Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. PA057929, Charles L. Peven, Judge
Marcia R. Clark, under appointment by the Court of Appeal, for Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chug L. Mar, Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.
YEGAN, J.
Richard Hayes was convicted by jury of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and felon in possession of a firearm (§ 12021, subd. (a)(1)) with special findings that he personally used a handgun in the assault (§ 12022.5, subd. (a)) and personally inflicted great bodily injury on a victim over the age of 70. (§ 12022.7, subd. (c)). Appellant was sentenced to 12 years 8 months state prison and appeals, contending that the trial court committed instructional and sentencing errors. We affirm.
All statutory references are to the Penal Code.
Facts
On April 1, 2005, appellant shot James Johnson while playing "Tunk" a form of poker. Appellant claimed that he won the hand and picked up the $20 pot without showing his cards.
Johnson, a frail 77 year old man, stood up and told appellant to put the money down. Appellant drew a handgun from the back of his waistband and shot Johnson in the face. The bullet shattered Johnson's glasses, hit his cheek, and exited behind the right ear. Johnson underwent brain surgery and was hospitalized two weeks. The police interviewed him at the hospital and again a month later. At no time did Johnson say that the shooting was accidental.
At trial, Johnson stated that appellant was a longtime friend and did not want him convicted. Johnson claimed that he reached for a pocket knife when appellant picked up the money. Appellant fumbled "trying to get a gun or something," and looked surprised when the weapon fired. Johnson believed the shooting was accidental but was not sure.
On further questioning, Johnson admitted that he did not tell the police about the knife or say that it was an accidental shooting. Johnson "thought" he had a knife but "I didn't" and said he was "feeling for it" when appellant shot him.
Clarence Dolberry testified that Johnson pulled out what Dolberry "presumed" to be a knife. Appellant backed up, fumbled for something in his waistband, and Dolberry heard a gunshot. On cross-examination, Dolberry stated that appellant was a long time friend and that he wanted appellant to go free. The day of the shooting, Dolberry told the police that he was in the bathroom and did not see or hear anything. He gave a similar statement to a detective a month later.
Appellant claimed that he acted in self-defense. He requested that the trial court instruct on self-defense (CALCRIM 3470) but did not request an instruction on accident or misfortune.
Accident Defense
Appellant argues that the trial court erred in not instructing on the defense of accident. (§ 26, subpart five; CALCRIM 3404.) The sua sponte duty to instruct arises only if it appears the defendant is relying on the defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case. (People v. Barton (1995) 12 Cal.4th 186, 195.)
The evidence of accident here was speculative. Johnson said there was a flash and that appellant had "a look of surprise" when the handgun fired. When asked if it was accident, Johnson replied "I sure wouldn't bet my life on it." In closing, defense counsel told the jury that Dolberry and Johnson "didn't see a gun. They did hear gunfire. And Mr. Johnson said he saw a . . . flash."
The evidence showed that appellant drew a loaded handgun and pointed it at Johnson. Up to the moment appellant pulled the trigger, it was a deliberate and willful act. Although appellant claims it was an accidental "wild shot," one could also speculate that appellant looked surprised because the bullet hit Johnson in the face rather than the chest, or that the shot was only intended to scare Johnson.
Appellant assumes an accident instruction was required because he was bluffing and used the handgun to intimidate Johnson. But that is not the law. (See e.g., People v. Wright (2002) 100 Cal.App.4th 703, 710 [court instructed: " ' "Intimidation, bluffing is really irrelevant" ' " to charge of ADW.] A defendant does not have to point the firearm directly at the victim to commit an assault. (People v. Raviart (2001) 93 Cal.App.4th 258, 263.)
People v. Gonzales (1999) 74 Cal.App.4th 382 and People v. Lara (1996) 44 Cal.App.4th 102 are distinguishable. Those decisions involved evidence of an accidental battery and defendant's reliance upon an accident defense. (People v. Gonzales, supra, 74 Cal.App.4th at pp., 386-387 [victim testified at preliminary hearing that defendant did not hit her; injuries resulted from door striking her by accident]; People v. Lara, supra, 44 Cal.App.4th at p. 106 [victim testified that defendant struck her in face by accident].)
Defense counsel, as a matter of trial tactics, may have also believed that an accident instruction would undermine the instructions on self-defense. A juror might consider an "accidental shooting" and self-defense to be a contradiction of terms. Even without an accident instruction, appellant was free to argue the shooting was accidental and not an intentional act, which is what he argued. (See e.g., People v. Corning (1983) 146 Cal.App.3d 83, 88-89 [failure to instruct on accident harmless].) It was sound strategy. The jury acquitted on the attempted murder count but convicted on the counts for aggravated assault and felon in possession of a firearm.
In closing, defense counsel argued that if "it was an accident, well, then it can't be an intended killing. It can't be an attempted murder. The same goes for the assault. You have to willfully assault somebody. It has to be a willful act. That's not the same as specific intent. But it is some kind of state of mind that is opposite of accidental. So if you believe it's accidental, then neither one nor two, counts 1 nor 2 have been proven."
Appellant was not prejudiced because the factual question posed by the omitted instruction was resolved adversely to appellant under other, properly given instructions. (People v. Millwee (1998) 18 Cal.4th 96, 157.) The jury was instructed that in order to convict for assault with a deadly weapon, the prosecution had to prove that appellant acted willfully and "on purpose" and "did not act in self-defense." (CALCRIM 875.) The firearm enhancement instructions stated that the jury must find that appellant fired or displayed the firearm in a menacing manner (CALCRIM 3146) and that appellant intended to discharge the firearm (CALCRIM 3150).
The jury rejected the defense argument that appellant accidentally assaulted the victim. "[A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (People v. Williams (2001) 26 Cal.4th 779, 790.)
Assuming arguendo that the trial court erred in not giving an accident instruction, the alleged error was harmless. (See People v. Breverman (1998) 19 Cal.4th 142, 178.) The defense of accident " 'amounts to a claim that defendant acted without forming the mental state necessary to make his other actions a crime.' [Citations.]" (People v. Bohana (2000) 84 Cal.App.4th 360, 370.) Appellant's willful act of drawing and pointing the firearm in a menacing manner was not an accident. In light of the evidence and the jury's implied finding that appellant intentionally fired the weapon and did not act in self-defense, it is not reasonably probable that appellant would have received a more favorable result had an accident instruction been given. (People v. Corning, supra, 146 Cal.App.3d at p. 89.) "One asserting prejudice has the burden of proving it; a bald assertion of prejudice is not sufficient. [Citation.]" (People v. Johnson (1988) 47 Cal.3d 576, 591.)
GBI Enhancement
Appellant contends that the trial court erred in imposing a five year enhancement for intentional infliction of great bodily injury. The argument is based on the theory that the trial court was unaware of its discretionary power to strike the enhancement (§ 1385; see e.g., People v. Meloney (2003) 30 Cal.4th 1145, 1155-1156 [trial court erroneously believed it had no discretion to strike on-bail enhancement].) Where the record is silent, it is presumed the trial court was aware of its discretionary power to strike the enhancement and chose not to use it. (See People v. Martinez (1998) 65 Cal.App.4th 1511, 1517.)
Appellant was sentenced to a three-year midterm on count 2 for aggravated assault, plus four years on the firearm use enhancement (§ 12022.5, subd. (a)) and five years on the great bodily injury enhancement (§ 12022.7, subd. (c)). On count 3 for felony in possession of a firearm, the trial court imposed a consecutive eight month sentence (one third the midterm).
The trial court, as an act of leniency, struck two prison term enhancements. (§ 667.5, subd. (b).) With respect to the firearm and great bodily injury enhancements, the prosecutor argued that "I don't see why we should be giving a convicted felon, who is carrying a gun and shooting another man in the face, a break."
The trial court declined to strike the firearm and great bodily injury enhancements, finding that appellant had a long criminal record, had recently been released from prison, and was not a suitable candidate for probation. Appellant personally addressed the court and argued that Johnson was not shot. He claimed Johnson injured himself when he ducked and butted his head on the table.
The trial court discredited the argument and so do we. Appellant
Appellant argues there was no medical testimony that the shooting caused the head injury. The bullet broke Johnson's glasses in half, traveled across the right temple and exited behind the ear. Officer Ferrera had seen hundreds of bullet wounds and testified that the bullet furrowed under the skin, through Johnson's ear, and hit the wall. The bullet fragment was found in a closet next to the wall. Johnson adamantly denied hitting his head on anything when he fell down.
makes no showing that the sentence was irrational, arbitrary, or that the trial court misunderstood its sentencing discretion. "[I]n the absence of any affirmative indication in the record that the trial court committed error or would have exercised discretion under section 1385 to strike the [enhancement] if it believed it had such discretion, relief on appeal is not appropriate. . . ." (People v. Fuhrman (1997) 16 Cal.4th 930, 945.)
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.