Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County, No. RIF121856. James L. Quaschnick, Judge. (Retired judge of the Fresno Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Janelle Marie Boustany, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury convicted defendant of possessing a firearm by an ex-felon (Pen. Code, § 12021, subd. (a)(1)). In bifurcated proceedings, defendant admitted having suffered three prior convictions for which he served prison terms (§ 667.5, subd. (b)), the trial court found that he had suffered a fourth, and defendant admitted having suffered four strike priors. (§ 667, subds. (c) & (e)(2)(A).) He was sentenced to prison for 25 years to life. He appeals, claiming the evidence was insufficient to disprove his defense, jury instruction error occurred and his Romero motion was improperly denied. We reject his contentions and affirm his convictions and the true findings as to his priors. We direct the trial court to correct errors in the minutes of the sentencing hearing and the abstract of judgment and we remand the matter for sentencing on the prison priors.
All further statutory references are to the Penal Code unless otherwise indicated.
People v. Romero (1996) 13 Cal.4th 497 (Romero).
Statement of Facts
On February 5, 2005, defendant, who was a frequent visitor to a home next door to a Moreno Valley residence, knocked on the door of that residence until the woman who lived there opened it. Defendant was in a wheel chair which was backed up to the door. He seemed uncomfortable and panicked. He told the woman that there were people after him who were going to kill him and wanted to come inside and to have the police called. He tried to move his wheelchair into the house, but the woman stopped him, telling him she’d get her husband. At the time, there was no one else outside (and no vehicles) and no commotion in the street. The woman closed and locked the door. After speaking to her husband, she opened the door and defendant continued to try to enter her home and he asked for help. She directed defendant to go into the adjacent unattached garage and meet her husband in there. After some resistance by defendant, who said he was afraid someone intent on killing him would see him, she and her husband guided defendant into their garage through a side door. At that point, the large garage door was closed, as was another pedestrian door to the garage. A third door, through which defendant entered the garage, was slightly ajar to allow in sunlight.
Defendant calmed down once inside the garage. The husband called 911 and was told an officer would be sent out to the home. Defendant said he was not too worried about the people that were after him because he was “strapped,” which the husband took to mean he had a gun. Defendant said the night before, people had tried to break into his home, which was five miles from where he then was, to rob him. He added that he thought, but was not certain, that he shot one of these people and was told they were coming back for him. He said the people living next door to the woman and her husband, whom he visited fairly regularly, were either in on it or were helping those who were after him, perhaps setting him up. He became more panicked as he talked about the situation.
Appellate counsel reads into the record matters that are not there by asserting, “The . . . day [after the shooting incident], [defendant] sought a safe haven at the home of his friend, [the people who lived next door to the woman and her husband].” There was no evidence presented at trial that this is what happened. This is merely conjecture on the part of appellate counsel for defendant. What the evidence showed was that defendant told the woman’s husband that the next door neighbors were in on it, were helping the people who were after him or were setting him up. He did not tell the husband when he came to this realization, therefore, there is no basis upon which to assert that defendant went to the neighbors’ house seeking a safe haven. If he suspected their involvement before he got there, he may have gone, armed, to confront them. The officer who arrested defendant testified that defendant told him that “the neighbors were calling somebody to come and get him [¶] . . . [¶] [a]nd that’s what caused him to leave [their] house [¶] . . . [¶] [a]nd go over to [the home of the woman and her husband].” This does not demonstrate that defendant began to suspect the next door neighbors’ involvement only after he got to their house. First, there is no evidence, other than defendant’s self-serving statement, that any such incident occurred. Second, even if it did, the neighbors may have been calling the police or some mental health agency to help defendant, which, in his non-medicated state, he misinterpreted.
After the first officer arrived, the husband opened the vehicle garage door and, at the officer’s direction, pushed defendant in his wheel chair, outside and in front of his house. No one passed by the home and there was no commotion in the street while the police were there. The officer asked defendant if he had any weapons on his person. Defendant said he did not. The officer asked for consent to search defendant. Defendant gave it. The officer patted defendant down and pulled a loaded revolver out of his front right pant pocket. Defendant seemed to be upset and disoriented, as though he did not know how the gun got into his pocket. He told the officer the gun was not his. He said he had gotten it from a friend, but he could not or would not supply that person’s name. He did not tell the officer about the incident he claimed had occurred the night before. The officer later checked and determined that no such incident had been reported to the police. Defendant did, however, tell the officer that someone was following him. He said the man that lived next door to the woman and her husband had called someone to come and “get” defendant which prompted him to knock on the woman’s door. Another officer went to that house, but no one was home. Defendant thanked the officer, saying that this would help him and he’d be safer now. He told the officer he carried a gun because, “I live by myself. I need some protection.”
Three expended casings and two unexpended live rounds were in the gun.
While this statement is consistent with the fact that defendant lived in a rough neighborhood, it is not tantamount to a belief by defendant that he was imminent danger of suffering significant or substantial injury. If this were the case, most ex-cons would be immune from prosecution under section 12021 because most do not live in the safest of neighborhoods.
Defendant did not get panicky again while the officer was there even though neighbors had come out of their houses and were watching the proceedings. Hours after defendant’s arrest, the lady from the house next door, which defendant had frequented, asked the woman and her husband what had happened. The lady apologized for defendant’s behavior, saying he had not been taking his medications.
Issues and Discussion
1. Insufficiency of the Evidence
The jury was instructed that defendant was not guilty of unlawful possession of a firearm if he temporarily possessed the gun in self defense, i.e., “if: [¶] 1. The defendant reasonably believed that he was in imminent danger of suffering significant or substantial physical injury; [¶] 2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; [¶] 3. A firearm became available to the defendant without planning or preparation on his part; [¶] 4. The defendant possessed the firearm temporarily, that is, for a period no longer than was necessary or reasonably appeared to have been necessary for self-defense; [¶] 5. No other means of avoiding the danger of injury was available; AND [¶] 6. The defendant’s use of the firearm was reasonable under the circumstances. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of violence to himself. Defendant’s belief must have been reasonable and he must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful self-defense. [¶] When deciding whether the defendant’s beliefs were reasonable, 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 defendant’s belief that he was threatened may be reasonable even if he relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true. [¶] Someone who has been threatened or harmed by a person in the past, is justified in acting more quickly or taking greater self-defense measures against that person.” The jury was told that the People had the burden of proving beyond a reasonable doubt that defendant did not temporarily possess the firearm in self-defense and if they did not meet this burden, defendant must be found not guilty.
There was conflicting evidence on whether defendant appeared to actually believe that he was in danger. The fact that no one had reported any shooting incident the night before the crime, that defendant did not report it to the officer, that the next door neighbor, whom defendant claimed had threatened him and driven him to run to the home of the woman and her husband seeking help, was not even home at the time, that there was no one in the street and that defendant told the officer that he keeps the gun generally because he lives by himself and needs protection suggests that nothing happened to cause defendant to honestly believe he was in any particular danger. There was no evidence, apart from defendant’s own self-serving claims to the woman and her husband, to establish that he believed that he was in imminent danger and his statement to the officer and his failure to make the same claims undermines them. Moreover, even if everything defendant said to the woman and her husband establishing his subjective belief that he was in danger was believed by the jury, there was no evidence that this belief was reasonable. Indeed, the person who appeared to know him best said the incident happened because he was off his medications. If defendant was in fear not because of something a reasonable person would perceive as causing fear but because of a delusion due to a chemical imbalance, the fear is not reasonable. Additionally, a reasonable inference could have been drawn from the evidence that carrying a gun was not the only available means of avoiding the danger of injury. Defendant could have called the police about the incident the night before. If, in fact, the next door neighbors of the woman and her husband were a threat to him, he could have gone home or called the police. Rather, it appears that defendant armed himself with a gun the night before and had it in his possession when he went to the home of the neighbors, even before he was assertedly threatened there. This completely undermines the requirement that the possession be temporary and only for as long as necessary in reaction to the threat. The jury would have been entirely within its province in accepting any or all of the foregoing analyses of the evidence and finding, based on it, that the People had carried their burden of proving beyond a reasonable doubt that defendant did not reasonably believe that he was in imminent danger and, as a result, temporarily carried a loaded gun as the only means of protecting himself.
Defendant misses this point in his reply brief when he asserts, “It was what [defendant] believed, real or not, that induced him to arm himself temporarily until the police arrived and provided a semblance of safety.” However, according to the instruction given the jury, defendant’s belief must be reasonable.
Defendant’s assertion that he had no other way of protecting himself but arming himself because he was wheel-chair bound and had weakness on his left side that prohibited him from lifting his left arm ignores the fact that we have law enforcement to protect us. This is not the Wild West, especially for those who are convicted felons.
Again, appellate counsel for defendant reads matters into the record that are not there, this time in regard to when defendant came into possession of the weapon. Counsel asserts that after being threatened at the next door neighbor’s house, defendant “armed himself for temporary protection and fled the . . . house in a panic.” However, there was no evidence when defendant came into possession of the gun. Defendant never asserted that it was not the gun he used the night before to shoot through his door and, by amazing coincidence, it contained three expended bullets when it was seized. If anything, the reasonable inference to be drawn from the evidence was that it was the same gun he had the night before. Additionally, defendant told the officer that he got the gun from a friend, but he refused to name the person. Since he so eagerly gave the officer the name of the next door neighbor, and, apparently, was somewhat disenchanted with him for threatening him, it seems illogical that he obtained the gun at the neighbor’s house. If he did not, then he must have either had it on his person when he got there or it was in his car. In either event, he was in possession of it long before the neighbor assertedly threatened him by calling someone to get him.
2. Jury Instruction
Defendant attacks the instruction, reiterated above, claiming it was erroneous and poorly written. Specifically, he asserts that the instruction’s requirement of the People to prove beyond a reasonable doubt that his use of the firearm was reasonable under the circumstances somehow “tipped the balance in favor of the prosecution” in this “close case” because he did not use it. First, this was not a close case. Second, the use requirement makes sense when the following portion of the instruction, to which defendant does not here object, is considered, “Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of violence to himself. Defendant’s belief must have been reasonable and he must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful self-defense.” The instruction thus calls upon the jury to determine if the defendant’s intended use of the firearm was reasonable. In other words, if the threat to a defendant takes the form of a group of children planning to throw snowballs at him, is his anticipated use of a gun to protect himself from them and his consequent arming of himself reasonable under the circumstances? Finally, as defendant himself points out, it was his trial attorney who insisted that the “use” referred to in the instruction meant his possession of the gun and, despite the reservations of the trial court and the prosecutor, stipulated that it be given as written. He thereby waived his current criticism of the instruction. (People v. Wilson (2008) 43 Cal.4th 1, 22 [appellate argument regarding clarity of instruction is waived if not asserted below]; People v. Rundle (2008) 43 Cal.4th 76, 148 [appellate argument regarding adequacy and completeness of instruction waived if not asserted below]; People v. Valdez (2004) 32 Cal.4th 73, 115 [invited jury instruction error]; People v. Rodrigues (1994) 8 Cal.4th 1060, 1193 [that defense counsel both suggested and consented to instructions given the jury waived objection to them on appeal].) Given our conclusion that the instruction was not defective as defendant asserts, there is no merit to defendant’s “fall back” argument that his trial attorney was incompetent for failing to object to the contested portion of the instruction.
Given the facts here, i.e., that defendant was claiming that his life was in danger, we find this portion of the instruction superfluous. It would be better suited for a case where the claimed threat was much less serious than the means defendant employed to guard against it (such as the example of a defendant arming himself with a gun to ward off a snowball attack). However, defendant stipulated to the instruction as it read, confident that the jury would interpret “use” to mean “possess.”
3. Denial of Romero Motion
Defendant admitting having suffered strike priors in 1972, 1975, 1980 and 1986. In his Romero motion below, defendant asserted that his strikes were old, he had led a crime-free life since his release from prison in 1994, he was then 54 years old, wheelchair bound and suffering from partial paralysis.
Contrary to defendant’s assertion, his 1986 strike was not 21 years old, if one is arguing that he led a crime free life in the interim. It may have been 21 years between the commission of the strike prior and sentencing, but it was 19 years between the prior and this offense.
However, he omitted mention of the 1980 strike.
He was 52 when he committed the crime.
Contrary to defendant’s assertion, 55 is not “past-middle-age[,]”it is middle age.
According to the Probation Report, this resulted from a stab wound to defendant’s neck.
The sentencing court denied the motion, saying, “I choose not to exercise th[e] . . . discretion [to dismiss three of defendant’s four strikes] because I feel . . . it would not be a responsible thing for the Court to do in light of the continuing danger that the defendant poses to the community and to other people. [¶] I’d also note that he has been a lifetime criminal, engaged in lifetime criminal behavior, ranging from attempted murder, robbery, and assault with a deadly weapon . . . .”
Defendant here contends that the sentencing court abused its discretion by refusing to dismiss old strikes and ignoring the fact that he had led a crime free life since 1994.
We note that defendant served several commitments at California Youth Authority (CYA) as a juvenile. His adult convictions occurred in 1972 (assault with a deadly weapon), 1974 (attempted burglary), 1975 (first degree robbery), 1978 (several counts of unlawfully taking/driving a car), 1980 (assault with a firearm) and 1986 (attempted murder with great bodily injury). Thus, the trial court reasonably concluded that defendant has essentially led a life of crime, committing serious offenses along the way. We also note that defendant’s version of the crime in the probation report is very different from the version he gave the woman and her husband, as well as the one he gave the police. He admitting knowing that he should not have had a gun. We cannot agree with defendant that the facts and circumstances of the current offense are relatively benign. Thus, we are not impressed that defendant, despite an 11 year respite from convictions, has turned his life around and is no longer within the spirit of the three strikes law.
Disposition
The conviction and its sentence, as well as the true findings on the priors are affirmed. Despite the fact that both the minutes of the sentencing hearing and the abstract of judgment show that the sentencing court imposed a concurrent one year term for each of defendant’s four prison priors, the sentencing court did not do so. Therefore, the court is directed to amend the minutes and the abstract to delete references to sentences for the prison priors. Additionally, we remand the matter to permit the court to sentence defendant for the prison priors, and to complete an amended abstract of judgment.
Both parties repeat this error in their briefs—defendant citing to the erroneous minutes and the oral pronouncement of sentence, which contains no such ruling, and the People citing only to the latter.
We concur: RICHLI, J., MILLER, J.