Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05-051475-2
McGuiness, P.J.
Based on an incident in which a deputy sheriff was attacked by a pit bull while placing appellant Raheen Ahmad Hanif under arrest, a jury found appellant guilty of resisting an executive officer (Pen. Code, § 69) and assault with a deadly weapon or force likely to produce great bodily injury (§ 245, subd. (c)). Appellant now argues insufficient evidence supports the assault conviction and raises two claims of instructional error. We affirm the judgment.
All statutory references are to the Penal Code.
BACKGROUND
Around 7:15 p.m. on August 29, 2005, Contra Costa County Deputy Sheriff Sarita Ellison was driving alone in her marked patrol car when she saw appellant walking toward Market Street in North Richmond. She recognized him from prior contacts and knew that he had an outstanding warrant for evading arrest. Deputy Ellison parked, exited her vehicle and told appellant to come toward her. At the time, she was armed and wearing a uniform. Appellant refused, saying “ ‘I don’t have a warrant,’ ” and ran away. Ellison chased after him, repeatedly exhorting him to stop and telling him he had a warrant. During the pursuit, Ellison announced over the police radio that she was engaged in a foot chase of a person with an outstanding warrant. Appellant ran directly to 610 Market Avenue, a residence where Deputy Ellison had contacted him about two weeks earlier. Appellant led Ellison through a dirt yard and then entered the house. He tried to force the wooden door closed, but Ellison prevented him by sticking her arm and foot between the door and its frame, and eventually she was able to force the door open. After this struggle, during which they continued arguing about whether appellant had a warrant, appellant backed into the kitchen. Ellison tried to grab his arm to place him in a control hold, but appellant pulled away and began hitting Ellison in the chest. After he punched her about five times, Ellison fought back, and the two exchanged several blows. Ellison did not notice anyone else present in the house, and no deputies had arrived. Eventually, appellant stopped resisting enough to allow Ellison to place him in a control hold and handcuff his wrists behind his back.
Once appellant was handcuffed, Ellison escorted him out of the house using the same door through which they had entered. As they started walking down a path adjacent to the house, appellant began twisting and turning and pulling with all his body weight toward the front fence area of the yard and taking steps in that direction. At the same time, a pit bull that was chained to the fence advanced toward them, barking and growling, and appellant told Ellison “ ‘he bites, he bites.’ ” The dog had barked when they ran through the yard before, and Ellison thought the chain was short enough to hold him back. However, while appellant continued struggling and pulling Ellison toward the fence, the dog came close enough to bite and began snapping at her. Ellison turned appellant toward the dog because she believed he was its owner, but the dog did not attack him. Ellison tried to grasp one of her weapons to subdue the dog, but every time she took a hand off appellant to reach for her belt appellant turned forcefully so that the dog had an opening to bite her. She did not want to take a hand off appellant because she feared he would run away again. After Ellison made two unsuccessful attempts to reach a weapon, appellant turned aside a third time and the dog bit her on the inner thigh. The pit bull remained clamped to the deputy’s leg as she threw appellant to the ground and began shaking and kicking to remove the dog. The dog released her leg after about 10 to 15 seconds, and Ellison then escorted appellant to her patrol car, where another deputy was just arriving. Appellant did not call the dog by name or direct it to attack Ellison, but, throughout the encounter, the dog never attempted to bite appellant. The deputy did not notice anyone else on the scene or anyone handling the dog, and no one helped pull the dog off her. Ellison’s pant leg was torn from the crotch to the cuff, and she was treated at a hospital for a large cut and puncture wounds.
After a preliminary hearing, appellant was charged with the felony offenses of resisting an executive officer (§ 69) and assault upon a peace officer by a deadly weapon or force likely to produce great bodily injury (§ 245, subd. (c)). The information also alleged appellant had served a prior prison term (§ 667.5, subd. (b)) and was ineligible for probation because he had two prior felony convictions (§ 1203, subd. (e)(4)). Both of these prior convictions were for resisting arrest. The case proceeded to trial with the prior prison term enhancement bifurcated.
Appellant’s younger brother, thirteen-year-old M.S., testified that he lived at 610 Market Avenue but appellant did not live there with him. The pit bull, named Doe, belonged to their other brother, Rasheed. Doe sometimes barked and acted aggressively toward people in the yard and people walking by on the street. M.S. said he did not see appellant interact with the dog when he visited the house, and he did not know if Doe would obey appellant. Rasheed testified that he never took the dog for any kind of obedience training or attack training, and he never intentionally teased the dog or tried to teach it to be aggressive with other dogs or people. Although Rasheed said Doe would not follow commands from anybody, M.S. testified that the dog followed Rasheed’s commands. Rasheed was the person who took care of Doe, and he testified appellant never touched the dog.
Rasheed first testified that he was in the front yard when appellant was arrested on August 29, 2005 and later stated he was sitting in his car in the driveway with M.S. Rasheed watched his brother being led out of the house in handcuffs and saw the growling dog run up to the deputy and appellant. Rasheed testified that the chain “got roped around their legs” because the dog kept running around them trying to reach the deputy, and they both fell. Appellant then rolled out of the way and the dog bit the deputy. Rasheed said he walked over and grabbed the dog while the deputy was kicking it.
Appellant also testified in his own defense. Appellant said he never lived at 610 Market Avenue, but that was the house where his sister and brothers, and now his mother, lived. As of August 29, 2005, appellant’s family had lived there for six or seven months, and appellant had visited the house 15 to 20 times. His longest stay was for four or five days. Appellant noted that 610 Market Avenue is a duplex, and the residents of the other unit keep six pit bulls in their yard at the back of the house. Appellant said he never dealt directly with Doe but he did see the dog over the course of the eight to ten months before the dog was brought to live at 610 Market Avenue. He had never seen the dog bite anyone. Appellant admitted he ran away when Deputy Ellison tried to contact him on August 29, 2005, and he explained he ran toward the Market Avenue house because it was a familiar area. He described their scuffle at the door to the house and explained that when he heard Ellison radio that she was “in a physical,” he believed this meant she was getting authorization to shoot him. At that point, he decided to stop resisting. Appellant denied exchanging any blows with Ellison or being forcibly placed in handcuffs. Ellison led him outside by the handcuffs, and as soon as the dog was in sight she threw appellant toward it, telling him, “ ‘Get the dog.’ ” Appellant said he tried to jump over the dog after Ellison threw him. He told the deputy he could not get the dog because “ ‘[h]e bites.’ ” During the scuffle, he tripped over the dog’s chain and then was either pulled down or thrown by the deputy, and he then rolled out of the yard. He did not see Deputy Ellison fall to the ground. Appellant explained he said the dog “ ‘bites’ ” because of the way the dog was growling and coming toward them. He did not have the ability to call off the dog.
On cross-examination, appellant said he knew pit bulls are often very aggressive, and he knew Doe could be aggressive if someone came into the front yard. He also knew pit bulls were kept in the back yard of the house, and that is where he ran when he first arrived at the house. Appellant admitted he had an outstanding warrant for evading arrest while driving recklessly. He also admitted to the jury that he had two prior felony convictions for crimes of moral turpitude.
In rebuttal, an animal control services officer testified that when he arrived at the scene at approximately 7:51 p.m., a woman who identified herself as Brenda said she owned the dog. She was familiar with the dog and helped load it into the officer’s truck. The officer did not contact anyone named Rasheed Hanif at the scene. On September 15, 2005, after Doe had been impounded for over two weeks, a man named Rasheed Hanif came to the animal control office and acquired the dog.
The jury found appellant guilty of both counts. After appellant waived his right to a jury trial on the enhancement allegations, the court found he had served a prior prison term and was presumptively ineligible for probation under section 1203, subdivision (e)(4) due to having two prior convictions. He was sentenced to the middle term of four years imprisonment on the assault charge and a concurrent sentence of two years on the charge of resisting arrest. The court imposed a one-year enhancement for the prior prison term (§ 667.5, subd. (b)) but struck it in the interest of justice. In addition to mandated restitution fines, the court ordered appellant to pay $87.21 to the county’s risk management department and $864 to the payroll division of the sheriff’s department to compensate for workdays Deputy Ellison missed as a result of the dog bite. This appeal followed.
DISCUSSION
I. Evidence Supporting Assault with Deadly Weapon Conviction
Appellant contends the jury heard insufficient evidence to support a conviction for assault with a deadly weapon or by force likely to produce great bodily injury. “In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—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.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [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.] ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]” ’ [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
Appellant first argues the evidence does not support a finding that the pit bull Doe was a deadly weapon. As used in section 245, “a ‘deadly weapon’ is ‘any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.’ [Citation.]” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.) While some items are considered deadly weapons as a matter of law, “[o]ther objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue. [Citations.]” (Id. at p. 1029.)
A dog may be found to be a deadly weapon depending on the circumstances of the case. (People v. Nealis (1991) 232 Cal.App.3d Supp. 1, 4-6 (Nealis).) In Nealis, when the defendant yelled at her unleashed Dobermann pinscher to attack a specific person, the dog charged at the person and bit her leg. (Id. at p. Supp. 3.) Based on these facts, the appellate court held that a dog “trained to attack humans on command, or one without training that follows such a command, and which is of sufficient size and strength relative to its victim to inflict death or great bodily injury, may be considered a ‘deadly weapon or instrument’ within the meaning of section 245.” (Id. at p. Supp. 6.) However, a dog need not undergo special training for it to be deemed a deadly weapon. (People v. Henderson (1999) 76 Cal.App.4th 453, 470 (Henderson).) In Henderson, the defendant twice worked a pit bull into an agitated state by repeatedly shaking it in front of law enforcement officers. (Id. at pp. 458-459.) Although he kept hold of the dogs both times, he threatened to release them, and the dogs appeared eager to attack. (Id. at pp. 458-459, 470.) The Court of Appeal affirmed his conviction for using a deadly weapon to resist arrest, concluding the dogs were dangerous weapons based on the nature of pit bulls as a breed and the dogs’ apparent readiness to attack the officers. (Ibid.)
Appellant argues insufficient evidence supports the jury’s finding that Doe was a deadly weapon because there was no evidence the dog had been trained to attack on command, or that appellant ever issued such a command. However, the pit bulls in the Henderson case also were not “attack trained” (Henderson, supra, 76 Cal.App.4th at p. 462), and the appellate court rejected an argument that such specialized training is required for an animal to be deemed a deadly weapon. (Id. at p. 470.) Rather, “the ultimate question which must be answered is whether the dog would attack, regardless of any training it may or may not have received.” (Ibid.)
Although the facts surrounding this dog attack are somewhat unusual, substantial evidence supports the jury’s finding that appellant used the dog Doe as a deadly weapon to assault Deputy Ellison. Appellant’s own testimony established he had spent a substantial amount of time around the dog—visiting frequently during the eight months the dog was kept at his mother’s house and the month and a half the dog was kept at 610 Market Avenue. From this evidence, the jury could infer that appellant was familiar with the dog and, in particular, its propensity to attack strangers. Indeed, appellant admitted he knew Doe tended to act aggressively if people came into the front yard, and during their struggle he specifically told Ellison the dog would bite. Ellison testified that appellant repeatedly pulled her toward the charging dog and deliberately turned his body to give the dog access to bite her. No matter how aggressively Doe behaved toward Deputy Ellison, the dog never attempted to bite appellant—a fact which also suggests the dog was familiar with appellant. From the entirety of this evidence, the jury could conclude appellant purposefully exploited the dog’s known aggressive tendencies toward strangers by dragging Ellison within range so that the dog could attack her. It makes no difference that appellant brought the deputy within range of the attacking dog, as opposed to having released the dog. (See People v. Russell (2005) 129 Cal.App.4th 776, 786 [declining to recognize a difference “between one who uses the force of a potentially deadly object to commit an assault, and one who uses an object to commit an assault while physically possessing or controlling that object”].)
“Before the judgment of the trial court can be set aside for insufficiency of the evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it. [Citation.]” (People v. Redmond (1969) 71 Cal.2d 745, 755.) Substantial evidence supports the finding that appellant committed assault with a deadly weapon.
Appellant also raises a similar argument that the evidence was insufficient to show he harbored the necessary intent to commit assault. Assault with a deadly weapon is a general intent crime. (People v. Colantuono (1994) 7 Cal.4th 206, 213.) The defendant must have “ ‘the general intent to wilfully commit an act the direct, natural and probable consequences of which if successfully completed would be the injury to another. . . . The intent to cause any particular injury [citation], to severely injure another, or to injure in the sense of inflicting bodily harm is not necessary.’ [Citations.]” (Id. at p. 214, fn. omitted.) However, “a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known.” (People v. Williams (2001) 26 Cal.4th 779, 788.)
Focusing on the defense interpretation of his actions during the encounter with the dog, appellant argues a reasonable person would not have known his defensive maneuvers to escape Doe would have led directly to a battery of the deputy. We are obliged to view the evidence in the light most favorable to the verdict, however. (People v. Kraft, supra, 23 Cal.4th at pp. 1053-1054.) Appellant knew the dog behaved aggressively toward strangers in the front yard, knew the dog would bite, purposefully pulled the deputy into the yard toward the dog, and repeatedly twisted away to give the obviously agitated dog access to bite the deputy. Under these circumstances, a reasonable person in appellant’s position would have expected his actions to result in a battery to the deputy.
II. Proposed Instruction Regarding A Dog as A Deadly Weapon
Based on the discussions in Nealis, supra, 232 Cal.App.3d Supp. at p. 6 and Henderson, supra, 76 Cal.App.4th at p. 470, appellant requested the following jury instruction regarding when a dog may be found to be a deadly weapon:
“Whether or not a particular dog is a ‘deadly weapon or instrument’ is for you to determine based upon the circumstances of the case. To find that a dog is a deadly weapon or instrument, you must find beyond a reasonable doubt that [¶] 1. The dog was of a sufficient size and strength relative to its victim to inflict death or great bodily injury; AND [¶] 2. The dog was trained to attack humans on command, was following a command by the defendant to attack a human being, or was handled by the defendant in a manner that exploited the dog’s known propensity to attack.” Appellant also offered an alternative wording for section two of his instruction: “The dog was either [¶] a. trained to attack humans on command; or [¶] b. the dog, although [sic] was following a command by the defendant to attack a human; or [¶] c. the defendant knew of the dog’s tendency to attack and intentionally handled the dog in such a manner as to induce an attack.”
The trial court declined to give this instruction, observing that it appeared to add elements that are not required for the crime of assault with a deadly weapon. “[A] trial court may refuse a proffered instruction if it is an incorrect statement of law, is argumentative, or is duplicative. [Citation.] Instructions should also be refused if they might confuse the jury. [Citation.]” (People v. Gurule (2002) 28 Cal.4th 557, 659.) The trial court properly refused to give appellant’s proposed instruction because it was an incorrect statement of the law and would likely have confused the jury. As the Henderson court observed, the discussion in Nealis about facts tending to show a dog is a deadly weapon related to the specific evidence presented in that case. (See Henderson, supra, 76 Cal.App.4th at p. 470.) Henderson confirmed that a dog may be found to be a deadly weapon even if it has not been specially trained to attack. (Ibid.) In addition, the dogs that were found to be deadly weapons in Henderson were not issued and did not respond to any commands to attack. (Id. at pp. 458-459, 470.) Thus, two of the appellant’s three enumerated factors in section two of the instruction were not met in Henderson. Appellant’s third factor—whether the defendant “knew of the dog’s tendency to attack and intentionally handled the dog in such a manner as to induce an attack”—is stated nowhere in the case law as a prerequisite for finding a dog to be a deadly weapon. Rather, it appears to have been crafted based on the specific circumstances of the Henderson case. The conclusion that a particular set of facts supports a finding that an object is a deadly weapon does not mean such facts are necessarily required, however, or that a different set of facts may not also suffice. Moreover, this factor is contrary to the holding in People v. Russell, supra, 129 Cal.App.4th at p. 786 that a defendant need not handle or control the instrument found to be a deadly weapon. The “ultimate question” in these cases “is whether the dog would attack.” (Henderson, supra, 76 Cal.App.4th at p. 470.) Because appellant’s proposed instruction was an incorrect summary of the law and would likely have confused jurors into applying an overly restrictive definition of what constitutes a deadly weapon, the trial court properly refused it.
III. Flight Instruction
Finally, appellant contends the trial court erred in instructing the jury pursuant to CALCRIM No. 372 that flight may be considered as showing awareness of guilt. Because flight is an element of the crime of resisting arrest, appellant argues the instruction improperly invited the jury to use evidence of his flight from Deputy Ellison both as proof of the charged acts of resisting and of his consciousness of guilt, thereby reducing the prosecution’s burden of proof.
CALCRIM No. 372 states: “If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.” Section 1127c requires a trial court in any criminal proceeding to instruct on the issue of flight when evidence of a defendant’s flight is relied upon as tending to show guilt. (People v. Carter (2005) 36 Cal.4th 1114, 1182.) For purposes of the instruction, flight does not require the physical act of running or the reaching of a far-away haven, so long as the defendant acted with a purpose to avoid being observed or arrested. (People v. Visciotti (1992) 2 Cal.4th 1, 60; People v. Crandell (1988) 46 Cal.3d 833, 869.)
Appellant argues the instruction was improper because his flight did not occur after a crime; rather, his flight itself constituted the crime of resisting arrest. However, the evidence supports a conclusion that appellant made two attempts to flee—first when he ran away from Deputy Ellison on the street, and second when he struggled and attempted to flee from her again in the front yard. The second flight occurred after appellant violated section 69 by punching Ellison in the chest several times while trying to evade arrest in the kitchen of the house. Based on the deputy’s testimony, the jury could have inferred from appellant’s second attempt to flee that he was aware he had committed the crime of resisting an executive officer by force. To the extent appellant suggests the court should have modified the general instruction to advise the jury it related to a particular charged offense (i.e., the section 69 offense), this claim has been rejected by the Supreme Court. (See People v. Navarette (2003) 30 Cal.4th 458, 502; People v. Mendoza (2000) 24 Cal.4th 130, 180 [“It is for the jury to determine to which offenses, if any, the inference should apply”].)
Nor do we believe the instruction lessened the prosecution’s burden of proof on the resisting arrest charge. The instruction told the jury it could infer an awareness of guilt only if it concluded appellant fled or tried to flee, and it specified that evidence of any such flight “cannot prove guilt by itself.” Other instructions set forth the required elements of resisting an executive officer and advised that these elements had to be proven beyond a reasonable doubt. (See People v. Lewis (2001) 25 Cal.4th 610, 649 [in assessing a claim of instructional error, we must consider the entire charge to the jury ].)
Finally, any error in giving the flight instruction was harmless. When a court erroneously instructs the jury with CALCRIM No. 372, reversal is required only if it is reasonably probable that a result more favorable to the defendant would have been reached had the instruction not been given. (People v. Clem (1980) 104 Cal.App.3d 337, 344-445, citing People v. Watson (1956) 46 Cal.2d 818, 836.) The instruction does not assume that appellant’s flight was proven; it merely permits the jury to make that factual determination and decide what weight to accord it. (People v. Carter, supra, 35 Cal.4th at pp. 1182-1183.) Appellant argues that he suffered prejudice because the instruction “drew the jury’s attention to his running from the deputy and attempts to flee, rather than to appellant’s defense.” But appellant’s defense to the resisting arrest charge was extremely thin. Appellant admitted he ran from Deputy Ellison and forcibly tried to prevent her from entering the house. Although he claimed he stopped resisting and did not exchange blows with the deputy, he also testified that she radioed for help because she was “in a physical,” which suggests a physical fight did in fact occur. The jury was informed of its responsibility to evaluate the totality of the evidence, including circumstantial evidence from which inferences may reasonably be drawn and how to weigh such circumstantial evidence. (CALCRIM Nos. 222, 223, 224.) In addition, the court read CALCRIM No. 200, which stated in part: “Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.” These instructions properly advised the jury of its duties. (People v. Barker (2001) 91 Cal.App.4th 1166, 1177.)
DISPOSITION
The judgment is affirmed.
We concur: Pollak, J., Siggins, J.