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People v. Chipongian

California Court of Appeals, Second District, Sixth Division
Jul 16, 2008
2d Crim. B204114 (Cal. Ct. App. Jul. 16, 2008)

Opinion

NOT TO BE PUBLISHED

Superior Court County of Los Angeles No. PA057545, Shari K. Silver, Judge.

Law Offices of Allison B. Margolin and Allison B. Margolin for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Catherine Okawa Kohm, Deputy Attorney General, for Plaintiff and Respondent.


PERREN, J.

Nolan Chipongian appeals the judgment entered after a jury convicted him of making a criminal threat (Pen. Code, § 422). The jury also found true the allegation that Chipongian committed the crime while out on bail for another offense (§ 12022.1, subd. (b)). The trial court sentenced him to two years state prison. He contends the trial court committed prejudicial error by (1) failing to instruct the jury on self-defense; (2) admitting unauthenticated documentary evidence to prove the section 12022.1 allegation; and (3) limiting evidence regarding the victim's propensity for violence. We affirm.

All further undesignated statutory references are to the Penal Code.

Chipongian was acquitted of assault with a firearm (§ 245, subd. (a)(2)), and brandishing a weapon at a person in a motor vehicle (§ 417.3). The jury also rejected the allegation that Chipongian personally used a firearm (§ 12022.5, subd. (a)) in making the criminal threat.

FACTS AND PROCEDURAL HISTORY

The People correctly note that Chipongian's retained attorney did not include a summary of the relevant facts, as required by rule 8.204(a)(2)(C) of the California Rules of Court. While the brief could be stricken on this basis, in the interests of justice we exercise our discretion to disregard counsel's noncompliance. (Cal. Rules of Court, rule 8.204(e)(2)(C).)

This case involves an incident of "road rage." The complainant, Francisco Mendoza, testified that he was driving in his van when he heard a car honk and saw Chipongian drive his car aggressively toward him. Chipongian pulled up next to Mendoza, stuck out his middle finger, and said, "I'm going to kill you, mother fucker." Chipongian followed Mendoza when he turned onto another street and continued to drive toward him in an aggressive manner. According to Mendoza, Chipongian repeatedly pointed a gun at him and reiterated, "I'm going to kill you, mother fucker." Eventually, he drove away. Mendoza called 911 on his cell phone and reported Chipongian's license plate number. A few minutes later, Mendoza spoke to a police officer about the incident and told him he believed Chipongian was angry because Mendoza had accidentally cut him off while driving. Mendoza admitted in his testimony that he was convicted of domestic violence and false imprisonment in 1995.

Chipongian testified on his own behalf. According to Chipongian, Mendoza pulled up alongside of him and said, "What is your problem? You almost hit my van." After Chipongian responded, "fuck you" and displayed his middle finger, the two took turns cutting each other off. Mendoza said, "Pull over, mother fucker," and Chipongian complied. Mendoza got out of his van and approached Chipongian. Because Chipongian believed that Mendoza might have a weapon, he held up a toy gun. When Mendoza retreated and drove away, Chipongian followed him. He saw Mendoza on the phone, and assumed he was calling the police.

Robertina Ayala, Mendoza's ex-wife, testified that in 1995 he struck her while he was intoxicated. She also testified that in September 2006 Mendoza angrily told her that he had no intention of supporting her or her children.

DISCUSSION

I. Self-Defense

In addition to the criminal threat count, Chipongian was also charged with assault with a firearm (§ 245, subd. (a)(2)), and brandishing a weapon at a person in a motor vehicle (§ 417.3). Testifying in his defense, Chipongian denied making the threat and claimed he had brandished a toy gun because he believed Mendoza might have had a weapon. Pursuant to Chipongian's request, the trial court instructed the jury on self-defense by giving CALCRIM No. 3470. Over Chipongian's objection, the court limited the instruction to the assault and brandishing charges alleged in counts 1 and 3. The court reasoned that Chipongian had failed to offer any authority for the proposition that "a crime of words can be responded to by a crime of physical force."

The jury was instructed as follows: "The defendant is not guilty of counts 1 and 3 and the lesser offense in count 3 if he used force against the other person in lawful self-defense. [¶] The defendant acted in lawful self-defense if: [¶] 1. The defendant reasonably believed that he was in imminent danger of suffering bodily injury; [¶] 2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; [¶] and [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger. [¶] Belief in future harm is not sufficient no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of violence to himself. Defendant's belief must have been reasonable, and he must have acted because of that belief. [¶] The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful self-defense. [¶] When deciding whether the defendant's beliefs were reasonable, consider all of the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed. [¶] If you find that Francisco Mendoza harmed others in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable. [¶] A defendant is not required to retreat. He is entitled to stand his ground and defend himself, and, if reasonably necessary, to pursue an assailant until the danger of bodily injury has passed. This is so even if safety could have been achieved by retreating. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. If the People have not met this burden, you must find the defendant not guilty of count 1, count 3 and the lesser included offense to count 3." (CALCRIM No. 3470.) "A person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use force." (CALCRIM No. 3472.)

Chipongian contends that the court committed reversible error by refusing to give the self-defense instruction on the criminal threat count. According to Chipongian, his "commission of a crime of words could be justified by his belief that he had to defend himself from the aggression of another." While we do not dispute the possibility that the mere speaking of words might qualify as self-defense, the instruction was properly refused in this case. Chipongian denied making any criminal threat to Mendoza. Moreover, the record is devoid of any evidence from which the jury could have inferred that his threat to kill Mendoza while they were driving was the result of an objectively reasonable belief that such a statement was necessary to defend against imminent danger of bodily harm. (See People v. Oropeza (2007) 151 Cal.App.4th 73, 82 [no error in failing to instruct on self-defense where neither the defendant's testimony nor other evidence demonstrated that he feared for his imminent safety when he committed the charged crime].) The court thus did not err in refusing to instruct the jury that self-defense was available on the section 422 charge.

II. Documentary Evidence Supporting the Section 12022.1 Allegation

To prove that Chipongian was out on bail on another charge when he committed the instant offense as contemplated by section 12022.1, the prosecution offered a certified copy of the complaint filed in Riverside County Superior Court charging Chipongian with one felony and three misdemeanors, as well as certified copies of minute orders from that court providing that Chipongian had posted bail on August 11, 2006, and that his bond was continued five days before the charged incident. The trial court admitted these documents over the objection of Chipongian's trial attorney, who argued that the documents (1) had to be authenticated by a testifying witness under Evidence Code section 1280, and (2) were not the best evidence as contemplated by Evidence Code section 1500.

On appeal, Chipongian contends that the true finding on the on-bail allegation and the resulting two-year prison enhancement must be stricken because the trial court failed to authenticate the certified court documents offered to prove the allegation. He is simply wrong. As the People correctly note, certified copies of court documents are self-authenticating under Evidence Code section 1530, subdivision (a)(2).

III. Evidence of Mendoza's Prior Violence

Prior to trial, Chipongian moved to admit evidence of Mendoza's 1995 misdemeanor convictions for false imprisonment and domestic violence "for both impeachment purposes and as substantive evidence" under Evidence Code section 1103. The trial court initially concluded that both convictions were for crimes of moral turpitude and were therefore admissible to impeach his credibility. The court deferred ruling on the issue whether the crimes were admissible to prove Mendoza's propensity for violence under Evidence Code section 1103, reasoning that Chipongian had yet to present any evidence that he acted in self-defense. Accordingly, after Mendoza acknowledged the convictions during direct examination, the court instructed the jury that the evidence was admissible "only on the issue of a witness' credibility" and that the jury should not consider it "for any other purpose" unless the court later instructs otherwise.

After Chipongian testified, the prosecution conceded that Mendoza's prior convictions were admissible to prove that Mendoza had a propensity for violence. The court subsequently allowed Mendoza's ex-wife to testify regarding the incident giving rise to his 1995 convictions, as well as an incident in 2006 when Mendoza confronted her and told her he had no intention of financially supporting her or her children.

In closing argument, Chipongian's attorney referred to Mendoza's history of violence and argued that it demonstrated he was "willing to be an aggressive person . . . ." Counsel also asserted that Mendoza's confrontation with his ex-wife only a month before the charged incident "displayed the same type of erratic, cursing, aggressive behavior" that Chipongian had recounted in his testimony, and that it was "relevant to show that Mr. Mendoza is an erratic person who becomes angry and vindictive even when the situation doesn't call for it." The jury was subsequently instructed pursuant to CALCRIM No. 316 as follows: "If you find that a witness has committed a crime or other misconduct, you may consider that fact in evaluating the credibility of the witness's testimony. The fact that a witness may have committed a crime or other misconduct does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable." The self-defense instruction further provided that "If you find that Francisco Mendoza harmed others in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable."

Chipongian contends that the court erroneously limited his use of Mendoza's prior convictions to prove his propensity for violence under Evidence Code section 1103. This claim is waived because Chipongian never claimed below that the court had erroneously limited his use of the evidence. (People v. Waidla (2000) 22 Cal.4th 690, 717.) Moreover, Chipongian fails to explain on appeal how the evidence was so limited. Mendoza admitted the convictions, his ex-wife testified to their substance, and the jury was instructed it could consider the evidence in deciding whether Chipongian acted in self-defense when he allegedly assaulted Mendoza and brandished his weapon at him. In any event, the jury acquitted Chipongian of those crimes, and he offers no indication as to how Mendoza's propensity for violence is relevant to the criminal threats charge for which he was convicted. Contrary to his contention, no limitation whatsoever was placed on the jury's consideration of that evidence in assessing Mendoza's credibility. Accordingly, Chipongian cannot establish that the court committed reversible error in limiting his use of Mendoza's prior convictions.

The judgment is affirmed.

We concur: YEGAN, Acting P.J., COFFEE, J.


Summaries of

People v. Chipongian

California Court of Appeals, Second District, Sixth Division
Jul 16, 2008
2d Crim. B204114 (Cal. Ct. App. Jul. 16, 2008)
Case details for

People v. Chipongian

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. NOLAN CHIPONGIAN, Defendant and…

Court:California Court of Appeals, Second District, Sixth Division

Date published: Jul 16, 2008

Citations

2d Crim. B204114 (Cal. Ct. App. Jul. 16, 2008)