Opinion
A154264
10-31-2019
THE PEOPLE, Plaintiff and Respondent, v. RICHARD GARD, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. SCN228452)
Richard Gard appeals from a jury verdict that found him guilty of leaving the scene of an accident and possessing a concealed firearm in his vehicle with readily accessible ammunition. He contends he was prejudiced by jury instructions and ineffective assistance of counsel regarding the court's instruction on mistake of fact as a defense. He also contends the evidence was insufficient to prove the ammunition found in his vehicle was readily accessible for use in his firearm.
Errors in the instructions on the mistake of fact defense were harmless under the most stringent standard, and there was sufficient evidence to conclude that ammunition found in the center console of Gard's truck fit his firearm. So, we affirm.
FACTUAL AND LEGAL BACKGROUND
Gard claims he was assaulted and beaten with a piece of wood during a heated exchange with employees of a rental facility where he was trying to drop off a rented trailer. He called 911 while parked at the facility. While speaking to dispatch, he apparently motioned away day-workers who tried to climb onto his truck, and he screamed at someone he thought was trying to climb into the truck bed. Gard said he noticed the rental facility employees who assaulted him approaching so he started to drive off. The person who Gard thought was trying to climb into his truck bed was the accident victim. She was apparently trying to collect recyclables from the back of the truck when she fell down between the truck and the trailer.
Bystanders yelled at Gard to stop because the victim was in danger of being run over. As Gard drove off, the trailer's wheels ran over the victim's legs. A bystander approached Gard as he was leaving the facility and told him he needed to stop because he hit a woman with his truck. Gard, who was still on the phone with the 911 dispatcher, claimed he did not understand that he struck anyone. He told the 911 dispatcher that the person who was on his truck had fallen when he pulled away, and that he or she may need medical help. He drove away and waited for police at a nearby location.
Once police arrived, Gard told them he was having a possible cardiac episode and he asked an officer to retrieve a bag with his medication from the truck bed. The officer who retrieved the bag found a loaded magazine with .40 caliber bullets in it. Officers also found an unloaded .40-caliber pistol in the rear pocket of the truck's front passenger seat and four unexpended bullets in an ammunition box in the center console.
The trial court instructed on mistake of fact as a defense to leaving the scene of an accident, as stated in CALCRIM 3406 employing the standard for general intent crimes. The instruction told the jury that for mistake of fact to be a defense to the charges, Gard's mistaken belief must have been reasonable. But during the People's closing argument, the trial court interrupted and modified the instruction by directing the jury to ignore the reasonable person standard in one of the three places it appeared in the CALCRIM 3406 instruction.
The jury convicted Gard of leaving the scene of an accident (Veh. Code, § 20001 subd. (a)) and carrying a concealed firearm in his vehicle (Pen. Code, § 25400, subd. (a)(1).). It found true allegations that the firearm was unregistered and there was unexpended ammunition capable of being fired from the gun readily accessible or in Gard's immediate possession. (Pen. Code, § 25400, subd. (c)(6).) Gard timely appealed.
DISCUSSION
Gard argues the trial court erred in failing to properly correct CALCRIM 3406 to exclude all references to the reasonableness of a defendant's mistaken belief; by failing to properly advise the jury of the showing he had to make to establish the defense of mistake; and by providing a single mistake instruction for crimes that required different mental states. He also contends his counsel was ineffective for failing to bring the deficiencies in the mistake of fact instruction to the attention of the trial court. Finally, Gard argues there was insufficient evidence to support the jury's finding that the unexpended ammunition found in his truck was capable of being discharged from his gun.
We affirm. Any possible errors in the instructions were harmless, and there was substantial evidence for the jury to find the ammunition in the center console was capable of being fired from the concealed weapon found in Gard's truck.
1. Any Error in The Defense Of Mistake Instruction Was Harmless.
"We review instructional error claims de novo. [Citation.] We determine whether the trial court fully and fairly instructed the jury on the applicable law. [Citation.] When making this determination, we consider the instructions taken as a whole; we also presume jurors are intelligent people capable of understanding and correlating all of the instructions they were given. [Citation.]" (In re Loza (2018) 27 Cal.App.5th 797, 800 (Loza).)
Jury instructions on mistake of fact as a defense to crime differ based on whether the charged crime requires general criminal intent, specific criminal intent or knowledge of a requisite fact. For crimes that require general criminal intent, the defendant's belief must be both mistaken and reasonable. For specific intent crimes, or crimes where the defendant's knowledge is an element, the defendant's good faith mistaken belief is a defense, even if it is unreasonable. (People v. Russell (2006) 144 Cal.App.4th 1415, 1425-1427, disapproved on another point in People v. Covarrubias (2016) 1 Cal.5th 838, 874, fn. 14.)
A conviction for leaving the scene of an accident involving injury under Vehicle Code section 20001 subdivision (a) turns on whether "the defendant knew that [he] had been involved in an accident that injured another person [or knew from the nature of the accident that it was probable another person had been injured]." (CALCRIM 2140) ~CT 200)~ Thus, Gard's defense to leaving the scene of an accident could be premised on a good faith mistake, even if the mistake was unreasonable.
Here, the trial court initially gave a single instruction on mistake of fact that required any mistake to be both actual and reasonable. This was error in regard to application of the mistake of fact defense instruction to the charge of leaving the scene of an accident causing injury. During the prosecution's closing argument, the trial court attempted to correct this error. It re-read CALCRIM 3406 to the jury deleting the phrase, " 'and if you find that belief was reasonable' " from the third paragraph of the instruction and told the jury to cross the phrase out on their copies. However, two references to the reasonableness of the defendant's belief remained in the instruction.
Once the court corrected the mistake of fact instruction, it asked the parties to conform their closing arguments to the instructions for a specific intent crime, thus omitting consideration of the reasonableness of the defendant's belief. In closing argument, the People clarified that because Gard had actual knowledge the victim was injured, the reasonableness of his belief was not a factor. Defense counsel, thereafter, characterized the required mental state as specific intent. Defense counsel specifically argued the jury must acquit on a mistake of fact "even if [they thought] it was unreasonable."
It is not clear that a violation of Vehicle Code section 20001 subdivision (a) is a specific intent crime as instructed by the trial court. Although certain elements must be done "willfully" or "knowingly," neither term necessarily signifies specific intent. (See People v. Atkins (2001) 25 Cal.4th 76, 85; People v. Calban (1976) 65 Cal.App.3d 578, 584.) Moreover, there is no requirement under Vehicle Code section 20001, subdivision (a) that the defendant intend any particular harm. --------
Assuming, for the sake of argument, that the instructional errors that remained in CALCRIM 3406 were not properly cured by the trial court's efforts, the errors caused no prejudice. The People argue the instructional errors were errors of state law that should be reviewed under the standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836. Thus, we should affirm unless after examining the entire cause it appears reasonably probable the defendant would have obtained a more favorable result had the error not occurred. (Id.) Gard, on the other hand, argues the errors caused unspecified violations of his constitutional rights to due process and his ability to present a defense. He argues we must reverse unless the People can "prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman v. California (1967) 386 U.S. 18, 24) We need not decide which standard to apply in this case because the error is harmless under even the more onerous standard. There is no possible way the error in the instructions contributed to the verdict.
In order to find Gard guilty of leaving the scene of an accident causing injury in violation of Vehicle Code section 20001, subdivision (a) the jury was required to conclude he either knew he was involved in an accident that injured another person or knew from the nature of the accident that it was probable another person had been injured. The best evidence of Gard's knowledge of the accident came from his testimony and the transcript of his 911 call. When he was speaking with the emergency dispatcher, Gard said: "And someone was just trying to climb in the back of my truck and steal something—one of the day workers, and I pulled away, and they fell out, and another guy—another guy came up and said, 'Hey you just hit that lady.' " A bit later in the call he said: "[W]hen I started telling you I was driving away because they were attacking the pickup truck, one of them fell out. And that - that person is probably going to need some assistance."
While in direct and cross-examination Gard denied that he actually saw the victim fall from his truck, he nevertheless testified that he was told he hit her as he was leaving the scene and before he reached the street. He saw her on the ground. He also testified that he "presumed" at the time that the victim fell out of his truck and was going to need medical attention. Gard's counsel argued these facts did not demonstrate that Gard "knew the trailer ran over her legs or that injury was probable." The argument is understandable because it is all the evidence would allow. But it overstated the prosecution's burden. The unrefuted facts show that Gard knew and was told by a witness that he had been in an accident, and what Gard was told about the nature of the accident made it plain that the victim was probably injured. The instructional error was harmless beyond a reasonable doubt.
2. Any Claim of Ineffective Assistance of Counsel Fails for Lack of Prejudice
Gard argues that his conviction should be reversed because his trial counsel failed to object to the erroneous jury instructions on mistake.
In order to prevail on a claim of ineffective assistance of counsel, the defendant must show that both (1) trial counsel's performance fell below an objective standard of reasonableness when measured by prevailing professional norms, and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
Since Gard has failed to carry his burden to show that any instructional error had an effect on the judgment, his claim of ineffective assistance of counsel fails.
3. There is Substantial Evidence to Support the Jury's Verdict that the Ammunition Found in the Truck Cab Was Capable of Being Fired from the Concealed Firearm
"To assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).)
Carrying a concealed firearm is punishable as a felony if the concealed firearm is not registered to the person being charged and there is unexpended ammunition capable of being discharged from the firearm "in the immediate possession of the person or readily accessible to that person." (Pen. Code, § 25400 subd. (c)(6)(A) & (B).) Gard contends there is insufficient evidence to support the jury's verdict that he violated Penal Code section 25400 because there was no showing the unexpended ammunition found in the cab of his truck was capable of being discharged from his gun. Not so. Our examination of the record as a whole shows there was adequate evidence for the jury to conclude the ammunition found in the center console of the truck's cab, and thus in Gard's immediate possession or readily accessible to him, was .40 caliber ammunition capable of being fired from his gun.
In closing, the prosecutor argued without objection that all Gard had to do to pull his gun was reach behind the driver's seat of the truck, "and almost directly under his arm is the unexpended ammunition same caliber for that pistol." The evidence supported the prosecutor's argument.
While there was no testimony that the unexpended bullets found in the ammunition box in the center console were .40 caliber, the evidence provided an ample basis for the jury to conclude that they were. A photograph of the handgun taken while the gun was in the pocket behind Gard's driver's seat plainly shows "40 S&W" engraved in the top of the gun's slide. A box of ammunition retrieved from the truck's center console had the same manufacturer and caliber ("40 S&W") marked on the side of the box. Both the photo and the ammunition box were entered into evidence. Moreover, a magazine loaded with .40 caliber bullets, the same caliber as Gard's gun, was found in a bag in the bed of the truck. This evidence was easily sufficient for the jury to infer that the unexpended bullets found in the ammunition box were also .40 caliber and capable of being fired from Gard's gun.
"We 'must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.]' [Citation.] 'Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt.' [Citation.] 'Where the circumstances reasonably justify the trier of fact's findings, a reviewing court's conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment's reversal.' " (Zamudio, supra, (2008) 43 Cal.4th at pp. 357-358.)
Circumstances here justify the jury's finding that the unexpended ammunition was capable of being discharged from Gard's gun, and the evidence does not warrant a reversal.
Disposition
The judgment is affirmed.
/s/_________
Siggins, P.J. WE CONCUR: /s/_________
Fujisaki, J. /s/_________
Petrou, J.