Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF135529, Jeffrey Prevost, Judge.
Cathy A. Neff, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Gaut J.
All statutory references are to the Penal Code.
Defendant and appellant Geraldo Nunez attacked his girlfriend, B.M., with a shovel. Defendant appeals his jury conviction for one count of assault with a deadly weapon (§ 245, subd. (a)(1)), battery on a cohabitant (§ 243, subd. (e)(1)), and damage/destruction of property (§ 594, subd. (b)(1)). The court sentenced defendant to three years of probation and a jail sentence of 179 days.
We affirm.
2. Factual and Procedural Background
At trial, the victim testified she became defendant’s girlfriend in December 2005 although he was still married and living with his wife and three children.
In August 2006, with defendant’s encouragement, B.M. answered an advertisement to rent a room in defendant’s house and B.M. began living with defendant and his family. Their relationship continued until February 2007 when defendant’s wife and their two older children discovered what was happening.
Defendant’s wife confronted B.M. and told her to leave. B.M. found her possessions dumped on the front lawn. While B.M. was packing, she asked for a refund of one-half month’s rent. She had another conversation with defendant’s wife and heated exchanges with his children. At one point, B.M. shook defendant’s daughter and pushed her down.
Defendant ran out of the house carrying a shovel and hit B.M.’s car, breaking a window. Defendant chased B.M. and hit her leg with the shovel, causing it to become red, swollen, and purple.
In closing, the prosecutor argued defendant did not act in defense of another. Defense counsel argued defendant acted in defense of his family because there was testimony that B.M. shoved his daughter.
3. Discussion
On May 30, 2008, defendant filed a notice of appeal. We appointed counsel to represent defendant on appeal. Appointed counsel has filed a brief under People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth the facts and procedural history and requesting this court to conduct an independent review of the record. Appointed counsel also identified several issues involving jury instructions and assessment of fine and penalty of $390, which we address summarily.
Defendant proposes the trial court may have erred by failing to instruct the jury on CALCRIM No. 3475, the right to eject a trespasser from real property. We do not agree. A trial court has a duty to instruct on the law applicable to the facts of the case and a defendant has a right to an instruction that pinpoints the theory of the defense. (People v. Ponce (1996) 44 Cal.App.4th 1380, 1386.) However, a trial court’s duty to instruct on particular defenses arises only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of the defense. (People v. Barton (1995) 12 Cal.4th 186, 195.) The trial court need not instruct on a defense when the evidence is minimal, that is, it is not substantial enough to merit consideration by the jury. (People v. Roldan (2005) 35 Cal.4th 646, 716.)
The requested instruction, CALCRIM No. 3475, relates to the right of an owner or a lawful occupant of property to use reasonable force to eject a trespasser, an affirmative defense. (People v. Corlett (1944) 67 Cal.App.2d 33, 51.) The defense of habitation applies where the defendant uses reasonable force to exclude someone he reasonably believes is trespassing in, or about to trespass in his home. (People v. Curtis (1994) 30 Cal.App.4th 1337, 1360.) By its terms, the instruction refers to the need to use reasonable force to make the trespasser leave. (CALCRIM No. 3475.)
In this case, the instruction was not supported by substantial evidence. The victim had been a resident of defendant’s home for about six months. When defendant attacked her with a shovel, she was trying to remove her belongings from the front lawn. These are not circumstances that plausibly support giving an instruction on the right to eject a trespasser.
Defendant also contends the trial court made a mistake in giving an instruction based on CALCRIM No. 3518. It first properly instructed the jury that “[a]ssault is a lesser crime of assault with a deadly weapon, as charged in Count 1.” It also stated “[F]ollow these directions when you decide whether the defendant is guilty or not guilty of assault, which is also a lesser crime of battery as charged in Count 2.” These instructions were supported by the additional instruction that defendant was charged with assault as a lesser included offense of both counts 1 and 2.
Defendant also questions the imposition of a “nominal” fine and penalty assessment of $390. Defendant has waived this contention on appeal by his failure to object below. (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1836, citing People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469.)
4. Disposition
On February 29, 2009, we offered defendant an opportunity to file a personal supplemental brief, which he failed to do. We have now concluded our independent review of the record and find no arguable issues.
The judgment is affirmed.
We concur: McKinster Acting P. J., King J.