Opinion
B189830
4-20-2007
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO ARELLANO OTERO, Defendant and Appellant.
Jean Lin, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Antonio Arellano Otero was convicted of two counts of assault with a deadly weapon, enhanced with personal use of a firearm. (Pen. Code, §§ 245, subd. (a), 12022.5, subds. (a) & (d).) He was sentenced to concurrent terms of five years in prison, based on the low term of two years, plus three years for the firearms enhancement.
The primary issue is: Could appellant be convicted of assault with a deadly weapon, when he pointed his gun at a security guard and repeatedly tried to fire it, but the gun did not and could not fire, because its safety was still on? That issue is similar to the following issue, presently before the California Supreme Court in People v. Chance (2006) 141 Cal.App.4th 618, review granted November 1, 2006, S145458: "Could defendant be convicted of assault with a firearm on a peace officer when his gun was pointing in the opposite direction from the officer and there was no bullet in the firing chamber, or, on such facts, would a battery not have `immediately resulted from his conduct and did he lack the `present ability to inflict injury within the meaning of Penal Code section 240?"
Appellant also raises four issues regarding the instructions, which he contends resulted in cumulative error that deprived him of his right to due process of law under the United States and California Constitutions.
We find no error, and affirm.
FACTS
1. Prosecution Testimony
At 1:50 a.m. on January 10, 2005, it was ten minutes before closing time at a topless bar called the Club Oz. Eucebio Balderrama, an armed security guard, saw appellant standing inside of the bars side exit door. Balderrama politely told appellant that the bar was closing and he had to leave. Appellant argued belligerently about leaving. Finally, he backed out of the door, saying something like, "Youre going to regret that. You dont know who youre messing with."
Balderrama stood outside of the door and watched as appellant walked to an SUV in the parking lot. Appellant entered the vehicle and then drove it backwards to about 30 feet from where Balderrama was standing. Balderrama trained his flashlight on appellant, and saw him roll down the window, reach towards the back seat, and pull up a handgun. Appellant loaded the gun by pulling back the slide, and then cocked it. He yelled to Balderrama, "Youre going to die." Balderrama took cover behind another vehicle. He grabbed his cell phone and called the police department, on a direct line. Appellant pointed the gun at Balderrama, who pulled out his own gun. Appellant pulled the trigger on his gun, twice, saying things like, "Youre going to die. Youre going to regret this." The gun did not fire.
Another security guard, Kevin Cooper, was in the parking lot, escorting a female coworker to her car. Balderrama saw Cooper and shouted, "Kevin, theres a guy with a gun." Appellant again pulled the trigger of his gun twice while still pointing it at Balderrama. The gun did not fire. Appellant looked at the gun in surprise. He tried to pull the slide again. He appeared to be working on the gun, trying to make it fire.
Appellant then got out of the SUV. He walked towards Balderrama and pointed his gun at him again. Balderrama pointed his own gun at appellant and told him to drop the gun. Noting that Cooper had come closer, Balderrama again yelled to Cooper to watch out for the gun.
Cooper stood behind appellant. He heard what Balderrama was shouting and saw that appellant had his gun trained on Balderrama. Cooper pretended to have a gun. He yelled to appellant, saying something like, "Hey, you know what, you —." Startled, appellant looked at Cooper. He lowered his gun, walked back to his SUV, and got in it. He drove slowly out of the lot while pointing his gun at Cooper, and drove slowly away.
Several minutes later, appellant drove back into the parking lot, where Balderrama and Cooper were still standing. He pointed his gun at them and again yelled, "Youre going to die." Balderrama drew out his gun and told appellant to drop his gun. Appellant waved his gun at Balderrama and pulled the trigger three times. The gun still did not fire. Appellant drove away.
Using his cell phone, Balderrama told the police dispatch officer the direction appellant had taken. Within minutes, police officers stopped him in the SUV. He was handcuffed and detained for questioning. He emitted "a light odor of alcohol" when he was booked.
A police officer retrieved a semiautomatic handgun from the center console of appellants SUV. There was a bullet in its chamber. Another bullet was on the passenger seat. There were more bullets in the guns magazine, which was inside the glove compartment. Balderrama and Cooper identified the gun as the weapon appellant had used.
The gun was found in firing position, cocked, with the slide closed. Its thumb safety was on. The safety on this particular weapon "was hard to push down and activate." The officer who found the gun had difficulty disengaging the safety to pull back the slide, in order to remove the bullet from the chamber.
At the trial, a police firearms expert provided more details about the gun, which was a .45-caliber subcompact pistol. It was single action, meaning that the trigger could not be pulled unless the hammer was cocked. It could not be loaded or fired if the thumb safety was on, as the safety locked the slide. For law enforcement and personal use, this type of gun is generally carried loaded and cocked, so that it can be fired simply by pushing the safety off and pulling the trigger.
When the expert tested the gun for operability, he found that it "fired fine." Its thumb safety functioned properly but was "quite difficult to manipulate." The problem probably arose from poor maintenance, as the gun needed cleaning and oiling. If the safety was on and the trigger was pulled while the gun was loaded and cocked, "[n]othing would happen" except a small noise. That failure to fire could be attributed to "operator error," due to such causes as unfamiliarity with the gun, stress, or intoxication.
2. Defense Testimony
Appellant provided a different version of the incident. He testified that he owned a business that repaired auto glass. He had purchased the gun three months earlier, due to threats to his business. He had used it for target practice but had never cleaned or oiled it. On the night of the incident, he returned home from work around 11:30 p.m., with the gun in his SUV. His wife and children were not at home, and he did not have the key to the house. He drove to Club Oz. He arrived there around midnight and went inside, leaving the gun in the SUV. Balderrama and Cooper checked him for weapons at the doorway. He stayed there for an hour and a half, drinking beer and playing video games.
Appellant further testified that, at 1:30 a.m., Balderrama told him that he had to leave. Some people he did not know pushed him out the side door. He was angry because the people would not let him leave through the front door, and he believed he was the only person who was asked to leave.
Once he was outside, he saw Balderrama talking to ten "cholos," men "without hair" [shaved heads?] who wore baggy clothes. These were not the same people as the ones who had pushed him through the door. The cholos followed him through the parking lot. When he reached his SUV, one of them pulled out a knife. He felt threatened. He got into the SUV and pulled out the gun from the console between the seats. He grabbed the magazine from the glove compartment, put it into the gun, and pulled back the slide. Sitting in the SUV, he aimed the gun upwards and downwards, so that the cholos could see it. He displayed it because he feared for his life. He knew how to operate the safety and how to shoot the gun. He never took the safety off.
According to appellant, when he pointed the gun upwards, the cholos hid behind cars in the lot. He got out of the SUV and checked to see if there were any cholos under it. He then got back inside and started to drive off, still holding the gun. He saw Balderrama and heard him yell, "Call the police, he has got a weapon." Appellant told Balderrama that he wanted the police to come. He did not threaten or point the gun at either Balderrama or Cooper. He saw Cooper embracing and kissing a woman, outside of a car. He waited for the police for a few minutes in the parking lot, and then drove off. Shortly thereafter, the police stopped him. He never had an opportunity to tell them about the cholos.
3. Prosecution Rebuttal Testimony
Following his arrest, appellant told the police that he was on his way from his shop to a bar. He denied being at the Oz Club that night. He became angry when he was told that witnesses at that club said he had pointed a gun at them. He said the police never helped him, and they were working with the people at the club.
DISCUSSION
1. Sufficiency of the Evidence
According to the Peoples evidence, appellant repeatedly pointed his operable, cocked, loaded gun and pulled the trigger, but the gun did not fire, because it had a safety that was unusually difficult to operate, and the safety was engaged. Appellants version, which the jury rejected, was that he displayed the gun in self-defense, to frighten off a group of cholos, and neither pointed it nor attempted to fire it.
Applying the appropriate standard of review (People v. Catlin (2001) 26 Cal.4th 81, 139), we find that there was substantial evidence to support appellants conviction for assault with a deadly weapon.
"An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (Pen. Code, § 240; see generally, 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against the Person, §§ 1-11, pp. 638-645.)
"[A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (People v. Williams (2001) 26 Cal.4th 779, 790.)
"[B]ecause of the `present ability element of the offense, to be guilty of assault a defendant must have maneuvered himself into such a location and equipped himself with sufficient means that he appears to be able to strike immediately at his intended victim." (People v. Valdez (1985) 175 Cal.App.3d 103, 112.)
"To point a loaded gun in a threatening manner at another (especially if accompanied by threats to shoot, as here) constitutes an assault, because one who does so has the present ability to inflict a violent injury on the other and the act by its nature will probably and directly result in such injury." (People v. Miceli (2002) 104 Cal.App.4th 256, 269.)
In the case currently pending before our Supreme Court, People v. Chance, supra, 141 Cal.App.4th 618, review granted November 1, 2006, S145458, the facts involve an unloaded firearm that was not pointed at the victim. Whether or not those facts established an assault, the facts here are quite different. Appellant pointed his loaded, operable handgun and pulled the trigger. He had the present ability to inflict violent injury, and a reasonable person in his position would have realized that the application of physical force was the probable result of his conduct. (People v. Williams, supra, 26 Cal.4th at p. 788.) The fact that the safety was engaged, to his evident surprise, means he did not commit a more serious crime, such as murder, but does not absolve him from liability for assault with a deadly weapon.
2. Instructional Issues
Appellant contends that there were four errors in the instructions, which taken together constituted cumulative error.
Respondent maintains that the instructional issues are waived for lack of an objection. Appellant argues that no objection was necessary because the instructional errors affected his substantial rights.
Assuming arguendo that the issues were not waived, they lack merit.
A. Failure to Define "Present Ability"
The jury was correctly instructed on the elements of assault, including the requirement of "present ability to apply physical force to the person of another." However, the court did not separately define the term "present ability to apply physical force." A definition of that term appears in an instruction that was not requested, CALJIC No. 9.01. That definition states that the defendant must have "the physical means" to accomplish an act which would probably and directly result in the application of physical force to a person, even if no injury actually resulted.
The trial court had no sua sponte duty to give CALJIC No. 9.01 here, because the defense was not that appellant lacked the present ability to apply physical force, but, rather, that he did not point the gun at anyone, and displayed the gun only to scare away the cholos. Moreover, even if CALJIC No. 9.01 should have been given, there was no prejudice, in light of the uncontradicted testimony that the firearm was loaded and operative.
B. The Flight Instruction
The jury received a modified form of CALJIC No. 2.52, stating that flight immediately after the crime was a circumstance that could be considered, along with other evidence, to establish guilt. Appellant maintains that his conduct was insufficient to support an inference of flight. We do not agree. "A flight instruction is proper whenever evidence of the circumstances of defendants departure from the crime scene or his usual environs, or of his escape from custody after arrest, logically permits an inference that his movement was motivated by guilty knowledge." (People v. Turner (1990) 50 Cal.3d 668, 694; see also People v. Smithey (1999) 20 Cal.4th 936, 982.) There was sufficient evidence to justify CALJIC No. 2.52 here, through the evidence that appellant drove away from the parking lot after the incident, rather than waiting for the police to arrive.
C. The Instruction on a Confession or Admission
Defense counsel requested the "part of the admission instruction [that] talks about the evidence of a false statement." The trial court agreed. The CALJIC number of the requested instruction was not specified.
CALJIC NO. 2.71, which defines admission, includes this statement: "Evidence of an oral admission of [a] [the] defendant not made in court should be viewed with caution." That is probably the instruction that defense counsel meant. What the trial court actually gave was CALJIC NO. 2.70, which defines both a confession and an admission. That instruction ends with these words: "Evidence of an oral confession or an oral admission of the defendant not made in court should be viewed with caution."
Appellant maintains that there was no evidence to support giving CALJIC No. 2.70. We find evidence of an admission, but not of a confession. As the instruction explained, "[a]n admission is a statement made by the defendant which does not by itself acknowledge his guilt of the crimes for which the defendant is on trial, but which statement tends to prove his guilt when considered with the rest of the evidence." There was evidence of an admission, in appellants pretrial statement that the police were working with the employees of the Club Oz. There was no evidence of a confession, which CALJIC No. 2.70 defined as a pretrial statement acknowledging "participation in the crimes as well as the required criminal intent." However, there was no possible prejudice. The jury was told to disregard any instructions which applied to facts it determined not to exist (CALJIC No. 17.31). Since there was no evidence of a confession, there is no way the jury can have been confused.
D. Failure to Instruct on Corpus Delicti
Finally, appellant maintains that the trial court had a sua sponte duty to give CALJIC No. 2.72, which states: "No person may be convicted of a criminal offense unless there is some proof of each element of the crime independent of any [confession] [or] [admission] made by [him] [her] outside of this trial. [¶] The identity of the person who is alleged to have committed a crime is not an element of the crime. . . . The identity . . . may be established by [a] [an] [confession] [or] [admission]."
Assuming arguendo that CALJIC No. 2.72 should have been given, there was again no prejudice. Appellant admitted on the witness stand that he displayed his gun in the parking lot that night. The issue for the jury was whether it believed appellants testimony about the cholos or the prosecutions version of the incident, presented by Balderrama and Cooper. It found the prosecutions version more believable. The fact that appellant told the police he thought the police were working with the people from Club Oz had relatively little importance to the case.
DISPOSITION
The judgment is affirmed.
We concur:
RUBIN, Acting P. J.
BOLAND, J.