Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCN222897, Timothy M. Casserly, Judge.
O'ROURKE, J.
A jury convicted Alan Inn of assault with a firearm (Pen. Code, § 245, subd. (a) (2) ; count 1) and discharging a firearm in a grossly negligent manner. (§ 246.3, count 3.) The jury found true that he personally used a firearm in the commission of both offenses. (§§ 12022.5, subd. (a); 1192.7, subd. (c)(8).) The trial court sentenced Inn to 365 days in jail, which was stayed pending successful completion of a five-year grant of probation.
All further statutory references are to the Penal Code unless otherwise stated.
This was a lesser included offense of the charge of shooting at an inhabited vehicle. (§ 246.)
On appeal, Inn contends the court violated his due process rights by: (1) excluding evidence related to an entrapment by estoppel defense; (2) declining to instruct the jury that he was entitled to make a citizen's arrest by threatening the use of deadly force; (3) instructing with CALJIC No. 2.90 regarding reasonable doubt without elaborating that "an abiding conviction means convincing you to a near certainty of the truth of the charge." We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Matthew Walker and his brother, Justin Walker, and Michael Catherine camped in Ocotillo Wells on December 30, 2006, and rode their motorcycles in the area. Matthew's motorcycle stalled and he tried to restart it. Justin and Michael stopped on a hill approximately 100 feet away. A few minutes later, Inn approached and angrily yelled obscenities like, "You motherfuckers, you come out here. You break my shit, you motherfuckers. I'm going to kill you, motherfuckers. I'll freeze you, motherfuckers. Get the fuck out of here, you motherfuckers. What are you fucking doing here?" When Inn was approximately four feet from Matthew, he fired two shots in the direction below Matthew's waist.
We refer to these individuals by their first names to avoid confusion, and not out of disrespect.
San Diego Deputy Sheriff William Painter interviewed Matthew and Justin hours after the incident. Deputy Painter subsequently interviewed Inn, who stated he had shot at Matthew's motorcycle. Inn also told the deputy as an apparent afterthought, that he fired the shots in an attempt to arrest Matthew.
Inn testified that he bought the Ocotillo Wells property in 2005 and started fencing it. In approximately May 2006, following incidents of trespass and vandalism on his property, he reported an arson incident to San Diego Deputy Sheriff Carlos Medina. Inn asked to be deputized as a volunteer deputy sheriff with arrest powers, but Deputy Medina replied, "It's not going to happen." Inn asked, "What can I do with these people?" Deputy Medina replied, "Well, you can make a citizen's arrest." Based on that advice, Inn decided to conduct citizen's arrests of trespassers on his property.
Inn testified that on December 30, 2006, he saw Matthew, Justin and Michael riding motorcycles and he drove his truck to see if his fence had been breached. He told Matthew to stop because he was under arrest, but Matthew continued trying to restart his motorcycle; therefore, Inn pointed the gun at him from approximately five feet away, and ordered him off the motorcycle. Matthew did not comply. Inn feared that if the motorcycle started Matthew would take off, thus frustrating the arrest. Inn twice shot at the motorcycle's tire, but missed each time. Deputy Medina testified that Inn never asked him to be deputized to make arrests.
Kenneth Chaussee testified that in October 2006, he and some friends rode their motorcycles in Ocotillo Wells and discovered newly dug holes. Inn approached in his truck and Chaussee asked him, "Are you the one digging holes? Because if you are, I'm going to use the shovel that you're using to bury you with." Inn replied that he owned the property. Inn returned to his truck, grabbed a gun, waved it back and forth at them and yelled obscenities. Inn hit Chaussee on his helmet with the gun, telling him to remove the helmet. Chaussee and his friends eventually left and reported the incident to police.
DISCUSSION
I.
A. Background
Before trial, Inn moved in limine to admit his testimony that in 2006, after reporting vandalism and trespassing on his property, Deputy Medina "advised [him] to make a [c]itizen's arrest. When [Inn] asked how to do that (since history had shown they simply drove past his attempts to stop them), and if he could use a pistol to shoot their tires, he was advised by Deputy Medina that[:] (1) he could not advise specifically [Inn] regarding the use of a gun because it was a complex legal question, and that; (2) [Inn] would simply 'have to do what he had to do.' [Inn] interpreted this response as a less than subtle suggestion that he could use a weapon to secure a 'Citizen's Arrest' if necessary."
Inn also moved to admit testimony that Richard Humpal — a retired Arizona police officer who subsequently attended law school in California but was not admitted to law practice — had advised him about his right to defend himself and his property and make a citizen's arrest.
The court ruled, "These are all general intent crimes; therefore, mistake of law does not apply; therefore, the testimony of Mr. Humpal is irrelevant in this regard, and therefore anything that he told the defendant by way of legal advice is irrelevant and won't be admitted, even if the defendant testifies. [¶] Also with respect to anything Deputy Medina told him in that regard, that's legal advice and it doesn't apply either."
At trial, Deputy Painter testified that Inn had told him, as an afterthought, that he had fired the gun while attempting to arrest Matthew. Consequently, Inn moved to admit testimony that he had sought Deputy Medina's advice about citizen's arrests. The trial court modified its prior ruling and allowed Inn to testify that he discussed the matter with Deputy Medina, but not about any advice Medina gave him.
B. Analysis
Inn contends that although he made an offer of proof to the court that Deputy Medina had told him he "could use his gun to effectuate and [sic] arrest for trespassing," the trial court excluded that testimony. Inn claims the court's ruling violated his federal due process rights by excluding testimony that would have supported an entrapment by estoppel defense.
The California Supreme Court has noted that "entrapment by estoppel, based on principles of federal due process, has been recognized by federal courts and in some sister states." (People v. Chacon (2007) 40 Cal.4th 558, 567 (Chacon). It explained the defense's scope: "[T]he government may not actively provide assurances that conduct is lawful, then prosecute those who act In reasonable reliance on those assurances. Under these limited circumstances, fundamental fairness supports the defense, even when the prosecution can prove each element of the crime. [¶] Courts have cautioned that the defense is narrowly circumscribed." (Id. at pp. 568-569, fn. omitted.)
A trial court generally has broad discretion concerning the admission of evidence. (People v. Cole (2004) 33 Cal.4th 1158, 1197; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124 (Rodrigues).) Broadly speaking, an appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion. (See, e.g., People v. Rowland (1992) 4 Cal.4th 238, 264.) Specifically, it scrutinizes a decision on a motion to bar the introduction of evidence as irrelevant for such abuse: it does so because it so examines the underlying determination whether the evidence is indeed irrelevant. The trial court's exercise of discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (Rodrigues, at pp. 1124-1125.)
Inn does not challenge the trial court's exclusion of testimony regarding retired officer Humpal's advice, conceding that his reliance on it was not a defense because sections 245 subdivision (a)(2) and 246 are general intent crimes. (See People v. Rocha (1971) 3 Cal.3d 893, 898-899 [section 245 subdivision (a)(2) is a general intent crime]; People v. Ramirez (2009) 45 Cal.4th 980, 990 [section 246 is a general intent crime].) Nonetheless, Inn contends that the court erroneously excluded Deputy Medina's alleged advice. But the exclusion of testimony regarding both men's advice is based on the same reasoning: a mistake of law is no defense to a general intent crime because ignorance of the law is no excuse. (People v. Vineburg (1981) 125 Cal.App.3d 127, 137.) We find no abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 201.)
At any rate, as in Chacon, "We assume, as do the parties, that defendant would have produced evidence consistent with the offer of proof described above. Under these facts, the defense of entrapment by estoppel is not available as a matter of law." (Chacon, supra, 40 Cal.4th at p. 567.) Specifically, Inn proffered that Deputy Medina said he could not advise him regarding the use of a gun because that was a legal question. Instead, Deputy Medina merely stated that Inn " 'ha[d] to do what he had to do.' " We conclude that it was not reasonable for Inn to interpret Medina's statements as granting him permission to use a gun to make a citizen's arrest. Therefore, the trial court did not err in excluding such testimony.
II.
Inn concedes that deadly force may not be used to make a misdemeanor arrest, but he contends the trial court erroneously failed to instruct the jury that a private citizen may threaten to use deadly force to make a misdemeanor arrest of trespassers.
Inn moved in limine to prevent the People from arguing that one may not use deadly force to effectuate a misdemeanor arrest, reasoning that until he testified and presented his defense, the People's argument in that regard was speculative. The trial court declined to rule on the motion, opting to wait for trial evidence. Inn does not contend he requested such an instruction, but rather that doing so would have been futile because he had raised the issue during the hearing on his motion in limine and also in his trial brief.
The trial court instructed the jury regarding citizen's arrests as follows: "An arrest by a private person is made by actually restraining the person arrested and the person arrested may be subjected to such restraint as is reasonably needed for his said arrest and continued detention. Where the arrest is lawful, the person being arrested has a duty to remain passive and any force used by him in resisting is an assault. In that event the person effecting the arrest may use such force as is reasonably necessary to accomplish the arrest and the detention and to defend himself." The instruction continued, "The person making an arrest is acting lawfully if the force and means used are such as would be considered necessary by the ordinarily reasonable person placed in the same position and if, from the standpoint of such a reasonable person, the force and means used was apparently necessary. [¶] A private person making a misdemeanor arrest may not use unreasonable or excessive force to effectuate that arrest. A private person making a misdemeanor arrest may not use deadly force to effectuate that arrest. It is lawful for a person to carry a loaded firearm on his or her property. It is lawful for a person to carry a loaded firearm while he or she is engaged in the act of making or attempting a citizen's arrest. If you find that the defendant was attempting to make an arrest for [t]respass on Justin or Matt Walker, the People have the burden of proving beyond a reasonable doubt that the [d]efendant used either deadly force or more force than was reasonable. If the people have not met this burden, you must find the defendant not guilty of the crimes charged and the lesser included offense." The court further instructed that under section 602, the crime of trespass is a misdemeanor.
Deadly force cannot be used in making a citizen's arrest for a misdemeanor. (See People v. Martin (1985) 168 Cal.App.3d 1111, 1115-1116.) Furthermore, deadly force cannot be invoked in a citizen's arrest even for a felony unless that felony is one that threatens life or serious bodily injury. (People v. Piorkowski (1974) 41 Cal.App.3d 324, 329-330; Martin, supra, at p. 1119.) Assault by means of force likely to produce great bodily injury does not require that injury be inflicted, but only that it is likely under the circumstances. (See Guevara v. Superior Court (1998) 62 Cal.App.4th 864, 869; People v. Fosselman (1983) 33 Cal.3d 572, 579.) Such assault is not a specific intent crime; rather, what is required is that the defendant intend to commit an act likely to result in such physical force, whether or not the assailant intended to inflict physical harm. (People v. Colantuono (1994) 7 Cal.4th 206, 218.)
A trial court need only give those instructions that are supported by substantial evidence. (People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.) Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused. (Id., at p. 685.) Substantial evidence means that there must be evidence sufficient to deserve consideration by the jury of the defense. (People v. Wilson (2005) 36 Cal.4th 309, 331.) The test is not whether any evidence is presented to support the defense, no matter how weak, but whether there is evidence from which a reasonable jury could conclude that the specific facts supporting the instruction exist. (People v. Petznick (2003) 114 Cal.App.4th at 663, 677.)
Here, the trial court had no sua sponte duty to clarify or amplify a correct jury instruction. (See People v. Valdez (2004) 32 Cal.4th 73, 113 ["Defendant did not request the clarifying language he now contends was crucial and may not now 'complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete.' [Citations.] Defendant's failure to either object to the proposed instruction or request that the omitted language be given to the jury forfeits his claim on appeal."].) At any rate, the trial court did not err in declining to instruct regarding a defendant's right to use the threat of force to make a citizen's arrest because substantial evidence did not support such an instruction. Inn did not merely threaten to use force. Rather, from a close range, he twice fired his gun in Matthew's direction.
III.
Inn concedes that the United States and California Supreme Courts have approved instruction regarding reasonable doubt in the language of CALJIC No 2.90, which was given in this case. (Victor v. Nebraska (1994) 511 U.S. 1, 12, 14-15; People v. Brown (2004) 33 Cal.4th 382, 392; People v. Heard (2003) 31 Cal.4th 946, 980.) Nonetheless, he contends that CALJIC No 2.90 is constitutionally inadequate under the Fourteenth Amendment of the federal Constitution "for failing to say 'an abiding conviction means convincing you to a near certainty of the truth of the charge.' " He raises the issue to preserve a claim of error in further review.
The trial court instructed with CALJIC No. 2.90: "A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt. [¶] Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge."
To prevail, Inn must show a reasonable likelihood that the jury misunderstood the challenged instructions. (People v. Cain (1995) 10 Cal.4th 1, 36-37; People v. Zepeda (2008) 167 Cal.App.4th 25, 31.) He cannot do so. CALJIC No. 2.90 conveys to the jury the concept of reasonable doubt without being ambiguous or obscuring the scope of that concept. It defines proof beyond a reasonable doubt as proof leaving the juror with an abiding conviction, a description that legally and linguistically means a conviction that is deeply felt. By referencing an "abiding conviction," the instruction correctly sets out the People's burden of proof. (Victor v. Nebraska, supra, 511 U.S. at pp. 14-15; People v. Campos (2007) 156 Cal.App.4th 1228, 1239.) As the Constitution requires nothing more, we find that the trial court committed no error by instructing the jury with CALJIC No. 2.90. (Zepeda, supra, 167 Cal.App.4th at pp. 31-32.) When an instruction is given according to the terms of section 1096, no further instruction defining reasonable doubt is required. (§ 1096a; People v. Campos, supra, 156 Cal.App.4th at p. 1239; see Zepeda, supra, 167 Cal.App.4th at p. 31 fn. 4.)
The California Supreme Court and the Courts of Appeal in every appellate district have consistently rejected Inn's argument relating to the "abiding conviction" language set out in the standard jury instruction, CALJIC No. 2.90. (People v. Cook (2006) 39 Cal.4th 566, 601; People v. Freeman (1994) 8 Cal.4th 450, 501-505; see People v. Hearon (1999) 72 Cal.App.4th 1285, 1286-1287.) We note that the California Supreme Court, following Victor v. Nebraska, supra, 511 U.S. 1, recommended removal of references to "moral evidence" and "moral certainty" from a previous version of the standard jury instruction regarding reasonable doubt. (People v. Freeman, supra, 8 Cal.4th at p. 503.) However, the court stated, "We also continue to caution against trial court experimentation; individual courts should not otherwise modify the standard instruction." (Id. at p. 504.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J. McDONALD, J.