Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange Super. Ct. No. 03WF2425, Patrick Donahue, Judge. Affirmed.
Terrence Verson Scott, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, David Delgado-Rucci and Janelle Marie Boustany, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Appellant Hung Kha was convicted of felony false imprisonment as a lesser included offense of kidnapping for robbery, and simple assault as a lesser included offense of assault with a firearm. The jury acquitted him of conspiring to commit robbery and possessing a firearm while a felon, and it found not true allegations he personally used a firearm and inflicted great bodily injury. The court sentenced him to the upper term of three years on the false imprisonment count and six months for the assault. He now contends the court erred in failing to instruct on misdemeanor false imprisonment and the defense of accident. He also impugns the court’s self-defense instructions and claims imposition of the upper term violated his right to a jury trial. Finding no basis for reversal, we affirm the judgment.
Bill Nguyen testified he was outside his girlfriend’s sewing shop when he was approached by two gunmen, Kha and Dung Tran. Thinking he was being robbed, Nguyen yelled for help and tried to escape, but the men grabbed him and began forcing him into the back seat of a white car. When Nguyen tried to resist, Kha shot him in the leg. The gunmen then dragged Nguyen into the back seat of the car, while Kha’s brother Anthony got into the front passenger seat and Theo Tiet took the wheel. A blue car occupied by “Than” and “Hai” was parked close by.
As the white car pulled away, Kha and Tran forced Nguyen onto the floorboard, held him down and threatened to shoot him. Anthony, who was also armed, made the same threat. He ordered Nguyen to direct them to his house and warned if he did not have any money there, they were going to kidnap his girlfriend and their child. Fortunately, the police apprehended them before they reached Nguyen’s house.
In Kha’s defense, Anthony testified his group was at the sewing shop to collect some money that Than and Hai owed them from a business deal. Than and Hai planned to get the money from Nguyen, but instead of forking over any cash, Nguyen produced a couple of guns. A struggle over the weapons ensued and Kha’s group entered the fray. According to Anthony, Hai pushed Nguyen forward, and Kha and Tran caught him. Then Kha grabbed Nguyen’s hand and one of the guns went off. After that, Kha and Tran dragged Nguyen into the white car and held him down in the backseat. Anthony claimed that no one in his group threatened Nguyen or was armed during the fiasco.
I
Kha contends the court erred in failing to instruct on misdemeanor false imprisonment as a lesser included offense of felony false imprisonment. However, because the evidence did not support instructions on that lesser offense, the court was not required to instruct on it.
“False imprisonment is defined in [Penal Code] section 236 as ‘the unlawful violation of the personal liberty of another.’ Section 237 provides the offense is punishable as a felony if, and only if, it is effected by ‘violence, menace, fraud, or deceit.’” (People v. Babich (1993) 14 Cal.App.4th 801, 806.) Violence means physical force over and above that needed to restrain the victim, and menace means an express or implied threat of harm. (Ibid.)
While misdemeanor false imprisonment is a lesser included offense of felony false imprisonment, a trial court need not instruct on that lesser offense unless “the evidence would justify a jury in acquitting on the greater offense, but convicting on the lesser.” (People v. Babich, supra, 14 Cal.App.4th at p. 807.) Put differently, the trial court’s duty to instruct on misdemeanor false imprisonment does not arise unless there is evidence the victim was unlawfully restrained without violence or menace. (Ibid.)
If Nguyen had just been grabbed and dragged into the car, Kha would have a good argument that instructions on misdemeanor false imprisonment were warranted, for in that situation the use of force would have been related solely to Nguyen’s unlawful restraint. However, in the process of being restrained, Nguyen was also shot in the leg. This constituted force over and above that which was needed to restrain Nguyen, thereby transforming the crime from a misdemeanor into a felony. Since it was undisputed that Nguyen was subjected to violence while he was restrained, the trial court did not err in failing to instruct on misdemeanor false imprisonment. (Compare People v. Babich, supra, 14 Cal.App.4th 801, 806-809 [failure to instruct on misdemeanor false imprisonment was error where there was a genuine factual dispute as to whether the restraint of victim was accomplished by violence or menace].)
II
Kha also challenges the court’s instructions on self-defense. Particularly, he maintains the court should not have instructed the jury that a person “does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force.” (CALCRIM No. 3472.) Kha contends the instruction was inapt because there was no evidence defendants “acted with the specific intent to manufacture a self-defense claim[.]”
In response, the Attorney General argues the “concept” embodied in CALCRIM No. 3472 has “full support in the law.” However, he fails to identify any particular evidence that would justify giving the instruction in this case, and we can find none ourselves. We agree with appellant that “[t]he self-defense pretext situation contemplated by CALCRIM No. 3472 was simply not present in this case.” Therefore, the trial court erred in giving that instruction.
However, we do not believe the instruction was prejudicial. The jurors were given a series of instructions outlining the requirements and parameters of the right of self-defense. The court admonished them that some of those instructions might not apply, and they were not to assume that just because the court gave a particular instruction that it was suggesting anything about the facts. (CALCRIM No. 200.) In other words, the jury was told the instructions might not necessarily match up with the facts, as they found them to be. We presume the jurors understood this charge and applied it in their deliberations (People v. Smith (2007) 40 Cal.4th 483, 517-518), and indeed there is no indication to the contrary. More specifically, since, as Kha points out, there was no evidence for that theory, we may fairly presume that lacking any evidentiary support, the jurors found CALCRIM No. 3472 inapt and immaterial to their verdict. Therefore, we conclude the inclusion of that instruction was harmless error. (See People v. Crandell (1988) 46 Cal.3d 833, 872-873; People v. Olguin (1994) 31 Cal.App.4th 1355, 1381-1382.)
III
Continuing his attack on the court’s jury instructions, Kha faults the court for failing to instruct the jury sua sponte on the defense of accident and misfortune. (See CALCRIM No. 3404.) He claims the instruction was proper because there was evidence that the gun went off by accident, but we are not convinced any instructional error occurred.
A trial court must instruct sua sponte on the defense of accident and misfortune “‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ [Citation.]” (People v. Breverman (1998) 19 Cal.4th 142, 157.)
In arguing the false imprisonment charge, Kha’s attorney did not rely on the defense of accident and misfortune, nor did she mention the gunshot. Instead, she focused on the fact Nguyen was forcibly shoved into the white car, after which time “they shoved his head down.” These were damaging facts to be sure, but counsel’s tactic was obvious. Hoping the jury would opt for a lesser offense than kidnapping for robbery, defense counsel conceded that these facts could very well justify the jury in finding that Kha was guilty of felony false imprisonment. An accident instruction would have complicated this strategy and undermined the effectiveness of counsel’s argument, which, as it turns out, the jury ultimately accepted.
Since Kha did not rely on the defense of accident and misfortune, and that defense was inconsistent with his theory of the case, the trial court was not required to instruct on it. No instructional error occurred in that regard.
IV
The trial court sentenced Kha to the upper term on the false imprisonment count due to his prior record. He argues this violated his right to a jury trial for the reasons explained in Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856]), but that is not the case.
Contrary to the Attorney General’s argument, Kha did not forfeit this argument by failing to make it in the trial court. (See People v. Black (2007) 41 Cal.4th 799, 810-812.)
In Cunningham, the high court determined the Sixth Amendment generally requires facts used to impose an upper term under California’s Determinate Sentencing Law be found by a jury to be true beyond a reasonable doubt. (Cunningham, supra, __ U.S. __ [127 S.Ct. at pp. 868-870].) However, the court also recognized that this rule does not apply to the fact of a prior conviction. (Ibid.) As our own Supreme Court recently explained, the facts and issues pertaining to the defendant’s criminal history do not have to be proved beyond a reasonable doubt to a jury, but instead may be adjudicated by the trial judge using a preponderance of the evidence standard. (People v. Black, supra, 41 Cal.4th 799, 820, fn. 9.) Accordingly, the trial court did not violate Kha’s Sixth Amendment rights by using his prior record as a basis to impose an aggravated sentence.
The judgment is affirmed.
WE CONCUR: RONSON, J., FYBEL, J.