P. v. Taeotui
Filed 1/18/13 P.
v. Taeotui CA4/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
LINITONE
PULEALI TAEOTUI,
Defendant and Appellant.
D061057
(Super. Ct. No.
SCN290035)
APPEAL
from a judgment of the Superior Court of
County, Richard E. Mills, Judge. Affirmed.
Linitone
Puleali Taeotui brandished a knife at Vaalele Faatiliga and threatened to kill
him. A jury found Taeotui guilty of
assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1);
subsequent section references are to this code) and making a criminal threat
(§ 422, subd. (a)). In a
bifurcated proceeding, the trial court found true certain allegations regarding
Taeotui's prior convictions and prison terms.
The court sentenced Taeotui to prison for an aggregate term of nine
years.
On
appeal, Taeotui contends the judgment must be reversed because (1) there
was insufficient evidence he ever had a present ability to injure Faatiliga
with the knife, as required to support the conviction of assault with a deadly
weapon; and (2) his trial counsel provided ineffective assistance by
failing to request a jury instruction on voluntary intoxication with respect to
the charge of making a criminal threat. We reject these contentions and affirm the
judgment.
I.
FACTUAL BACKGROUND
Taeotui
and Faatiliga are first cousins.
Faatiliga, a recovering alcoholic, allowed Taeotui and Taeotui's
girlfriend to move in with him in March 2011, provided they did not drink
in the house.
On
the night of April 2, 2011, Faatiliga awoke when he heard Taeotui and his girlfriend arguing
in their bedroom. Faatiliga told them,
"Stop all that noise because I have to work tomorrow"; returned to
his own bedroom; and locked the door.
Moments
later, Taeotui began pounding on Faatiliga's bedroom door and ordered him to
come out so that he could "kick [Faatiliga's] ass." Taeotui said, "Come on
out. . . . Today
I'm going to kill you . . . ."
Faatiliga
telephoned 911. The call was interrupted
when Taeotui kicked in Faatiliga's bedroom door and Faatiliga climbed out the
window to the front yard. Taeotui then
threw a stool at Faatiliga and again said he was going to kill him. Faatiliga thought Taeotui was "basically
drunk," or "[r]eally, really drunk," or "[s]tupid
drunk," but not "drunk out of his mind."
Faatiliga
then went to the front door of the house and briefly held it closed to try to
prevent Taeotui from coming outside, but then ran down the street. As Faatiliga fled, he again telephoned 911
because he feared that if police did not come either he or Taeotui was going to
end up dead. When Faatiliga looked back
at his house, he saw Taeotui "waving a knife" and heard him say,
"I'm gonna kill you, Airplane."
(Faatiliga's first name, Vaalele, is Samoan for airplane.) Taeotui also pursued Faatiliga with the knife
for a short distance and repeated his threat to kill him.
When
Officer David Weissenfluh arrived in response to the 911 call, Faatiliga gave
him a recorded statement describing the incident. Faatiliga also took Weissenfluh inside the
house and identified the knife Taeotui waved at him. It was a kitchen knife that had an eight-inch
serrated blade with a forked tip.
When
Weissenfluh entered the house, he noticed "it smelled very strongly of
alcohol." Weissenfluh also noticed
Taeotui appeared to be intoxicated:
"His speech was slurred. His
eyes were red and bloodshot. He smelled
very strongly of an alcoholic beverage. . . . [H]e had a staggered ga[it.]" Weissenfluh rated Taeotui a nine "[o]n a
scale from one to 10, 10 being heavily
intoxicated . . . ."
Weissenfluh arrested Taeotui.
II.
DISCUSSION
Taeotui
argues his conviction of assault with a
deadly weapon must be reversed for insufficient evidence, and his
conviction of making a criminal threat must be reversed for ineffective
assistance of counsel. As we shall
explain, neither argument has merit.
A.
of Assault with a Deadly Weapon
Taeotui
contends his conviction of assault with a deadly weapon violates his federal
constitutional right to due process of law (U.S. Const., 14th Amend., § 1)
because "there was no substantial evidence that, with the present ability,
[he] committed an act with the bread knife that by its nature would probably
and directly result in injury to [Faatiliga]." Specifically, Taeotui argues he could not be
found guilty because there was "no substantial evidence that [he] ever got
close enough to Faatiliga to attempt to strike him with the knife." We disagree.
On
a due process challenge to the sufficiency of the evidence, the "critical
inquiry" is "whether the record evidence could reasonably support a
finding of guilt beyond a reasonable doubt." (Jackson
v. Virginia (1979) 443 U.S. 307, 318.)
"[T]his inquiry does not require a court to 'ask itself whether it
believes that the evidence at the trial established guilt beyond a reasonable
doubt.' [Citation.] Instead, the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." (
satisfies constitutional due process and reliability concerns." (People
v. Boyer (2006) 38 Cal.4th 412, 480.)
To establish
Taeotui violated section 245, subdivision (a)(1), the People had to
prove "an unlawful attempt, coupled
with a present ability," by him "to commit a violent injury on
the person of [Faatiliga]" (§ 240, italics added) "with a deadly
weapon" (§ 245, subd. (a)(1)).
With regard to the "present ability" element challenged by
Taeotui, our Supreme Court recently held the defendant need not have the
ability to inflict injury instantaneously; he need only "have the ability
to inflict injury on the present occasion." (People
v. Chance (2008) 44 Cal.4th 1164, 1168 (Chance).) The court explained:
"[I]t is a
defendant's action enabling him to inflict a present injury that constitutes
the actus reus of assault. There is no
requirement that the injury would necessarily occur as the very next step in
the sequence of events, or without any delay. . . . [Citation.]
'There need not be even a direct attempt at violence; but any indirect
preparation towards it, under the circumstances mentioned, such as drawing a
sword or bayonet, or even laying one's hand upon his sword, would be
sufficient.' [Citation.] [¶]
Subsequent California cases establish that when a defendant equips and
positions himself to carry out a battery, he has the 'present ability' required
by section 240 if he is capable of inflicting injury on the given
occasion, even if some steps remain to be taken, and even if the victim or the
surrounding circumstances thwart infliction of injury." (Id.
at p. 1172.)
In a much earlier case, the Supreme Court
held: "It is not indispensable to
the commission of an assault that the assailant should be at any time within
striking distance. If he is advancing
with intent to strike his adversary and comes sufficiently near to induce a man
of ordinary firmness to believe, in view of all the circumstances, that he will
instantly receive a blow unless he strike in self-defense or retreat, the
assault is complete." (
(Yslas).) Thus, "[o]nce a defendant has attained
the means and location to strike immediately he has the 'present ability to
injure.' The fact an intended victim
takes effective steps to avoid injury has never been held to negate this
'present ability.' " (
103, 113 (Valdez); accord,
Here,
the evidence introduced at trial established Taeotui had a present ability to
injure Faatiliga with a knife.
Faatiliga's testimony and the recorded statement he gave Weissenfluh
showed that Taeotui threatened to kill Faatiliga, kicked in Faatiliga's bedroom
door, and threw a stool at him. When
Faatiliga retreated by climbing out his bedroom window, Taeotui followed him
outside, waved a knife at him, and again threatened to kill him. This evidence of Taeotui's "chasing
[Faatiliga] and threatening [him] with a long knife demonstrate[d] a willful
attempt to use physical force against [him]," and was sufficient to
establish the offense of assault with a deadly weapon. (People
v. Tran (1996) 47 Cal.App.4th 253, 261-262.) The People did not also have to prove that
Taeotui was "at any time within striking distance" (
"would necessarily occur as the very next step in the sequence of events,
or without any delay" (Chance,
"that [Taeotui] actually made an attempt to strike or use the knife upon
the person of [Faatiliga]" (People
v. McCoy (1944) 25 Cal.2d 177, 189, italics omitted). Rather, to establish the present ability
element of the charge of assault with a deadly weapon, it was sufficient for
the People to prove, as they did, that Taeotui had taken steps that enabled him
"to commit a present, and not a future injury, upon a different
occasion." (People v. McMakin (1857) 8 Cal. 547, 548 (McMakin); accord, Chance,
at p. 1771.)
Indeed, courts
have upheld convictions for assault with a deadly weapon on facts closely
analogous to those of this case. Our
Supreme Court summarized two such cases in Chance,
supra, 44 Cal.4th at page 1174:
"In
seven or eight feet of the victim with a raised hatchet, but the victim escaped
injury by running to the next room and locking the door. Yslas committed assault, even though he never
closed the distance between himself and the victim, or swung the hatchet. (Yslas,
supra, 27 Cal. at pp. 631,
633-634.) Similarly, in
318-319, the victim jumped out a window as the defendant tried to pull a gun
from his sock. Hunter committed assault,
even though the victim was gone before he could deploy his weapon."
Similar to Yslas, here Taeotui approached Faatiliga with a knife, but never
closed the distance between himself and Faatiliga or swung the knife at
him. Similar to Hunter, here Taeotui pursued Faatiliga and brandished the knife at
him, but Faatiliga fled before Taeotui could actually strike him with it. The fact that Faatiliga, like the victims in
running away from Taeotui did not negate Taeotui's present ability to inflict
supra, 175 Cal.App.3d at p. 113;
accord, Chance, at p. 1174.)
We
are not persuaded to reach a different conclusion by Taeotui's reference to the
following sentence from McMakin,
drawing a sword, or bayonet, presenting a gun at a person who is within its range, have been held to constitute an
assault." (Italics added.) This statement merely lists examples of
conduct that is sufficient to constitute an assault; it is not a holding that
proof the defendant approached within striking distance of the victim is
necessary for an assault conviction. In
fact, as we noted earlier, our Supreme Court has held the opposite: "It is not indispensable to the
commission of an assault that the assailant should be at any time within striking
distance." (Yslas, supra, 27 Cal. at
p. 634.) Moreover, the Supreme
Court has subsequently held that "[a]lthough temporal and spatial
considerations are relevant to a defendant's 'present ability' under section
240, it is the ability to inflict injury on the present occasion that is
determinative, not whether injury will necessarily be the instantaneous result
of the defendant's conduct." (
Therefore, where, as here, the evidence establishes the defendant could
have injured the victim because he "held the knife in a threatening
manner" and actually threatened to kill the victim in the victim's
presence, but did not reach the point of making "an affirmative attempt to
commit a battery (i.e., a lunge)," the defendant may be convicted of
assault with a deadly weapon. (
425, 429.)
For the
foregoing reasons, we reject Taeotui's contention there was no substantial
evidence he had the present ability to injure Faatiliga with the knife. We hold the evidence was sufficient to
support the conviction of assault with a deadly weapon.
B.
Ineffective Assistance by Not Requesting a Jury Instruction on Voluntary
Intoxication
Taeotui
complains his trial counsel provided constitutionally inadequate representation
by failing to request a jury instruction on voluntary intoxication (CALCRIM
No. 3426) with regard to the charge of making a criminal threat. (See U.S. Const., 6th & 14th Amends.;
Cal. Const., art. I, § 15.) He
argues his intoxication prevented him from forming the specific intent required
to prove that charge, and asserts "it is inconceivable any reasonably
competent criminal lawyer could have a legitimate strategic reason not to
request" such an instruction in this case.
We disagree.
A
jury instruction on voluntary intoxication was theoretically applicable to the
criminal threat charge. To convict
Taeotui of that charge, the People had to prove, among other elements, that he
made a statement with "the specific intent that the
statement . . . is to be taken as a threat." (§ 422, subd. (a).) Evidence of Taeotui's voluntary intoxication
would have been admissible on the issue of whether he actually formed the
required specific intent (§ 29.4, subd. (b)), and with an appropriate
evidentiary basis he would have been entitled to a jury instruction on that
issue. But, as Taeotui acknowledges,
"[i]t is well settled that '[a]n instruction on the significance of
voluntary intoxication is a "pinpoint" instruction that the trial
court is not required to give unless requested by the
defendant.' " (
295 (Verdugo).) Not having requested a voluntary intoxication
instruction at trial, Taeotui cannot claim on appeal that the trial court erred
by not giving it. (See, e.g.,
1228, 1236 [defendant who did not request pinpoint instruction forfeited claim
that trial court erred by not giving it].)
Taeotui thus tries to avoid the forfeiture by claiming his trial counsel
provided ineffective assistance by not requesting a voluntary intoxication
instruction; but, as we shall explain, this claim fails.
The evidence did
not warrant a voluntary intoxication instruction. Our Supreme Court repeatedly has held
"[a] defendant is entitled to such an instruction only when there is
substantial evidence of the defendant's voluntary intoxication and the
intoxication affected the defendant's 'actual formation of specific
intent.' " (
635, 677; accord, Verdugo,
1119; People v. Ramirez (1990) 50
Cal.3d 1158, 1181.) Here, the record
contains some evidence that Taeotui was under the influence of alcohol and
somewhat impaired when he threatened Faatiliga.
Faatiliga testified Taeotui was "basically drunk," or
"[r]eally, really drunk," or "[s]tupid drunk," but not
"drunk out of his mind."
Weissenfluh testified (1) he smelled alcohol on Taeotui; (2) Taeotui
showed several signs commonly associated with drunkenness, including bloodshot
eyes, slurred speech, and staggering gait; and (3) Taeotui rated a nine on
a drunkenness scale of one to 10.
name="_ftnref1" title="">[1] Other evidence, however, indicated Taeotui
was not seriously impaired, for he was able to kick down Faatiliga's bedroom
door, chase him with a knife, and repeatedly threaten to kill him. Moreover, there was no evidence of what
alcoholic beverage Taeotui drank, how much he drank, over what period of time
he drank it, or what his blood-alcohol level was. And, most importantly, "evidence of the
consumption on his state of mind [was] lacking." (Marshall,
supra, 13 Cal.4th at p. 848.)
In short, there
was "no evidence whatever going to the issue whether as a result of his
alleged consumption of an undetermined amount of [alcohol,] [Taeotui] failed to
form the requisite criminal intent."
(People v. Williams,
Therefore, "even if [his trial counsel] had requested a voluntary
intoxication instruction, the trial court would properly have refused it"
(Verdugo, supra, 50 Cal.4th at p. 295), and counsel did not provide
constitutionally ineffective assistance by failing to make the request (
220).
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE,
J.
name="_ftn1" title="">[1] Courts have held such
generalized testimony does not by itself warrant a voluntary intoxication
instruction. (See, e.g.,
up,' " " 'smokin' pretty tough then,' " and
" 'probably spaced out' "]; People v. Marshall (1996) 13 Cal.4th 799, 847-848 (
" 'under the influence of alcohol,' " appeared
" 'dazed' " and " 'in a state of
shock,' " and had a blood-alcohol level that would have impaired
driving]; People v. Williams (1988)
45 Cal.3d 1268, 1311 [defendant "was 'acting crazy,' i.e., 'making facial
expressions, being kind of jumpy[,] . . . [changing] the
tone of his voice' "].)
"In other cases, courts found insufficient evidence to support a
[voluntary] intoxication instruction when (1) the defendant had drunk some
beer and whiskey and was ' "pretty well plastered" '
[citation]; (2) the defendant had been drinking for several hours, but was
'only woozy and not completely "blacked out" ' [citation];
(3) the defendant had been drinking before the crime; he appeared to be
' "a little high" ' at the time of the crime, and he
testified he was ' "pretty drunk" ' [citation]; and
(4) the defendant had drunk a dozen beers and some wine and thought he was
drunk, but knew what he was doing."
(People v. Ivans (1992) 2
Cal.App.4th 1654, 1662.)
