of personal use of a firearm because the language used by the jury
comes directly from CALCRIM No. 3146.
It provides, in relevant part: “If
you find the defendant guilty of the crime charged in Count One, Involuntary
Manslaughter, you must then decide whether … [¶] … [¶] Someone
personally uses a firearm if he or she intentionally does any of the following:
[¶] 1. Displays the weapon in a menacing manner.” (Italics added.) The court properly referred the jury to
CALCRIM No. 3146, regarding the personal use of a firearm, and CALCRIM
No. 200. Significantly, defense
counsel did not ask the court to respond to the jury’s question by instructing
it on accident, despite a thorough discussion about how the court should
respond to the jury’s request.
Next, the
jury asked to examine the gun. That
request was accommodated. The last
request of April 26, 2012, stated the following: “Your honor, we are unable to come to a
conclusion on count #2. We are also
unable to conclude … the use of a firearm. (proved or not proved)” To the degree the latter request relates to
the firearm, it is plain the request specifically refers to the gun’s use and
whether the jury could find that use true or not, a determination made only
after the jury finds defendant guilty of involuntary manslaughter, an act
involving criminal negligence. The jury
did not indicate at any time that it was having any difficulty making a
determination regarding the intent related to the involuntary manslaughter
charge. With regard to the
representation that the jury was unable to reach a verdict as to count 2,[4] there is no indication as to the reason for this
difficulty.
The
following morning, shortly after resuming deliberations, the jury asked for the
following:
“Can we
have Mark Chapman[’]s testimony and
“â—
Legal definition of menacing.
“â—
Legal definition of mental suffering.
“(If pulling out a weapon is
considered menacing)
“â—
Legal definition of intentional.”
Thus, it appears the jury’s difficulty with count 2
pertained to the element of “mental suffering” as referenced in the
request. There is no indication the jury’s
request related to defendant’s mental state for that crime.
The record
reveals the court and counsel agreed the reporter should be sent in to read back
Detective Chapman’s testimony as per the request. While discussing the balance of the jury’s
requests of that morning, the trial court stated: “So let’s take our time to do that [agree on
the definitional language requested] and let’s get Madam Reporter started on
Detective Chapman’s readback because I think that would help the jury at this
time and not just leave them floundering while we work on this, okay” With the attorneys’ assent, the jury’s
request for readback was accommodated between 10:10 a.m. and 10:50 a.m. It then appears from the record that before
the remainder of the jury’s morning request could be accommodated or responded
to,[5] the jury reached its verdicts between 11:10
and 11:15 a.m.
Therefore,
it appears, based on the record before us, that the jury was concerned with
elements unrelated to defendant’s mental state for either involuntary
manslaughter or child endangerment. The
jury’s inquiries regarding menacing and intent referred instead to the personal
use of a firearm allegation.
In
on the defense of accident and misfortune, the court found the error was not
prejudicial. It noted that when
considering any prejudicial effect of instructional error or omission, where “
guide the jury in reaching factual determinations on those issues,” the error
is harmless. (People v. Jones, supra, 234
Cal.App.3d at p. 1314.) Like
jury here was instructed pursuant to CALCRIM Nos. 251, 253, and 581, any
error in failing to instruct the jury with pinpoint instruction CALCRIM
No. 3404 was harmless. Like the court
stated in People v. Jones,
“[I]t is clear, beyond credible argument, that the jury
necessarily rejected the evidence adduced at trial that would have supported a
finding to the effect that defendant’s ‘accident …’ defense (meant to establish
that the discharge of the shotgun had not been attended by any criminal intent
or purpose) was valid, thus implicitly resolving the question of that defense
adversely to defendant.” (
Like
rejected defendant’s defense of accident to establish he did not mean to
discharge the handgun in the absence of criminal negligence. The evidence of criminal negligence here was substantial.
Defendant responded to a barking and
growling dog by pulling out a loaded firearm—its safety mechanisms deactivated—in
a confined carport area populated by at least eight members of his family or
friends. Further, in his interview with Detective
Chapman, defendant admitted pulling the trigger on the gun and did so to scare
the dog.
In
conclusion, even assuming error, it was not reasonably probable the jury would
have reached a different verdict had the court given CALCRIM No. 3404. (People
v. Watson, supra, 46 Cal.2d at p.
836.) Moreover, even if the California
Supreme Court were to determine the Chapman
standard applies where a trial court fails to give a pinpoint instruction
requested by a defendant, we find any error, on this record, was harmless
beyond a reasonable doubt.
DISPOSITION
The
judgment is affirmed.
__________________________
PEÑA, J.
WE CONCUR:
________________________________
GOMES, Acting P.J.
________________________________
OAKLEY, J.*
[1]Defendant’s
fiancée, his niece Danielle Casas, his nephew Nathaniel Vallejo, and J.L. all
testified one dog was involved in the incident and the other two dogs were
confined to or tied up in the backyard.
His niece Michelle Alvarez recalled two of the three dogs being
involved.
[2]All
further statutory references are to the Penal Code unless otherwise indicated.
