Opinion
H024629.
11-20-2003
THE PEOPLE, Plaintiff and Respondent, v. GILBERT Y. AGABON, Defendant and Appellant.
Defendant Gilbert Y. Agabon was found guilty at a jury trial of the first degree murder of Miguel Amezcua, burglary, and three counts of assault with a firearm with a number of enhancements and was sentenced to prison for 66 years, four months, to life. On appeal he complains of exclusion of evidence, instructional error, and sentencing error.
FACTS
On December 5, 2000, at Valley Fabrication, the welding and machine shop in Salinas where they worked, defendant and coworker Ricardo Delgado were discussing a friendly boxing match Delgado and employee Doug Ash had held at lunchtime the day before. Delgado was thought to be a "little slow [mentally]," but was easygoing and did not get upset when someone made fun of him. Defendant told Delgado he thought he could beat Delgado in a boxing match because Delgado had fought "like a bitch" the day before. Defendant tried to get Delgado to fight, but Delgado declined. Defendant told Delgado he was lucky they had not boxed because defendant would have "kicked [Delgados] ass" and the match would have been "no contest."
The victim, Miguel Amezcua, who was described as someone who got along with and teased everybody at work, then told defendant to "shut up. Youre a bitch and youre a faggot." Defendant and Amezcua often traded ethnic insults which coworkers thought were made in jest. On this occasion, defendant responded, "fuck you, punk. Your wife dont think Im a faggot." Defendant added that he would "fuck" Amezcuas wife. Amezcua said to repeat that and defendant did. Amezcua threw a burrito at defendant and defendant threw a corn dog at Amezcua. Orrin Holt and Ash heard this exchange and did not think defendant was teasing Amezcua.
There was testimony that Amezcua and defendant lived near each other, appeared to get along, and socialized during breaks before December 5. However, Amezcua, nicknamed "Gordo" because he was "chubby," once called defendant a "scrawny Filipino" which prompted defendant to call him a "fat Mexican." Amezcua also called defendant "crazy Filipino," "cheap Filipino," and "Filipino." Defendant countered with "[c]heap Mexican" and once, "fucking Mexican." When defendant ate lunch, Amezcua would say, "here, kitty, kitty," to imply that defendant ate cats. Michael Raine, a company owner, heard Amezcua talking about Filipinos barbecuing dogs to eat. Defendant responded by saying "Mexicans cant barbecue because the beans fall through the grill." Raine testified that both men were laughing during this exchange. Raine once admonished Amezcua for using inappropriate language after Amezcua said his new nickname for defendant was "UFO" which stood for "Ugly Fucking Oriental." Albert Norman, defendants immediate supervisor, testified that defendant had not complained about Amezcuas harassing or mistreating him although a public defender investigator testified that Norman told him that defendant had complained several times about Amezcuas verbal abuse. Norman advised defendant not to take Amezcuas comments too seriously and suggested he "just let it go" if someone gave him a hard time.
A more complete picture of defendants work atmosphere, was described by defense counsel in closing argument. He stated defendant had "become the target of a workplace bully. A bigot who delighted in making others laugh at the `cheap little Filipino. He was an outsider who only [a] few bothered to call by his name, which was printed on his shirt. To most he was `Filipino and to his tormentor he was this `cheap Filipino faggot. [¶] This was a motley crew of man [sic]. They perpetrated a workplace where to hurl racial epithets and curse words was just joking around. A place where the daily taunt of faggot was laid on [defendant]. A workplace where the fair treatment policy seemed to be survival of the fittest. And as far as the owners were concerned, that seems to have been just okay with them. [¶] Mr. Amezcua thought it was pretty fun to grab [defendant] as he walked by and simulate sodomizing him . . . and that was to the delight of all in the audience, . . . Even one of the owners got into some of the fun himself because he thought nothing of assaulting [defendant] in the bathroom, sticking his hand between his buttocks when he caught him unawares at the urinal, making him pee all over the place, humiliating him. [¶] That was one of the owners. That was unrefuted. Mr. Heffington didnt come in and say it didnt happen. I submit he couldnt because it did happen. And like father, like son. The younger one got involved in it by simulating the sodomization of [defendant], . . ."
Coworkers gave various accounts of the fight which followed with most stating that defendant threw the first punch. He missed Amezcua. Amezcua grabbed defendant in a bear hug, threw him to the ground, and landed on top of him. Defendants head possibly hit the concrete floor when he fell. Amezcua, who was taller and appeared 50 to 100 pounds heavier than defendant, remained on top as they scuffled on the ground. Griselda Cortez, the catering truck operator, saw Amezcua beating defendant up and people were laughing and no one tried to intervene. She yelled, "Oh, you guys, quit" and then she started crying because it looked as if defendant was being hurt. She implored George Heffington, Jr., the owners son, to stop the fight, but he did not intervene except to yell, "dont do it here guys. Youre going to get fired." Coworker Victor Pulido yelled to Amezcua, "get up. Let him go." Amezcua got off defendant, but when they were standing again defendant renewed the attack. Amezcua grabbed defendant, slammed him against the metal wall and tried to wrestle him to the ground. One coworker also testified that Amezcua head-butted defendants head and then Amezcua walked away and returned to work.
Holt testified that defendant looked angry and slightly embarrassed and that one of his eyes was swollen. However, he was laughing and smiling as if he was all right. Ash testified that defendant was blaming Amezcua for the fight and complained that he ignored defendant. However, Carlos Quintero testified he told Amezcua to cut it out and be friends with defendant and he intended to speak to defendant as well, but he decided not to when he saw that defendant was crying and appeared injured and angry.
Others who saw defendant afterwards thought he looked angry and disturbed. Coworker Joe Fagundes, who had not seen the fight, saw defendant afterwards and asked what was the matter. Defendant answered, "you know, that motherfucking Miguel." "Motherfucker is going to pay this time." Some time during the preceding month, defendant had told Fagundes, "Im going to kill that motherfucker one of these days." "You dont believe me, bro? I got a .357 at the house." Fagundes did not take defendant seriously. Nevertheless, defendant had told coworker Manuel DeBem a few weeks before the murder that he bought a .357 magnum and that it gave a "pretty good kick." Defendant had also told Delgado sometime during the year before the shooting that he owned a .357 and had discharged it in target practice. Defendant testified that a month before the shooting, "[w]hen George Heffington sold [Amezcua] a Tech-9 he told me `dont fuck around with me, pinche Filipino, or Im going to spray you. " Shortly after the fight, defendants supervisor Albert Norman noticed that his eye was partially swollen and asked him what was the matter. After a short hesitation, defendant said he had been in a fight with Amezcua who had head-butted him. Defendant said Amezcua had called him a faggot and that he had responded by saying something to the effect that he would fuck Amezcuas wife. Norman told defendant he would inform owner Michael Raine. Defendant seemed to calm down and returned to work. Norman told Raine about the confrontation and Raine said he would talk to Amezcua.
However, Raine was still unaware of the fight when defendant approached him about an hour afterwards and said he was going to leave work for a doctors appointment. Defendant seemed normal and when Raine inquired, said he was feeling fine.
Defendant went home, played with his sisters children, then went into his parents bedroom to look for his fathers gun. He told his sister he was looking for the gun to get a laser for it. After about half an hour, defendant telephoned his father to ask where the gun was. Defendant said he was going to try the gun with a laser. Defendants father said defendants mother had hidden the gun. Defendant found it in a locked attaché case which he opened by defeating the combination lock. It contained the gun and a bag of ammunition. Defendant then drove back to Valley Fabrication loading the gun as he drove.
He parked his car with the engine running in front of the businesss bay door. Amezcua was on his knees working on a trailer. Defendant walked over to him and shot him with the . 357 he brought from home. There was no conversation. Defendant shot Amezcua a second time while Amezcua was on the ground covering his face with his hands.
Holt yelled at defendant who turned and pointed the gun at Holt. Holt thought defendant was going to shoot him and he ducked down and ran for cover. Coworker Bill Almand also shouted at defendant and defendant turned the gun on him also. Defendant also pointed the gun at Quintero who was working five feet away from Amezcua which prevented Quintero from trying to help Amezcua. Coworker Frank Campos yelled "Gilbert, for Gods sake, think about what youre doing." Defendant looked at Campos, aimed the gun at the roof, and then turned back to Amezcua.
Defendant had a very determined expression on his face. He pointed the gun straight at Amezcua and fired the gun four more times. The shots were 2 to 3 seconds apart. For the last shot, defendant walked behind Amezcua and shot him in the head from a distance of about 18 inches. After this shot, Amezcua went limp. Defendant made a gesture with his arms and said, "yeah." Defendant then left quickly through the bay doors, got in his car and drove away. He called the police and gave them directions to his location. When they arrived and arrested him, he complied with orders and did not appear to be confused. He was cooperative and alert and did not complain of any difficulties. Defendant told the police, "he beat me up. Hes always beating me up." "I couldnt take it any more. I have to protect my family."
Defendant gave a statement at the police station and admitted the shooting. He stated his head hurt but he declined medical attention. However, he was seen at the emergency room by a registered nurse and a physician. Defendant was alert, responsive and appropriate, and his memory was intact. He had not suffered a concussion. Police recovered a .357 revolver from defendants car trunk, an empty cartridge box and four cartridge cases on the right floorboard, and bullets that were both inside and out of the box. An additional cartridge case was on the lower portion of the floorboards and a sixth casing was under the drivers seat.
Amezcua sustained six gunshot wounds, five of which were not rapidly fatal. The sixth, however, was immediately fatal. It fractured Amezcuas skull and passed through the brain stem. There were less than two feet between the gun barrel tip and the entry wound.
Defendant was charged with first degree murder (Pen. Code, § 187, count 1), burglary (§ 459, count 2), and assault with a firearm (§ 245, subd. (a)(2), counts 3 to 5). The information also alleged that defendant personally used a firearm (§ 12022.5, subd. (a)) in connection with counts 1, 3, 4, and 5, and that he personally used a firearm causing death (§ 12022.53, subd. (d)) in connection with count 1.
Further statutory references are to the Penal Code unless otherwise stated.
At trial, the defendant testified that Amezcua head butted-him hard twice between his eyes, slammed him to the ground so that his head hit the concrete floor hard, sat on top of defendants stomach and bounced all his weight on him, grabbed his head and pounded it twice into the ground, slapped his face, and grabbed his shoulder when he tried to stand up and threw him head-first into a wall twice. As a result, defendants head was pounding, he heard loud ringing in both ears, his vision was very blurry, his left eye was blackened, and his forehead was swollen. When defendant went back into the shop, he faced Amezcua and gestured as if to say "how come you do this to me?" Amezcua clenched his fists and said, "you fucking bitch. Im going to settle [with] you after work."
Defendant felt threatened and went home to arm himself for protection. When he went back to work, his head still hurt, his ears were still ringing, his vision was still blurry, and he had difficulty concentrating and thinking clearly. As he walked into the shop, Amezcua clenched his fist and walked slowly towards him, looking at defendant as if he were "a piece of shit." Defendant thought Amezcua was going to attack him. If Amezcua had apologized, defendant would not have shot him. Defendant pointed the gun at Holt to defend himself; he did not point it at Almand, Quintero, or anyone else but Holt.
Dr. Roger Light, a psychologist who specialized in traumatic head injury testified for the defense that defendant experienced symptoms consistent with postconcussive syndrome, such as headache, dizziness, blurred vision, confusion, and attentional difficulties. Individuals who suffer a traumatic head injury tend to have more difficulty handling their emotions and dealing with anxiety, and also have impaired problem-solving skills and decision-making ability.
Offered in rebuttal were Dr. Dean Delis, a clinical psychologist with specialization in neuropsychology, and Dr. Michael Mega, a medical doctor with a doctorate in neuroscience who was director of the Memory Disorders clinic at the School of Medicine at the University of California at Los Angeles. Dr. Delis opined that defendant most likely did not have a concussion. After viewing the videotaped interview defendant gave the police, he stated that defendants recall of the events and what he was thinking at the time were inconsistent with someone who had suffered a concussion that impaired his executive functioning. He concluded that some of defendants statements during the police interview were consistent with someone who had suffered a narcissistic wound and that individuals with a big ego often have a very angry and vengeful reaction when they are hurt or insulted.
Dr. Mega reviewed the videotaped interview, police reports, medical reports, and the 911 tape. He stated there was no evidence that defendant suffered a severe head injury which impaired his executive functioning or mitigated his intent to carry out his acts. He cited defendants recall of events and his ability to engage in goal-directed behavior after the altercation.
Defense counsel argued several theories why the jury should find defendant guilty of the lesser included offense of voluntary manslaughter on count 1. First, defendant was unable to premeditate and deliberate the murder because he was suffering the effects of a traumatic head injury. Second, defendant was acting under an honest but unreasonable belief that he was going to be attacked by Amezcua and thus needed to shoot to protect himself. Third, defendant was still acting under the force of provocation in a heat of passion. Counsel also argued that defendant was not guilty of assault with a deadly weapon because when he was waving the gun, he was still feeling the effects of the head injury and not acting intentionally. As to the burglary, defendant was unsure what he was going to do when he entered the building and had carried the gun with him for protection.
The jury found defendant guilty as charged and that all the enhancements were true except the personal use of a firearm in connection with count 5. This appeal ensued.
CONTENTIONS ON APPEAL
Defendant contends: (1) the instruction on assault with a firearm was erroneous because it did not include the "actual knowledge" element requiring reversal on counts 3 through 5; (2) the exclusion of evidence of Amezcuas propensity for violence was error; (3) the court erred in failing to advise the jury that Orrin Holt had been willfully false in testimony outside the jurys presence; (4) the court erred in denying defendants motion to reverse his conviction on count 5 because the jury found that he did not personally use the gun to commit that assault; (5) the sentence for the burglary should have been stayed pursuant to section 654; (6) the court used an improper basis for imposing the aggravated term on the gun use enhancement on count 3; (7) the court erred in denying his pinpoint instruction on verbal provocation; and (8) trial counsel was ineffective for failing to request the court to instruct the jury that Orrin Holt gave false testimony outside its presence.
The People concede this point. Sentence will be ordered stayed.
INSTRUCTIONAL ERROR
1. Assault With a Firearm
Defendant asserts the instruction on assault with a firearm was "fatally ambiguous" in counts 3, 4, and 5 because it did not require the jury to find that he performed an intentional act with "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 (Williams).)
Defendant states he was prejudiced by the error because "[t]here was evidence that [he] did not have actual knowledge of the requisite facts, so that the misinstruction could well have led the jury to convict [defendant] because he should have known. Quinteros testimony that [defendant] pointed the gun at Amezcua, who was in front of [him,] and that [defendant] then pointed it [at him] `for a fraction of a second . . . before lowering the gun back at Amezcua, [defendant]s demonstration in the videotaped interview of a sweeping gesture with the gun, and trial counsels argument in the motion for a new trial that Quintero was the person `in the middle of a three-person sweep with Holt and Almand on either side, all suggest [defendants] motion was a sweeping one that paused `for a fraction of a second at Quintero, who stood in back of [defendant]. [Defendant] testified that he did not point the gun at anyone other than Holt. He also testified that he was still experiencing head pain, blurry vision, ringing in his ears, and difficulty thinking clearly as a result of the blows delivered by Amezcua. This evidence along with Camposs testimony that [defendant] rotated in a pirouette fashion as he momentarily turned towards Holt and Almand when they yelled his name strongly established a reasonable basis for the jury to conclude that [defendant] merely reflexively acted to hearing his name by turning in the direction in which he heard the callers voice, and then immediately returning to his original position facing Amezcua. Camposs testimony that [defendant] pointed his gun at the ceiling also indicates a lack of actual knowledge. [¶] The fact, however, that the jury did not find true the gun use enhancement allegation as to the assault charge against Quintero . . . further demonstrates the prejudice from the instructional error. The not-true finding indicates that the jury had a reasonable doubt as to whether [defendant] intentionally pointed the gun at Quintero or intentionally held the gun in such a position that he could have used it against Quintero. The jurys finding that [defendant] did not intend to use the gun in such a manner demonstrates it was not only reasonably possible that the jury relied on the defect in the instruction to find guilt, but reasonably probable it did. Thus, reversal is required as a matter not only of federal law, but of state law as well."
Our trial court and the Williams trial court gave former CALJIC No. 9.00 which listed two elements of the crime: (1) a person willfully and unlawfully committed an act which by its nature would probably and directly result in the application of physical force on another person; and (2) at the time the act was committed, the person had the present ability to apply physical force to the person of another. "Willfully" means that the person who committed the act did so intentionally. The California Supreme Court found this instruction "potentially ambiguous" (26 Cal.4th at p. 790) "[b]ecause `the test of natural and probable consequences is an objective one [citation], [so] merely requiring the jury to find that a defendant willfully and unlawfully committed an act that by its nature would probably and directly result in physical force being applied to the person of another may permit a conviction premised on facts the defendant should have known but did not actually know. Thus, under the instruction given, a jury could conceivably convict a defendant for assault even if he did not actually know the facts sufficient to establish that his act by its nature would probably and directly result in a battery." (Ibid ., citing People v. Smith (1997) 57 Cal.App.4th 1470 (Smith).)
Since Williams, CALJIC No. 9.00 was revised in 2002. It now states: "In order to prove an assault, each of the following elements must be proved: [¶] 1. A person willfully [and unlawfully] committed an act which by its nature would probably and directly result in the application of physical force on another person; [¶] 2. The person committing the act was aware of facts that would lead a reasonable person to realize that as a direct, natural and probably result of this act that physical force would be applied to another person; and [¶] 3. At the time the act was committed, the person committing the act had the present ability to apply physical force to the person of another. [¶] The word `willfully means that the person committing the act did so intentionally. However, an assault does not require an intent to cause injury to another person, or an actual awareness of the risk that injury might occur to another person."
The "natural and probable consequences" of an act is a test of negligence. (Smith, supra, 57 Cal.App.4th at p. 1480.) Because recklessness is not sufficient to establish assault (see People v. Colantuono (1994) 7 Cal.4th 206, 210), "[i]t follows that criminal negligence is not sufficient to establish an assault, an element of the offense of assault with a deadly weapon." (Smith, supra, 57 Cal.App.4th at p. 1480.)
Williams, however, pointed out that any instructional error "is largely technical and is unlikely to affect the outcome of most assault cases, because a defendants knowledge of the relevant factual circumstances is rarely in dispute." (Williams , supra, 26 Cal.4th at p. 790.) Defendant claims he did not know the "requisite facts," however, he does not state what knowledge he was missing. Defendant knew that Holt, Almand, and Quintero were there. Defendant admitted Almand shouted at him after which he and defendant made eye contact and he pointed a gun at Almand. He admitted pointing a gun at Holt. And even though he denied pointing a gun at Quintero, Quintero was working five feet away from Amezcua and Holt ran behind Quinteros machine when defendant pointed a gun at him. Furthermore, Quintero testified that defendant pointed the gun at him which kept him from trying to help Amezcua. Campos testified that he shouted at defendant, and in that instance defendant pointed the gun at the roof. There was no assault charge on Campos. Nevertheless, these facts establish that defendant had knowledge of the relevant factual circumstances. The fact that the jury failed to find the firearm use enhancement on count 5 does not establish a lack of actual knowledge on defendants part. The error is harmless. Defendant knew his act by its nature would directly, naturally, and probably result in a battery. (Williams, supra, 26 Cal.4th at p. 790.) Reversal is not warranted.
2. Pinpoint Instruction
Defendant claims the court also erred when it refused to give the instruction, "There is no specific type of provocation required to show that a defendant acted under heat of passion. Verbal provocation may be sufficient." The court asked defense counsel to argue on behalf of the instruction. Counsel stated, "we believe that thats a correct statement of law. I understand the Courts position that . . . its not as precise as one thats already been included." The court responded, "Couldnt have said it better myself." The instruction given stated, "[n]o specific type of provocation is required and the passion aroused need not be anger or rage but can be any violent, intense, high wrought, or enthusiastic emotion other than revenge." (CALJIC No. 8.44.)
A trial court must instruct on the law applicable to the facts of the case. (§§ 1093, subd. (f), 1127; People v. Mincey (1992) 2 Cal.4th 408, 437.) Section 1127 allows "[e]ither party [to] present to the court any written charge on the law . . . and request that it be given. If the court thinks it correct and pertinent, it must be given . . . ." A defendant has a right to an instruction that pinpoints a facet of the law on which the defendants case depends. (People v. Sears (1970) 2 Cal.3d 180, 190.) The identical instruction that defendant requested was requested and refused in People v. Thompkins (1987) 195 Cal.App.3d 244, 257. On appeal, the court concluded that the defendant "would appear to have been entitled to his instructions . . . which constitute accurate statements of the law as applied to the facts of the case." (Ibid.) The trial court may not refuse instructions which constitute accurate statements of the law as incomplete or duplicative "if the defendant offers `pinpoint instructions intended to supplement or amplify more general instructions." (Ibid.)
Defendant argues the same is true here. Heat of passion was one theory of the defense. Amezcua both physically and verbally provoked defendant. Immediately prior to the shooting, defendant testified that Amezcua clenched his fist and walked slowly towards him in an aggressive or menacing manner. The requested instruction amplified the more general instructions on provocation and focused on the legal issue of verbal provocation.
Defendant maintains that the refusal to give the instruction prejudiced him because the general instructions on provocation did not make clear to the jury that it could consider the verbal abuse by Amezcua as provocation. The jury may well have misunderstood that only physical acts constituted provocation. We disagree. Nothing in the given instruction suggested that physical violence was the only acceptable means of provocation; on the contrary, the instruction specifically stated that no specific type of provocation was required. Evidence of the cruelties inflicted on defendant were fully presented to the jury. The instructions and arguments of counsel communicated the import of this evidence. The instructions as given fully covered the issue of provocation. Where the instructions adequately inform the jury about the issue presented in the defense instruction, the trial court is not obligated to give the repetitive instruction. (People v. Gurule (2002) 28 Cal.4th 557, 659.)
It was not reasonably likely that if the instruction had been given the outcome would have been more favorable to defendant. (People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence of defendants guilt was overwhelming. The instructions given adequately covered the issue presented by the defense instruction. There is no reasonable likelihood that the jury applied CALJIC No. 8.44 in a way that prevented the consideration of constitutionally relevant evidence. (Calderon v. Coleman (1998) 525 U.S. 141, 146.) There was no prejudice from the trial courts failure to give the pinpoint instruction.
EXCLUSION OF AMEZCUAS PROPENSITY FOR VIOLENCE
Next, defendant claims the court erred in precluding him from introducing evidence that showed Amezcua was a drug dealer and gang member. Defendant produced a search warrant affidavit and a police report on the execution of the search warrant that showed that cocaine and various types of ammunition were seized at Amezcuas house during the search by the Gang Task Force of the Salinas Police Department on February 1, 1995. He also sought admission of evidence that Amezcua was charged with assault with a deadly weapon when he shot into an occupied vehicle approximately 10 years earlier, that that he initiated fights with other drivers in 1991 and 1992. Counsel also moved to admit evidence of spousal abuse involving the use of a firearm in 1990. Defendant claimed that he knew of Amezcuas reputation for violence and possession of firearms, and that Amezcua had some affiliation with gang members on the day of the shooting, December 5, 2000.
The trial court found that the 1991, 1992, and 1995 events were too remote and that proof of the 1995 event was a problem. The court also found that defendant lacked knowledge of the bad acts on December 5, 2000. Defendant claims that lack of knowledge was an improper basis for denying his motion because the evidence was probative to show the victims propensity and reputation for violence and the apprehension of danger defendant perceived.
The jury did catch some glimpses of Amezcuas propensity for violence. During cross-examination of prosecution witness Manuel DeBem, DeBem stated he knew Amezcua "[r]eal good" for almost four years and that he did not know anything about Amezcuas reputation in the community or of any current or past involvement with any groups. However, defense counsel was allowed to ask DeBem if he knew of Amezcuas involvement with street gangs and DeBem testified that he knew Amezcua "had gotten into a little bit of trouble," but he did not know if Amezcua was involved in "gangs per se." DeBem was impeached by a defense investigator who testified that DeBem told him that Amezcua had gotten out of gangs five years earlier. In addition, Quintero testified on cross-examination that he did not know about Amezcuas reputation for being a fighter but he admitted he told a defense investigator that Amezcua had a reputation for being a fighter, and that he was tough and fearless and would not decline to fight.
"It has long been recognized that where self-defense is raised in a homicide case, evidence of the aggressive and violent character of the victim is admissible." (People v. Rowland (1968) 262 Cal.App.2d 790, 797.) "A defendant claiming self-defense may testify about prior violent acts of his victim not only directed toward the defendant but also toward others in order to show the defendants state of mind in relation to the victim." (People v. Mathis (1965) 63 Cal.2d 416, 430.) Evidence of the victims violence toward third persons is allowed to " `"corroborate [the defendants] testimony that he was in fear for his life by proving the reasonableness of such fear." " (People v. Minifie (1996) 13 Cal.4th 1055, 1065.) "[T]he known reputation of an assailant as to violence, even if specific acts are not within the knowledge of a person assaulted, has a material bearing on the degree and nature of apprehension of danger on the part of the person assaulted, (and further even if the reputation is unknown) to show that one who is turbulent and violent may more readily provoke or assume the aggressive in an encounter. [Citations.]" (People v. Smith (1967) 249 Cal.App.2d 395, 404.)
In the instant case, the incidents occurred ten, nine, eight, and five years before the shooting. The court noted there was trouble proving the five-year-old incident. Defense counsel acknowledged that at the time of the killing, defendant was unaware of any of the incidents sought to be introduced. At the time of the assault, the victim was working. He had no gun or other weapon in his possession. There was no confrontation, threats or even conversation prior to the shooting. The prior incidents had minimal probative value in light of the fact that defendant had no knowledge of them and the victim did not act in a manner consistent with the prior incidents. The trial court possess broad discretion to determine whether the probative value of evidence is substantially outweighed by its undue prejudice. (Evid. Code, § 352; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) There is no showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues, supra, 8 Cal.4th at p. 1124.) There was no error.
WILLFULLY FALSE TESTIMONY
Next, defendant contends the jury should have been instructed that Holt gave willfully false testimony based on his denial that he participated in a conversation with Ash in which they called defendant a "shithead" and "fucker." The court told Holt that it had learned Holt may have been overheard asking Ash, "was that shithead staring at you while you were in there testifying," and that Ash nodded. Holt denied it and the court read from a jurors note, "I overheard Mr. Holt ask Mr. Ash, if quote, that shithead, unquote, was staring at him while he was in there. Mr. Ash nodded and Mr. Holt remarked, quote, that fucker, unquote." Holt again denied the conversation, saying "I didnt even talk to Doug." The court asked Holt about his feelings about defendant, and Holt admitted that since the shooting he had some animosity toward defendant.
Later during a recess, the court questioned Juror No. 15, asking him to relate exactly what he heard and observed. The juror reiterated the same facts as in the note and said that he had not discussed the incident with any other juror. He also stated that he would disregard the incident.
The trial court instructed the jurors, "I do wish to indicate to the jurors at this time that Mr. Holt has indicated to the Court that he does, in fact, have an animosity toward the defendant based upon the events that occurred on December 5th of the year 2000." Later, the court instructed the jurors about prior inconsistent statements, failure of recollection by witnesses, a witness who is willfully false, and the factors to consider in determining the believability of a witness which include the demeanor and manner of the witness while testifying and the existence or nonexistence of bias, interest, or other motive.
Defendant contends that the courts finding that the juror remained "qualified to hear the case, and that an inference can be raised that that juror certainly was being truthful in anything that they [sic] told the court" constituted an implied finding that Holts testimony was willfully false. The court did admit that Holt and Ash "may have been [guilty of an impropriety], if its true." Therefore, the court should have taken judicial notice of Holts willfully false testimony and informed the jury that it found Holt had given willfully false testimony outside the jurys presence, albeit unrelated to his testimony about the December 5, 2000, events. Defendant claims the failure to so instruct violated his due process right to a complete defense and rendered his trial unfair.
The courts conditional language in stating that Holt and Ash may have been guilty of an impropriety is not a finding that Holt lied in his testimony to the court. The trial court reasonably addressed the impact of any harm, determined that the jury remained untainted and that Juror No. 15 could disregard the incident and remain fair and impartial. The fact about Holt that the incident illustrated which the jury needed to know about in assessing Holts credibility, namely, that he was biased against defendant, was made known to the jury. In a jury trial, judgments on the credibility of witnesses are the province of the jury. (Evid. Code, § 780.) The court properly did not instruct the jury about the veracity of Holts testimony about the incident in the hall. There was no error. Since there was no error, trial counsels failure to request that the court instruct the jury that Holt gave false testimony outside its presence did not constitute ineffective assistance of counsel as defendant also claims.
COUNT 5
In a written motion for a new trial, defense counsel asserted that the guilty verdict on count 5 was inconsistent with its "not true" finding that defendant personally used a firearm in the assault with a firearm on Quintero. He argued that "there [was] a real logical absurdity to the jurys finding as to the use enhancement of Mr. Quintero. Its almost as if they didnt find the use, they couldnt find the [section] 245." The trial court denied the motion stating, "The Court, in reviewing the evidence that was presented, finds that the jurors verdict is, in fact, consistent with the evidence, and that the jurors, in fact, made a deliberate decision based upon the evidence that was presented; concerning Count Number Five, that based upon the evidence, they did not find that the evidence was sufficient for a [section] 12022.5 and returned a not true verdict. And that when the Court reviews the testimony of Mr. Quintero and some of the other aspects of that particular incident finds that that, in fact, was an attempt by the jury to show how diligent and cautious they were in going through the evidence one by one."
The jury was instructed: "[e]very person who commits an assault upon the person of another with a firearm is guilty of a violation of Section 245[, subdivision] (a)(2) of the Penal Code, a crime. A firearm includes a .357 revolver. In order to prove this crime each of the following elements must be proved: One, a person was assaulted; and two, the assault was committed with a firearm. [¶] In order to prove an assault each of the following elements must be proved: One, a person willfully and unlawfully committed an act by which [sic, which by] its nature would probably and directly result in the application of physical force on another person; and two, at the time the act was committed the person had the present ability to apply physical force to the person of another. `Willfully means that the person who committed the act did so intentionally. . . ." The jurors were also instructed that they could convict defendant of the lesser crime of simple assault.
As for the firearm-use allegation, the jury was instructed, "[t]he term `personally used the firearm as used in these instructions means that the defendant must have intentionally displayed a firearm in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it."
During deliberations, the jurors sent out the question: "[W]hat does `intentionally mean in the phrase, quote, again, intentionally displayed a firearm in a menacing manner, unquote, taking language out of 17.19 of CALJIC." Outside the presence of the jury, the court stated on the record that "[t]he Court has fashioned a response and has fashioned that response after discussing with the attorneys and looking specifically at the case of People v. Granato [sic, Granado], 49 Cal.App.4th 317, a 1996 case. Specifically this language, and this is what the Court has sent back to the jurors: " `Please refer to definition set forth in 17.19 in the jury instructions as you have with this additional language: Quote, the only mental state requirement properly imposed on the enhancement, parenthesis [section] 12022.5[, subdivision] (a), unquote-or unparenthesis-close parenthesis, is the defendants intent to use the gun in furtherance of the crime. [¶] . . . [¶] The Court then went on to tell the jurors by way of this note that has been initialed by both attorneys: [¶] `The jury should utilize this response and continue to evaluate the evidence in reaching required factual determinations. " Defendant argues "[t]he jury here found that [defendant] did not use the gun in furtherance of the underlying felony assault. Yet, a finding of guilt of a felony assault with a firearm necessarily requires the use of the firearm, which the jury rejected, having done so after requesting further clarification on the enhancement during deliberations." " `[U]se means, among other things, `to carry out a purpose or action by means of, to `make instrumental to an end or process, and to `apply to advantage. (Websters New Internat. Dict. (3d ed. 1961).)" (In re Tameka C. (2000) 22 Cal.4th 190, 196-197.) "[A] firearm-use allegation may be established as true if the defendant `utilized the gun at least as an aid in completing an essential element of the [underlying] crime . . . . " (Id . at p. 197.)
The People point out that "[t]he court emphasized in its response to the jury that the mental state required was `the defendants intent to use the gun in furtherance of the crime. The jury could have evaluated the evidence as lacking the requisite intent for the enhancement. Thus, the verdicts are not inconsistent."
Following that reasoning, the jury could have found that defendant assaulted Quintero when he swept the gun in an arc from Almand to Holt and Quintero happened to be briefly in its line of fire had defendant pulled the trigger. However, the jury could also reasonably have found that the sweeping action with the gun did not demonstrate that defendant intended to use the gun to further the assault on Quintero.
Even assuming the verdicts are inconsistent, defendant is not entitled to the relief he seeks. "[T]here is no reason to vacate [defendant]s conviction merely because the verdicts cannot rationally be reconciled. [Defendant] is given the benefit of [his] acquittal on the counts on which [he] was acquitted, and it is neither irrational nor illogical to require [him] to accept the burden of conviction on the counts on which the jury convicted." (United States v. Powell (1984) 469 U.S. 57, 69.)
In People v. Brown, a case presenting a situation similar to ours, the jury found both defendants guilty of assault with a firearm, but returned not true findings on the arming enhancements. (People v. Brown (1989) 212 Cal.App.3d 1409, 1420, disapproved on other grounds in People v. Hayes (1990) 52 Cal.3d 577, 628, fn. 10.) The appellate court upheld the convictions which were supported by sufficient evidence because the underlying rationale of upholding inconsistent jury verdicts, which is expressed in section 954, applies equally to enhancements. (People v. Brown, supra, 212 Cal.App.3d at p. 1421.) Thus, even if the jurys findings were inconsistent, defendant is not entitled to a reversal of the aggravated assault count. Defendant has failed to demonstrate that inconsistent verdicts violate due process.
AGGRAVATED TERM FOR GUN USE
Next, defendant asserts the trial court erred in classifying the gun as stolen and imposing the aggravated 10-year term for the personal gun use enhancement on count 3, the assault with a firearm on Holt. Defendant maintains he borrowed the gun. The court relied on "a statutory factor in aggravation as required by [California Rules of Court,] Rule 4.421(c), specifically Penal Code section 1170.89, that the use of a stolen firearm within Penal Code Section 12022.5 shall constitute a circumstance in aggravation and justify imposition of the upper term." The court stated that because defendant went to the location where he knew the gun was kept, "searching, actually deceiving individuals [he lied to his sister and father about what he wanted the gun for] as to how he wanted to obtain the weapon," that the weapon should be classified as a stolen firearm.
Section 1170.89 states: "Where there is an applicable triad for an enhancement related to the possession of being armed with, use of, or furnishing or supplying a firearm, set forth in Section . . . 12022.5, . . . the fact that a person knew or had reason to believe that a firearm was stolen shall constitute a circumstance in aggravation of the enhancement justifying imposition of the upper term on that enhancement."
"Larceny by trick and device is the appropriation of property, the possession of which was fraudulently acquired; . . ." (People v. Ashley (1954) 42 Cal.2d 246, 258.) Defendant concealed his intended illicit use for the gun by telling his father and sister that he wanted to borrow the gun to try out with a laser sight. He found the hidden locked attaché case containing the gun, broke into the case by manipulating the combination lock, and took the gun. The fact that defendant claimed he merely intended to borrow it does not mean defendant did not intent to permanently deprive the owner of the guns possession. Defendant could not reasonably believe the authorities would return a murder weapon to his father. "[The] intent to take the property for so extended a period as to deprive the owner of a major portion of its value or enjoyment" (People v. Avery (2002) 27 Cal.4th 49, 55), satisfies the requirement of intent to deprive the owner of the property permanently. (Ibid .) There was no error.
DISPOSITION
Sentence on count 2, burglary, is ordered stayed. The clerk of the court is ordered to send a corrected abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.