Opinion
D072730
07-09-2018
THE PEOPLE, Plaintiff and Respondent, v. BRET MITCHELL HART, Defendant and Appellant.
Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Meredith White and Genevieve Herbert, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCE361840) APPEAL from a judgment of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed. Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Meredith White and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury convicted Bret Mitchell Hart of cruelty to an elder (Pen. Code, § 368, subd. (b)(1)) and assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). The jury also found true allegations Hart personally inflicted great bodily injury (Pen. Code, § 1192.7, subd. (c)(8)) and personally inflicted great bodily injury upon a person 70 years of age or older (Pen. Code, § 12022.7, subd. (c)). The court struck the punishment for the latter true finding and sentenced Hart to four years in prison.
Hart appeals, contending we must reverse the judgment because the prosecutor's closing arguments repeatedly misstated the law on the defense of personal property justification. We conclude the prosecutor's closing arguments accurately reflected the applicable law. We, therefore, affirm the judgment.
II
BACKGROUND
A
The victim, then 73 years old, was driving home in his truck when he noticed a small, unleashed dog running alongside a fence. The dog did not have a collar and the victim thought the dog was either lost or had escaped from a nearby apartment. The victim, who loved dogs, was worried the dog might get hit by a car. He pulled his truck over, approached the dog, picked it up, and started walking back to his truck. He planned to take the dog home and see if someone put up a "missing" dog poster. He looked around for the dog's owner, but he did not see anyone in the area.
As the victim neared his truck, he heard someone grumpily say, "You're not taking my f-----g dog." The victim turned around and saw Hart standing four to five feet away. The victim asked Hart if the dog belonged to him. Hart repeated, "You're not taking my f-----g dog." Based on Hart's demeanor, the victim believed Hart was either drunk or had been drinking. The victim told Hart, "If it's your dog, I'm not going to take him. I just found him over there alongside the fence, was worried about him and didn't want him to get out on the road and get run over or something." The victim also told Hart it was illegal in that particular area for a dog not to be on a leash.
The victim bent down and set the dog on the ground. As the victim stood up, Hart hit the victim on the right side of the victim's face in the upper cheekbone area, knocking the victim's glasses off his face. The victim fell back against his truck door and slid to the ground, landing on his back about two to three feet from his truck. Hart immediately straddled the victim, pinning the victim's right arm. Although the victim tried to block Hart with his left arm, Hart punched him in the face two to nine times, causing him to lose consciousness. When the victim regained consciousness, Hart heard a woman say, "I think he's had enough. You better get off of him."
Hart stopped punching the victim and the victim crawled to his truck and called 911. He told the 911 dispatcher, "A gentleman attacked me when I picked up a dog that was walking through the park."
A responding deputy spoke with Hart. Hart was agitated and irate. Hart told the deputy the victim had taken his dog. Hart approached the victim to get the dog back and the victim told him he needed to keep the dog on a leash. Hart told the victim he could do whatever he wanted with the dog and did not have to keep the dog on a leash. Hart then hit the victim to get the dog back. Hart had scratches on his knuckles and on his face, but no bumps, bruises, bloody abrasions, or swelling. Hart did not claim (1) he was acting in self-defense; (2) the victim indicated an intent to keep the dog; or (3) the victim attacked him, threatened him, or was aggressive toward him. The deputy thought Hart was under the influence of alcohol because Hart smelled of alcohol, his eyes were watery, he had an unsteady gait, and he was slurring his words. Hart admitted he had been drinking beer before the altercation.
Another responding deputy spoke with the victim. The victim was calm, quiet, and nonaggressive. The victim told the deputy he saw a dog running around loose. The victim looked around for the dog's owner, but did not see anyone. When the victim picked up the dog, Hart approached and confronted the victim. The victim told Hart the dog was running loose and should be on a leash so it would not run into the parking lot or street and get injured or killed. Hart responded that he "did not give a f--k about the dog." Because of Hart's response, the victim walked back to his truck to secure the dog when Hart started punching him.
Paramedics took the victim to the hospital, where he was admitted and stayed for five days. The victim's left eye was swollen shut, he had bruising around his left eye and on his forehead, and he had lacerations on his face and knees. His left orbital bone was broken, which required him to undergo surgery to have a metal plate inserted. He was still suffering vision problems at the time of trial more than a year later.
B
1
Hart relied on the defense of personal property justification. The court instructed the jury on this defense using CALCRIM No. 3476, as follows:
"The owner or possessor of personal property may use reasonable force to protect that property from imminent harm. A person may also use reasonable force to protect the property of a family member from immediate harm.
"Reasonable force means the amount of force that a reasonable person in the same situation would believe is necessary to protect the property from imminent harm.
"When deciding whether the defendant used reasonable force, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed.
"The People have the burden of proving beyond a reasonable doubt that the defendant used more force than was reasonable to protect property from imminent harm. If the People have not met this burden, you must find the defendant not guilty of the crimes as charged in Count One [and] Count Two."
2
During closing arguments, the prosecutor argued Hart attacked the victim because Hart was angered by the victim's admonishment to keep the dog on a leash to prevent the dog from being run over by a car. The prosecutor explained, "It was not because the dog was in any sort of imminent harm being in the possession of [the victim], and it has everything to do with the fact that the defendant was drunk, angry, and agitated, and [the victim] made him angry." The prosecutor further stated:
"Now, [the victim's] testimony does not show [in] any way, shape, or form that the dog was [in] any sort of imminent harm.
"I'm going to get into the specifics of the instructions. I know [the court] just read a bunch, and it's important because the instruction doesn't just say if you see somebody with your property, you have the right to beat the crap out of them. It says that you can use the amount of force that's reasonable to protect your property from imminent harm.
"That says a lot. And from the defendant's own statements to [the responding deputy on the date of the altercation], he acknowledged the fact that [the victim] had told him in essence to take better care of his dog. And it wasn't like the defendant said, oh, he was hitting my dog, he was kicking my dog, my dog was yelping in pain, he was threatening to harm my dog. There was no imminent harm to the dog on [the date of the altercation]."
Later, during her rebuttal argument, the prosecutor stated:
"[Defense counsel] has also asked you to consider the theory that the defendant was acting in reasonable, lawful defense of his property, his dog .... [¶] ... [¶] This CALCRIM 3476 says the owner or possessor of personal property may use reasonable force to protect that property from imminent harm. Here's this word again. Imminent harm. ... [¶] Reasonable force means the amount of force that a reasonable person in the same situation would believe is necessary to protect the property from imminent harm.
"You take into account what [the victim] testified to. At the time the defendant got physical to him, he was in no way, shape, or form being aggressive to the defendant or the dog. This is not a reasonable reaction to this situation.
"You're supposed to consider all the circumstances as they were known and appeared to the defendant, and consider whether a reasonable person in the same situation with the similar knowledge would have believed.
"Again, nobody is saying that the defendant and [the victim] knew each other. They're strangers. A stranger had the defendant's dog. But that's not what this is about. It's when the defendant saw [the victim] with the dog, and the conversation that ensued and everything else that happened after that, that's if a reasonable person in that same situation would have looked at things the way the defendant did and would have handled things the way the defendant did. And again, it's not reasonable.
"How do we know the dog wasn't in imminent harm? Well he might have been in imminent harm had [the victim] not reacted the way he did that day, because he's the one that went out of his way to save the dog, to make sure he wasn't a stray dog, to make sure he wouldn't wander in the street and get struck by the car. He is the one that picked up the dog, held it in a loving manner, held it like a baby. He didn't hit it, he didn't kick it, he didn't strangle it, he wasn't making any threats. He didn't say, oh, I hate dogs, I'm going to hurt this dog. No. When the defendant confronted him about this dog, all [the victim] did was indicate he was concerned for the dog's safety. That's not imminent harm.
"This is not reasonable force, even if the dog was in imminent harm, and he's not. This is not reasonable force to repeatedly punch and pummel a 73-year-old who had just been acting out of concern for a dog."
III
DISCUSSION
Prosecutorial error violates the federal constitution "when the prosecutor's actions 'comprise a pattern of conduct that is serious and egregious, such that the trial is rendered so unfair that the resulting conviction violates the defendant's right to due process of law.' " (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 854.) Prosecutorial error that does not render a criminal trial fundamentally unfair nonetheless violates state law when the prosecutor " 'engage[s] in deceptive or reprehensible tactics in order to persuade the trier of fact to convict.' " (Ibid.)
Even if a prosecutor is not acting in bad faith, it is prosecutorial error for the prosecutor to misstate the law. (People v. Centeno (2014) 60 Cal.4th 659, 666.) Under the law applicable to this case, a person who lawfully possesses property that is about to be illegally taken or injured by force may use resistance sufficient to prevent the offense from occurring. (Pen. Code, § 693, subd. (2).) Where, as here, no forcible taking or injury has occurred, a person may still use any necessary force to protect his property from wrongful injury. (Civ. Code, § 50.)
Penal Code section 693, subdivision (2), provides: "Resistance sufficient to prevent the offense may be made by the party about to be injured: [¶] ... [¶] 2. To prevent an illegal attempt by force to take or injure property in his lawful possession."
Civil Code section 50 provides: "Any necessary force may be used to protect from wrongful injury the ... property of oneself ...."
However, a person is "not entitled to use force and violence against one who is not likely to injure or destroy the property." (People v. Corlett (1944) 67 Cal.App.2d 33, 53, disapproved on another point by People v. Carmen (1951) 36 Cal.2d 768, 775-776.) Rather, a person may use no "more force than is reasonably necessary to prevent imminent damage to the property." (People v. Corlett, supra, at p. 53.)
The imminent injury limitation was accurately reflected in the CALCRIM No. 3476 instruction provided to the jury. More importantly for purposes of this appeal, the limitation was accurately reflected in the prosecutor's remarks to the jury during closing arguments. Accordingly, Hart has not established the prosecutor erred by misstating the law. Given our conclusion, we need not address whether Hart forfeited this contention, whether his trial counsel provided ineffective assistance by failing to preserve it, or whether the claimed error was prejudicial under either federal or state law.
The limitation also appeared in the predecessor to CALCRIM No. 3476, CALJIC No. 5.43, which provided: "When conditions are present which, under the law, justify a person in using force in defense of property, that person may use that degree and extent of force as would appear to a reasonable person, placed in the same position, and seeing and knowing what the resisting person then sees and knows, to be reasonably necessary to prevent imminent injury threatened to the property. Any use of force beyond that limit is excessive and unjustified, and anyone using excessive force is legally responsible for the consequences thereof." (Italics added.) --------
IV
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J. WE CONCUR: BENKE, J. HUFFMAN, J.