Opinion
D072183
03-05-2018
THE PEOPLE, Plaintiff and Respondent, v. MAURICE FLOURNOY, Defendant and Appellant.
Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE363871) APPEAL from a judgment of the Superior Court of San Diego County, Patricia K. Cookson, Judge. Affirmed. Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Maurice Flournoy of one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and one count of aggravated battery (§ 243, subd. (d)). The jury found that Flournoy personally inflicted great bodily injury (§§ 12022.7, 1192.7, subd. (c)(8)). The court found Flournoy had suffered one serious felony prior conviction (§ 667, subd. (a)(1)), a "strike" prior (§ 667, subds. (b)-(i)), and a prison prior (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise specified.
Flournoy pled guilty to resisting an executive officer (§ 69); misdemeanor possession of a controlled substance (Health & Saf. Code, § 11375, subd. (b)(2)) and misdemeanor vandalism (§ 594).
The court sentenced Flournoy to a determinate term of 15 years four months in prison.
Flournoy appeals contending the court erred in refusing to instruct on the defense of accident. In this case where Flournoy stabbed the victim in the stomach and the back and relied on the defense of self-defense, the trial court found there was no substantial evidence to support an instruction on accident. We agree with the trial court's assessment of the evidence and affirm the judgment.
STATEMENT OF FACTS
In 2016, Flournoy, the victim D.M and two other persons in their group were homeless. In the summer of that year, Flournoy got into a confrontation with D.M. During the confrontation, Flournoy threatened D.M with a knife, but did not stab him at that time. In September 2016, Flournoy got into a confrontation with another homeless person, who accused Flournoy of stealing property. D.M. heard the argument and approached Flournoy. The confrontation escalated with Flournoy threatening D.M. with statements, including: "I'll beat your ass." "If I get the chance, I'll get you." D.M. then struck Flournoy to avoid Flournoy's possible attack. Flournoy fell back against a wall and then grabbed D.M. and pulled him down to the ground. D.M. received a serious stab wound to his abdomen and another stab wound in his back. Flournoy then fled.
D.M. received a serious injury which resulted in his hospitalization for 13 days.
Flournoy did not testify or offer any affirmative defense evidence.
DISCUSSION
At the conclusion of the trial Flournoy requested the court to instruct the jury on the defense of self-defense, which request was granted. In addition, Flournoy requested the court to instruct on the defense of accident using CALCRIM No. 3404. The trial court denied the request based on its review of the evidence from which the court concluded there was no substantial evidence to support such instruction. Although the instruction was not given, the defense argued accident to the jury in support of a contention there was a reasonable doubt whether Flournoy acted willfully in stabbing D.M. The jury found Flournoy guilty as charged.
CALCRIM No. 3404 provides: "The defendant is not guilty of <insert crime[s]> if (he/she) acted [or failed to act] accidentally without criminal negligence. You may not find the defendant guilty of <insert crime[s]> unless you are convinced beyond a reasonable doubt that (he/she) acted with criminal negligence."
Flournoy relies on evidence that he and D.M. fell to the ground, thus the stabbing might have been accidental. As we will discuss, the argument does not account for the fact Flournoy must have had his knife out and in his hand as he was threatening D.M. Even evaluating the evidence under a favorable standard of review for the sufficiency of the evidence to support a proposed defense instruction, we are satisfied there is simply no sufficient evidence to support the proposed instruction.
Even if the court erred in its assessment, any error is plainly harmless on this record.
A. Legal Principles
A trial court has a sua sponte duty to instruct on the general principles of law relevant to the issues raised by the evidence, including issues relevant to affirmative defenses. (People v. Martinez (2010) 47 Cal.4th 911, 953; People v. Breverman (1998) 19 Cal.4th 142, 154; People v. Anderson (2011) 51 Cal.4th 989, 996.)
A defendant is entitled to have the court instruct on affirmative defenses where there is sufficient evidence to support the giving of such instructions. (People v. Salas (2006) 37 Cal.4th 967, 982.) When we review a claim of instructional error we do not make credibility decisions. We seek to determine if there is evidence which, if believed, would support a finding of reasonable doubt. (Ibid.) We evaluate the evidence in support of a requested instruction in the light most favorable to the defendant. (People v. Flannel (1979) 25 Cal.3d 668, 685.)
When a person commits a criminal act, or omission without "evil design, intention, or culpable negligence" the person is not responsible for the alleged offense. (§ 26.) The defense of accident is premised on the lack of a culpable mental state, or mens rea. Thus, the defendant would lack the mental state for a harm committed "accidentally." (People v. Lara (1996) 44 Cal.App.4th 102, 110; People v. Anderson, supra, 51 Cal.4th at p. 996.)
B. Analysis
Flournoy did not testify at trial and there was no direct evidence supporting the theory of accident. Rather, accident was argued to the jury on the theory that Flournoy and D.M. fell to the ground in their struggle. From that "fact" the defense posited that D.M. could have been stabbed accidentally in the fall. While anything is possible, we do not find sufficient evidence in this record to support the requested instruction.
First, the defense argument does not offer any explanation as to the location of the knife at the time of the "fall." Necessarily, Flournoy must have been brandishing the knife since he was threatening to harm D.M. at the time that the two men fell, or when Flournoy grabbed D.M. and pulled him to the ground. No testimony was offered that would explain the apparent brandishing of the knife, coupled with threats of harm, or to explain how the stabbing might have been accidental, without culpable mental state. The defense of accident, after all is based on an act, or omission done without intent or culpable negligence, which is problematic when one brandishes a knife, while threatening the victim.
Accepting for the moment that the stab to the abdomen could possibly have resulted from the fall (without explanation of the knife being in Flournoy's hand), we must consider whether the second stabbing in the victim's back could be an accident. More significantly, the second stabbing, in light of the threats and the brandished knife leaves the court with only bare speculation that the two stabbings might possibly have been "accidentally" inflicted.
The defense at trial and now on appeal suggests the second "hole," which was located in the victim's back, might not have been a stab wound. There were various hard objects on the ground where the fight occurred. The defense speculated that one of those objects "might" have caused the wound to the back, although there was no specific item identified as the source, nor was the issue of the source of the back wound explored with the treating doctor.
D.M. presented to the emergency room with two "holes" in his body, each of which needed repair: the undisputed stab wound to the abdomen and the "hole" in the back. There was substantial blood loss as a result of the wound to the back. Beyond that we are left to speculate that Flournoy, with his knife brandished, while threatening the victim, might have accidentally stabbed the abdomen and that some unknown object might have caused the hole in the victim's back.
We believe the trial court accurately assessed the evidence and properly found it insufficient to support an instruction on the defense of accident. The trial court did not err in denying the requested instruction.
Even if the court should have granted the request any such error is harmless on this record. Defense counsel was allowed to thoroughly argue the theory of accident and to speculate about the source of the second wound. The jury was instructed on reasonable doubt (CALCRIM No. 220), union of act and intent (CALCRIM No. 250), the elements of assault (CALCRIM No. 875), and the element of battery (CALCRIM No. 925). Thus, the jury was aware it would have to find the required criminal intent to be proved beyond a reasonable doubt in order to find Flournoy guilty.
Defense counsel argued the evidence supported reasonable doubt as to the requisite mental state. The jury plainly rejected the argument. Given the speculative nature of the "accident" evidence, which was fully argued to the jury, we are satisfied there is no reasonable probability that a more favorable result would have occurred had the court given the instruction on accident. (People v. Watson (1956) 46 Cal.2d 818.)
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: NARES, J. GUERRERO, J.