Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Luis Obispo County No. F375273. Barry T. LaBarbera, Judge.
Dan Mrotek, 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, Steven D. Matthews, Supervising Deputy Attorney General, Adrian N. Tigmo, David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
PERREN, J.
Bryan James Clarke appeals the judgment entered after a jury convicted him on five counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2)), and one count of making a criminal threat (§ 422). The jury also found true the allegations that Clarke personally used a firearm in committing the assaults (§ 12022.5, subds. (a)-(d)). Clarke was sentenced to a total state prison term of 17 years 4 months. The charges arise from a car chase ending with Clarke firing shots at the occupants of the other car. Clarke's sole contention on appeal is that the trial court committed prejudicial error by instructing the jury with CALCRIM No. 875, which defines the elements of assault with a firearm. Clarke's attorney requested the instruction. We conclude that any error was invited, and accordingly affirm.
Further statutory references are to the Penal Code, unless otherwise noted.
FACTS AND PROCEDURAL HISTORY
On the night of May 25, 2005, Chad Kearns, Darin Dodge, Shaun Green, Noel Garcia, and Jennifer Jones were traveling in a Honda on the freeway in San Luis Obispo when a Volkswagen Passat began "tailgating" them. When the Honda exited the freeway, the Passat repeatedly tried to run it off the road. Green saw the Passat's occupants gesturing at the Honda to pull over. None of the Honda's occupants recognized the Passat, its driver, or the two passengers.
When the Honda turned onto Avila Drive, the Passat pulled in front of it then abruptly stopped. Kearns, who was driving the Honda, drove around the Passat and fled after one of the Passat's passengers exited the car. As the Honda drove away, its occupants heard several gunshots. At the same time, Kearns looked in the rear view mirror and saw several muzzle flashes coming from the area of the Passat's rear passenger side. Dodge also saw flashes in the mirror, and Garcia saw sparks "aiming straight for our car."
The occupants of the Honda called 911. Officers responding to the call found the Passat on its side in a ditch, engulfed in flames. The victims came to the scene, identified the Passat, and indicated it had crashed at or near the location of the shooting. The driver of the Passat, Sean Muller, was apprehended a short distance away. A gun holster with a "38" stamp was recovered from the back seat floorboard. There was no sign of the Passat's passengers.
The following morning, Clarke told Cassandra Euler, his girlfriend at the time, that he had been in a car chase the night before "in Avila" and that he had shot at the other car. Clarke also said that drugs were involved, and he showed Euler the gun he had used in the shootings. He also said that after the car he was traveling in rolled over and "blew up," he and fellow passenger Bill Muller escaped before the police arrived while the driver, Sean, was arrested.
Clarke was arrested on outstanding warrants on July 18, 2005. When searched, a methamphetamine pipe was found in his pocket. That same day, Clarke called Euler from jail. A recording of the telephone call was played for the jury. In that conversation, Clarke told Euler to tell "Casper" to "flush the trash," which she construed to mean that he wanted someone named Bryant to dispose of the shotgun Clarke had given him shortly after the incident.
Euler subsequently visited Clarke in jail, and recordings of those conversations were also played for the jury. Clarke once again told Euler to tell "Casper" to dispose of his "trash." During another visit, Clarke told Euler the police knew that the gun involved in the shooting was a ".38 special" because he had seen the police report. Clarke also asked Euler to contact "Crystal" because she and Euler could get the case "off" of him by providing him with an alibi. He also told her that the police "didn't even know there was [sic] any guns . . . until . . . Shawn and Bill told them . . . both admitted being there. . . . Well you told them I was with you all night, right?" Clarke also told Euler "[d]on't talk to any other detectives."
Euler testified at trial that she had ended her relationship with Clarke and that she was using drugs at the time of the incident. She admitted initially telling the police she did not know what had happened, and that she changed her story after she broke up with Clarke. She also acknowledged that she had admitted a felony as a result of her involvement in the case, and that she had received a favorable sentence in exchange for her cooperation.
April Crabtree, Clarke's former girlfriend, also visited him in jail several times. Tapes of those conversations were played for the jury. On August 2, 2005, Clarke told Crabtree that "Cassie [Cassandra Euler] had to remember about him leaving at 7:00 and being back at 10:30 . . . the night of the shooting." Clarke told Crabtree to remind Euler that "I left about seven, and I came home about ten-thirty. That's all she needs to know. . . . She doesn't need to know where I've been . . . because I don't need her testimony on that." He told her the story was that "Bill and Shawn dropped me off with Crystal [Pipkin] who was staying in Cassie's car," and said he would have "seven assaults with a firearm on the vehicle" if Cassie did not testify to his alibi. He also asked her to tell Pipkin to call the police so that all three women could account for his whereabouts on the night in question.
Crabtree was also arrested for her involvement in the case. She subsequently agreed to testify truthfully in exchange for the dismissal of a felony charge.
During a visit on August 11, Clarke told Crabtree that he did not want his "cannon . . . around the house." He also told her that he wanted "Casper," whom Crabtree identified as their mutual friend Bryant Callahan, to get rid of his gun, and Crabtree told him that Casper and "James" had already done so. Crabtree also said that she had spoken to Pipkin about Clarke's alibi, and Clarke asked her to have Pipkin call his attorney. On August 25, Clarke instructed Crabtree to tell "Bill Harris" that Clarke "shot the gun up in the air three times." He also said "if they find one of my guns, I'm fucked. . . . That's why I told Cassie to tell Casper to get rid of it. But yeah, as far as they know is, I don't even have a gun, so fuckin how can I get firearm charges?"
On August 21, Clarke told Crabtree he had gone to the law library and learned that the "most that they can get me on is assault with a firearm or discharging a firearm in a neglect manner. . . . [t]hat's . . . just county time." He also said he would have to testify at trial that he shot the gun "in the air," that the others had handed him the gun, and that "we all laughed" afterward. During a conversation on August 25, Clarke said he told Crabtree that the Passat had blown up, and that he and the others were lucky they were not injured.
DISCUSSION
At Clarke's request, the jury was instructed with CALCRIM No. 875, as follows: “The defendant is charged in Counts 1, 2, 3, 4, [and] 5 with assault with a firearm. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant did an act with a firearm that by its nature would directly and probably result in the application of force to a person; [¶] 2. The defendant did that act willfully; [¶] 3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; [¶] AND [¶] 4. When the defendant acted, he had the present ability to apply force with a firearm to a person; [¶] 5. A person commits an act willfully when he does it willingly or on purpose. [¶] It is not required that he . . . intend to break the law, hurt someone else, or gain any advantage. [¶] The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind. [¶] [The touching can be done indirectly by causing an object [or someone else] to touch the other person.] [¶] The People are not required to prove that the defendant actually touched someone. [¶] The People are not required to prove that the defendant actually intended to use force against someone when he acted. [¶] No one needs to actually have been injured by defendant's act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault, and if so, what kind of assault it was."
Clarke's sole contention on appeal is that the trial court prejudicially erred in giving the bracketed portion of the instruction providing that "The touching can be done indirectly by causing an object [or someone else] to touch the other person." He asserts that this is an incorrect statement of the law because "there is no crime of indirect assault in California."
We agree with the People that Clarke's claim is barred because he expressly requested the instruction he purports to challenge. "'The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest. If defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal. . . . [I]t also must be clear that counsel acted for tactical reasons and not out of ignorance or mistake.' In cases involving an action affirmatively taken by defense counsel, we have found a clearly implied tactical purpose to be sufficient to invoke the invited error rule. [Citations.]" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.)
While Clarke acknowledges that his attorney's request for the instruction was in writing and was therefore "conscious and deliberate" (see People v. Turner (2004) 34 Cal.4th 406, 433), he claims the error was not invited because he did not expressly ask the court to give the bracketed portion of the instruction. We are not persuaded. Counsel expressly requested the instruction, and never sought to retract it. Moreover, he never sought to limit or qualify the instruction in any way. Under the circumstances, we can infer "a clearly implied tactical purpose" in counsel's decision to request the entire instruction. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 49.)
In any event, Clarke's claim fails on the merits. According to Clarke, the challenged portion of the instruction erroneously allowed the jury to find that he committed assault with a firearm merely by firing his gun into the air. He summarizes the argument as follows: "It is patent that anyone who fires a gun several times in the air near an accelerating vehicle knows that doing so could, and probably would: one, cause the occupants to duck and cover themselves; and/or two, cause the driver to maneuver the car and jostle the occupants; and/or three, cause the driver to crash. Thus, while the gunfire in the air would not 'directly' touch the victims, it could 'indirectly' do so in any of these ways. The gunfire would, then, constitute an assaultive application of force under [CALCRIM] No. 875 . . . ."
The only evidence on this issue consists of Clarke's recorded statement that he would testify he shot the gun in the air. While the People argue that this statement was offered to prove only that Clarke had fabricated a defense and not for the truth of the matter asserted, no limiting instruction was requested or given. Accordingly, for purposes of our analysis we assume there was evidence from which the jury could have inferred that Clarke merely intended to shoot the gun in the air.
Even if we were to conclude that there is no such crime as indirect assault—and Clarke acknowledges that another court has concluded otherwise in dicta (see People v. Wright (1996) 52 Cal.App.4th 203, 210, fn. 17)—no reasonable juror would have construed the instruction in the manner Clarke asserts. The instruction provided that in order to convict him of assault with a firearm, the People had to prove that he performed an act with a firearm with knowledge that would lead a reasonable person to realize that act would directly and probably result in the application of force to the victims. The instruction further provided that the "application of force" in this regard means a harmful or offensive touching, which could be achieved indirectly by causing an object or another person to touch the victim. Arguably, the firing of a gun at a person is an "indirect" application of force in that it causes an object, i.e., a bullet, to touch or potentially touch the victim. Moreover, none of the three scenarios Clarke identifies—the victims ducking and covering themselves, being jostled while riding in a car, or being involved in a car crash—can be said to involve a "touching," as that term is commonly understood. A reasonable juror would construe a touching to mean physical contact with the victim's body either by the defendant, another person at his behest, or by an object the defendant is holding or controlling. Clarke did not request clarification of the definition of a touching, so he cannot complain on appeal that the definition was incomplete or ambiguous. (People v. Ramirez (2006) 39 Cal.4th 398, 469.)
Clarke also refers to the fact that the jury submitted a note asking: "Is just having the gun enough to prove 245-A-2 or does the gun need to be pointed or shot?" and "Is shooting the gun enough to prove [the] enhancement regardless of direction?" According to Clarke, this note means the jury was confused about the very language he challenges. We disagree. The note apparently reflects confusion arising from the prosecutor's comment that one who hits another with a gun is guilty of assault with a firearm even if he or she did not fire the weapon. The prosecutor merely pointed out this alternative theory of liability "to distinguish [them] from crimes like [Clarke] committed, where he steps out of a car . . . [and] fired . . . at the kids in the Honda . . . ." The court responded to the jury's question by reminding the jury that the prosecution had the burden of proving that Clarke "did an act with a firearm that by its nature would directly and probably result in the application of force to a person." The jury was also reminded that "[t]he term 'application of force' is defined in the instructions." There was simply no dispute that the prosecution's theory of guilt was based on the allegations that Clarke had not only fired the weapon in his possession, but that he had fired it at the victims.
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.