Opinion
E043341
9-3-2008
THE PEOPLE, Plaintiff and Respondent, v. EDGAR FRANKLIN JONES, Defendant and Appellant.
Robert Booher, 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, Senior Assistant Attorney General, Bradley Weinreb, Deputy Attorney General, and Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published
1. Introduction
A jury convicted defendant of violating Penal Code section 245, subdivision (a)(1), assault with force likely to produce great bodily injury. Defendant admitted two prior offenses: a conviction in 1996 for driving under the influence (Veh. Code, § 23151, subd. (b)) and a conviction in 2001 for domestic battery. (§ 273.5, subd. (a).) The court sentenced defendant to a total prison term of four years.
On appeal, defendant argues the court committed instructional error involving self-defense, oral admissions, and the degree of force required for aggravated assault. Defendant also charges there was prosecutorial error and improper admission of evidence of prior bad acts. We reject these contentions and affirm the judgment.
2. Facts
David Wilbur was the manager of the Blue Fountain Mobile Home Park in San Jacinto. The Park is "age-restricted" for residents aged 55 and older. Defendant, who was in his forties, lived with his mother. Other residents had complained about defendants erratic behavior, including yelling at people, throwing oranges at them, and trespassing. Defendant behaved irrationally and combatively toward Wilbur. Defendant had threatened Wilbur, saying, "I will take you out old man."
On January 3, 2007, Wilbur had received a spate of complaints about defendant yelling, throwing fruit, and not leashing his dog. Wilbur drove a golf cart to where defendant was standing in front of space 186, yelling and striking a large trash can with a dog leash. Wilbur twice requested that defendant leash his dog. Defendant responded by saying, "Put the dog on the Fing leash yourself," and hitting the golf carts windshield with the leash. Then defendant grabbed Wilbur by the collar and dragged him out of the cart. Wilbur was frightened and used pepper spray against defendant. Defendant continued to drag Wilbur and hit and kick him while demanding, "Do you want more of this old man?"
After the attack, Wilburs nose, face, and left eye were bleeding and bruised. His collarbone was swollen. His left hip was also bruised.
A park resident, Robert Brown, heard someone yell, "Take this, old man," and then saw defendant beating Wilbur who was on his knees, crying for help. Brown pulled defendant away and Wilburs face was bloody. Defendant tried to hit Brown and then ran off. Defendants pants fell down, causing him to trip.
Another resident, Janice Block, heard a loud voice cursing, "Im going to F you up." She looked out the window and saw Wilbur in the golf cart and defendant "lash out" at him. As Wilbur was being hit on the head, she called 911. She walked outside and confronted defendant who finally left. Wilburs face was bloody.
Another witness, Mary Diaz, testified she saw defendant and Wilbur yelling at one another. Defendant pulled Wilbur out of the golf cart and began hitting him in the face.
Mark Searl, a deputy sheriff who responded to the incident, testified that Wilbur had numerous injuries on the left side of his face. Defendant had been pepper sprayed but showed no ill effect.
During deliberations, the jury asked for clarification of the meaning of "willfully" and "likely."
3. Self-Defense
Defendant argues there was substantial evidence to support a self-defense instruction and self-defense was not inconsistent with defendants theory of the case. (People v. Breverman (1998) 19 Cal.4th 142, 154, 157; People v. Barnett (1998) 17 Cal.4th 1044, 1145.) We disagree.
Wilbur testified that, after defendant started pulling him out of the golf cart, he used the pepper spray so defendant would release him. There was no evidence to support defendants contention that he acted in self-defense against Wilbur after Wilbur used the pepper spray. Although defense counsel tried to have Wilbur acknowledge he said something differently to the responding officer, Wilbur did not make any such admission and there was no other evidence about what he did or did not tell the deputy sheriff. The exchange between Wilbur and defense counsel was as follows:
"Q. Do you recall telling Officer Searl that [defendant] . . . turned towards you and slung his leash at you, hitting the front of your golf cart, and that you attempted to spray [defendant] with pepper spray as he hit you in the face?
"A. No, sir, I dont remember saying it exactly like that [¶] . . . [¶]. . . I may have said that, but I dont recall it being exactly in those words."
There simply was no evidence that Wilbur used the pepper spray before defendant started to drag him out of the golf cart and no reason at all to give a self-defense instruction.
4. CALCRIM No. 358
Defendant also urges the court should have given an instruction based on CALCRIM No. 358, regarding how the jury should treat evidence of defendants statements, in particular, the following language: "You must consider with caution evidence of a defendants oral statement unless it is written or otherwise recorded." (People v. Beagle (1972) 6 Cal.3d 441, 455-456.) Defendant contends it was prejudicial error not to give the instruction in view of the various damaging statements attributed to him by the victim and two of the witnesses.
We deem it was not reasonably probable—or, for that matter, at all likely—that defendant would have obtained a more favorable result if the instruction had been given. (People v. Bunyard (1988) 45 Cal.3d 1189, 1224.) The witnesses testimony about defendants statements was entirely consistent and was not contradicted or impeached by any evidence: "[C]ourts examining the prejudice in failing to give the instruction examine the record to see if there was any conflict in the evidence about the exact words used, their meaning, or whether the admissions were repeated accurately. [Citations.]" (People v. Pensinger (1991) 52 Cal.3d 1210, 1268.) The jury had no reason whatsoever to doubt that defendant made angry threats to Wilbur and to other people. In spite of the jury asking about the meaning of "willfully" and "likely," we do not perceive this, in any respect, to be a close case. The omission of the instruction was harmless error. (People v. Blankenship (1970) 7 Cal.App.3d 305, 311-313 [harmless error: witness relating admissions was highly credible and admissions were corroborated.])
5. Degree of Force
Defendant next charges that the trial court gave confusing instructions about the two degrees of assault: assault with force likely to cause great bodily injury and the lesser included offense of simple assault. (§§ 240 and 245.) Defendant contends the prosecutor compounded this error by misstating the law about aggravated assault.
As quoted in full by both parties in their briefs, the trial court first gave instructions based on CALCRIM No. 875. After the court finished giving CALCRIM No. 875, it commented the jury might be confused about the meaning of simple assault. The court then proceeded to instruct about simple assault based on CALCRIM No. 915.
According to defendant, the courts instructions may have confused the jury about the relationship between the two degrees of assault so that the jury could have regarded any assault as an assault with force likely to cause great bodily injury. But in reviewing the record and comparing the courts instructions with CALCRIM No. 875 and No. 915, we find no error. The court used the official language as set forth in each instruction. The court did not mix up or conflate the instructions on the two offenses. It merely repeated the elements of simple assault (§ 240) when it used the language of CALCRIM No. 915. But the jury was properly instructed regarding the meaning of assault with force likely to cause great bodily injury (§ 245) as set forth in CALCRIM No. 875.
A fair reading of the record demonstrates no support for the predicate of defendants argument on this point:
"It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. [Citations.] `[T]he fact that the necessary elements of a jury charge are to be found in two instructions rather than in one instruction does not, in itself, make the charge prejudicial. [Citation.] `The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole. [Citation.]" (People v. Burgener (1986) 41 Cal.3d 505, 538-539, overruled on another point in People v. Reyes (1998) 19 Cal.4th 743, 754.)
Furthermore, the prosecutor did not misstate the law or err when she explained that aggravated assault has the same elements as simple assault with the addition of the element of great bodily injury. As examples of simple assault, she described a blow that misses the victim or striking the victim with a feather. But the prosecutor did not assert that any minor injury could constitute aggravated assault. Rather she argued the attack suffered by Wilbur—which included being dragged from the golf cart and punched repeatedly in the face, head, and body, resulting in bleeding, bruising, and swelling—was significant enough to be considered force likely to cause great bodily injury. The prosecutors argument did not meet the test for misconduct. (People v. Morales (2001) 25 Cal.4th 34, 44.)
6. Prior Bad Acts
Wilbur testified briefly about a history of misconduct by defendant: his threats against other park residents and employees and their complaints about him yelling, lobbing oranges, and trespassing. Defense counsel made a hearsay objection, which the court sustained, and then cross-examined Wilbur further about the residents complaints against defendants. Wilbur also recounted how defendant had previously tried to claim an abandoned house near the park and had behaved combatively toward Wilbur.
Defendant contends the trial court erred by allowing the propensity evidence of bad acts. (Evid. Code, § 1101, subd. (a).) Additionally, defendant charges his trial counsel with prejudicial ineffective assistance of counsel by not making the proper evidentiary objections and by eliciting further damaging evidence on cross-examination.
Evidence Code section 1101 governs the use of character evidence to prove conduct:
"(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.
"(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . ) other than his or her disposition to commit such an act." (People v. Balcom (1994) 7 Cal.4th 414, 422.)
If evidence is offered under subdivision (b), the trial court must weigh "whether the probative value of the evidence of defendants uncharged offenses is `substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, § 352.)" (People v. Balcom, supra, 7 Cal.4th at pp. 426-427.) The trial court exercises broad discretion in determining relevance. (People v. Kipp (1998) 18 Cal.4th 349, 371.)
We find no abuse of discretion here. The nature of the relationship between defendant and Wilbur was a significant issue at trial. The evidence was relevant to show that Wilbur and defendant had clashed in the past. It explained why Wilbur confronted defendant about his unleashed dog and why Wilbur had reason to be apprehensive and to arm himself with pepper spray. The present case also involved an issue about whether Wilbur provoked defendant. The subject evidence was relevant to show defendant did not attack Wilbur by accident or mistake. (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) It also might plausibly have been interpreted by the jury in defendants favor. The jury could have decided that Wilbur was afraid and acted aggressively toward defendant before defendant attacked Wilbur. But it was not an abuse of discretion to admit as relevant the brief summary of defendants history of misbehavior toward Wilbur and others. Because there was no abuse of discretion, there could be no prejudicial ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Jones (1979) 96 Cal.App.3d 820, 827, citing People v. Pope (1979) 23 Cal.3d 412, 425.)
7. Disposition
We affirm the judgment.
We concur:
Ramirez, P. J.
Hollenhorst, J. --------------- Notes: All statutory references are to the Penal Code unless stated otherwise.