Opinion
C042205.
11-21-2003
THE PEOPLE, Plaintiff and Respondent, v. STEVEN DWAYNE ALMER, Defendant and Appellant.
Defendant Steven Dwayne Almer was convicted of assault with a deadly weapon or force likely to produce great bodily injury (Pen. Code, § 245, subd.(a)), and sentenced to prison for three years.
On appeal, defendant raises four arguments concerning improper jury instructions and asserts there was cumulative error. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Case
Alan Seider and his brother-in-law Daryl Bradshaw were driving on Highway 49 in Angels Camp. Seider saw defendant, whom he had met once, in conversation with David Davis at the latters cabins. Seider had just come from his friend Vicki McCraneys house, where he heard her complaining that defendant had failed to deliver a washer and dryer she had purchased from him.
Seider and Bradshaw stopped at a carwash across the street. Seider got out and approached defendant, who was sitting in his pick-up truck with his girlfriend. Seider told defendant "people" needed their money back or the washer and dryer to be delivered. Defendant told Seider he was a "dead man" and he had "fucked with the wrong person." Defendant parked the truck then got out with a bottle in his hand and told Seider he would "whoop [his] ass." Defendant assumed Seider had a gun and told Seider to "put the gun down and I will whip your so and so." Seider testified he was merely pulling up his pants. Davis, who watched the encounters, did not see a gun.
Defendant returned to his truck. Seider followed him. Defendant hit Seider in the shoulder with a liquor bottle and Seider hit defendant. Defendants girlfriend threw a flashlight at Seider; Seider threw it back at the truck. Seider crossed the road and went up an embankment at the car wash. Defendant backed his truck 50 or 60 yards toward the embankment but did not hit Seider; the truck stuck in the dirt. Seider went to the car wash parking lot, and defendant drove out to the road, nearly colliding with a logging truck. Seider threw a rock at the truck. Defendant again backed up 40 to 50 yards toward Seider, striking him in the back, running over his leg, his foot, his shoulder, and his arm.
Bradshaw took Seider home. Seider suffered abrasions and fractures in his back.
Angels Camp Police Officer John Bowly took photographs of skid marks at the scene and recovered alcohol bottles from defendants truck.
Defense Case
Defendant testified he and his girlfriend were sitting in his truck when a "big guy" (Seider) approached him and told him he should pay his debt or he would "kick my ass." Defendant got out of the truck and said, "[L]ets do it." Seider pulled a gun and defendant warned him to get away from him. Seider hit defendant in the head with the gun. Defendants girlfriend threw a flashlight at Seider when he was punching defendant and Seider threw it back. Defendant tried to get away in the truck and pulled out into the highway in front of an 18-wheeler truck. Seider was throwing rocks at his truck. Defendant backed up and Seider jumped on the back hitch of his truck; defendant took off, not caring whether he threw defendant off or not. Defendant drove to his mothers house, where his girlfriend took pictures of his injured head.
DISCUSSION
I.
Defendant contends the trial court erred by giving the superseded 1998 (6th ed. 1996) version of CALJIC No. 9.00, which erroneously defined the elements of assault. He claims the instruction lowered the prosecutions burden to prove the case beyond a reasonable doubt, in violation of the Sixth and Fourteenth Amendments. We agree the use of the superseded instruction was erroneous, but conclude any error was harmless.
This trial took place on August 6 and 7, 2002. The 1998 version of CALJIC No. 9.00 had been replaced in the CALJIC Supplement filed in January 2002. We urge trial courts to give current versions of mandatory pattern jury instructions, in order to avoid needless appeals. There is no excuse for giving a CALJIC jury instruction that had been replaced by a revised instruction some seven months earlier.
The trial courts sua sponte duty to instruct is limited to general principles of law relevant to the case, including a duty to instruct on all of the elements of a charged offense. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.)
"Assault requires the willful commission of an act that by its nature will probably and directly result in injury to another (i.e., a battery), and with knowledge of the facts sufficient to establish that the act by its nature will probably and directly result in such injury. [Citation.]" (People v. Miceli (2002) 104 Cal.App.4th 256, 269.)
The jury was instructed on the elements of assault using the former 1998 version of CALJIC No. 9.00, as follows:
"In order to prove an assault each of the following elements must be proved: One, a person willfully and unlawfully committed an act by its nature which probably and directly resulted in the application of physical force on another person [; and ¶ 2.] and at the time the act was committed, the person intended to use physical force upon another person or to do an act that was substantially certain to result in the application of physical force upon another person [; and ¶ 3.] At the time the act was committed the person had the present ability to apply physical force to the person of another." (Italics added.) (Former CALJIC No. 9.00 (1998 rev.) (6th ed. 1996).)
The trial court eliminated the bracketed portions in its oral instructions.
On August 23, 2001, the California Supreme Court filed its decision in People v. Williams (2001) 26 Cal.4th 779 (Williams ). Williams invalidated the 1994 version of CALJIC No. 9.00, which is not at issue in the case. The flaw in the 1994 version concerned the requirement of actual knowledge. (Id. at p. 783.) Williams did not address the 1998 revision of CALJIC No. 9.00 given at issue here.
The 1994 CALJIC No. 9.00 instruction disapproved in Williams did not include the second paragraph of the instruction as emphasized in this case. The 1994 CALJIC No. 9.00 version stated, in pertinent part:
"1. A person willfully [and unlawfully] committed an act that 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, such person had the present ability to apply physical force to the person of another.
"`Willfully means that the person committing the act did so intentionally." (Former CALJIC No. 9.00 (1994 rev.) (5th ed. 1995 supp.); Williams, supra, 26 Cal.4th 779, 783.)
Following Williams, and before this trial, the 2002 revision of CALJIC No. 9.00 deleted paragraph 2 of the 1998 revision italicized above, substituted a new second paragraph, and included a specific statement that an intent to cause an injury was not required as follows:
"2. The person committing the act was aware of facts that would lead a reasonable person to realize that as a direct, natural and probable result of this act that physical force would be applied to another person; [¶] . . . [¶] . . . 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." (CALJIC No. 9.00 (2002 rev.) (6th ed. 1996, 2002 supp.).)
That revision was filed in the January 2002 supplement to CALJIC, Sixth Edition, and should have been given in this case.
However, it is clear that the 1998 instruction given by the trial court was more favorable to defendant than the 2002 instruction that should have been given. Thus, the 1998 instruction required the jury to find that defendant "intended to use physical force upon another person or to do an act that was substantially certain to result in the application of physical force upon another person . . . ." The 2002 instruction would have told the jury that "assault does not require an intent to cause injury to another person . . . ." Because the 2002 instruction was less favorable to defendant than the 1998 instruction, the error in giving the 1998 instruction was harmless beyond a reasonable doubt. (People v. Williams, supra, 26 Cal.4th 779, 790.)
II.
Defendant argues the trial court erred by failing to give CALJIC No. 3.31.5 and by giving CALJIC No. 3.30. He contends this error also lowered the prosecutions burden by failing to advise the jury there must be a union of act and mental state. CALJIC No. 3.30 is the pattern instruction for general intent, which defendant acknowledges is the required mental state for assault. CALJIC No. 3.31.5 is an alternative instruction to be given when multiple crimes are charged, including lesser included offenses with differing mental states. Both instructions include the cautionary phrase reminding the jury that there must be a union between the act and the applicable mental state. CALJIC No. 3.31.5 also includes another cautionary phrase that "[u]nless this mental state exists the crime to which it relates is not committed." The purpose of this phrase is to clarify the following listing of multiple crimes with differing mental states.
CALJIC No. 3.31.5 provides: "In the crime[s] charged in Count[s], . . . and . . . [or which [is a] [are] lesser crime[s] thereto], [namely, . . . and ,] there must exist a union or joint operation of act or conduct and a certain mental state in the mind of the perpetrator. Unless this mental state exists the crime to which it relates is not committed.
"[The mental state[s] required [is] [are] included in the definition[s] of the crime[s] set forth elsewhere in these instructions.]
"In the crime of . . . , the necessary mental state is . . . .
"[In the crime of . . . , the necessary mental state is . . .]."
CALJIC No. 3.30, as given, provides: "In the crime charged namely assault with a deadly weapon or by means of force likely to produce great bodily injury, there must exist a union or joint operation of act or conduct and general criminal intent. General intent does not require an intent to violate the law. "When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent, even though [he] may not know that his act or conduct is unlawful."
CALJIC No. 3.31.5 is superfluous when CALJIC No. 3.30 is given. CALJIC No. 3.30 proves both a definition of general intent and the requirement that there must be a union of act or conduct with the requisite criminal intent. There was no error.
III.
Defendant contends the trial court erred by failing to instruct sua sponte on the defense of accident or misfortune, even though the jury was instructed on self-defense. (See e.g., Pen. Code, § 26, Five) We find no error.
Defendant contends the trial court should have given CALJIC No. 4.45, which provides:
"When a person commits an act or makes an omission through misfortune or by accident under circumstances that show [no] [neither] [criminal intent [n]or purpose,] [nor] [[criminal] negligence,] [he] [she] does not thereby commit a crime."
In People v. Breverman (1998) 19 Cal.4th 142 at page 157, our Supreme Court discussed the duty to instruct sua sponte on a defense as follows: "In [People v.] Sedeno [1974] 10 Cal.3d 703, we noted that the sua sponte duty to instruct on all material issues presented by the evidence extends to defenses as well as to lesser included offenses (id. at p. 716), but we drew a sharp distinction between the two situations. In the case of defenses, we concluded, a sua sponte instructional duty arises `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 defendants theory of the case. (Ibid., . . . .)"
Defendant did not elect to rely on "accident" as a defense. He elected to argue self-defense and, we can only assume, had no objection to self-defense instructions. Further, accident and self-defense are generally inconsistent defenses because self-defense requires a volitional act. Hence, the trial court was not required to instruct on the defense of accident because it was inconsistent with defendants theory of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047; People v. Manning (1905) 146 Cal. 100, 104-105; People v. Curtis (1994) 30 Cal.App.4th 1337, 1357-1358.)
IV.
Defendant argues the trial court erred by failing to instruct sua sponte with CALJIC Nos. 2.71 and 2.71.7 concerning a threatening statement made by defendant to Seider at the beginning of the incident. He argues the error was prejudicial because the evidence was in conflict concerning whether the statement was actually made. We conclude that, even if this statement qualifies as a pre-offense statement or, less likely, as an admission, the failure to give a cautionary instruction was harmless error.
CALJIC No. 2.71 concerns a defendants admission: "An admission is a statement made by [a][the] defendant which does not by itself acknowledge [his][her] guilt of the crime[s] for which the defendant is on trial, but which statement tends to prove [his][her] guilt when considered with the rest of the evidence.
"You are the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in whole or in part.
"[Evidence of an oral admission of [a][the] defendant not made in court should be viewed with caution.]"
CALJIC No. 2.71.7 refers to pre-offense statements: "Evidence has been received from which you may find that an oral statement of [intent] [plan] [motive] [design] was made by the defendant before the offense with which [he] [she] is charged was committed.
"It is for you to decide whether the statement was made by [a] [the] defendant.
"Evidence of an oral statement ought to be viewed with caution." (CALJIC No. 2.71.7.)
Defendant specifically refers to the following statements: Seider testified that, after he approached defendant the first time to remind him of his debt, defendant "kind of went ballistic" and said, "you are a dead man . . . you just fucked with the wrong person." Bradshaw said he heard defendant say: "[Y]oure a dead man." Defendant singles out his own testimony that he made no such statements, and Daviss testimony that Seider told defendant, "okay, youre dead."
There is a sua sponte duty to give CALJIC No. 2.71 that oral admissions must be viewed with caution. (People v. Bunyard (1988) 45 Cal.3d 1189, 1224.) There is a concomitant duty to instruct with CALJIC No. 2.71.7 that a pre-offense statement by a defendant should be viewed with caution. (People v. Lang (1989) 49 Cal.3d 991, 1021.) The purpose of these cautionary instructions is that the jury must determine whether the statement was in fact made. (People v. Stankewitz (1990) 51 Cal.3d 72, 94, citing People v. Beagle (1972) 6 Cal.3d 441, 456.)
The trial courts failure to give either of these instructions, which are included in the clerks transcript and marked as "withdrawn," is not explained in the record. We shall assume for the sake of argument that at least one cautionary instruction concerning defendants purported statement before the assault should have been given, due to the conflicting testimony as to whether it was made at all.
However, reversal is required only if, upon reweighing the evidence, it appears reasonably probable that the jury would have reached a result more favorable to defendant if the instruction had been given. (People v. Beagle, supra, 6 Cal.3d 441, 455; People v. Watson (1956) 46 Cal.2d 818, 836.) We conclude any instructional error concerning the use of the statements was not prejudicial because the evidence of defendants assault with his truck was independent of any threat or statement made by him at the beginning of the incident.
First, all the witnesses agreed that there was a physical fight after Seider approached defendant.
Second, when Seider testified the defendant stated he was a dead man, the defense counsel objected that the statement was hearsay. The trial court then told the jury that the statement had nothing to do with the truth one way or the other, but "what was said itself."
Third, although there was a factual dispute about what defendant said, the use of fighting words by each side before defendant assaulted Seider with his truck was uncontradicted.
The issues argued to the jury revolved around whether defendant used his truck to assault defendant after the physical fight stopped. Ultimately, even if defendant said nothing about killing Seider at the outset or whether he simply tried to warn him off, it was his action in backing the truck into him that resulted in the convictions—action testified to by Bradshaw, by Davis, and corroborated by police photographs of the truck tracks. Therefore, we cannot conclude a miscarriage of justice resulted.
V.
Defendant claims the cumulative effect of the instructional errors occurring in this case was prejudicial and requires reversal. Defendant is entitled to a fair trial but not a perfect one. (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) Any errors that occurred in this case were harmless whether considered individually or collectively. (Ibid.)
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, J., MORRISON, J.