Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County.No. YA076698 Steven R. Van Sicklen, Judge.
David A. Andreasen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and David E. Madeo, Deputy Attorney General, for Plaintiff and Respondent.
JOHNSON, J.
Defendant James Clark appeals his conviction for assault with a firearm, first degree burglary with a person present, and possession of firearm by a felon, with a true finding that he personally used a firearm. He contends the trial court failed to instruct on simple assault as a lesser included of assault with a firearm, and erred in instructing the jury that gun possession could support a burglary charge. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Denise Hobbs is the manager of an apartment complex on South Budlong Avenue, where she lives with her mother Angela Hobbs. The complex consisted of a front unit and two rear units. Hobbs lived in the front unit. On November 26, 2009, defendant lived in the one of the backs unit with Christina Sanderson. Hobbs’s relationship with defendant and Sanderson was “business only.”
Shortly after midnight on November 26, 2009, Hobbs was at home with her mother, brother and her uncle. She heard Sanderson yelling, “He’s going to kill me.” Hobbs went to the back door of her apartment. Sanderson was scared, and said, “Help me.” Hobbs opened her door and let Sanderson in. Sanderson went down the hallway to Hobbs’s mother’s bedroom and entered the room. Defendant came in Hobbs’s house and said, “I’m going to kill you.” He had a gun in his hand at his side and he was very angry. Hobbs was not afraid. Defendant did not point the gun at anyone, nor did he shoot at anyone.
Defendant and Sanderson were in Hobbs’s mother’s bedroom. Hobbs’s mother was able to get defendant to calm down. Sanderson called defendant several names, and he got angry again. Defendant pushed Sanderson onto Hobbs’s mother’s bed. Defendant had the gun in his hand and told Sanderson he was going to kill her. He got on top of Sanderson. Hobbs tried to calm defendant down, but Sanderson flipped defendant onto the floor, grabbed a coffee cup that was in the room, and began hitting defendant over the head with it. Hobbs and her mother tried to get Sanderson off defendant. Sanderson ran out the back door to her apartment.
Hobbs called 911. Her mother, who was a nurse, tended to defendant.
Sheriff’s Deputy Ramon Munoz responded to the scene. He saw Sanderson, who was very scared and shaken up. He examined defendant’s gun, and discovered it was loaded and operable. Deputy Munoz spoke to Hobbs, who told him that earlier, when defendant ran towards her kitchen door after she let Sanderson in, she tried to shut the door, but she was too slow.
Defendant was charged in a five-count information with corporal injury to a spouse/cohabitant (§ 273.5, subd. (a); count 1), of assault with a firearm (Pen. Code, § 245, subd. (a)(2); count 2), making criminal threats (§ 422; count 3), first degree burglary with a person present (§ 459; count 4), and possession of a firearm by a felon (§ 12021, subd. (a)(1); count 5). As to all counts, it was further alleged that defendant had four prior convictions pursuant to section 667.5, subdivision (b). Prior to trial, pursuant to section 1382, counts 1 and 3 (the charges of corporal injury to a spouse/cohabitant and making a criminal threat) were dismissed.
All statutory references here are to the Penal Code unless otherwise noted.
The jury convicted defendant of counts 2, 4, and 5, and the firearm allegation was found true. After defendant admitted two prior convictions, the court sentenced defendant to an aggregate term of 11 years eight months, consisting of six years on count 4 (the middle term of four years, plus two years for the prior conviction enhancement); a consecutive five-year term on count 2 (one-third the middle term of three years, plus four years for the firearm enhancement); and a consecutive eight-month term on count 5.
DISCUSSION
I. INSTRUCTION ON LESSER INCLUDED OF SIMPLE ASSAULT.
Defendant contends the trial court erred in failing to instruct on the lesser included offense of simple assault on count 2. His theory of the case was that although he pushed Sanderson, he did not intend to or attempt to use the weapon on her, and at no time during the incident did he ever point, shoot, or hit her with the gun. Defendant contends the omitted instruction was prejudicial because in finding the gun use allegation true, the jury nonetheless did not necessarily decide the factual question posed by the omitted instruction against him because such determination was not made in a separate factual context; rather, as demonstrated by the instructions given, the jury had already found he used a gun in the assault before it considered the gun use enhancement. (See People v. Chatman (2006) 38 Cal.4th 344, 392 (Chatman).) We disagree.
The jury was given CALCRIM No. 3146, providing in relevant part: “If you find the defendant guilty of the crime charged in Count 2, you must then decide whether the People have proved the additional allegation that the defendant personally used a firearm during the commission of that crime. [¶]... [¶] Someone personally uses a firearm if he or she intentionally does any of the following: [¶] 1. Displays the weapon in a menacing manner; [¶] 2. Hits someone with the weapon; OR [¶] 3. Fires the weapon.”
An uncharged crime is included in a greater charged offense if either (1) the greater offense cannot be committed without committing the lesser (the “elements test”), or (2) the accusatory pleading actually alleges all of the elements of the lesser offense (the “accusatory pleading test”). (People v. Wolcott (1983) 34 Cal.3d 92, 98.) To determine whether an offense is a lesser included, one of the two tests must be met. (People v. Lopez (1998) 19 Cal.4th 282, 288.)
To prove a defendant committed assault with a firearm pursuant to section 245, subdivision (a)(2), the prosecution must establish that the defendant willfully performed an act with a firearm with the present ability to apply force with that firearm. (§§ 240, 245, subd. (a)(2); see People v. Williams (2001) 26 Cal.4th 779, 787.) On the other hand, a simple assault is “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240; Williams, at p. 784.) An assault generally occurs whenever the next movement would, to all appearances, constitute a battery. (Williams, at p. 786.) It is not necessary, however, that a defendant “must in every instance do everything physically possible to complete a battery short of actually causing physical injury.” (People v. Raviart (2001) 93 Cal.App.4th 258, 266 (Raviart).) A defendant demonstrates the required present ability once he “‘has attained the means and location to strike immediately.’” (Id. at p. 267.) “[A]n assault may be committed by ‘[h]olding up a fist in a menacing manner, drawing a sword, or bayonet, [or] presenting a gun at a person who is within its range....’” (Ibid.) Simple assault is a lesser included offense of assault with a firearm because assault with a firearm cannot be committed without making “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240; People v. Wolcott, supra, 34 Cal.3d at p. 98.)
The trial court must instruct on a lesser included offense if substantial evidence has been presented indicating that the defendant is guilty only of that lesser offense. (People v. Manriquez (2005) 37 Cal.4th 547, 584.) “Substantial evidence” in this context is evidence from which a jury reasonable could conclude that the lesser offense, but not the greater, was committed. (Ibid.) “Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions.” (People v. Lewis (2001) 25 Cal.4th 610, 646.) No instruction on a lesser offense is required if the evidence shows the defendant, if guilty, is only guilty as charged. (People v. Taylor (2010) 48 Cal.4th 574, 623.) Thus, because simple assault is a lesser included of assault with a firearm, here we must determine whether a reasonable jury could have found defendant committed only a simple assault. (People v. McDaniel (2008) 159 Cal.App.4th 736, 748.)
Here, we agree that simple assault is a lesser included offense of assault with a firearm, and the trial court erred in not instructing the jury on simple assault. However, the error was not prejudicial. Legally, the jury was not required to find that defendant used the weapon in any particular fashion to find he committed assault with a firearm, and thus, there is no way a reasonable jury could have found defendant committed just a simple assault. In Raviart, supra, 93 Cal.App.4th 258, the court held that pointing a firearm directly at the victim is not required for the offense of assault with a firearm. There, two officers confronted the defendant to arrest him. The defendant pointed a gun at only one officer, and both shot him before defendant could fire his weapon. Convicted on two counts of assault with a firearm upon a peace officer, the defendant on appeal presented a sufficiency challenge, claiming he could not have been convicted of assaulting the officer towards whom the defendant had not pointed the gun. (Id. at p. 262.) The court in Raviart rejected the challenge, finding “[a]ssault with a deadly weapon can be committed by pointing a gun at another person [citation], but it is not necessary to actually point the gun directly at the other person to commit the crime.” (Id. at p. 263.) The Raviart court found that “[b]y drawing [his] gun with intent to shoot the officers, defendant performed an overt act sufficient to constitute an assault on both of them”; “[i]t was enough that [he] brought [his] gun into position where he could have used it” to shoot both officers if they had not shot him first. (Id. at p. 266.) Further, in People v. Steele (2000) 83 Cal.App.4th 212, the court distinguished the lesser related offense of brandishing a firearm from assault with a firearm. “[I]t has long been held that brandishing is a lesser related offense, rather than a lesser included offense [of assault with a firearm].... The reason of course, is that it is theoretically possible to assault someone with a firearm without exhibiting the firearm in a rude, angry or threatening manner, e.g., firing or pointing it from concealment, or behind the victim’s back.” (Id. at p. 218, citations omitted.)
Section 417 describes that the actus reus of brandishing occurs when: a “person..., except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a deadly weapon other than a firearm in any fight or quarrel.” (§ 417, subds. (a)(1), (2).)
Raviart instructs that to commit an assault with a firearm, the defendant need only have the weapon in a position where he or she could use it against a victim, and Steele also reinforces that defendant’s manner of use argument lacks merit. In other words, here, the manner in which defendant used the gun constituted assault with a firearm even though he did not brandish the weapon or point it at Sanderson. The jury was instructed it could find defendant guilty of assault with a firearm if it found, among other things, that defendant did an act with a firearm that by its nature would probably result in the application of force and did so with the present ability to apply force. Those factual predicates were met here because defendant possessed a loaded weapon in his hand that he was free to use at any moment on any of the persons present in Hobbs’s apartment. Thus, it is not reasonably probable the jury would have convicted defendant of simple assault given that the facts demonstrate he was guilty only of the greater offense of assault with a firearm.
The jury was instructed with CALCRIM No. 875 which provided in relevant part that: “1. The defendant did an act with a firearm that by its nature would directly and probably result in the application of force to a person; [¶] 2. The defendant did that act willfully; [¶] 3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; [¶] AND [¶] 4. When the defendant acted, he had the present ability to apply force with a firearm.”
Although we need not rely on the jury’s true finding on the gun use allegation given our analysis above, it reinforces our conclusion that if defendant was guilty of any offense, he was guilty of the offense of assault with a firearm because the jury concluded he used the weapon in committing his assault on the persons in the Hobbs apartment that night. We therefore reject defendant’s prejudice argument based upon context (the determination of firearm use must be made in a separate context in order to support a finding of no prejudice) that relies on Chatman, supra, 38 Cal.4th 344, where the defendant was charged with first degree special circumstance murder arising out of a stabbing of a store clerk during a robbery, but contended he was guilty only of manslaughter and second degree murder. (Id. at pp. 353–354.) The Chatman court gave instruction on second degree murder and manslaughter as lesser includeds, but did not instruct the jury those crimes required an intent to kill. Defendant theorized that absent this factor, the jury could have found he did not intend to kill his victim, but as a result, it would have no choice but to convict him of first degree murder or acquit him entirely. (Id. at p. 392.) Chatman found no error because the court instructed on torture murder special circumstance, which required an intent to kill. Thus, when the jury found the special circumstance true, it found defendant intended to kill under the other properly given instructions. (Ibid.) Defendant’s Chatman argument asserts that because here, the jury’s true finding of the gun use allegation was not resolved in a separate context from the assault with a firearm determination, this does not show the jury necessarily would have rejected simple assault because the jury had to find the substantive offense true before the jury could find the gun allegation true. We disagree.
Here, whether the jury made the use determination in the context of determining whether defendant committed an assault while armed, or whether it made the determination later in connection with the personal use allegation, is of no consequence. The jury would have found the gun allegation true if it found defendant committed assault with a firearm.
II. GUN CHARGE SUPPORTING BURGLARY CONVICTION.
Defendant contends the court erred in instructing the jury he could be guilty of burglary if at the time he entered Hobbs’s home, he had the intent to commit the crime of felon in possession of a firearm. Here, he contends, he had already committed the offense prior to the time he entered the Hobbs’s home, and there is no California authority for burglary liability based on a continuing offense. (See People v. Warren (1940) 16 Cal.2d 103, 111–112 [describing crime of felon in possession of firearm as a continuing offense].) We disagree.
Section 459 describes the crime of burglary as “[e]very person who enters any house, room, [or] apartment, ... with intent to commit grand or petit larceny or any felony is guilty of burglary.” “In order to constitute burglary, the defendant must intend to commit the theft or felony at the time of entry.” (In re Matthew A. (2008) 165 Cal.App.4th 537, 540.) A person has committed burglary upon entering a premise with the intent to commit a felony therein, regardless of whether the felony is actually committed, or a felony different from that originally contemplated is committed. (Ibid.) The burglary law is based on the common law policy of providing protection to the residence, and as a result, “[a]t common law burglary was considered ‘an offense against the habitation rather than against property’”; the objective was to protect the peace of mind and security of the residents. (People v. Villalobos (2006) 145 Cal.App.4th 310, 317.)
Here, we need not reach defendant’s argument because any error, if one occurred, was harmless. The jury was instructed that the specific intent element of the crime may be satisfied by any one of assault with a firearm, felon in possession of a firearm, or criminal threats. The jury convicted defendant of assault with a firearm, indicating that they found defendant had the specific intent when he entered Hobbs’s home to commit a felony. Thus, even if the jury had not received instruction that felon in possession of a firearm would support the burglary charge, there is no reasonable probability the result in defendant’s trial would have been different. (People v. Watson (1956) 46 Cal.2d 818, 836 .)
DISPOSITION
The judgment is affirmed.
We concur: ROTHSCHILD, Acting P. J., CHANEY, J.