Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. James M. Stuart, Judge. Super. Ct. No. BF114148A
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Susan Rankin Bunting and Janis Shank McLean, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
A jury found defendant Bryson Dupree Moore guilty of second degree robbery, assault with a deadly weapon with an allegation of personal infliction of great bodily injury, and battery with infliction of serious bodily injury. On appeal from the ensuing judgment of conviction, he argues (1) insufficiency of the evidence of second degree robbery, (2) insufficiency of the evidence of assault with a deadly weapon, and (3) prejudicial absence of an instruction on after-acquired intent. We affirm the judgment.
FACTUAL HISTORY
On February 28, 2006, Leopold Rivas boarded a city transit bus on his way home from work. On the way home, six or seven young men boarded the bus together. One was Moore. Two of the others were Lamarr Brown and Roosevelt Linear, Jr. Rivas recognized them all from school.
One by one, first Linear, then Brown, and finally Moore, gathered around Rivas. Linear said nothing. Brown said he was going to “mess [Rivas] up.” Rivas said something like “do you want to fight, or, are you gonna fight?” Moore “swore on his daughter” that if Rivas did not get off the bus, Moore was going to hit him. Right after that, Moore hit Rivas in the face. Moore and Rivas started fighting. Rivas got off the bus and ran down the street. Moore, Brown, Linear, and some other people Rivas did not know, chased him until he fell after being tripped. As Moore and Brown hit him, Rivas curled up into a ball. Moore kicked him in the face, in the torso, and “everywhere” until he lost consciousness. Once he regained consciousness, Rivas noticed that he had suffered eye, knee, and hip injuries and that his bus pass, hat, necklace, shoes, and wallet were gone. At the time of trial, there was still “a piece of bone stickin’ out” of his left eye area and he still suffered some memory loss due to the assault.
PROCEDURAL HISTORY
The district attorney charged Moore, Brown, and Linear with second degree robbery (Pen. Code, § 212.5, subd. (c) ) and charged Moore alone with assault with a deadly weapon (§ 245, subd. (a)(1)), an allegation of personal infliction of great bodily injury (§ 12022.7, subd. (a)), and battery with infliction of serious bodily injury (§ 243, subd. (d)). The jury found Moore and Brown guilty as charged and found Linear not guilty. The trial court sentenced Moore to an aggregate five-year term and imposed and stayed sentence on the other two counts.
All statutory references are to the Penal Code.
Moore and Brown appeal from their judgments of conviction and adopt by reference the other’s briefing. (Cal. Rules of Court, rule 8.200(a)(5).)
DISCUSSION
I. Sufficiency of the evidence
Our duty on a challenge to the sufficiency of the evidence is to review for substantial evidence the whole record in the light most favorable to the judgment—evidence that is reasonable, credible, and of solid value—that could have enabled any rational trier of fact to have found defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318; People v. Prince (2007) 40 Cal.4th 1179, 1251.) In doing so, we presume in support of the judgment the existence of every fact a reasonable trier of fact could reasonably deduce from the evidence. (People v. Prince, supra, at p. 1251.) The same standard of review applies to circumstantial evidence and direct evidence alike. (Ibid.)
A. Second degree robbery
Moore argues there is insufficient evidence to support his conviction of second degree robbery. The Attorney General argues the contrary.
“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) “To secure a robbery conviction, the following elements must be proved: (1) A person had possession of property of some value however slight; (2) the property was taken from that person or from his immediate presence; (3) the property was taken against the will of that person; (4) the taking was accomplished by either force or fear; and (5) the property was taken with specific intent permanently to deprive that person of the property. [Citation.]” (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1057.) A person is guilty of aiding and abetting a robbery if “‘he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.’” (People v. Hill (1998) 17 Cal.4th 800, 851.)
Here, there is sufficient direct and circumstantial evidence from which a rational trier of fact could make the requisite inferences to find Moore guilty either of perpetrating or of aiding and abetting the second degree robbery of Rivas. On that record, his insufficiency-of-the-evidence argument is essentially a request for us to reweigh the facts. This we will not do. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
B. Assault with a deadly weapon
Moore argues insufficiency of the evidence of an assault with a deadly weapon as a matter of law since he used only his hands and feet.
On an information charging assault “with a deadly weapon to wit: hands and feet,” the jury found Moore guilty “as charged” in the information. The relevant statute criminalizes an assault “with a deadly weapon or instrument other than a firearm” (deadly weapon assault) and an assault “by any means of force likely to produce great bodily injury” (force likely assault). (§ 245, subd. (a)(1).) Hands and feet suffice for a deadly weapon assault (People v. Wingo (1975) 14 Cal.3d 169, 176; People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066; People v. Duke (1985) 174 Cal.App.3d 296, 302-303), but not for a force likely assault, since a deadly weapon, within the meaning of the statute, has to be “extrinsic to the human body.” (People v. Aguilar (1997) 16 Cal.4th 1023, 1034 (Aguilar).)
The Attorney General characterizes the issue here not as insufficiency of the evidence but as harmless instructional error. The trial court erroneously modified two standard instructions. It struck the force likely language and left intact deadly weapon language in the instruction defining a section 245, subdivision (a)(1), assault (CALJIC No. 9.02). It also deleted the force likely verbiage and deadly weapon wording from the instruction defining assault with hands or fists (CALJIC No. 9.08). As modified, CALJIC No. 9.02 labeled the crime as a deadly weapon assault, not as a force likely assault, and CALJIC No. 9.08 authorized a deadly weapon assault verdict by the use of “hands or fists.” Since the assault statute “focuses on use of a deadly weapon or instrument or, alternatively, on force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial.” (Aguilar, supra, 16 Cal.4th at p. 1028.) In addition, the court gave a standard instruction authorizing a true finding on the great-bodily-injury allegation only if the jury found that Moore “personally inflicted great bodily injury,” which the instruction defined as “a significant or substantial physical injury,” not a “[m]inor, trivial or moderate” injury. (CALJIC No. 17.20.) The jury found the allegation true. Our duty is to consider the charge to the jury as a whole and to assume that the jurors are intelligent people capable of understanding and correlating all of the instructions given by the court. (People v. Guerra (2006) 37 Cal.4th 1067, 1148.)
“Every person who commits an assault upon the person of another with a deadly weapon or instrument, other than a firearm, or by any means of force likely to produce great bodily injury, is guilty of a violation of section 245, subdivision (a)(1) of the Penal Code, a crime.” (CALJIC No. 9.02, deletions in strikeout.)
“An assault by means of force likely to produce great bodily injury a deadly weapon may be committed with the hands or fists.” (CALJIC No. 9.08, deletions in strikeout; additions in bold.)
The prosecutor argued to the jury that a “deadly weapon” was “anything that can cause death or great bodily injury. Sometimes that can be a fist. It’s easy for it to be a kick in the head.” He argued, “Mr. Rivas tells us the only person that kicked him in the face was Mr. Moore. He said he was hit and kicked by others, including Mr. Brown, but the only person that could have given him the head injury is Mr. Moore. [¶] So that is the assault with a deadly weapon charge. The feet in this circumstance are a deadly weapon.”
In Aguilar, the jury found the defendant and codefendant guilty of a section 245, subdivision (a)(1), assault and found true with respect to the codefendant the same great-bodily-injury allegation the jury here found true with respect to Moore. (Aguilar, supra, 16 Cal.4th at p. 1027.) On the ground that “the prosecutor had relied on a legally incorrect theory in suggesting, during closing argument, that hands and feet may be deadly weapons,” the Court of Appeal reversed the defendant’s conviction. (Id. at p. 1028.) The court affirmed the codefendant’s conviction, however, on the ground that the jury’s true finding on the great-bodily-injury allegation “signified it would have found he used force likely to produce great bodily injury, rather than a deadly weapon.” (Id. at p. 1028, fn. 2.) The Supreme Court denied the codefendant’s petition for review. (Ibid.)
Reasoning that the instructions and the prosecutor’s argument “called on the jury to find defendant’s conduct had the capability and probability of inflicting great bodily injury under either a ‘deadly weapon’ theory or a ‘force likely’ theory,” the Supreme Court reversed the Court of Appeal’s judgment since the “jury’s analytical process was the same in either event.” (Aguilar, supra, 16 Cal.4th at p. 1037.) On the analogous record here, Moore’s argument that he was “convicted of a crime he did not commit” is not persuasive. To the contrary, the jury, found him guilty of a section 245, subdivision (a)(1), assault. Even though the instructions and the prosecutor’s argument erroneously conflated hands and fists with a deadly weapon, there is no reasonable likelihood on the record here that the jury misconstrued the instructions or the prosecutor’s argument in a way that violated his constitutional rights. (See Estelle v. McGuire (1991) 502 U.S. 62, 72-73 & fn. 3; People v. Clair (1992) 2 Cal.4th 629, 663.)
II. Instruction on after-acquired intent permanently to deprive
Moore argues that the trial court’s failure to instruct sua sponte on after-acquired intent permanently to deprive the owner of his property denied him his federal constitutional rights to have a jury determine every material fact and to proof beyond a reasonable doubt of a union of act and intent. He contends that his attorney’s failure to request this instruction was ineffective assistance of counsel.
It is settled that a trial court has a duty to instruct sua sponte on “general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case.” (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) Seeking to invoke the general rule, Moore focuses on the evidence that Rivas noticed after he regained consciousness that some of his personal property was missing. In doing so, he argues that a “reasonable interpretation of this evidence is that whoever took [his] property did so only after the assault had ended” and that “any intent to take [his] personal property and to permanently deprive him of that property arose after the assault had ended.” He claims, “the precise time at which [he] formed the requisite intent, if at all, was an issue that was so ‘closely and openly’ connected to the facts before the court as to give rise to a sua sponte duty to instruct .…”
Moore’s argument ignores an equally settled rule of law. An instruction on after-acquired intent “is a pinpoint instruction that a trial court has no obligation to give when neither party has requested that it be given.” (People v. Silva (2001) 25 Cal.4th 345, 371; People v. Webster (1991) 54 Cal.3d 411, 443.) Here, since none of the parties requested an instruction on after-acquired intent, the trial court had no sua sponte duty to give one. Nonetheless, if substantial evidence is in the record that an “intent to steal arose after the victim was assaulted,” a trial court has a sua sponte duty to instruct on theft as a lesser-included offense of robbery even in the absence of a request. (People v. Webster, supra, at p. 443.) Assuming that substantial evidence to that effect is in the record here, the trial court discharged its duty by instructing on petty theft as a lesser-included offense of robbery. (CALJIC Nos. 16.300, 17.10.) No more was required.
Tacitly acknowledging that the trial court had no duty to instruct sua sponte on after-acquired intent, Moore argues that the absence of a pinpoint instruction denied him his federal constitutional rights to have a jury determine every material fact and to proof beyond a reasonable doubt of a union of act and intent. (§ 20.) In order to prevail on this claim, Moore must show that the absence of this instruction resulted in him receiving a trial so fundamentally lacking in fairness as to violate due process. (See Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 919-920.) He does not make the requisite showing.
Finally, we turn to Moore’s ineffective-assistance-of-counsel argument. By guaranteeing “access to counsel’s skill and knowledge” and an “‘ample opportunity to meet the case of the prosecution,’” the right to counsel protects the due process right to a fair trial. (Strickland v. Washington (1984) 466 U.S. 668, 684-686.) The defense has the burden of showing that the attorney’s performance “fell below an objective standard of reasonableness” and prejudiced the defense. (Id. at pp. 687-692; People v. Hart (1999) 20 Cal.4th 546, 623; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) The instruction on the lesser-included offense of petty theft authorized a not-guilty verdict on the robbery if the jury were to find that Moore’s intent permanently to deprive Rivas of his property arose after the assault ended. The jury found to the contrary. On this record, the absence of a pinpoint instruction on after-acquired intent failed to show that his attorney’s performance fell below an objective standard of reasonableness or prejudiced the defense.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Cornell, J., Hill, J.