Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Mark E. Petersen, Judge. Affirmed with directions.Super.Ct.No. SWF021032.
Stephen S. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, Marilyn L. George and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER Judge.
A jury convicted defendant Kevin Alvesstone of criminal threats (count 1—Pen. Code § 422), false imprisonment (count 2—§ 236), and two counts of child abuse (counts 3 & 4—§ 273a, subd. (b)). Additionally, the jury found true allegations defendant had personally used a firearm in his commission of the count 1 and 2 offenses (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)). Defendant later admitted an allegation that he was out on bail when he committed all four offenses (§ 12022.1). The trial court sentenced defendant to an aggregate term of six years imprisonment.
All further statutory references are to the Penal Code unless otherwise indicated.
The minute order for May 1, 2009, reflects that defendant admitted the enhancement only as to counts 1 and 2; however, the reporter’s transcript reflects that the admission was to the enhancement as attached to all four counts. Thus, we shall direct the superior court to correct the May 1, 2009, minute order to reflect defendant’s admission of the section 12022.1 enhancement as to all four counts. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate courts have inherent power to correct clerical errors that do not accurately reflect the judgment].)
On appeal, defendant contends the trial court erred in declining to instruct the jury with CALCRIM No. 3406, the mistake of fact instruction, upon his request. Additionally, defendant argues insufficient evidence supports his conviction for false imprisonment. We affirm.
FACTUAL AND PROCEDURAL HISTORY
On April 2, 2007, off-duty Murrieta Police Department Detective Phillip Gomez took his two 10-year-old sons for a bike ride on a trail in an unincorporated area near Murrieta. They reached the top of a hill where they took a path leading down to another trail; they walked their bikes down due to the steepness of the decline. Defendant began speaking to Gomez from behind a barbed wire fence. There was a wrought-iron fence behind defendant that appeared to demarcate defendant’s property. Defendant asked Gomez if the boys were his; Gomez replied that they were. Defendant then asked if Gomez was in the habit of teaching them to commit crimes, in particular, trespass. Gomez replied that he did not know what defendant was talking about.
Defendant pointed out several no trespassing signs and informed Gomez that he and his children were on defendant’s property. Gomez responded that they were not on defendant’s property; they were on a marked bike path. Gomez informed defendant that the wrought-iron fence behind defendant clearly delineated the boundary of defendant’s property. Nevertheless, defendant insisted that Gomez and his children were on defendant’s property. Defendant told Gomez he had two choices: Either defendant would call the police or get his shotgun. Gomez replied dismissively, “‘Go ahead.’”
Defendant testified he merely told Gomez they were trespassing, but he did not mean they were trespassing on his own property. Gomez testified that the “no trespassing” signs were obviously posted by a homeowner, not by any governmental entity and were intended solely to discourage persons from crossing into the area behind the barbed wire fence, not on the bike trail he and his children were on.
Defendant testified, “[a]t the time of this incident, that was not designated as a bike path.”
Defendant testified Gomez told him to get his gun.
Defendant ran inside his residence. Gomez and his children continued down the hill. When Gomez noticed defendant coming back outside, he told his children to leave their bicycles. Defendant returned to a position between the barbed wire and wrought-iron fences approximately 15 feet from Gomez, and pointed the barrel of a gun directly at Gomez’s face. It was a large caliber, black Berretta handgun. Defendant told Gomez to “‘Get on your knees. I’m going to f’ing kill you.’” Gomez told his children to move away from him; they hid behind some bushes.
Defendant testified that when he returned, Gomez was in the same place as when defendant left, i.e., Gomez had not moved at all, but had waited for defendant’s return.
Defendant denied ever pointing the gun at Gomez; instead, he testified he merely flashed it at Gomez.
Defendant denied ever threatening Gomez.
Gomez pleaded with defendant not to shoot. He requested that defendant take his finger off the trigger and point the gun at the ground. Defendant continued to demand that Gomez get on his knees threatening to “‘f’ing kill you. I’m going to shoot you in your head.’” Defendant appeared angry and upset. Defendant told Gomez he was trespassing: “‘You’re on my property. I have every right to shoot you in the f’ing head. I’m going to kill you.’”
Gomez informed defendant that he was a police officer and that he was going to remove his badge. Gomez slowly reached in his back pocket, removed his badge, opened it, and showed it to defendant. He told defendant “‘I’m a cop. Please don’t shoot. What you are doing is illegal. Put the gun down.’” Defendant continued to point the gun at Gomez. Gomez ordered defendant to put the gun down. Gomez told defendant he was going to call the police; he reached for his cell phone and dialed his dispatch center, who then patched-in to 911. Gomez heard sirens immediately after he completed the call. Defendant then turned around and reentered his home.
Gomez testified that he was unarmed. Likewise, in the 911 call initiated by Gomez, a tape of which was played to the jury, Gomez informed the dispatcher that he was unarmed.
Defendant testified he turned around, and reentered his home as soon as Gomez identified himself as a police officer. He did not hear sirens until after he had reentered his home.
Gomez saw the police within 30 seconds of completing the phone call. He and his children made their way to the bottom of the hill. Defendant came out of his house and started doing yard work.
Corporal Jay Strang of the Riverside County Sheriff’s Department was dispatched to defendant’s residence regarding a report of a man with a gun. When he arrived, defendant and Yvette were out in front of the house. Defendant led him to his backyard from where the corporal could see Gomez and his children at the bottom of the hill on a trail on the other side of a barbed wire fence. The corporal asked Yvette if defendant had a gun; she led him to a drawer in the house. Inside he “found a silver, compact semi-automatic replica.” He came out of the house with the replica gun and asked Gomez if it was the gun used. Gomez replied that it was not; the one used was black and much larger. The corporal returned to the same drawer where he found a Beretta 9-millimeter, semi-automatic handgun inside a holster beneath several objects. He showed the gun to Gomez who identified it as the weapon defendant used.
It was stipulated that defendant’s former fiancée, Yvette Alvesstone, called the police and reported trespassers at precisely the same time as Gomez called.
Yvette testified that she changed her last name to defendant’s last name because she and defendant were engaged; however, they never actually married and had been separated at the time of trial for 18 months.
Defendant and Yvette testified that the property outside the barbed wire fence was a wildlife preserve dedicated to protecting the kangaroo rat; defendant testified that there was no fenced enclosure or “no trespassing” signs for the “preserve.” They did not own the property; however, they believed it was their responsibility to care for the area. Such care included “[m]aintaining, making sure that the kangaroo rat was not harmed in any way; that the vegetation was to be maintained and carefully looked at. If there w[ere] any problems, to notify them.” On the day in question, Yvette called defendant’s attention to ostensible trespassers in the preserve. He saw two children riding their bikes down the hill. He believed they were trespassing on the wildlife preserve: “As far as I am concerned, they were damaging property.”
Though he testified he was not paid for this service, he alleged it was dictated in his property deed. Defendant also contradictorily testified both that he owned the property between the wrought-iron fence and the barbed wire fence, and that he did not own that property. However, at one point he had built stairs on that section of the property, but was later told to remove them. A neighbor testified that defendant previously constructed improvements to the area, but a construction crew removed them two months later. Yvette testified they only owned the property contained within the wrought-iron fence.
Defendant never identified “them.”
Yvette testified “[w]ell, when you are riding your bikes over vegetation or moving your bike down the vegetation that is naturally growing there, then, yes, they are damaging vegetation that is supposed to be for the wild life preserve to preserve those animals.” However, defendant admitted on the stand that he himself had previously walked on the path taken by Gomez and his children.
DISCUSSION
A. CALCRIM NO. 3406
Defendant contends the court prejudicially erred in refusing to give the mistake of fact jury instruction he requested because substantial evidence supported defendant’s assertion that he believed the gun was a prop, i.e., not a real functioning gun. We hold that defendant’s belief regarding the genuineness of the gun was irrelevant to the jury’s determination of whether he personally used a gun in the commission of his offenses. Thus, we affirm the court’s refusal to instruct the jury with the mistake of fact instruction.
Corporal Strang testified that after Gomez identified the handgun used against him, Strang took a closer look at it: “it appeared the barrel may have been either charged out or bored out, but I don’t recall I saw any rifle pin inside the barrel. [¶]... [¶] If there is the absence of rifle pin, the projectile fired from that weapon will not necessarily be a through direction of fire. The rifling helps keep the bullet going in a straight motion.” He testified that the gun was unloaded.
A criminalist from the California Department of Justice specializing in firearms testified the gun “had a modification to the barrel, meaning the muzzle. The barrel—it has been treated on the inside, and inserted into the barrel. What best I could tell was a hex nut had been screwed into the barrel about half an inch down.” If loaded and fired with a live bullet, “The bullet would enter the chamber end of the barrel. However, because of the restriction and the modification, it is likely that the barrel will split that. This is an unsafe firearm. It is unsafe to fire a live round into a [restricted] barrel like this.” The criminalist could not definitively testify as to whether the gun, despite the modification, could conceivably fire a bullet. Deputy Delatorre, another officer who responded to the scene, testified that he also examined the firearm and noticed a nut inside the barrel restricting its opening. He testified that, when found, defendant spontaneously stated that the gun was prop.
Yvette testified that the gun was “a black prop gun [¶]... [¶] used in one of the movie stages.” Defendant testified the gun “was a prop gun, toy gun.” He did not believe it was a real gun. He did not believe that either of his guns was real. Likewise, he had no ammunition. When asked by a responding officer which individual involved in the incident had a gun, defendant replied that no one did. When confronted with the black handgun, defendant told the officers that it was a prop gun, not a real one.
After trial, defendant requested the court instruct the jury with CALCRIM No. 3406. Defendant’s request was primarily directed at his alleged mistake of fact concerning his responsibility for ensuring no trespassers intruded upon the preserve. However, defendant also argued the instruction was relevant to his mistaken belief that the gun he used was not real. The court declined defendant’s request, but appropriately instructed the jury with CALCRIM No. 3146, the instruction for personal use of a firearm.
CALCRIM No. 3406 reads as follows: “The defendant is not guilty of <insert crime[s]> if (he/she) did not have the intent or mental state required to commit the crime because (he/she) [reasonably] did not know a fact or [reasonably and] mistakenly believed a fact. [¶] If the defendant’s conduct would have been lawful under the facts as (he/she) [reasonably] believed them to be, (he/she) did not commit <insert crime[s]>. [¶] If you find that the defendant believed that <insert alleged mistaken facts> [and if you find that belief was reasonable], (he/she) did not have the specific intent or mental state required for <insert crime[s]>. [¶] If you have a reasonable doubt about whether the defendant had the specific intent or mental state required for <insert crime[s]>, you must find (him/her) not guilty of (that crime/those crimes).”
Defendant testified and defense counsel argued that his intent in confronting Gomez was to affect a citizen’s arrest for trespass.
CALCRIM No. 3146, as given, reads as follows: “‘If you find the defendant guilty of the crimes charged in Counts 1 or 2, you must then decide whether, for each crime, the People have proved the additional allegation that the defendant personally used a firearm during the commission of that crime. You must decide whether the People have proved this allegation for each crime and return a separate finding for each 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 to be 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 weapon in a menacing manner; [¶] 2. Hits someone with the weapon; 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.
“‘[A]ny person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense.’ (Pen. Code, § 12022.5, subd. (a).)” (People v. Wardell (2008) 162 Cal.App.4th 1484, 1491-1492.) “‘Although the use of a firearm connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies. “Use” 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.” (Webster’s New Internat. Dict. (3d ed. 1961).) The obvious legislative intent to deter the use of firearms in the commission of the specified felonies requires that “uses” be broadly construed.’ [Citation.]” (Id. at p. 1492.)
A true finding on a personal use of a firearm enhancement requires only a showing of general criminal intent, i.e., it does not require that defendant have had any particular specific intent. (People v. Wardell (2008) 162 Cal.App.4th 1484, 1488.) “A gun use occurs ‘in the commission of” an offense if the gun use in fact objectively facilitated the commission of the offense. The issue is not one of the gun user’s subjective mental state but of the objective role that the gun use played in the commission of the crime. The ‘in the commission of’ element of a personal use enhancement does not encompass a specific intent requirement.” (Id. at p. 1495.) “[A] gun is ‘used’ when there is evidence of gun-related conduct coupled with the intent the gun-related action facilitate the crime....” (Alvarado v. Superior Court (2007) 146 Cal.App.4th 993, 1005.)
In In re Arturo H. (1996) 42 Cal.App.4th 1694, the court observed: “many cases have interpreted the laws prohibiting possession and use of firearms to apply even if the gun in question is inoperable... [¶] [and identified] what has been called ‘an important common thread of perceived fear in... the underlying purpose of The Dangerous Weapons’ Control Law [§ 12000 et seq.].)’ [Citation.]” (Id. at pp. 1697-1698, italics added.) “‘The Dangerous Weapons’ Control Law [specifically section 12022.5]’... seeks to deter both physical harm and conduct which produces fear of harm. The fear may arise either from a gun that really shoots or from one which is designed to shoot and gives the appearance of shooting capability. Persons held at gunpoint have no stomach for inquiry. Danger radiates not only from the weapon, but from the defensive reactions of others. In response to the lawbreaker’s weapon, operable or not, a victim or law officer may himself resort to a firearm. Further, a demand for affirmative proof of operability would allow the defendant to frustrate the statute by getting rid of the gun or concealing it.... [I]t is enough that the prosecution produce evidence of a gun designed to shoot and which gives the appearance of shooting capability.’” (In re Arturo H., at p. 1698, italics added, quoting People v. Hayden (1973) 30 Cal.App.3d 446, 452; see also People v. Jackson (1979) 92 Cal.App.3d 899, approved by People v. Nelums (1982) 31 Cal.3d 355, 359.) Likewise, the gun need not be loaded during the offense to support a true finding on a personal use enhancement. (Nelums, at p. 359; see also People v. Johnson (1995) 38 Cal.App.4th 1315, 1319; Jackson, at p. 901, fn. 1.)
Here, it makes no difference whether defendant believed the gun was an inoperable prop because it was an actual firearm utilized by defendant to facilitate the commission of his offenses. Defendant intentionally displayed the firearm in a menacing manner as an instrument to affect his ends; thus, the intent requirement of the statue was met regardless of whether defendant believed the firearm was not real. Indeed, far from suggesting the gun was inoperable, the testimony established that, while unsafe, the gun remained operational. Corporal Strang testified that despite the apparent modification, “From what I could tell, without breaking it down completely, [the gun] appeared to have a firing pin; all the functioning components of a firearm.” Although Strang testified that the modification might have impeded the gun’s accuracy, his testimony implicitly reflected that the gun could potentially still fire a projectile. Indeed, the criminalist actually test-fired the weapon after removing the gun powder and bullet from the inserted cartridge: “It did fire the prime cartridge case.” Although the criminalist did not fire a projectile from the weapon, chiefly because it was unsafe to do so, he could not definitively rule out the weapon’s ability to do so. The criminalist testified that the gun had all the functioning parts of an actual Beretta firearm. Officer Delatorre testified that “it had all the functioning components of what it is. It is a Beretta semi-automatic.” The gun had a serial number. Thus, whether operable in the manner of an unaltered weapon, the handgun was a firearm for purposes of the section 12022.5 enhancements, because it was designed to shoot. (People v. Jackson (1979) 92 Cal.App.3d 899, 901 [personal use enhancement upheld even where expert testimony established firearm could not have been fired].)
Moreover, the victims perceived the weapon to be an actual handgun. Gomez recognized the weapon for what it was, a black, large-caliber Beretta; it was precisely the type of weapon Gomez formerly owned. Both Gomez’s sons witnessed defendant point what they accurately believed to be a handgun at their father; one of Gomez’s sons specifically recognized it as a black, 9-millimeter handgun. Corporal Strang testified, “[i]t looked like a regular Beretta 9 millimeter.” Even defendant testified there was nothing about the exterior of the firearm that would indicate to someone that it was not a real firearm. Thus, “‘the prosecution produce[d] evidence of a gun designed to shoot and which g[ave] the appearance of shooting capability.’” (In re Arturo H., supra, 42 Cal.App.4th at p. 1698.)
Finally, the gun actually facilitated defendant’s crimes. Coupled with defendant’s brandishing of the weapon, defendant threatened to shoot Gomez. Gomez was afraid for his own life and the lives of his children. Gomez even momentarily forgot that he was a police officer. He was afraid defendant would involuntarily fire the gun because defendant retained his finger on the trigger. One of Gomez’s sons testified that he cried and was scared of defendant. Gomez’s other son feared that defendant was going to shoot his father. Gomez was afraid that if he tried to leave defendant would shoot him. Thus, defendant’s use of the gun facilitated his offenses of making criminal threats and falsely imprisoning Gomez.
Defendant’s contention that his false belief that the gun was a prop necessitated the jury’s instruction with CALCRIM No. 3406 would negate two purposes of the statute: (1) Deterring the physical and emotional harm that may result from the brandishment of even a non-operable or unloaded weapon; and (2) eliminating the potential of a violent reaction by the victim of such brandishment. (In re Arturo H., supra, 42 Cal.App.4th at p. 1698.) As discussed above, there can be no doubt that defendant’s use of the firearm accomplished the former, whether he believed the weapon was real or not: Gomez testified he was frightened for his and his sons’ lives; thus, he incurred emotional harm from defendant’s actions. Moreover, as to the latter, Gomez testified that although “prior to this incident, I rarely carried a firearm off duty, ” “[a]fter this incident, I began.” Had Gomez actually been armed during the encounter there is simply no telling what could have occurred: Gomez could have drawn his weapon on defendant, in and of itself causing defendant or others potential emotional and/or physical harm; Gomez could have actually shot defendant, injuring or killing him; and had Gomez fired such shots he could have injured others in the vicinity and/or caused property damage. It is precisely these effects that section 12022.5 seeks to prevent by deterring individuals from utilizing guns in the commission of crimes in the first place, regardless of whether they believe them to be real.
Further, a demand for affirmative proof of defendant’s belief that the firearm was real would allow defendant to frustrate the statute by discarding the gun in the time before police could recover it or by concealing it entirely. (In re Arturo H., supra, 42 Cal.App.4th at p. 1698.) Requiring that trial courts give a mistake of fact jury instruction to any defendant asserting that he or she believed the real firearm they used to be fake would unnecessarily draw out the length of trials and render nugatory the crucial rationales underlying the statute. The evidence that the gun looked like an operable handgun, was perceived by the victim to be an operable handgun, actually was a handgun, and was used to facilitate defendant’s crimes, was sufficient to support the true findings on the personal use allegations in counts 1 and 2. Defendant’s belief, whether actual or not, that the gun was not real was irrelevant and, thus, the trial court committed no error in declining defendant’s instructional request.
B. SUFFICIENCY OF THE EVIDENCE
Defendant contends that insufficient evidence supported his conviction for false imprisonment. We disagree.
“‘“[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”’ [Citations.] ‘[The] appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citations.]” (People v. Wardell (2008) 162 Cal.App.4th 1484, 1489-1490.) “‘False imprisonment is the unlawful violation of the personal liberty of another.’ (Pen. Code, § 236.) False imprisonment is a misdemeanor unless it is ‘effected by violence, menace, fraud, or deceit, ’ in which case it is a felony. (Pen. Code, § 237.)” (Id. at 1490.) “‘“Menace” is defined as “‘“a threat of harm express or implied by word or act.”’”’ [Citation.]” (Ibid.)
Here, Gomez testified that, after defendant pointed the gun at him and threatened his life, he did not feel free to leave: “I actually made an attempt, like, we are just going to go. I didn’t say it, but I knew it—that is what I was going to do. The movement I made, [defendant] pushed his hand further towards me, so I knew that there was no way I could leave.” Gomez later twice told defendant that so long as he took his finger off the trigger and pointed it at the ground, Gomez “wouldn’t go anywhere.” This necessarily implicates Gomez’s belief that defendant’s motive was to restrain his liberty. Defendant obviously accomplished this.
Gomez testified that defendant pointed the firearm at him for approximately three minutes. In the call to his dispatch made by Gomez, a recording of which was played to the jury, Gomez informed the dispatcher that defendant had been pointing the gun at him “for at least 3 minutes.” One of Gomez’s sons testified that defendant continued to point the gun at Gomez for at least a minute after Gomez had shown defendant his badge and identified himself as a police officer. The transcript of the 911 call supports this testimony; Gomez informs the dispatcher that defendant put the gun away three pages into the seven- and one-half page transcript. While defendant and Yvette recounted that the entire incident lasted a minute or less, the jury obviously determined their accounts were not credible. Thus, substantial evidence supported defendant’s conviction for false imprisonment.
Indeed, defendant himself initially testified that the entire incident lasted from three- and one-half to five minutes.
Contrary to defendant’s contention, Gomez was not required to run away at full bolt while defendant left to retrieve the gun because Gomez did not actually believe defendant would get a gun, because the situation prohibited him from doing so, and because there was every indication that he was on public land and had a full right to be there. Likewise, simply because Gomez was a trained SWAT officer did not transform him into a physical and emotional superman who was capable of leaving at any time without fear of reprisal. Indeed, Gomez testified that his training typically involved having a bulletproof vest, a firearm, a radio, pepper spray, a Taser, a baton, a badge, and a uniform. It did not involve having his 10-year-old sons with him. On the instant, day Gomez was unarmed, wearing bike shorts and a T-shirt, was accompanied by his children, and was confronted by an individual with an apparently operable firearm that was pointed at his head, and attended with threats on his life. Sufficient evidence supported the jury’s finding that defendant had violated Gomez’s personal liberty.
Gomez testified, “I thought he was just trying to scare me off that piece of land. I never in my wildest dreams thought he was going to go inside and get a gun.”
Gomez was on a steep slope with two 10-year-old boys and their bikes. Gomez testified that as defendant returned to his residence, Gomez told his children “‘Okay. Let’s get out of here.’” However, “It was a lot more difficult, and would have taken longer to go up the hill with all the bikes. So I thought it would be quicker for us to start heading down the hill.” Regardless, Gomez and his children made some degree of progress down the hill in the less than one minute that it took defendant to return with the gun.
The professional land surveyor hired by defendant testified that the areas outside the barbed wire fence were owned by either the County of Riverside Parks Department or the homeowners’ association of the adjacent community. He testified that there was nothing in his investigation to indicate the area was a wild life preserve, and that it was actually “open space for public use.”
DISPOSITION
The superior court is directed to correct the May 1, 2009, minute order to reflect defendant’s admission of the section 12022.1 enhancement as to all four counts. In all other respects, the judgment is affirmed.
We concur: McKINSTER Acting P. J., KING J.