Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR194670
Lambden, J.
A jury found defendant guilty of second degree robbery (Pen. Code, § 211), and evading a police officer (Veh. Code, § 2800.2, subd. (a)). The jury also found him guilty of personally using a handgun during the robbery (§ 12022.5, subd. (b)). Defendant does not challenge his convictions for robbery and evading the police, but argues that the jury’s finding that the gun enhancement was true should be reversed because the lower court erred in refusing to give defense’s pinpoint instruction that a firearm must be real and not a replica to find the gun use enhancement true. We conclude that the lower court did not err in refusing to give the pinpoint instruction, as the instruction would have been duplicative. Accordingly, we affirm the judgment.
All unspecified code sections refer to the Penal Code.
BACKGROUND
An information was filed on February 19, 2008, and it charged defendant with committing second degree robbery (§ 211), and evading an officer with willful disregard (Veh. Code, § 2800.2, subd. (a)). The information also charged defendant with personal use of a firearm pursuant to section 12022.5, subdivision (a)(1), and section 12022.53, subdivisions (b) and (e)(1), as to the robbery charge. The information further alleged that defendant had served two prior prison terms within the meaning of section 667.5, subdivision (b).
Defendant had a jury trial. He conceded guilt of the charged offenses, and contested only the gun use enhancement allegation.
At trial, Weldon Nathan Prestwich testified that he was robbed while working as a cashier at a gas station. He stated that on November 20, 2007, defendant, who was unmasked, came into the gas station. Preston noticed that he was wearing skeleton-print gloves, and driving a light blue Cadillac. Defendant purchased $5 of gas for his blue Cadillac.
Five to ten minutes after defendant drove away in his light blue Cadillac, Prestwich testified that a masked man entered the station and demanded money. The man pointed a chrome gun with brown plastic grips at Prestwich. Prestwich opened the cash drawer and the man, who was wearing skeleton-print gloves, reached in and took $500 from the drawer. Prestwich followed the man from the store and saw him get into a light blue Cadillac parked in front of a nearby business. Prestwich called the police.
The police responded and saw a light blue Cadillac on the freeway and followed it. The Cadillac left the freeway and the uniformed officers, who were in marked vehicles, activated their lights and sirens; a chase ensued. During the pursuit, the Cadillac exceeded the speed limit and ran a number of stop signs and red lights. At one point during the chase, two officers in separate cars heard a sound like a gunshot come from defendant’s car, although none of the officers saw a muzzle flash or saw defendant throw anything from the vehicle. Eventually the Cadillac was stopped and the police apprehended defendant. Defendant had skeleton-print gloves in his possession and $388, but the police did not find a gun or ammunition.
Police brought Prestwich to the scene and he identified defendant as the person who had come into the gas station. The police took defendant into custody and interviewed him. The jury saw a videotape of this interview. During the interview, defendant made equivocal statements about whether he had a gun and whether he had thrown the gun from his vehicle during the chase. When asked why he tossed the gun out of the car, he responded, “There was no gun.” The police responded that there was one and he tossed it and he said, “Yeah. I know....” The police reiterated that he tossed the gun and defendant replied, “Yeah.” Defendant told the police that he could not tell them where he tossed the gun. Subsequently, defendant stated, “No. But, the thing is, when you all find the gun, I know you all is, is just, it’s, it’s a dead bang case. You all, you all really don’t need nothin’ from me.” Defendant repeated that he did not know where he tossed the gun. Subsequently, defendant stated that the gun “was fake.” At the end of the interview, when asked again where the gun was, defendant answered that he did not know where he threw it out.
At trial, Police Officer Joseph McCarthy testified that he did not conduct a test on defendant’s hands for gunshot residue. An expert for the defense, Rick Williams, testified that he purchased a replica firearm that matched the description of the robber’s gun provided by Prestwich; this replica was defense’s exhibit A. The replica gun was a starter pistol with a plugged muzzle that could not fire projectiles, but was designed to fire blanks instead. Prestwich was shown the replica in exhibit A; he thought it was a real firearm.
Police Officer Joshua Coleman testified. He stated that the sound of a real firearm and a replica gun that shoots blanks is similar. He explained that starter pistols do not shoot a projectile. He testified that defendant’s exhibit A, which had a closed muzzle, would not fire a projectile. Williams, also testified that the difference between a starter pistol and a real gun was that “the barrel is plugged and the cylinder portion of it, if it’s closed off is not bored all the way through so you can’t put a real bullet into it.”
At the close of evidence, defendant requested that the court give an instruction “something to the effect that the firearm must be a real and not a replica firearm in order to find” the gun enhancement to be true. The court denied this request, explaining that the definition of a firearm contained in other instructions was adequate.
During closing argument, the prosecutor stated: “The issue in this case is whether or not the defendant used a real gun during this robbery.” Defendant’s counsel agreed with the prosecutor on this point and stated: “Now, this case is, I will agree with [the prosecutor], it is about one thing. It’s did the prosecution prove beyond all reasonable doubt that the gun that was used during the robbery on November 20, 2007[, ] was real. That’s it.”
The trial court gave the jury a number of instructions. Specifically, the court gave CALCRIM No. 3146, which states as follows: “If you find the defendant guilty of [robbery], 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. [¶] A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion. [¶] A firearm does not need to be in working order if it was designed to shoot and appears capable of shooting. A firearm does not need to be loaded. [¶] Someone personally uses a firearm if he or she intentionally does any of the following: [¶] 1. Displays the firearm in a menacing manner; [¶] 2. Hits someone with the firearm; [¶] OR [¶] 3. Fires the weapon. [¶] The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.”
The jury found defendant to be guilty of the charged offenses and found the firearm allegation as to count one to be true. Defendant admitted the two prior prison term convictions. The court sentenced defendant to 15 years in prison.
Defendant filed a timely notice of appeal.
DISCUSSION
On appeal, defendant challenges the enhancement finding and contends that the lower court committed prejudicial error in refusing his request to give the pinpoint instruction that the firearm must be a real and not a replica firearm in order to find the gun enhancement to be true. He asserts that the court’s refusal to give the requested instruction violated his rights to present a defense and to a fair trial under the Sixth and Fourteenth Amendment to the United States Constitution.
I. Pinpoint Instructions and Principles of Law
A trial court is required to instruct a jury on the general principles of law that are relevant to the issues raised by the evidence in a given case. (People v. Valdez (2004) 32 Cal.4th 73, 115.) In addition, “ ‘a defendant has a right to an instruction that pinpoints the theory of the defense.’ ” (People v. Roldan (2005) 35 Cal.4th 646, 715, disapproved on different grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
“A pinpoint instruction ‘relate[s] particular facts to a legal issue in the case or “pinpoint[s]” the crux of a defendant’s case, such as mistaken identification or alibi.’ [Citation.]” (People v. Ward (2005) 36 Cal.4th 186, 214.) Pinpoint instructions are designed to discuss a theory, not specific evidence. (People v. Wright (1988) 45 Cal.3d 1126, 1137.) Pinpoint instructions must be given on request only when there is substantial evidence to support them and when they are not argumentative or duplicative. (People v. Stanley (2006) 39 Cal.4th 913, 946.) We review de novo whether the instructions correctly state the law. (People v. Posey (2004) 32 Cal.4th 193, 218.)
The failure to include a pinpoint instruction requires reversal if it is “reasonably probable that had the jury been given defendant’s proposed pinpoint instruction” it would have come to a different conclusion. (People v. Earp (1999) 20 Cal.4th 826, 887.) Defendant contends that harmless error can never be applied and cites federal cases. (E.g., United States v. Escobar De Bright (9th Cir. 1984) 742 F.2d 1196, 1201 [held trial court erred when it refused to instruct jury on the defense theory that the defendant could not be found guilty if she had “conspired” only with a government agent and the error was reversible per se].) We do not agree that the alleged error, here, is subject to per se reversal. Defendant acknowledges that California cases have held that harmless error under People v. Watson (1956) 46 Cal.2d 818, 836 applies. (See, e.g., People v. Wright, supra, 45 Cal.3d at pp. 1144-1145.) Here, we are not concerned with harmless error because we conclude the trial court did not commit instructional error.
II. No Error
The sole issue before the jury was whether defendant had used a real firearm when committing the robbery, as he admitted the charges of robbery and evading police officers. At trial, defendant argued that the gun seen by Prestwich was a replica, or a “starter” gun, rather than a real firearm. Defendant submitted exhibit A, a realistic replica firearm resembling the gun described as used by the robber. Exhibit A was a starter pistol with a plugged muzzle that could not fire projectiles; it was designed to fire “blanks” instead.
Defendant requested that the court give an instruction, which would provide “something to the effect that the firearm must be a real and not a replica firearm in order to find” the gun enhancement to be true. The record amply shows that substantial evidence supported such an instruction, as defendant’s entire defense was that he did not use a real gun. Thus, the question is whether other instructions given were sufficient to present defendant’s theory of defense, making the requested instruction duplicative.
The court gave CALCRIM No. 3146, which states in relevant part: “If you find the defendant guilty of [robbery], 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. [¶] A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion. [¶] A firearm does not need to be in working order if it was designed to shoot and appears capable of shooting. A firearm does not need to be loaded.” The instruction specified that the prosecution had the burden of proving each allegation beyond a reasonable doubt.
This instruction told the jurors that, if they believed defendant’s argument that the firearm used was not real and did not discharge a projectile, they could not find the gun enhancement true. Thus, the instructions given were correct and complete and instructed the jury as to what the prosecution needed to show for the jurors to find that defendant personally used a real, rather than a replica, firearm during the robbery. Accordingly, we conclude that the lower court did not err by refusing to give defendant’s requested instruction because it was duplicative or redundant. (People v. Stanley, supra, 39 Cal.4th at p. 946.)
Defendant acknowledges that the instruction given correctly states the law, but he argues that the requested instruction was not duplicative, but would have directed the jury’s attention to the theory of his defense. He claims that it would have directed the jury’s attention to whether the gun was a real firearm or a replica.
Defendant contends that the present case is similar to the situation in People v. Kane (1946) 27 Cal.2d 693 (Kane). In Kane, the Supreme Court reversed a robbery conviction for failure to give the defendant’s pinpoint instruction that advised the jury of the defense that the alleged victim was an accomplice. (Id. at p. 698.) The court explained that the defendant “was entitled to have the jury advised directly and clearly as to the law applicable to the defense to the charge of robbery in order that [the jurors] should have clearly in mind that the taking, even though it was a display of force, to constitute robbery, must have been actually against the will of [the alleged victim], not with her connivance or abetment, and not merely against the will of the owner of the money. The essential, and to a layman somewhat fine, distinction between robbery and grand theft, the definitive attributes of an accomplice [citation], and the application of the doctrine of reasonable doubt to the most important and difficult question presented to the jury, should not have been left either wholly unexplained or derivable only from inference.” (Id. at p. 699.) The court concluded, “Since defendant admittedly used some substantial force in taking the money the record seems to us to afford reasonably support for the defendant’s contention that the jury may have been confused and thought he was guilty of robbery whereas in truth they were convinced beyond a reasonable doubt only of such facts as made him guilty of grand theft.” (Id. at p. 698.)
Defendant argues that the present case is like the situation in Kane as the jury in his case might have been confused as to the fine distinction between a real firearm and a replica firearm. He contends the jury should have been advised as “to the parameters of his defense to the firearm enhancement and the fine distinction between what constituted a firearm under the law and what constituted a replica to which the enhancement was inapplicable.” He claims there was no instruction given that made this distinction.
The present case, however, is significantly distinguishable from Kane. In Kane, the instructions did not clarify the difference between robbery and grand theft and did not specify that robbery required the money to be taken against the victim’s will and not with the victim’s assistance. Thus, the jury in Kane could have convicted the defendant of robbery even if the victim had an understanding with the defendant that he would take the money. In contrast, here, the jury could not have found the gun enhancement true if it concluded that the gun used was not real, because the instruction required the jury to find that a projectile could be fired and defendant argued that the replica gun that he used could not fire a projectile.
Defendant argues that the instruction he requested was critical to his defense because there was evidence that an inoperable firearm also constituted a firearm. He stresses that there was testimony that the replica gun was capable of “firing” blanks, which contained gunpowder. He also emphasizes that the prosecutor referred to the replica gun as “not operable.” Additionally, the officers often referred to the replica as a firearm when testifying. He argues that the distinction between what constituted a firearm as a matter of law and a replica firearm was too fine to be left to inference, and defendant was entitled to have this distinction and its legal consequence made explicit.
Defendant’s requested instruction did not explain the difference between a real firearm and a replica firearm. Rather, the requested instruction simply told the jury that the firearm must be real and not a replica firearm to find the enhancement true. This requested instruction did not provide the “critical” information that defendant now argues is essential. Moreover, as already stressed, the instruction given was sufficient: If the jury did not believe that the firearm used was muzzled so that it could not discharge a projectile, the jury could not find the enhancement true under the instruction given.
Additionally, we note that the record does not support defendant’s argument that the jury might have been confused about the difference between a real and a replica gun. He complains that the instruction did not specify that a replica was not a firearm. However, as already stressed, the instruction defined a firearm as a device designed to be used as a weapon from which a projectile is discharged or expelled. Under cross examination, Officer Coleman answered, “Correct, ” when defense counsel stated, “And a starter pistol or a pistol that does not fire a projectile is not a firearm for that purpose, right?” Defense counsel then asked: “So the [replica] pistol you have in front of you with the closed muzzle, that wouldn’t fire a projectile, would it?” Coleman replied, “It doesn’t appear to.”
Defense counsel also asked his firearms expert, William, about the difference between the replica gun, a starter pistol, and a real gun. Counsel asked Williams, “Based on your experience with guns, what is the difference between this [starter pistol] and a real gun?” Williams answered, “Well, the barrel is plugged and the cylinder portion of it, if it’s closed off is not bored all the way through so you can’t put a real bullet into it.”
Accordingly, we conclude that the jury was correctly instructed of the definition of a firearm. Defendant’s requested instruction did not distinguish any further between a real and replica firearm, and was merely duplicative. Accordingly, we conclude that the trial court did not err in refusing to provide the requested instruction.
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Haerle, J.