Opinion
F041304.
7-3-2003
THE PEOPLE, Plaintiff and Respondent, v. CARLOS LYNN BOWKER, Defendant and Appellant.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
Appellant Carlos Lynn Bowker was convicted of a single felony count of willful failure to appear. Bowker appeals his conviction alleging the trial court erroneously refused to give jury instruction on the affirmative defense of mistake of fact. When we assume the facts to be as Bowker testified he perceived them to be, we conclude that Bowkers failure to appear was not the result of a mistake of fact. We will therefore conclude the instruction properly was refused and affirm.
STATEMENT OF THE CASE AND FACTUAL BACKGROUND
On October 1, 2001, Manuel Vierra represented Bowker at a preliminary hearing on an unrelated felony complaint in Merced Superior Court. At the conclusion of that hearing, Bowker was ordered to appear for arraignment on October 16, 2001, at 8:15 a.m., in department 3 of the Merced Superior Court. On October 16, Vierra met Bowker outside the courtroom about 8:00 a.m. Vierra told Bowker the district attorney had decided to amend the charges against him to include more serious charges and to increase his bail. When the deputy district attorney approached, Bowker excused himself and headed down the hall toward the restrooms and apparently said nothing about where he was going.
When the courtroom opened, Vierra and the deputy district attorney entered without Bowker. Bowkers case was among the first called. When the case was called, Vierra noted Bowker was not present and requested the case be trailed. Vierra then went into the lobby area to look for Bowker but could not find him in the immediate vicinity of the courtroom. Vierra did not go down the hallway or into the restroom to look for Bowker. About 15 to 30 minutes later, Bowkers case was called a second time. Bowker was not present. The motion to increase his bail was granted and a bench warrant was issued. Vierra had no further contact with Bowker after that date.
On February 25, 2002, Merced Police Officer Jeffrey Horn responded to a 911 call about 6:30 p.m. Horn and another officer noticed a car leaving from the reporting address at a high rate of speed. The car was stopped in a nearby alley and a male passenger exited the car and ran. The officers pursued the male subject on foot and eventually found him hiding in a closet in a nearby house. After considerable struggle, the subject was arrested and handcuffed. After the subject was subdued, it was discovered he was Bowker.
On April 4, 2002, an information was filed in Merced County alleging a single count of willful failure to appear, in felony violation of Penal Code section 1320.5. The information also alleged Bowker had suffered one prison prior within the meaning of section 667.5.
At trial Bowker testified that he understood he had been ordered to appear on October 16, 2001, at 8:15 a.m., in department 1. He testified he met Vierra in the hallway outside department 1, but excused himself to go to the bathroom because he had an upset stomach. Bowker testified that when he came out of the restroom 15 or 20 minutes later, the hallway was clear because the courtroom doors had been opened. Bowker went to department 1 and found the door locked. Bowker acknowledged that he had received a copy of the minute order of the October 1 hearing that stated he was ordered to appear in department 3 on October 16, 2001.
From the locked door of department 1, Bowker then went to department 2 and sat there about 10 minutes. Bowker testified he then went to department 3. He noted it was 9:05 a.m. when he entered that courtroom. Bowker testified he did not see Vierra in the courtroom, so he went outside and checked the list of cases posted outside the courtroom door. Bowker testified he did not see his name on the list posted outside department 3. Bowker testified he then went to check in with the marshals office before he left the court.
Bowkers attorney requested the jury be instructed pursuant to CALJIC No. 4.35, Ignorance or Mistake of Fact. After discussion, the instruction was refused. The court noted that under the facts of the case, there was no mistake of fact because the defendant had been informed of the proper department and physically had checked into the two possibilities that could have been explained by the alleged mistake of fact.
DISCUSSION
Bowker raises a single issue on appeal. He alleges the trial court erred by refusing the requested jury instruction on the affirmative defense of mistake of fact.
"A trial court has a duty to instruct the jury on principles of law which are closely and openly connected with the evidence and which are necessary to the jurys understanding of the case. [Citation.] A defendant is entitled to have the court instruct on a defense theory if it is supported by substantial evidence, i.e., if a reasonable jury could conclude the particular facts underlying the instruction existed. [Citations.]" (People v. Sullivan (1989) 215 Cal. App. 3d 1446, 1450, 264 Cal. Rptr. 284.)
"To determine whether a mistake of fact applies we must assume the facts were as the defendant perceived them. [Citations.] If under this assumed state of facts the defendants actions would not have constituted a crime, the defense applies. [Citations.] Conversely, if under this assumed state of facts the defendants actions would still have been unlawful, the defense does not apply. [Citation.]" (People v. Watkins (1992) 2 Cal.App.4th 589, 594.)
Bowker excused himself to go to the restroom without telling anyone where he was going. He returned to find locked the department where he stated he believed the proceeding would be held. He then sat in a courtroom where he had no stated belief the proceeding would be held. He finally appeared 35 to 50 minutes late at the department where the proceeding was to be held.
Assuming, arguendo, Bowkers attorney was no longer present when Bowker returned to department 3 and, assuming he returned to the courtroom after his case was called the second time, we see nothing in the facts, as Bowker testified he believed them to be, to indicate his failure to appear was a result of mistake of fact. When Bowker returned from the restroom to find the door to department 1 locked, he was foreclosed from taking any action resulting from that mistake of fact. Bowker did not testify he thought the proceeding was to be held in department 2; consequently, the fact he seated himself in that department was not the result of a mistake of fact. By the time Bowker made his appearance in the proper department, he believed his case had been called and his attorney had departed. Assuming that was, in fact, the case, Bowkers failure to appear was complete by the time he seated himself in the courtroom.
Bowker admitted he was in receipt of a copy of the minute order stating he was to appear in department 3 at 8:15 a.m. Essentially, Bowkers testimony indicates he chose to absent himself from the proceeding, first, by going to the restroom without taking steps to notify his attorney and, second, by seating himself in a department where he had no expectation his case would be called. There is nothing to indicate Bowkers absence at the time his case was called the second time was a result of the claimed mistake of fact.
We agree with the trial courts finding there was no actual mistake of fact. The requested instruction pursuant to CALJIC No. 4.35 properly was refused.
DISPOSITION
The judgment is affirmed. --------------- Notes: All future statutory references are to the Penal Code unless otherwise indicated.