P. v. Rincon

Filed 12/5/07 P. v. Rincon CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellant Nelson Rincon was convicted by jury of assault with a firearm (count 1; Pen. Code,  245, subd. (a)(2))^[1]; possession of a firearm by a felon with priors (count 2,  12021, subd. (a)(1)); possession of a controlled substance with a firearm (count 3; Health & Saf. Code,  11370.1, subd. (a)); and possession of a controlled substance (count 4; Health & Saf. Code,  11377, subd. (a)). As to count 1, the jury found true the allegation that appellant had personally used a firearm within the meaning of section 12022.5, subdivision (a). He admitted that he served a prior prison term pursuant to section 667.5, subdivision (b).

The trial court sentenced appellant to state prison for a total term of eight years. It selected count 1 as the base term and imposed the mid-term of three years, plus one year on count 3. It did not impose a sentence as to counts 2 and 4, because those offenses contained the same elements as counts 1 and 3. The court added a three-year personal firearm use enhancement and one year for the prior prison term.

Appellant claims the court erred by refusing to instruct on a lesser-included offense and by denying his motion under Faretta v. California (1975) 422 U.S. 806. We affirm.

FACTS

Appellant and Irene Beltran had lived together for two years, but she had know him for ten. She had recently been trying to leave, but was afraid of him and did not know what he would do. On the morning of July 5, 2006, they began arguing. Beltran was in the bathroom, getting ready for work. Appellant said to her, "Do you know how to keep a man?" She replied, "If I had a real man, I would know how to keep him." Appellant entered the bathroom, grabbed her arm, and turned her around. He then grabbed her by the back of the hair, and put a gun to the left side of her head.

Appellant told her, "What you're not understanding is that you won't leave me that way. We . . . both will be leaving." Beltran said she "sweet talked" appellant so she could leave the apartment. When she arrived at work, she told a co-worker about the incident. Her supervisor overheard and called the sheriff's department.

Deputy Sheriff Milton Williams responded to Beltran's workplace. She told Williams that appellant had been abusive to her. She was very emotional and cried throughout the interview. She later called Williams several times to see if appellant would be arrested. Appellant was subsequently apprehended in front of the apartment. Recovered from his pockets was a small semiautomatic handgun, which was loaded, and a baggie containing methamphetamine.

Appellant's parole agent, Ray Duran, testified that, on the day of the offense, Beltran called him and was extremely upset. She told Duran that she had been in an argument with appellant that morning. While she was getting ready for work, she told appellant that he was not a man. Beltran was putting on hairspray and accidentally sprayed appellant in the face. They walked into the bedroom and appellant pointed a firearm at her "left temple." He told her that "if he was going to go, she was going with him . . . ."

Duran called Beltran later that day to obtain additional information. Beltran told him that she had received the firearm from a friend. It was a chrome .22-caliber handgun with a wooden handle. She kept it in a drawer and appellant had been going through the drawers and found it. Beltran said that she feared for her safety and believed that appellant was going to kill her.

Several days later, Beltran called Duran again, inquiring how long appellant would be in custody. She seemed sad and was very concerned about what would happen to him now that he had been arrested. She told Duran that she would not testify against him.

At trial, Beltran testified that appellant confronted her with a loaded handgun she had in the house. She was in the bathroom and he brought the gun into the bathroom and asked what she was doing with it. Beltran had bought the gun about one month earlier because she felt threatened by appellant's former girlfriend. When appellant approached Beltran, he held the firearm in his palm, with his right arm extended. The gun was pointed away from her. Appellant was concerned that she possessed a gun because he was on parole and could not have a firearm in the house.

Beltran then left for work, crying. When she arrived, she lied and told one of her co-workers that appellant had held a gun to her head. Beltran's supervisor overheard and called the Sheriff's department. When the deputy arrived, Beltran repeated her story and asked if there was anything she could do to get appellant out of the house.

DISCUSSION

Lesser Included Offense

Appellant claims that his conviction for assault with a firearm (count 1) must be reversed because the trial court erred by denying his request that the jury be instructed on simple assault as a lesser included offense.

We independently review a trial court's failure to instruct on a lesser included offense. (People v. Cole (2004) 33 Cal.4th 1158, 1218.) "The court must, on its own initiative, instruct the jury on lesser included offenses when there is substantial evidence raising a question as to whether all the elements of a charged offense are present [citations], and when there is substantial evidence that defendant committed the lesser included offense, which, if accepted by the trier of fact, would exculpate the defendant from guilt of the greater offense. [Citation.]" (People v. Cook (2006) 39 Cal.4th 566, 596.) The trial court may properly refuse to instruct on lesser included offenses where the evidence is such that, if the defendant is guilty at all, he must be guilty of the higher offense. (People v. Neely (1993) 6 Cal.4th 877, 897; see People v. Memro (1995) 11 Cal.4th 786, 871.)

Assault is an unlawful attempt, coupled with the present ability, to commit a violent injury on the person of another. ( 240; People v. Williams (2001) 26 Cal.4th 779, 785.) In other words, it is an attempt to commit a battery. (People v. Rocha (1971) 3 Cal.3d 893, 899; People v. Elam (2001) 91 Cal.App.4th 298, 308.) Beltran testified at trial that appellant held the gun in the palm of his hand, pointed away from her, with his right arm extended. At the preliminary hearing Beltran refused to answer questions about the incident because she was afraid she would incriminate herself by having lied to the police. At trial she testified that she lied to law enforcement about the incident because she was angry at Beltran.

Appellant claims that the issue is therefore one of credibility--whether the jury should have credited Beltran's statements made immediately after commission of the offense, or her attorney's statement at the preliminary hearing and her trial testimony that she had lied. Appellant contends that "a reasonable jury may have concluded that an assault took place, but that appellant did not point the gun at Beltran's head."

In his reply brief, appellant indicated he wished to respond to the People's brief. He cited the testimony that appellant grabbed Beltran's arm, the back of her hair and pointed a gun at the left side of her head. He claims that these acts constitute "'a willful and unlawful use of force or violence, upon the person of another,'" thereby justifying an instruction on simple assault. Appellant argues that "[t]he only real question, which requires the trial court to give the requested instruction . . . was whether appellant threatened Ms. Beltran with the gun."

It was undisputed that appellant held a gun. However, holding a gun in his palm does not constitute evidence of simple assault. Nor does appellant's act of "confronting" Beltran by asking why she had the gun. Under the facts of this case, an instruction on simple assault would not have been justified. The trial court correctly refused appellant's request because the instruction was unsupported by the evidence.

Faretta Motion

Appellant claims the trial court erred in denying his motion for self-representation pursuant to Faretta v. California, supra, 422 U.S. 806. At the sentencing hearing, appellant requested that the court allow him to represent himself. The following exchange occurred:

"[Appellant]: Your honor, I would like to exercise my right to go pro per, defend myself. That way I can put motions in for I don't feel I had a fair trial. There's things I addressed to this woman, I asked her to defend me, stiff [sic] like that. Pretty much through my trial. There's people on that jury, my family were out in the hallway, and there's people on that jury that were commenting on certain things that were going on in this courtroom, outside of this courtroom. And pretty much I don't feel I had a fair, impartial trial.

"[Defense Counsel]: For the record, your honor, this is the first I'm hearing of any of this.

"[Appellant]: She hasn't come to see me one time.

"[Defense Counsel]: Excuse you.

"[The Court]: [Appellant]--

"[Defense Counsel]: You are done. At this point I am responding to your allegation.

"[Appellant]: She hasn't come to see me.

"[The Court]: I'm done hearing you. I've got other things to do. All of your objections are preserved through the appellate process. You can raise all of those issues on appeal. This is not the time and place for that."

Rebutting appellant's claim that his family had overheard jurors discussing the case, defense counsel stated to the court that the only person who was present in the courtroom on appellant's behalf was the victim. No one ever identified themselves to her as an interested party and she was never made aware of any alleged jury misconduct. The court did not respond to defense counsel's statement, but inquired of district attorney whether she was "ready to go forward on the priors package?"

Appellant's motion was untimely, thus we reject his argument that the trial court abused its discretion by denying it. A Faretta motion is timely if it is asserted within a reasonable time prior to the commencement of trial. (People v. Bradford (1997) 15 Cal.4th 1229, 1365; People v. Burton (1989) 48 Cal.3d 843, 852.) A motion made after this period is addressed to the sound discretion of the trial court. (People v. Windham (1977) 19 Cal.3d 121, 128.) A Faretta motion made after the jury returns its verdict on a primary offense, but prior to commencement of a bifurcated trial on prior convictions is untimely and subject to the court's discretion. (People v. Rivers (1993) 20 Cal.App.4th 1040, 1047-1048; People v. Givan (1992) 4 Cal.App.4th 1107, 1113-1115.)

Appellant did not seek to represent himself until the day set for trial on his prior conviction and for sentencing. It was then that he claimed he had not received a fair trial and made allegations of juror misconduct. The trial court heard the reasons for appellant's request as well as his attorney's responses. Although the court's ruling was abrupt, the court clearly found the request untimely and properly exercised its discretion to deny the motion.

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Philip H. Hickok, Judge

Superior Court County of Los Angeles

______________________________

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Susan D. Martynec, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

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^[1]All further statutory references are to the Penal Code unless otherwise stated.