Opinion
B162140.
10-28-2003
THE PEOPLE, Plaintiff and Respondent, v. CALVIN DANIEL, Defendant and Appellant.
Maria Morrison, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, William T. Harter, Supervising Deputy Attorney General, and Michael A. Katz, Deputy Attorney General, for Plaintiff and Respondent.
Calvin Daniel was convicted of two counts of assault with a firearm and one count of discharging a firearm in the City of Los Angeles, with findings that he personally used a firearm. Probation was granted, with a year in County jail as a condition of probation. Daniel appeals, claiming instructional error. We affirm.
FACTS
Daniel, armed with a shotgun, confronted David Foster and Merisha Hutchinson as they were leaving their apartment complex. As the victims backed up, Daniel pointed the shotgun at them and said, "If you want some, come and get some." Foster grabbed Hutchinson and they ran back inside the complex. They heard a shot as they ran up the stairs; after they reached the top, they heard Daniel say, "Come on. Lets do this fore the cops get here." A police officer responding to a call about a gun found Daniel (still holding the shotgun) near a parked van talking to Stan Hilliard and another man; as the officer watched, Daniel chambered a round into the shotgun and stepped back out of sight, and the officer heard a noise as the shotgun was thrown to the ground.
Daniel testified in his own defense. He said he had seen a tall man trying to break into his van, and had gone to his apartment to get his shotgun because it was a violent neighborhood and because the burglar had a piece of metal in his hand. Daniel confronted the burglar and fired a shot toward the sky. The man ran off and Daniel gave chase, following him onto the street where Foster and Hutchinson came out of the apartment complex. Daniel lost sight of the burglar and started back toward his apartment building, mumbling derogatory remarks about the burglar. He did not see Foster or Hutchinson when he walked by their gate but looked back when he heard the gate close. He never pointed a gun at anyone. He met up with Hilliard and was telling him about the burglar when the police arrived. Hilliard confirmed Daniels testimony and said Daniel had not chambered a new round.
Although the jury rejected Daniels defense and convicted him, the trial court (as requested by the prosecutor) found this was an unusual case in which the interests of justice would be served by probation, and probation was granted. (Pen. Code, § 1203, subd. (e).)
All section references are to the Penal Code.
DISCUSSION
I.
Daniel contends the jury was given conflicting instructions on assault and voluntary intoxication. We disagree.
A.
CALJIC No. 9.00 (2002 Revision), as drafted, tells the jury that in order to prove assault, the People must establish (1) that the defendant willfully and unlawfully committed an act which by its nature would probably and directly result in the application of physical force, (2) that the defendant " 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 another person," and (3) that the defendant had the present ability to apply physical force to the victim. (Emphasis added.) As modified for Daniels jury, the second numbered paragraph stated that the defendant " had actual knowledge 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 another person." (Emphasis added.)
The jury was also instructed according to CALJIC No. 4.20 that "no act committed by a person while in a state of voluntary intoxication is less criminal by reason of that con[dition]. . . . [T]he fact that the defendant may have been voluntarily intoxicated is not a defense and does not relieve him of responsibility for the crime." (Emphasis added.) The written instruction given to the jury said "was voluntarily intoxicated" rather than "may have been voluntarily intoxicated."
B.
Daniel concedes that voluntary intoxication is not a defense to assault (People v. Williams (2001) 26 Cal.4th 779) but contends the "combination of these two instructions posed a risk of misleading the jury into believing that [his] voluntary intoxication could not be considered with regard to whether he had actual knowledge of the facts." However interesting the issue may be (and both Daniel and the Attorney General give it sufficient attention to suggest they find it interesting), and assuming error, the suggested confusion could not possibly have affected the outcome in this case — because there was no evidence to suggest Daniel was intoxicated, voluntarily or otherwise, at any time relevant to these charges. (People v. Watson (1956) 46 Cal.2d 818, 836.)
The prosecutor did not offer any evidence to suggest Daniel was intoxicated. When Daniel testified on direct, he said he had four or five drinks over a three-hour period beginning at 8:00 p.m., but did not suggest he was intoxicated or even feeling the effects of the drinks at midnight (which is when the assaults occurred). On cross-examination, Daniel was asked, whether it was "fair to say [he was] intoxicated that night." His answer was "no." When he was then asked if he had "some alcohol," he said "yes." When Hilliard testified for the defense, he was asked on cross-examination, "Did you notice the defendant had been drinking that night?" Hilliard said, "I may have smelled alcohol on him," but flatly rejected the prosecutors effort to get him to say that he had told a police officer that Daniel appeared to be drunk that night.
Generously construed, the most that can be said is that Daniel was drinking earlier in the evening — but there is nothing to suggest he was drunk or intoxicated four hours after he started drinking, and he himself said he was not intoxicated. It follows that an instruction telling the jurors they could have considered "intoxication" with regard to the issue of "actual knowledge" could not possibly have affected the outcome of this trial.
II.
Daniel contends the trial court should have (as requested) instructed the jurors on brandishing a weapon, which he claims is a necessarily included offense of assault with a firearm. We disagree.
Subdivision (a)(2) of section 417 provides that "[e]very person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel" is guilty of brandishing a firearm. As Division Two of our court explained in People v. Steele (2000) 83 Cal.App.4th 212, 218-221, brandishing is not a lesser included offense of assault with a firearm unless the assault charge, as alleged in the information, includes brandishing — and (as Daniel concedes) no brandishing was alleged here.
As Steele explains, "[e]ven though most assaults with a firearm undoubtedly include conduct fitting into the definition of brandishing, it has long been held that brandishing is a lesser related offense, rather than lesser included. [Citations.] The reason of course, is that it is theoretically possible to assault someone with a firearm without exhibiting the firearm in a rude, angry or threatening manner, e.g., firing or pointing it from concealment, or behind the victims back. [Citation.]" (People v. Steele, supra, 83 Cal.App.4th at p. 218, fn. omitted; and see People v. Escarcega (1974) 43 Cal.App.3d 391, 398.)
Daniels contention that Steele is inconsistent with two earlier Supreme Court cases, People v. Coffey (1967) 67 Cal.2d 204, and People v. Wilson (1967) 66 Cal.2d 749, goes nowhere in light of the fact that the Supreme Court denied a petition for review in Steele. (People v. Steele, supra, 83 Cal.App.4th at p. 227.)
The trial courts ruling was correct.
DISPOSITION
The judgment is affirmed.
We concur: SPENCER, P.J., and ORTEGA, J.