Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF109630, Helios (Joe) Hernandez, Judge.
A. M. Weisman, 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, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Collette C. Cavalier, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Gaut J.
All statutory references are to the Penal Code unless stated otherwise.
A jury convicted defendant of counts 5, 6, and 7: vehicle theft (Veh. Code, § 10851, subd. (a); reckless flight from a peace officer (Veh. Code, § 2800.2); and assault on a peace officer by force likely to cause great bodily injury (§ 245, subd. (c).) The jury acquitted defendant of five other counts: two counts of attempted murder, two counts of attempted robbery, and assault on a peace officer. The court sentenced defendant to a total determinate prison sentence of five years four months.
On appeal, defendant asserts the court erred by refusing to instruct the jury on self-defense and use of excessive force and in failing to give an instruction on a lesser included offense on the count of assault (count 7). Additionally, defendant contends the court erred in imposing a discovery sanction. Defendant acknowledges his argument against consecutive sentencing has been decided against him in People v. Black (2007) 41 Cal.4th 799, 820-823 but he preserves it for review. Finally, defendant maintains the clerk’s minutes and abstract of judgment should be corrected to state accurately the fines actually imposed.
We determine there was not substantial evidence to support giving instructions on self-defense or excessive force. We do not find any prejudicial error in giving an instruction about the defense’s delay in providing discovery. We remand to allow the trial court to impose the booking fee in the proper amount and the cost of the presentencing report in accordance with section 1203.1b. Otherwise, we affirm the judgment.
2. Facts
The testimony by the various witnesses at trial was often confusing and conflicting. Nevertheless, based on reasonable inferences, there is substantial evidence to support the following interpretation of the subject events. We will refer to additional facts and evidence as relevant to the issues raised by defendant.
Darius Crowder was a paraplegic, confined to a wheelchair, and a drug dealer with a history of past convictions. He testified under a grant of limited immunity and admitted to embellishing his testimony.
On April 20, 2003, Crowder was selling crack cocaine, with a sideline in sports jerseys, in an alley behind the Launderland laundromat when he waved down defendant who was driving by. Defendant gave Crowder $10 for a “dime” of cocaine and Crowder told defendant to meet him in the laundromat parking lot. When Crowder noticed a police officer making a traffic stop, he would not give defendant any drugs and he refused to refund defendant’s money. The two men struggled and defendant tipped over Crowder’s wheelchair. Crowder’s pants were torn, exposing his colostomy bag. Crowder claimed defendant took $20 from him. After two bystanders intervened, defendant withdrew and fled in his car.
A Riverside police officer, Sancho Lopez, interviewed Crowder, who said defendant had approached him and asked to buy some jerseys. Eventually defendant tried to grab a bag containing the jerseys and the two men struggled together. Crowder told Lopez that defendant took more than $50 from him, including two $10 bills.
Another officer, Richard Estes, testified that he was performing a traffic stop near Launderland when two women reported a handicapped man was being assaulted. Estes went to the location where he saw Crowder pulling himself up from the ground with his clothes in disarray and his catheter and colostomy bags exposed. Crowder said defendant had demanded money before hitting him and pulling him out of his wheelchair. Defendant had fled, driving a gray Ford Probe.
Estes gave this information to a third officer, Anthony Siracusa, who departed in a police car to pursue defendant. Meanwhile, a bystander alerted Estes to a gray Ford Probe in the area. Estes made eye contact with the driver, who accelerated. Estes began following the Ford in his patrol car. Defendant traveled over the speed limit in residential neighborhoods, ran a stop sign, bounced on a dip, and crossed over into oncoming lanes. He continued to drive recklessly and evasively. While executing one turn, he slid sideways across a crosswalk. Finally, he pulled into an apartment complex parking lot.
Estes followed defendant into the parking lot and stopped his patrol car, leaving the engine running and the keys inside. Defendant fled on foot and Estes pursued him with his weapon drawn. Ultimately, defendant ran back to the police car and jumped into the driver’s seat. There was a loaded shotgun and a taser in the car and another shotgun in the trunk. Estes pointed his weapon at defendant through the closed passenger window and ordered him out of the car.
In the meantime, Siracusa arrived on the scene. Siracusa’s patrol unit tapped Estes on the back of his legs, pushing Estes up on the hood of the vehicle until he stepped back down between the two cars. Defendant accelerated Estes’s patrol car in reverse, striking Estes and pinning him between the two vehicles. Siracusa fired several shots at the car. Defendant performed a U-turn in reverse and drove toward the two officers, who both fired at the car. Defendant hit the curb, stopped, and drove away.
Later, defendant was arrested at the Riverside bus depot. Two bullets were surgically removed from his chest and stomach.
Estes sustained injuries to his right leg.
3. Instructional Error
There was some conflicting evidence about which officer fired shots and when it happened during the pursuit of defendant. Estes denied firing his gun during the foot chase. Only one witness, Archie McDonel, thought he heard a gunshot while Estes was still chasing defendant. But he did not see Estes firing. Another witness, Steven Harvey, testified he did not hear any loud noises except sirens during the foot chase. Some of the evidence was also equivocal about whether defendant struck Estes with the patrol car. Eyewitnesses also offered a different version of events than the officers. David Salgado did not hear the officers yell any commands or warnings. Salgado, Harvey, and another witness, Linda Gomez testified similarly that Siracusa fired on defendant only after he had begun driving away and Estes did not shoot.
Based on the foregoing, as related to the count of assault, defendant urged the court to give the jury the standard instructions on self-defense, based on CALCRIM Nos. 505 and 3470, and a pinpoint instruction stating: “Ordinarily, the police are not privileged to shoot at a fleeing felon.” The prosecution argued self-defense did not apply under the circumstances where defendant had fled from the police, ignored commands to stop, and rammed a patrol car at the officers. Defense counsel countered that self-defense was a factual matter to be decided by the jury. The court agreed with the prosecution that self-defense did not apply because there was no evidence to support an instruction on that point or involving excessive force. The court did not instruct the jury sua sponte on excessive force based on CALCRIM Nos. 860 and 2670.
A trial court must give appropriate instructions, either upon request or sua sponte, whenever there is evidence substantial enough to merit consideration by the jury. (People v. Manriquez (2005) 37 Cal.4th 547, 581 (Manriquez); People v. Cunningham (2001) 25 Cal.4th 926, 1008; People v. Breverman (1998) 19 Cal.4th 142, 157; People v. Montoya (1994) 7 Cal.4th 1027, 1047.) But, as a logical corollary, instructions are not required where evidence supporting them is “minimal or insubstantial.” (People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1269; People v. Strozier (1993) 20 Cal.App.4th 55, 63.)
On appeal, we apply a de novo standard of review. (Manriquez, supra, 37 Cal.4th at p. 581.) The record in this case is virtually bare of any evidence that defendant acted in self-defense or the police used excessive force. From the outset, defendant initiated a dangerous vehicle pursuit, continued to evade the police on foot, commandeered a patrol car, and dangerously employed the vehicle as a weapon against the officers. Only one witness testified that he may have heard a gunshot while Estes was chasing defendant. All the other evidence demonstrated that defendant seized a police car and twice drove in a threatening manner at the two officers before they ever fired at him. The slightly contrary evidence, as described by defendant, was neither substantial nor sufficient enough to justify the requested instructions. (People v. Jackson (1989) 49 Cal.3d 1170, 1193-1194, People v. McElheney (1982) 137 Cal.App.3d 396, 404-405.)
In a related claim involving the count of assault on a peace officer by force likely to cause great bodily injury, defendant contends the court should have given a lesser included instruction on assault by force likely to cause great bodily injury (but not on a peace officer.) Based on the same evidence and for the same reasons as articulated above, we reject this claim. There was no substantial evidence that Officer Estes acted with excessive force. Even if defense counsel had not specifically declined any lesser instruction, an instruction on a lesser offense was not justified because of evidence of excessive force.
4. Jury Instruction About Delayed Discovery
Defendant challenges the instruction the court gave to the jury concerning the mutual failure of both the prosecutor and defense counsel to provide discovery to one another. The prosecution did not timely disclose the Major Accident Investigation Report and the tapes of three witness interviews conducted by the police. Defense counsel did not disclose until trial some of the expert information obtained from the accident reconstruction expert.
The special instruction was prepared by defense counsel based on CALJIC No. 2.28: “The law of this State requires the prosecution and the defense to disclose the evidence each intends to present at trial. The purpose of the law is to promote the ascertainment of the truth and to avoid any surprise which may arise during the course of trial. Any delay in the disclosure of evidence may deny a party a sufficient opportunity to subpoena necessary witnesses, to produce evidence, to rebut the noncomplying parties[’] evidence. Disclosure of evidence [is] required to be made at least 30 days in advance of trial. Any new evidence discovered within 30 days of trial must be disclosed immediately. In this case, the prosecutor failed to disclose certain evidence until midway through trial. Also the defense did not disclose certain evidence in a timely manner. The weight and significance of any delayed disclosure are matters for your consideration.”
Defendant contends the instruction about discovery was an error for at least three reasons: the prosecution suffered no prejudice from the failure to disclose (see People v. Wimberly (1992) 5 Cal.App.4th 773, 792-793); the instruction attributes the failure to disclose to defendant himself rather than defense counsel (People v. Lawson (2005) 131 Cal.App.4th 1242, 1246-1249); and the instruction offers no guidance to the jury on how to treat the violation. (People v. Bell (2004) 118 Cal.App.4th 249, 255-257.)
Section 1054.5 authorizes the court to “advise the jury of any failure or refusal to disclose and of any untimely disclosure.” The special instruction was based on CALJIC No. 2.28, which has been criticized often by the Courts of Appeal. (People v. Lawson, supra, 131 Cal.App.4th at pp. 1246-1249; People v. Bell, supra, 118 Cal.App.4th at pp. 255-257.) Nevertheless, we do not find it was prejudicial error to give it here. The use of the terms “the prosecution” and “the defense” instead of “the People” and “defendant” means it was not reasonably likely the jury understood “defense” to refer to defendant personally. Additionally, in closing argument, defense counsel explained he, not defendant, was responsible for the delayed discovery. Furthermore, the prosecutor never mentioned the delayed disclosure and made no effort to “capitalize” on the instruction or the delay. (Bell, supra, at p. 257.) Therefore, it is not reasonably likely the jury applied the instruction improperly. Based on the evidence at trial and the instructions given as a whole, it is also not reasonably likely the jury would have reached a verdict more favorable to defendant. (Lawson, supra, at p. 1249, fn. 7.)
5. Booking Fee and Presentence Report Cost
There is a discrepancy in the record between the probation report, the trial court’s pronouncement of sentence, and the clerk’s minutes. The probation report recommends a booking fee of $110 and no more than $318 for the cost of a presentence report. The minutes record the same amounts. But the court orally imposed a $10 booking fee and did not mention the other cost. The People acknowledge the trial court did not follow the procedures set forth in section 1203.1b for determining the cost of the presentence report. (People v. O’Connell (2003) 107 Cal.App.4th 1062, 1067-1068.)
The record does not demonstrate a simple scrivener’s error that can be corrected on appeal. (People v. Zackery (2007) 147 Cal.App.4th 380, 387-389.) Therefore, we remand with directions for the trial court to impose the correct booking fee and the cost of the presentence report in compliance with section 1203.1b.
6. Disposition
We affirm the judgment and remand with directions to the trial court, as set forth above, concerning the booking fee and the cost of the presentence report.
We concur: McKinster Acting P. J. King J.