Opinion
NOT TO BE PUBLISHED
Superior Court County No. BA293319 of Los Angeles
Steven Schorr, 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, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Sonya Roth, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
George Hawkins appeals the judgment following his conviction for second degree murder (Pen. Code, § 187), and assault with a firearm (§ 245, subd. (a)(2)). The jury found a true allegation that he personally used a firearm in the murder (§ 12022.53, subd. (b)), and in the assault (§ 12022.5, subd. (a)). The trial court found true allegations that Hawkins had served four prior prison terms. (§ 667.5, subd. (b).) Hawkins contends that the trial court erred by failing to instruct the jury, sua sponte, on accident or misfortune as a defense to the murder charge, and on assault (§ 240) and exhibiting a firearm (§ 417, subd. (a)(2)) as lesser included offenses of the assault with a firearm charge. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
Approximately a week after Hawkins had been barred from entering the Bottom Line Cocktail Lounge, a security guard saw Hawkins standing inside the bar. Another security guard told Hawkins to leave or he would call the police. Hawkins told the guard to call the police. The police arrived, and escorted Hawkins out of the bar. Fifteen to 20 minutes later, Hawkins tried to get back into the bar. He was initially prevented from entering but shortly thereafter managed to enter without being seen by security guards. When patrons told Hawkins he was not supposed to be in the bar and should leave, Hawkins left.
Approximately 35 minutes later, at 1:20 a.m., Hawkins came back to the bar and tried to enter. Security guard Clark Smith was standing by the door and pushed Hawkins out to the sidewalk where the two men scuffled. Hawkins was carrying two guns. He pulled one gun from his waist, pointed it at Smith, and told Smith to get out of the way. Smith got out of the way.
Hawkins went into the bar holding his guns at shoulder level. He waived the guns, but was pointing them downward. Hawkins walked around the bar with his guns and got into a dispute with a man on the dance floor. Patron Wayne Mangrum, who was a friend of Hawkins, came over to intercede. Mangrum may have grabbed Hawkins in the process of breaking up the dispute. Hawkins stepped back, raised a gun and shot Mangrum point blank in the abdomen, killing him. Witness Andre Wooton told Hawkins, "You shot Wayne," and Hawkins responded, "No, I didn't." After the shot, Hawkins left through the front door and drove away in his car.
Witnesses saw Hawkins holding one or two guns in his hands, but none saw Hawkins aim the guns at any person in the bar until he shot Mangrum. One witness testified that he saw Hawkins holding a gun at his side immediately before he heard the shot. Another witness testified the shot was fired "pretty quick" after a man grabbed Hawkins. Another witness testified that she thought the shooting was accidental and would not have occurred if Mangrum did not intervene in the dispute between Hawkins and another man.
A medical examiner testified that the entry wound was not from a ricocheting bullet and that Mangrum was shot from at least two feet away.
Hawkins was charged with the murder of Wayne Mangrum and assault with a firearm against security guard Clark Smith. As to the murder, the information alleged personal use of a firearm, personal intentional discharge of a firearm, and personal and intentional discharge of a firearm causing great bodily injury or death. (§ 12022.53, subds. (b), (c), (d).) As to the assault, the information alleged personal use of a firearm (§ 12022.5) and that Hawkins had served four prior prison terms. (§ 667.5, subd. (b).) The jury found the section 12022.53 subdivision (b) allegation true. Hawkins was sentenced to prison for 15 years to life plus 21 years, consisting of 15 years to life for the murder, 10 years for the section 12022.53, subdivision (b) enhancement, the three-year midterm for the assault, four years for the section 12022.5 enhancement and one year for each of the four prior prison terms.
DISCUSSION
No Error in Failing to Instruct on Accident or Misfortune
Hawkins contends that the trial court had a duty to instruct the jury, sua sponte, on the defense of accident or misfortune. (CALCRIM No. 510.) We disagree.
CALCRIM No. 510 provides in its entirety: "The defendant is not guilty of (murder/[or] manslaughter) if (he/she) killed someone as a result of accident or misfortune. Such a killing is excused, and therefore not unlawful, if: [¶] 1. The defendant was doing a lawful act in a lawful way; [¶] 2. The defendant was acting with usual and ordinary caution; [¶] AND [¶] 3. The defendant was acting without any unlawful intent. [¶] A person acts with usual and ordinary caution if he or she acts in a way that a reasonably careful person would act in the same or similar situation. [¶] The People have the burden of proving beyond a reasonable doubt that the killing was not excused. If the People have not met this burden, you must find the defendant not guilty of (murder/[or] manslaughter)."
An accident or misfortune instruction would have been inconsistent with Hawkins' theory of the case, and there was no substantial evidence in support of the defense.
A trial court must instruct on general principles of law closely and openly connected to the facts before the court, including instructions regarding defenses. (People v. Breverman (1998) 19 Cal.4th 142, 154; People v. Sedeno (1974) 10 Cal.3d 703, 716, overruled on another ground in Breverman, at p. 149; People v. Bohana (2000) 84 Cal.App.4th 360, 370.) An instruction is required only if the defense has substantial evidentiary support and it is not inconsistent with the defendant's theory of the case. (Breverman, at p. 162; People v. Barton (1995) 12 Cal.4th 186, 195.) Substantial evidence is evidence that a reasonable jury could find persuasive in reaching a verdict. (People v. Lewis (2001) 25 Cal.4th 610, 645.) A trial court is not required to "'. . . glean legal theories and winnow the evidence for remotely tenable and sophistical instructions.'" (Sedeno, at pp. 716-717.)
First, an accident defense would have been inconsistent with Hawkins' theory at trial. Hawkins claimed that he was guilty of involuntary manslaughter, not murder. Defense counsel expressly stated that Hawkins was not claiming the homicide was excusable as an accident. Counsel referred to the crime as a "tragic accident," but not an "accident in an excusable sense." He stated that Hawkins should not be excused for his actions, but "is not guilty of murdering Wayne Mangrum. George Hawkins is guilty of involuntary manslaughter, which is what the evidence in this case has presented."
Second, there is no substantial evidence to support the mistake defense even if it is considered consistent with Hawkins' actual defense. A defendant is not criminally liable for an act committed "through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence." (§ 26.) In addition, homicide is excusable when committed by accident or misfortune "in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent." (§ 195.)
Although there is evidence that the killing was not premeditated, there is no substantial evidence that the killing satisfied any of the other requirements of sections 26 and 195 or of CALCRIM No. 510. The evidence does not permit a reasonable jury to conclude that Hawkins acted with "no evil design, intention, or culpable negligence" or that Hawkins killed Mangrum while performing a "lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent."
The evidence shows that, despite being barred by the management, Hawkins repeatedly entered the bar on the evening of the murder. He was ejected when found inside, sneaked in a second time, was ejected again, and gained entry a third time by assaulting a security guard with a firearm. Once in the bar for the third time, Hawkins waived his guns around, continued to act belligerently, and started a disturbance on the dance floor. Finally, he shot and killed a patron who was trying to stop the disturbance, and calmly left the bar.
Hawkins asserts that the evidence shows he was holding his guns at his side before the shooting, but such evidence does not show he was acting lawfully or exercising anything remotely close to ordinary caution, or that the gun discharged accidentally. The testimony of eyewitnesses gave differing accounts of the details, but all testified that Hawkins was walking around the bar with guns in his hands, sometimes waiving the guns and sometimes holding the guns at his side.
Construing the evidence in the light most favorable to the defense, the killing occurred after Hawkins brandished his guns and engaged in an altercation with a patron of the bar. Annoyed with Mangrum's intervention, Hawkins raised a loaded gun he was holding, and fired. After the shooting, Hawkins did not seek help, or express concern, surprise, or remorse. He simply denied shooting Mangrum entirely and fled.
Moreover, the failure to give an accident instruction, even if error, was harmless. The defense of accident is a claim that the mental state necessary to commit the offense is absent. (People v. Bohana, supra, 84 Cal.App.4th at p. 370.) The jury here was fully instructed concerning the elements of murder and manslaughter and the prosecution's burden of proof. Even in the absence of an instruction on accident, Hawkins was free to argue that the shooting was accidental and not the result of an intentional act. In addition, the jury convicted Hawkins of second degree murder which necessarily includes a finding of malice based on an intent to kill or an intent to commit an act, the natural consequences of which are dangerous to human life. (See People v. Cortez (1998) 18 Cal.4th 1223, 1229.) Given this finding, it is clear from the jury's verdict that they would not have accepted an accident theory even if the accident instruction had been given.
No Error in Instructions on Assault Offense
Hawkins also claims instructional error regarding the assault with a firearm offense against security guard Clark Smith. He contends that the trial court should have instructed the jury, sua sponte, on the lesser included offenses of simple assault (§ 240) and exhibiting a firearm (§ 417, subd. (a)(2)). We disagree.
A trial court's obligation to instruct includes instructions on lesser-included offenses where there is substantial evidence in support of the lesser included offenses that, if accepted by a reasonable jury, would absolve the defendant from guilt of the greater offense but not the lesser. (People v. Licas (2007) 41 Cal.4th 362, 366; People v. Breverman, supra, 19 Cal.4th at p. 162.) There is no obligation to instruct on lesser included offenses without substantial evidentiary support. (Breverman, at p. 162.)
Simple assault is “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another” (§ 240) and is a lesser included offense of assault with a firearm because the only additional element for the greater offense is use of a firearm. (See People v. McDaniel (2008) 159 Cal.App.4th 736, 747-748 [simple assault is lesser included offense of assault with a deadly weapon]; People v. Rupert (1971) 20 Cal.App.3d 961, 968 [same].) In this case, however, there was no evidence from which the jury could have found that Hawkins was guilty of simple assault but not guilty of assault with a firearm.
Based on the uncontroverted testimony of Clark Smith, Hawkins used a firearm in the assault. There was also evidence that Hawkins had one or two firearms, displayed them to Smith while assaulting him, and continued to display them inside the bar until he shot and killed Wayne Mangrum. There is no duty to instruct on simple assault as a lesser included offense to assault with a firearm if the evidence of firearm use is uncontroverted. (See People v. Lesnick (1987) 189 Cal.App.3d 637, 642-643.)
Hawkins argues that the evidence of firearm use was disputed by the videotape recorded by a surveillance camera. He asserts that, due to the camera angle, the video did not show Hawkins point a gun at Smith, and that this lack of corroboration constitutes evidence that he did not use a firearm in the assault. We do not agree. The position of the camera may not have shown Hawkins pointing a firearm at Smith, but nothing in the record indicates the video was inconsistent with Smith's testimony that Hawkins displayed a firearm when assaulting him.
We also disagree with Hawkins' argument that he was entitled to an instruction on exhibiting a firearm (§ 417, subd. (a)(2)) as a lesser included offense of assault with a firearm. Exhibiting a firearm is considered a lesser related offense but not a lesser included offense of assault with a firearm or other deadly weapon. (People v. Steele (2000) 83 Cal.App.4th 212, 218, and cases cited therein.) A defendant has no right to an instruction on a lesser related offense even if he requests the instruction and it would have been supported by substantial evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1064.)
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J., William C. Ryan, Judge