Opinion
NOT TO BE PUBLISHED
Superior Court County No. KA076066, of Los Angeles Charles Horan, Judge.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan, William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
PERREN, J.
Avery Bennett appeals the judgment entered after a jury convicted him of assault with a firearm (Pen. Code, § 245, subd. (a)(2)). The jury also found true allegations that Bennett personally inflicted great bodily injury and used a firearm in his commission of the offense, rendering it a serious and violent felony (§§ 667.5, subd. (c)(8), 1192.7, subd. (c)(8), 12022.5, subd. (a), 12022.7, subd. (a)). He was sentenced to a total of nine years in state prison. He contends that the trial court violated his due process rights by refusing to instruct the jury on the doctrine of transferred intent. We affirm.
Further statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
On June 3, 2006, Vincent Clardy received a telephone call from Jevon, a member of the Islands gang. Jevon told Clardy that he was "stuck" at the Nu Flava Barber Shop in Pomona and "was scared to leave." Although Clardy denied he was an Islands gang member, he admitted that he associated with members of the gang and that they were rivals of the N.A.P. gang. Clardy inferred from the telephone call that there was about to be a confrontation between both gangs at the barber shop.
Clardy testified that he and 15 to 20 members of the Islands gang decided to go to the barber shop "to try to prevent anything stupid happening." When Clardy arrived, he contacted Jevon, took him outside, and told him to leave. Jevon complied, and Clardy told the group of gang members who came with him to remain outside.
Clardy went back inside the barber shop and contacted Bennett, Robert Curtis, and Steven Postell, all of whom were sitting in the waiting area. Clardy recognized Curtis as his friend's son. According to Clardy, Curtis "started tripping" when Curtis spoke to him, then jumped up and swung at him. Clardy testified that when he "fought back," Curtis jumped behind Bennett, who produced a gun and fired it at Clardy. The first bullet grazed Clardy's forehead. As Clardy ran out the front door of the barber shop, Bennett shot him in the back and leg.
Clardy stayed overnight at the hospital as a result of the shooting, but he did not sustain any permanent injuries and no bullets were recovered from his body. He initially told the police he had been shot outside a liquor store, purportedly because he had prior felony convictions and did not want to get his family involved.
At the time of the shooting, Jeffrey McCarty was sitting in the waiting area by the front door of the barber shop with his six-year-old son. McCarty testified that two or three men came in, walked the length of the shop, then exited through the front door. When they came in, "there was sort of an intimidation factor they seemed to have" that caused everyone to stop talking. After they left, a man McCarty later identified as Clardy came in and started looking around "in . . . a menacing manner." A man seated next to McCarty asked Clardy why he was there. In response, Clardy began striking the man with his fists. McCarty grabbed his son and ran out the front door. As he was leaving, he heard at least four gunshots. Although McCarty had seen Bennett in the shop, he did not see who had fired the gun.
As McCarty was driving home, he noticed that his pants were bloody and realized he had been shot in the leg. After he arrived home, an ambulance took him to the hospital. He stayed there overnight, then spent a month at home recovering from his injuries.
Two of the barbers who were present during the shooting testified at trial. Although neither of them was able to identify Bennett as the shooter in a photo lineup at trial, they recognized him as a previous customer. Prior to trial, however, both had identified Bennett as the shooter.
A gang detective with the Pomona Police Department testified that Clardy was a member of the Islands gang, and that Bennett was a member of the N.A.P. gang. He also testified that there was a history of "turf wars" between the rival gangs, and that the barber shop where the shooting occurred was considered neutral territory.
On June 17, 2006, Bennett was interviewed by the police. A videotape of the interview was played for the jury. During the interview, Bennett initially denied that he was at the barber shop when the shooting occurred, but subsequently admitted otherwise. Bennett, who was 16 years old at the time, told the police he brought a gun to the shop because he knew that members of Islands gang would be there. After he took a seat in the waiting area, he saw Jevon sitting in the back of the shop talking on the telephone. Bennett recognized Jevon as an Islands gang member who had shot Bennett's friend Brandon Johnson. As Jevon was talking on the telephone, he was looking at Bennett and laughing. Bennett called Johnson and told him what was happening. Shortly thereafter, Clardy and several other Islands gang members entered the shop and approached Jevon. After Jevon exited through the front door with them, Clardy returned and spoke to Curtis, who was seated across from Bennett. When Clardy began hitting Curtis with his fists, Bennett took out a .38-caliber revolver and started shooting towards the front door at Clardy. Bennett then ran out the back door, threw the gun in the bushes, and went home.
Bennett testified at trial on his own behalf. He denied that he was a member of the N.A.P. gang or associated with any of its members. He testified that he was sitting in the waiting room of the barber shop with Curtis and Postell when he saw Jevon standing in the back talking on the telephone. Jevon was smiling and laughing and was staring at Bennett and his friends. Bennett called his friend Brandon Johnson, whom Jevon had previously shot, and told him to come to the shop. Before Postell left to purchase a drink at a nearby store, he handed Bennett a gun, which Bennett placed on his lap under his shirt. When Postell was returning, approximately 15 to 20 people walked into the barber shop to retrieve Jevon. As Jevon walked out with the group he said, "what's up, blood?" to Bennett.
Clardy, whom Bennett recognized as a "shot caller," approached Curtis and asked him if there was any trouble. Curtis responded that there was none. When Curtis bent over, Clardy began striking him with his fists and knocked him to the ground. Bennett, fearing Clardy and the group of Island gang members who were standing outside, pulled out the gun and started firing it at Clardy. After he fired the gun several times, Bennett, Curtis and Postell ran out the back door. Although he initially told the police he had discarded the gun in the bushes, at trial he claimed that he wiped off his fingerprints and returned the gun to Postell. After he admitted the shooting, he wrote an apology letter to McCarty. He also acknowledged his awareness that there were several other customers in the barber shop at the time of the shooting, including children.
Bennett was tried on two counts of assault with a firearm and one count of attempted murder of Clardy (§§ 664/187, subd. (a)). Great bodily injury allegations as to both assault counts were dismissed pursuant to section 1118.1. The jury subsequently found Bennett guilty of assaulting McCarty with a firearm, and also found true the great bodily injury and gun use allegations that were alleged as to that count. Bennett was found not guilty on the attempted murder count and the assault count as to Clardy.
DISCUSSION
Bennett's sole contention on appeal is that the trial court violated his due process rights by refusing to instruct the jury on the doctrine of transferred intent, or more accurately, transferred "defense of another." Bennett asked the court to instruct the jury as follows: "Just as a defendant's criminal intent follows the corresponding criminal act to an unintended victim, so too does a defendant's lack of criminal intent follow the corresponding non-criminal act to the unintended victim. Thus the defendant is not guilty of a crime if his legitimate act in defense of another results in an inadvertent injury to an innocent bystander." He claims that the instruction was necessary to inform the jury that his legitimate act of defending Curtis absolved him of any criminal responsibility for McCarty's injuries. He also asserts that the jury would have found him not guilty of assaulting McCarty had the instruction been given, because his acquittal on the charges of attempted murder and assault of Clardy compels the conclusion "that the jury agreed that the shooting of Clardy was justified as the defense of another."
We conclude that the instruction was properly refused because it is an incorrect statement of the law. The doctrine of transferred intent provides that "a defendant who shoots with the intent to kill a certain person and hits a bystander instead is subject to the same criminal liability that would have been imposed had '"the fatal blow reached the person for whom intended."' [Citation.] In such a factual setting, the defendant is deemed as culpable as if he had accomplished what he set out to do." (People v. Scott (1996) 14 Cal.4th 544, 546.) The doctrine is also available as a defense, in that "just as 'one's criminal intent follows the corresponding criminal act to its unintended consequences, 'so too one's lack of criminal intent follows the corresponding non-criminal act to its unintended consequences. [Citation.] Thus, a defendant is guilty of no crime if his legitimate act in self-defense results in the inadvertent death of an innocent bystander." (People v. Levitt (1984) 156 Cal.App.3d 500, 507, superseded by statute on another ground as stated in People v. Browning (1991) 233 Cal.App.3d 1410, 1413.) The doctrine of transferred intent does not apply, however, to the crime of assault with a deadly weapon. That offense "is a general intent crime, therefore there is no intent to transfer. The defendant need not intend to strike any particular person to be guilty of such an assault. Rather, when the defendant shoots into a group of persons primarily targeting only one of them, the defendant can be convicted of assault with a deadly weapon as to the nontargeted members of the group." (People v. Riva (2003) 112 Cal.App.4th 981, 999, fns. omitted; see also People v. Lee (1994) 28 Cal.App.4th 1724, 1736-1737.) Bennett's attempts to discredit this authority are unavailing.
Moreover, the instructions that were given adequately conveyed the concept that Bennett's lawful defense of Curtis might absolve him of criminal responsibility for the injuries McCarty suffered as an innocent bystander, albeit not under the inapplicable theory of transferred intent. Specifically, the jury was instructed that in order to establish that Bennett assaulted McCarty, the prosecution had to prove, among other things, (1) that Bennett "willfully and unlawfully committed an act which by its nature would probably and directly result in the application of physical force on [McCarty]"; and (2) that he "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 [McCarty]." (CALJIC No. 9.00.) The instruction also provided that "[a] willful application of physical force upon the person of another is not unlawful when done in lawful defense of others. The People have the burden to prove that the application of physical force was not in lawful defense of others. If you have a reasonable doubt that the application of physical force was unlawful, you must find the defendant not guilty." (Ibid.) The jury was also given a modified version of CALJIC No. 5.32, which stated that "[i]t is lawful for a person who, as a reasonable person, has grounds for believing and does believe that bodily injury is about to be inflicted upon the person of another to protect that individual from attack. [¶] In doing so, he may use all force and means which that person believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent." The court, on its own motion, also instructed that "[a]n honest and reasonable belief in the need to use force of the type used in this case is a defense to all of the charged crimes . . . ." (Italics added.) We assume that jurors are capable of understanding and correlating all of the instructions they are given. (People v. Guerra (2006) 37 Cal.4th 1067, 1148.) Those instructions informed the jury that in order to find Bennett guilty of assaulting McCarty, the prosecution had to prove beyond a reasonable doubt that Bennett intentionally discharged the gun with knowledge of facts that would lead a reasonable person to know that McCarty would be shot. The jury was also informed that Bennett should be found not guilty of any crime if he honestly and reasonably believed that the shooting was necessary to protect Curtis from injury.
We also reject Bennett's claim that his acquittal on the charges involving Clardy evinces a jury finding that the shooting was in lawful defense of Curtis. As the trial court noted, the jury may have nullified those charges based on a lack of sympathy for the victim. Moreover, the jury was also instructed that "[t]he right of defense of another exists only as long as the real or apparent threatened danger continues to exist. When the danger ceases to appear to exist, the right to use force in defense of another ends." (CALJIC No. 5.52.) Even if it is conceivable that Bennett's first shot was necessary to protect Curtis from Clardy's attack, Bennett continued to fire at Clardy as he was running away from him out the front door. Bennett was also aware that the barber shop was crowded, and that everyone started running out the door when the shots were fired. In light of this undisputed evidence, any error in failing to adequately instruct the jury on Bennett's theory that he was acting in lawful defense of another when he shot McCarty was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; cf. People v. Czahara (1988) 203 Cal.App.3d 1468, 1475 [applying Chapman standard of review to error in instructing on transferred intent].)
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.