Opinion
2d Crim. No. B189524
5-10-2007
THE PEOPLE, Plaintiff and Respondent, v. JOSE ALFRED LEON, Defendant and Appellant.
Lyn A. Woodward, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Kathy S. Pomerantz, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Jose Alfred Leon appeals the judgment entered after a jury convicted him of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and possession of a deadly weapon, namely, a baseball bat (§ 12020, subd. (a)). Imposition of sentence was suspended, and Leon was placed on three years probation. He contends the evidence is insufficient to support his assault conviction, and that the trial court committed prejudicial instructional errors. We affirm.
Further statutory references are to the Penal Code, unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
At approximately 11:00 a.m. on March 6, 2005, Juliana Thornquist looked out of the balcony window of her apartment at 607 West Vineyard Avenue in Oxnard and saw Leon walking along a pathway in the courtyard. Shortly thereafter, she heard stomping noises coming up the stairs and could hear that several people were outside her front door. Someone pounded on the door and yelled for her to open it. The person also yelled something about keys and that he wanted to know where his truck was. Thornquist looked through her peephole, but did not recognize anyone. Leon was standing closest to the door, and the others were behind him. When Thornquist asked Leon to identify himself, he responded, "You know who it is. . . . Its Jose. Open the fucking door."
Thornquist did not know who Leon was, yet she opened the door about five inches so he could see that he was at the wrong apartment. Thornquist testified that Leon pushed the door open and entered the apartment, carrying a baseball bat in his right hand with his arm "cocked a little." Thornquist yelled at him to get out. Leon came within a few inches of Thornquists face and yelled that he would "bash [her] fucking skull in" if she did not give him the keys to his truck. He then repeatedly raised the bat forcefully and demanded, "Wheres my fucking truck? I want my fucking truck."
Thornquist continually told Leon to get out of her apartment, and he eventually backed away from her and out the door. Thornquist closed the door, locked it, and called the police. She was frightened by the incident, and believed Leon when he threatened to bash in her skull. After calling the police, she left her apartment and went downstairs, believing it would be safer to wait in her car. She encountered a group of people at the bottom of the stairs, who told her not to leave and that they had called the police. Thornquist returned to her apartment and waited for the police to arrive.
An officer from the Oxnard Police Department responded to the scene and discovered Leon standing next to a red Chevy pickup truck, holding an aluminum baseball bat in his hand. When Leon saw the officer, he put the bat in the bed of the truck. Leon told the officer that the truck belonged to him and that it had been stolen.
After Thornquist gave her statement, she made an in-field identification of Leon, who was then arrested. The officer took Leons statement after he waived his Miranda rights. Leon showed the officer how he had held the bat during his confrontation with Thornquist by holding it at the middle in his left hand, with the barrel pointed down.
Miranda v. Arizona (1966) 384 U.S. 436.
Leon testified on his own behalf. He testified that his red Chevy pickup truck was stolen on a Thursday night in March 2005 when he left it in front of his mothers house with the keys in the ignition while he went in the house to get a pair of shoes. The following Saturday morning, his sister, Veronica Morales, called their mother and said she and her nephew, Angel R., were driving down H Street when they had seen a bald white man driving Leons truck. Morales testified that she followed the truck as it drove to the apartment complex at 607 West Vineyard Avenue. Angel R. testified that he saw the driver exit the truck and enter Thornquists apartment.
Leon testified that he drove to the apartment complex with his mother, aunt, and uncle. He walked up to Thornquists apartment with a baseball bat in his hand that he had retrieved from the bed of his truck. He claimed the bat was just a "ploy" and that he brought it because he "didnt want any problems" and wanted to "protect[] my family members." He admitted that he "knocked pretty hard" on the door, and that he had yelled that he wanted his "fucking keys." When Thornquist finally opened the door, he told her he wanted his keys. Leon denied entering the apartment, yet he testified that Thornquist told him to "[g]et out of [her] fucking house." He claimed that they argued for about two or three minutes, then Thornquist told him to leave and closed the door. He denied raising the bat at her or threatening to bash in her skull.
DISCUSSION
I.
Sufficiency of the Evidence
Leon contends the evidence is insufficient to sustain his conviction for assault with a deadly weapon. Specifically, he complains that "[t]he prosecution offered no evidence demonstrating that [he] held the bat in a swinging position, that he ever swung it at Thornquist or moved it toward her with any force, or that he held it in any other manner that immediately precipitated a strike." According to Leon, this lack of evidence compelled the conclusion that he "never performed an act antecedent to a battery," and that he therefore could not be convicted of assault.
In reviewing claims of insufficient evidence, "we examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—that would support a rational trier of fact in finding the essential element of intent beyond a reasonable doubt." (People v. Lewis (2001) 25 Cal.4th 610, 642.) We draw all reasonable inferences from the evidence, and do not reweigh evidence, resolve evidentiary conflicts, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Assault is defined as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) Acts that constitute assault include "[ h]olding up a fist in a menacing manner, drawing a sword, or bayonet, presenting a gun at a person who is within its range . . . ." (People v. Colantuono (1994) 7 Cal.4th 206, 219.) When such an act is accompanied by circumstances evincing an intention to commit violence against another, and the defendant has placed himself in a position where he is capable of doing so, he is guilty of assault. (Ibid.)
Moreover, it has long been settled that a conditional threat is sufficient to constitute an assault. " [A] threatened act may amount to an assault even though the threat is conditional or qualified. [Citation.]" (People v. Daniels (1993) 18 Cal.App.4th 1046, 1051.) "Where a party puts in a condition which must be at once performed, and which condition he has no right to impose, and his intent is immediately to enforce performance by violence, and he places himself in a position to do so, and proceeds as far as it is then necessary for him to go in order to carry out his intention, then it is as much an assault as if he had actually struck, or shot, at the other party, and missed him." (People v. McMakin (1857) 8 Cal. 547, 548-549.) The jury was so instructed. (CALJIC No. 9.00.1.)
In light of these principles, we conclude the evidence is sufficient to support the jurys finding that Leon was guilty of assaulting Thornquist with a deadly weapon. Thornquist testified that Leon came up to her face, held the baseball bat with his arm cocked, and repeatedly told her in a forceful and intimidating manner he would "bash [her] fucking skull in" if she did not give him the keys to his truck. The jury could reasonably infer from this evidence that Leon intended to immediately carry out his threat to "bash in" Thornquists skull if she did not comply with his demand, that he had placed himself in a position where he could do so, and that he had proceeded as far as necessary in order to carry out his threat. Leons claim to the contrary fails to acknowledge that a conditional threat may qualify as an assault, and that the fact that he did not ultimately carry out his threat is of no import in evaluating the sufficiency of the evidence supporting his assault conviction.
As the People correctly note, Leons argument that there was no evidence he performed an act antecedent to a battery because he did not carry the bat in a swinging position is based upon a case in which our Supreme Court granted review after the opening brief was filed. (People v. Chance (2006) 141 Cal.App.4th 618, review granted Nov. 1, 2006, S145458.) That case is therefore no longer authority for the asserted proposition. In any event, the cases are inapposite.
II.
Alleged Instructional Error
A.
Refusal to Give CALJIC No. 5.43 and Proposed Instruction on Civil Code Section 50
Leon argues that the trial court erred in refusing his request to instruct the jury with CALJIC No. 5.43 and a special instruction he proposed based on Civil Code section 50. He contends that these instructions would have enabled the jury to consider his theory that he used reasonable force in the defense of his property. We disagree.
CALJIC No. 5.43 provides: "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."
Civil Code section 50 provides in pertinent part that "[a]ny necessary force may be used to protect from wrongful injury the person or property of oneself . . . ." Leons proposed instruction stated: "Any necessary force may be used to protect from wrongful injury the property of oneself or child or parent."
Trial courts have a duty to instruct on the general principles of law that are relevant to the issues raised in a criminal case. (People v. Earp (1999) 20 Cal.4th 826, 885.) However, there is no duty, either sua sponte or at the defendants request, to instruct the jury on a defense that is not supported by substantial evidence. (People v. Memro (1995) 11 Cal.4th 786, 868.) Minimal and insubstantial evidence supporting a defense theory is not enough to compel the giving of an instruction. (People v. Flannel (1979) 25 Cal.3d 668, 684.) Any doubt as to the sufficiency of the evidence in this regard, however, must be resolved in favor of the defendant. (Id., at pp. 684-685, fn. 12.)
The court rejected the requested instructions because they only apply where force is necessary to prevent imminent injury to ones property, and there was no evidence of any such imminent threat to Leons property. In declining to give CALJIC No. 5.43, the court noted, "[w]e have no evidence anybody was trying to destroy th[e] keys or the truck, which is sitting there unattended. Nobody is doing anything to it. There is no evidence of imminent injury threatened to either of those articles of property." Later, in refusing to give Leons proposed instruction based on Civil Code section 50, the court reasoned that the instruction was inconsistent with Leons claim that he had not used force against Thornquist, notwithstanding Leons argument that he did so by "forcefully" knocking on the door.
In challenging the courts rulings, Leon does not dispute the absence of evidence indicating that the force he used was necessary to prevent imminent injury to his property—or, for that matter, any injury—much less that the force he used was reasonable. Instead, he refers us to an inapposite illustration in the Restatement of Torts recognizing that an individual may use reasonable force to recover his vehicle when he actually observes the theft and immediately pursues the thief. His citation to a section of the Model Penal Code is similarly inapt. (Model Pen. Code, § 3.06, subd. (1)(b) [providing in pertinent part that "the use of force upon or toward the person of another is justifiable when the actor believes that such force is immediately necessary: . . . [¶] . . . to retake tangible movable property, provided that the actor believes that he . . . was unlawfully dispossessed of such . . . movable property and is entitled to possession, and provided, further, that: [¶] (i) the force is used immediately or on fresh pursuit after such dispossession; or [¶] (ii) the actor believes that the person against whom he uses force has no claim of right to the possession of the property" (italics added)].) His other citations are also unavailing. (Stafford v. State (Ind. 1990) 549 N.E.2d 377, 378 [recognizing that although "a person may be justified in assaulting another person to regain property . . . , the force employed must not exceed that reasonably necessary for the accomplishment of such purpose," and that "the acts to retrieve property are not privileged unless the actor first requests the other to give up possession"]; People v. Randle (2005) 35 Cal.4th 987, 991-993, 1002-1003 [addressing whether a defendant was entitled to an imperfect defense of others instruction in prosecution for second degree felony murder]; People v. Young (1963) 214 Cal.App.2d 641, 649-650 [recognizing that instructions on justifiable homicide were required in prosecution of defendant who used deadly force to prevent a robbery in which the decedent grabbed money from the defendant, put a knife against his neck, and threatened to cut his throat if he resisted]; People v. Straiten (1977) 71 Cal.App.3d 526, 535 [finding no error in refusing to give CALJIC No. 5.43 on charge of assault with a deadly weapon because "[t]here was no evidence that [the victim] ever presented any threat to real or personal property"].)
The illustration provides as follows: "A parks his car in the street. On returning, he sees B driving off with it. In another car he immediately pursues B. As car breaks down, and it is two days before he can obtain another. He then pursues B for three more days, making a number of stops to eat and sleep, inquire, and obtain gasoline. At the end of that time he comes upon B. He is privileged to use reasonable force . . . ." (Rest.2d Torts, § 103, illus. 2.)
Contrary to Leons contention, the court in Stafford did not find that the trial court was required to instruct the jury on the defendants right to use reasonable force to recover stolen property. Instead, the court merely concluded that the jury was justified in rejecting that defense. In reaching that conclusion, the court indicated there was no evidence from which the jury could have found that the defendant had asked for his property back before using force to recover it, or that the force he used was reasonable. (Stafford v. State, supra, 549 N.E.2d at p. 378.) In any event, the instruction given in that case is virtually identical to CALJIC No. 5.43, in that it stated that "[a] person is justified in using reasonable force if he reasonably believes that the force is necessary to immediately prevent or terminate the other persons criminal interference with his property. . . ." (Ibid., italics added.) As we have noted, there is nothing in the record from which the jury could have found that Leon was justified in believing that the use of force was necessary to immediately terminate Thornquists possession of his truck or keys.
As the trial court correctly concluded, no evidence was presented from which the jury could have found a threat of imminent injury to Leons truck or his keys. Indeed, Leon knew where his truck was and did not need the keys to claim it as his. Moreover, the facts presented at trial indicated that a white bald man was seen driving the truck, not Thornquist. Although Leons nephew apparently told him that this man had entered Thornquists apartment, that knowledge did not justify the use of force against Thornquist to recover keys that Leon had no reason to believe were in her possession. Accordingly, the court did not err in refusing to instruct the jury that Leon had the right to use reasonable force to recover his property.
Because there was no evidence from which the jury could have found that Leons truck or car keys were in imminent danger of being injured by Thornquist, any error was harmless under both the state and federal standards of review. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836; see People v. Salas (2006) 37 Cal.4th 967, 984 [noting that our Supreme Court has yet to decide which standard of harmless error review applies to the failure to instruct on an affirmative defense].)
B.
Failure to Give Instructions on Sections 692 and 693
During the discussion of proposed jury instructions, Leon asked the court to instruct on sections 692 and 693, which address the right to lawfully resist the commission of a public offense. After the court explained that those instructions were plainly inapplicable to the charge of assault, Leon indicated that the instructions were proffered in defense of the section 12020 charge for possessing the baseball bat as a deadly weapon. The court responded that "[y]our 12020 defense is that he was trying to get his property back, apparently. So if thats what you want to do, you need to give me an instruction that says that a person has a right to recover property that has been taken from him unlawfully, and give me some support for it or some authority under those circumstances." When Leon failed to provide any such authority, the court concluded that no such instructions were warranted.
Section 692 provides: "Lawful resistance to the commission of a public offense may be made: [¶] 1. By the party about to be injured; [¶] 2. By other parties." Section 693 states: "Resistance sufficient to prevent the offense may be made by the party about to be injured: [¶] 1. To prevent an offense against his person, or his family, or some member thereof. [¶] 2. To prevent an illegal attempt by force to take or injure property in his lawful possession."
Leon contends the trial court was required to either give the requested instructions, or give a sua sponte instruction on the theory of self-defense to the section 12020 charge. We reject this contention because Leon and his nephew both testified that he possessed the baseball bat for protection. Because that concession prevented him from establishing that he possessed the bat for an innocent purpose, "[n]othing further was necessary to show the instrument though conceived for peaceful purposes, . . . was wrapped in the indicia and circumstances of probable assault. [Citations.]" (In re Robert L. (1980) 112 Cal.App.3d 401, 405.)
Moreover, no evidence was presented at trial from which the jury could have found that Leon had any reason to fear for his life as the result of his truck being stolen. There was no evidence that the man observed driving his truck was dangerous, or that he had made any threats against Leon or his family. More importantly, there is no evidence that would have justified an objectively reasonable belief that Thornquist presented any threat of physical injury when Leon confronted her with the bat in his hand. Under the circumstances, the court had no obligation to give any self-defense instructions on the section 12020 charge. Because there was no evidence from which the jury could have found that Leons purported fear for his life in confronting Thornquist was objectively reasonable, any error in failing to instruct the jury on self-defense was also harmless under both the state and federal standards of review. (Chapman v. California, supra, 386 U.S. at p. 24; People v. Watson, supra, 46 Cal.2d at p. 836.)
The judgment is affirmed.
We concur:
GILBERT, P.J.
YEGAN, J