Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara No.1298239 Jean M. Dandona, Judge.
Susan S. Bauguess, 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, Scott A. Taryle, Supervising Attorney General, David A. Wildman, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Scott Randolph Hanson appeals his conviction, by jury, of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) He pleaded no contest to two misdemeanor counts of peeking (§ 647, subd. (i)), and agreed to a bench trial on allegations that he had suffered two prior serious felony convictions. The trial court found the prior conviction allegations true and sentenced appellant, as a third strike offender, to a total term in state prison of 36 years and 6 months to life. He contends the trial court erred because: there is no substantial evidence that the weapon he used in the assault, a two-by-four board, qualifies as a deadly weapon; the trial court's instructions to the jury concerning the use of force during a citizen's arrest and appellant's right of self-defense were confusing and deprived appellant of a fair trial; there is insufficient evidence that one of his prior convictions, a 1988 burglary conviction from the state of Nevada, qualifies as a strike; and the trial court abused its discretion when it refused to "strike" the Nevada prior. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
Facts
In the summer of 2009, Ixchelle Yakimowich and Matthew Meczka lived in a duplex on the corner of Quinto Street and Fletcher Avenue, near Cottage Hospital, in Santa Barbara. Yakimowich heard things that didn't sound right; she felt as if someone was outside, in their yard. Early one morning, Yakimowich stepped out of the shower and wrapped a towel around herself. She looked out of the window and saw a stranger standing in her backyard, looking at her through the window. She yelled to Meczka that someone was looking at her.
Meczka hurried to the window, but saw no one there. He ran to the front door and out of the house. Once outside, Meczka soon saw appellant "peek out" from a hedge that runs along the house. As Meczka stepped forward toward appellant, appellant dove under the hedge, moving toward the backyard. It was then that Meczka noticed appellant had a large two-by-four in his hands. As appellant tried to crawl out from under the hedge, Meczka hit him in the face or neck with a closed fist. The blow did not subdue appellant, who emerged from under the hedge, two-by-four in hand. Appellant swung the two-by-four at Meczka. At the first swing, Meczka jumped back to avoid being hit. Appellant swung the board a second time and hit Meczka in the leg. The blow caused pain and a scratch that left a scar but did not require medical treatment. Meczka testified that there were no two-by-fours in his backyard before appellant showed up.
Meczka demanded to know what appellant was doing in his back yard. Appellant replied that someone had been chasing him. He started running away from the house, carrying the two-by-four over his shoulder. Meczka went inside to get a hunting knife and his car keys. He drove around looking for appellant but was not able to find him.
Appellant was arrested later that night, at a residence near Oak Park in Santa Barbara, where he had been staying with a friend. Neighbors had reported to police that appellant was peeping into their bedroom window. The friend with whom appellant had been staying told police that appellant was not allowed to sleep inside the house. He had, instead, been sleeping in the backyard. There, police found a mattress laying on top of planks of wood similar to the two-by-four Meczka described.
Discussion
Substantial Evidence Appellant Used Deadly Weapon
Appellant contends his conviction of assault with a deadly weapon is not supported by substantial evidence because there is insufficient evidence that the two-by-four board he used during the incident qualifies as a deadly weapon. We disagree.
Our Supreme Court has explained that, in this context, "a 'deadly weapon' is 'any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.' (In re Jose R. (1982) 137 Cal.App.3d 269, 275-276.) Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such. [Citations.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.) Neither physical contact nor injury is required for a conviction of assault with a deadly weapon; however, "if injuries result, the extent of such injuries and their location are relevant facts for consideration." (People v. Beasley (2003) 105 Cal.App.4th 1078, 1086; see also People v. Helms (1966) 242 Cal.App.2d 476, 486 ["the deadly character of the weapon may depend on the manner in which it is used, in which case the determination is one for the jury under proper instructions."].)
Appellant contends the evidence is insufficient to support his conviction of assault with a deadly weapon because he used the board defensively, to prevent Meczka from hitting him again, and not in a manner that was capable of producing death or great bodily injury. We are not persuaded. Meczka described the instrument appellant used as a "large two-by-four[, ]" or a "large piece of wood[, ]" that was "weathered" and "not finished." It "looked like it was a piece of wood that had been lying around somewhere." He believed "[a]bsolutely" that there was a possibility appellant would hit him with the board and that he would be seriously injured by such a blow. Appellant had the board in his hands before Meczka hit him; it was in appellant's hands as he crawled out from under the hedge. Meczka testified that appellant must have brought the board with him because Meczka did not own anything like it and had never seen it before.
This evidence supports a reasonable inference that appellant used the board as a weapon and "in a manner likely to produce death or great bodily injury." (People v. Aguilar, supra, 16 Cal.4th at p. 1029.) He brought the board with him to Meczka's house and then used it as a weapon, to prevent Meczka from blocking his escape. The board was large and sturdy enough to place the victim in fear of serious injury. We reject the contention that appellant used the board only in a defensive manner. He had it in his hands even before Meczka hit him. Although he did not swing the board hard enough, or aim well enough to actually cause great bodily injury, if he had hit Meczka's head rather than his thigh, great bodily injury or even death could easily have resulted. All of these circumstances support the jury's finding that the board was a deadly weapon.
Instructional Error
Appellant contends the trial court's instructions to the jury and the prosecutor's closing argument concerning the use of force during a citizen's arrest and the right of self-defense were confusing and deprived appellant of a fair trial.
The trial court instructed the jury on the right of self-defense by giving CALCRIM NO. 3470. This pattern instruction informed the jury that self-defense is a defense to the crime of assault with a deadly weapon and that a defendant acts in lawful self-defense if, "1. The defendant reasonably believed that he was in imminent danger of suffering bodily injury; [¶] 2. The defendant reasonably believed that the immediate use of force was necessary to defend against the danger; [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger. [¶]... The defendant must have believed there was imminent danger of violence to himself. Defendant's belief must have been reasonable and he must have acted because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful self-defense." (CALCRIM NO. 3470.) The trial court also instructed the jury on the right of a citizen to make a citizen's arrest: "A private person may arrest another for a public offense committed or attempted in his presence. [¶].... [¶] An individual making a citizen's arrest may use reasonable force to detain the person who has committed a public offense. [¶] If a person knows, or reasonably should know, that he is being arrested or detained, the person must not use force or any weapon to resist a private person or [peace] officer's use of reasonable force. [¶] When a private citizen employs reasonable force to make an arrest, the arrestee is obliged not to resist, and has no right to self-defense against such force. [¶] If the person making a citizen's arrest uses unreasonable or excessive force while arresting or detaining another person, the person being arrested or detained may lawfully use reasonable force to defend himself"
According to appellant, these instructions were confusing because the jury was instructed on self-defense but also told that a person being arrested has no right to use any degree of force, unless unreasonable force is being used against that person. There was no error.
The trial court has a duty to correctly instruct the jury "on the general principles of law relevant to the issues raised by the evidence." (People v. Najera (2008) 43 Cal.4th 1132, 1136.) We apply the de novo standard of review in determining whether jury instructions correctly state the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) As the United States Supreme Court has emphasized, "not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is ' "whether the ailing instruction... so infected the entire trial that the resulting conviction violates due process." ' [Citations.] ' "[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." ' [citation.] If the charge as a whole is ambiguous, the question is whether there is a ' "reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution.' [Citation.]" (Middleton v. McNeil (2004) 541 U.S. 433, 437 [158 L.Ed.2d 701, 707].)
Here, the trial court's instructions to the jury correctly described the somewhat complicated relationship between a person's right of self-defense and his or her obligation to submit to reasonable force during an arrest. (People v. Adams (2009) 176 Cal.App.4th 946, 952-953.) The fact that the instructions required the jury to engage in a detailed analysis of the interaction between appellant and Meczka does not mean that they were confusing or violated due process.
Appellant also contends that the prosecutor compounded the jury's confusion by arguing that Meczka, "had a right to reasonable force, and punching [appellant] in the face is reasonable force. And the defendant doesn't have a right to assert self-defense against such force, okay, because the defendant has violated the law, he committed a crime and so [Meczka] has a right to use necessary force to detain him." We note first that appellant did not object to this argument at trial and, as a consequence, has forfeited review of the claim on appeal. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) Moreover, this argument could not have confused the jury. The prosecutor plainly argued that appellant had no right of self-defense against Meczka because Meczka used reasonable force to detain him. The jury could have rejected that argument, found Meczka's use of force unreasonable or excessive and then concluded that appellant acted in self-defense when he swung the two-by-four. The fact that it did not demonstrates that the jury found appellant did not act in self-defense, rather than its confusion about the issue.
Substantial Evidence of Prior Nevada "Strike"
Appellant was sentenced as a "third strike" offender based on two prior serious felony convictions: (1) a 1998 conviction of first degree burglary from Ventura County; and (2) a 1988 conviction of burglary from Washoe County, Nevada. He contends the trial court erred in treating the Nevada conviction as a "strike, " because there is no substantial evidence that he entered an "inhabited dwelling house, " as required by California law. (§§ 459, 460.) We disagree.
A foreign conviction may be used as a prior serious felony conviction for purposes of the three strikes law if the offense committed in the foreign jurisdiction includes all the elements of a serious felony in California. (§ 667, subd. (a), (d)(2).) A burglary qualifies as a serious felony in California if the defendant enters an "inhabited dwelling house" with the intent to commit a felony. (§§ 459, 460.) The Nevada burglary statute, by contrast, requires only that a person "either by day or night, enter[] any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse, or other building, tent, vessel, vehicle, vehicle trailer, semitrailer, or house trailer, airplane, glider, boat or railroad car, with intent to commit grand or petit larceny, or any felony...." (Nev. Rev. Stat., § 205.060, subd. (1).)
In determining whether a prior foreign conviction constitutes a "strike" under California law, the trier of fact may consider the "entire record of the conviction." (People v. Myers (1993) 5 Cal.4th 1193, 1200.) This may include, "transcripts of the preliminary hearing, the defendant's guilty plea, and the sentencing hearing." (People v. Thoma (2007) 150 Cal.App.4th 1096, 1101.) "[W]hen the record does not disclose any of the facts of the offense actually committed, the court will presume that the prior conviction was for the least offense punishable under the foreign law." (People v. Guerrero (1988) 44 Cal.3d 343, 354-355.)
Here, the evidence introduced in the trial court to prove appellant's Nevada conviction included a copy of the judgment in that matter, the information, trial court minutes documenting appellant's guilty plea, and the transcript of the hearing at which appellant entered his guilty plea. The record also includes evidence that, when appellant entered his guilty plea in the 1998 Ventura County burglary case, he admitted that he had a prior conviction from Nevada of "residential burglary... within the meaning of [§§ ] 667(c), 1170.12(a) strike and 667(a) serious felony prior[.]" After reviewing this evidence, the trial court found, "beyond a reasonable doubt based on primarily [the record from the Ventura County guilty plea] but also on the other relevant exhibits that the People have sustained their burden of proof" that appellant suffered both prior serious felony convictions.
Appellant contends the trial court erred because his admission, in the 1998 Ventura County case, that the Nevada conviction was a "strike" was not an admission upon which the trial court could rely as proof of that prior conviction. (See, e.g., People v. Brackett (1991) 229 Cal.App.3d 13, 19.) Even without that admission, however, the record contains substantial evidence that appellant's 1988 Nevada burglary conviction was for a serious felony within the meaning of section 667, subdivision (a). The Nevada judgment states that appellant was "guilty of the crime of Burglary as charged in Count I of the Information[.]" Count I of the information alleges that appellant "did willfully and unlawfully enter a certain residence located at 1060 Cordone, Reno, Washoe County, Nevada, with the intent then and there to commit larceny therein...." The information also includes a list of the names and addresses of witnesses known to the prosecutor at the time the charges were filed. The first name on the list is, "CRYSTAL HERNDON, 1060 Cordone Avenue, Reno, Nevada[.]" A reasonable trier of fact could infer from this evidence that appellant burglarized the house in which Crystal Herndon resided, which would constitute a first degree burglary under California law. (See, e.g., People v. Aguilar (2010) 181 Cal.App.4th 966, 970; People v. Meredith (2009) 174 Cal.App.4th 1257, 1266.) The trial court's finding is supported by substantial evidence.
People v. Roberts (2011) 195 Cal.App.4th 1106, is not to the contrary. There, the court held there was insufficient evidence that the appellant's prior conviction from Washington State constituted a "strike" under California law. It concluded that unsworn statements made by the prosecutor, defense counsel, defendant and victim after defendant entered his guilty plea were hearsay, not adoptive admissions, not part of the record of conviction and inadmissible to establish the out-of-state conviction as a strike. (Id. at p. 1112.) Roberts thus precludes reliance on unsworn statements made after entry of a guilty plea to establish the facts of the underlying crime. Here, it would require both the trial court and this court to ignore the statements made by defense counsel at the Nevada plea hearing. As we have already stated, however, substantial evidence establishes that appellant's Nevada prior was a strike because the information and attached witness list support a reasonable inference that appellant entered an inhabited residence.
Alleged Failure to Strike Nevada Prior
Appellant's final contention is that the trial court abused its discretion when it refused to strike the Nevada prior in the interests of justice. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The trial court has discretion to vacate a prior conviction for purposes of sentencing under the three strikes law where, "in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) We review the trial court's decision for abuse of discretion and will not disturb it unless appellant demonstrates that the trial court ruled in an "arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Jordan (1986) 42 Cal.3d 308, 316; People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
There was no abuse. The record here demonstrates that the trial court applied the appropriate legal standard and considered relevant factual matters, including appellant's extensive history of committing burglaries and crimes against women. As the trial court noted, appellant's Nevada conviction is remote in time, but he spent much of that time incarcerated. He committed the current offense shortly after being released from prison and absconding from parole supervision. Even if his criminal history is the product of untreated substance abuse or mental illness, as appellant contends, the trial court could properly rely on those past incidents in concluding that that appellant is "a serious danger to society." Its decision was not arbitrary or capricious and did not result in a miscarriage of justice.
Appellant has a 1982 juvenile adjudication for unlawful entry and assault with intent to commit rape, a 1987 conviction of contributing to the delinquency of a minor, and a 1995 conviction for misdemeanor disorderly conduct (§ 467, subd. (i)) after he was seen peeking into apartments from a nearby hillside. He also has 10 prior juvenile adjudications or convictions of property crimes such as burglary, prowling, petty larceny, and grand theft.
Conclusion
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.