P. v. Ruiz
Filed 8/21/12 P. v. Ruiz CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
BILLY JHONATHAN RUIZ,
Defendant and
Appellant.
G045594
(Super. Ct.
No. 09CF2834)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Richard W. Stanford, Jr., Judge. Affirmed.
Brett Harding Duxbury,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Peter Quon, Jr. and Anthony Da Silva,
Deputy Attorneys General, for Plaintiff and Respondent.
*
* *
A jury convicted defendant
Billy Jhonathan Ruiz of the following:
two counts of kidnapping (Pen.
Code, § 207, subd. (a));
name="_ftnref1" title="">[1] two counts of
212.5, subd. (c)); two counts of assault with a firearm (§ 245, subd.
(a)(2)); one count of making a criminal threat (§ 422); and one count of
(§ 12021, subd. (a)(1)).
name="_ftnref2" title="">[2] The jury found to be true allegations that: as to counts 1 through 4, defendant
personally used and personally discharged a firearm (§ 12022.53, subds.
(b) & (c)); and as to counts 5, 6, and 7, defendant personally used a
firearm (§ 12022.5, subd. (a)).
years and eight months in prison.
Defendant
argues on appeal that the court improperly instructed the jury by failing
instruction (CALCRIM No. 3404) with regard to defendant’s discharge of a
firearm enhancement. Defendant also
argues the court erred by instructing the jury that the defense of voluntary
intoxication (CALCRIM No. 3426) does not apply to a personal and intentional
discharge of a firearm enhancement (§ 12022.53, subd. (c)). Because we conclude the court did not commit
error, we affirm.
FACTS
In
November 2009, defendant lived in Santa Ana
with his stepfather Raul Avitia, his mother Maria Avitia, his girlfriend Misty,
and another unrelated female named Rebecca.
On November 17, 2009,
Raul picked Misty up from work at the request of defendant. On the way home, Raul also picked up
defendant. Defendant had a gun in his
hand. Defendant said that Rebecca had
told him Raul and Misty were having sexual relations. Defendant demanded that Raul tell him the
truth. Defendant was upset. Raul thought defendant was under the
influence of drugs. Defendant asked for
Raul’s telephone and Raul gave it to defendant.
Defendant took Misty’s cell phone and purse. As Raul drove, defendant pointed the gun at
Raul’s head.
Raul
drove until he parked in the lot of a discount department store. Raul tried to explain to defendant that
defendant was under the influence of drugs and was being told lies. Misty told defendant that she loved him. At some point, defendant’s gun fired. The bullet went through the middle portion of
the windshield. A piece of glass hit
Raul in the face, causing him to bleed.
Raul does not think defendant discharged the gun intentionally. Defendant did not apologize for shooting the
gun and continued to point the gun at Raul and Misty. Later, defendant threatened to kill both Raul
and Misty slowly, after having forced Misty to pull down her pants so defendant
could try to determine whether she had recently had sex with Raul.
Raul
eventually drove the vehicle home and parked in the driveway. All three individuals eventually walked
inside the house. Maria and Rebecca were
inside the house. Defendant still had
the gun. Defendant ordered Maria to go
to her room. Maria called the police
while she was in her room. On the 911
call, Maria stated: “My son has a gun
and is pointing it at my husband and other people here at my house.†Rebecca repeated her allegation that Raul and
Misty had a sexual relationship.
Defendant continued to demand that Raul and Misty tell him the
truth. Defendant kicked Misty in the
face.
When
the police arrived, defendant told everyone to go outside the house. Defendant was arrested and found to possess
three cell phones and two credit cards belonging to Misty.
DISCUSSION
Both
of defendant’s arguments on appeal pertain solely to the jury’s enhancement
findings that defendant “personally and intentionally
discharge[d] a firearm†in the course of kidnapping and robbing his victims. (§ 12022.53, subd. (c), italics added;
see CALCRIM No. 3148.) Defendant
maintains (as he did at trial) that the discharge of the firearm was not
intentional. Defendant claims on appeal
that the court prejudicially erred by improperly instructing the jury on this
point.
Defendant
first contends that the court should have instructed the jury, sua sponte, on
the defense of accident with regard to the discharge of defendant’s firearm
during the kidnapping of victims Raul and Misty.
“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€
(§ 26.) “The defense appears
in CALCRIM 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.’†(
Cal.4th 989, 996 (Anderson).)
“That
the law recognizes a defense of accident does not, however, establish that
trial courts have a duty to instruct on accident sua sponte.†(Anderson,
supra, 51 Cal.4th at p. 996.) “‘In criminal cases, even in the absence of a
request, a trial court must instruct on general principles of law relevant to
the issues raised by the evidence and necessary for the jury’s understanding of
the case.’†(Ibid.) The court’s duty
extends to defenses that are supported by substantial evidence. (Ibid.;
see, e.g., People v. Barraza (1979)
23 Cal.3d 675, 691 [entrapment defense].)
“But ‘“when a defendant presents evidence to attempt to negate or rebut
the prosecution’s proof of an element of the offense, a defendant is not
presenting a special defense invoking sua
sponte instructional duties. While a
court may well have a duty to give a ‘pinpoint’ instruction relating such
evidence to the elements of the offense and to the jury’s duty to acquit if the
evidence produces a reasonable doubt, such ‘pinpoint’ instructions are not
required to be given sua sponte and
must be given only upon request.â€â€™â€ (
Because
the so-called defense of accident usually amounts to a mere restatement of the
mental state element of a criminal offense, “[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.†(Anderson, supra, 51
Cal.4th at p. 997; see also People
v. Jennings (2010) 50 Cal.4th 616, 674 [“A claim of accident in
response to a charge of murder . . . is not an affirmative defense that can
trigger a duty to instruct on the court’s own motionâ€].) Evidence in this case suggesting that
defendant’s discharge of the firearm may have been accidental rather than
intentional was already addressed by the jury instructions. CALCRIM No. 3148, as provided to the jury in
this case, stated in relevant part that to prove “defendant personally and
intentionally discharged a firearm,†the People were required to prove that
“defendant intended to discharge the firearm.â€
The court was under no sua sponte obligation to instruct the jury with a
“pinpoint†accident instruction, relating the particular evidence suggesting
the discharge may have been an accident to the mental state element of section
12022.53, subdivision (c).
Defendant
concedes this analysis is correct, but claims Anderson, supra, 51
Cal.4th 989, should not be applied to the case at hand because the jury in
this case was instructed prior to the announcement of the decision in
disapproved certain appellate cases (People
v. Gonzales (1999) 74 Cal.App.4th 382; People v. Jones (1991) 234 Cal.App.3d 1303) “to the extent
they hold a sua sponte instruction on accident is required when the defense is
raised to negate the intent or mental element of the charged crime.†(Anderson,
supra, 51 Cal.4th at p. 998, fn.
3.) According to defendant, it would be
“fundamentally unfair†to apply Anderson “retroactivelyâ€
to this case because the trial court erred under the law in effect at the time
of trial.
We
reject defendant’s argument. For one, it
is not clear that Anderson,
new rule rather than clarifying the law.
(See Jennings,
sponte obligation to instruct on accident in murder cases];
Cal.App.4th 102, 110 [“The accident defense amounts to a claim that the
defendant acted without forming the mental state necessary to make his or her
actions a crimeâ€].) Second, one
implication of the analysis in Anderson is
that the lack of an accident instruction in circumstances like those in the
case before us is inherently not prejudicial, so long as the jury is instructed
properly with regard to the elements of the offense at issue. A general instruction on the “defense†of
accident — i.e., defendant was not guilty of the applicable firearm enhancement
if he acted “without the intent required for that crime, but acted instead
accidentally†(CALCRIM No. 3404) — would have been merely duplicative to the
instruction that the jury was required to find that the discharge was “intentional.†Only a pinpoint instruction, relating the
specific evidence in the case to the discharge of the firearm, could have
possibly aided the jury’s understanding of the accident “defense†in this case. Given the lack of potential prejudice to a
retroactive application of Anderson,
we will apply the “customary†rule that judicial case law is fully applicable
to cases pending on appeal. (
Cal.4th 108, 136.)
Instruction
with CALCRIM No. 3426
Defendant
next asserts the court erred in its instruction of the jury with CALCRIM No.
3426.
“personally and intentionally discharg[ing] a firearm†(§ 12022.53, subd.
(c)) require specific intent, but the court did not include the enhancement in
its list of specific intent counts for which voluntary intoxication could be
considered. Thus, as to this
enhancement, the jury should have been able to consider evidence of voluntary
intoxication, which can negate specific intent.
(§ 22, subd. (b).) No cases
have specifically addressed this question.
“‘The
distinction between specific intent and general intent crimes evolved as a
judicial response to the problem of the intoxicated offender’ and the
availability of voluntary intoxication as a defense.†(People
v. Hering (1999) 20 Cal.4th 440, 445.)
“When the definition of a crime consists of only the description of a
particular act, without reference to intent to do a further act or achieve a
future consequence, we ask whether the defendant intended to do the proscribed
act. This intention is deemed to be a
general criminal intent. When the
definition refers to defendant’s intent to do some further act or achieve some
additional consequence, the crime is deemed to be one of specific intent.†(People
v. Hood (1969) 1 Cal.3d 444, 456-457.)
Defendant’s
argument is not well taken. Section
12022.53, subdivision (c), provides for additional punishment of a defendant
who “personally and intentionally discharges a firearm†while committing
specified felonies. There is only
general intent required to perform the act of discharging a firearm. The statute does not include “language
typically denoting specific intent crimes, such as ‘with the intent’ or ‘for
the purpose of.’†(People v. Hering, supra,
20 Cal.4th at p. 446.) For
instance, section 12022.53, subdivision (c), does not state that the discharge
of the firearm must be for the purpose of inflicting harm upon persons or
property. Instead, read in context, the
use of the word “intentionally†in section 12022.53, subdivision (c), suggests
only that the statute is not designed to punish an accidental discharge of a
firearm. (Cf. In re Wasif M. (2004) 119 Cal.App.4th 176, 181-182 [statute
punishing those who “‘willfully’†commit a specified act was general intent
crime].)
“[W]hen
the Legislature intends to require proof of a specific intent in connection
with a sentence enhancement provision, it has done so explicitly by referring
to the required intent in the statute.â€
(In re Tameka C. (2000) 22
Cal.4th 190, 199 [rejecting claim that § 12022.5, subd. (a)
enhancement for personal use of a firearm “in the commission of a felonyâ€
requires specific intent]; see also People
v. Wardell (2008) 162 Cal.App.4th 1484, 1493-1494 [court properly
instructs the jury by deeming a firearm enhancement under § 12022.5, subd.
(a), to be a general intent crime].) We
conclude that the intentional discharge of a firearm pursuant to section
12022.53, subdivision (c), requires proof of only general intent. Thus, the court properly instructed the jury
in this case with regard to voluntary intoxication and the firearm enhancements
pleaded and proved.
DISPOSITION
The
judgment is affirmed.
IKOLA,
J.
WE CONCUR:
O’LEARY, P.
J.
MOORE, J.
statutory references are to the Penal Code.
January 1, 2012, the statute defining the firearm offense charged against
defendant has been repealed and reenacted without substantive change, but with
a different statutory designation as follows: former section 12021, subdivision
(a)(1) is now section 29800, subdivision (a)(1).
