Opinion
A157114
06-19-2020
THE PEOPLE, Plaintiff and Respondent, v. WILLIE CHARLES PITTMAN II Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. SC008488A)
Defendant Willie Charles Pittman II was convicted of assaulting three victims—one count as to each victim R.A., G.V., and R.D.—by force likely to produce great bodily injury (Pen. Code § 245, subd. (a)(4)). The jury also found true an allegation that he personally inflicted great bodily injury on R.A. (§ 12022.7, subd. (a).) Defendant was sentenced to a term of 11 years in state prison, consisting of an aggregate term of nine years for assaulting R.A., one year for assaulting G.V., and one year for assaulting R.D.
We refer to the victims by their initials to maintain their privacy.
All further unspecified statutory references are to the Penal Code.
Defendant contends the court erred using jury instruction CALCRIM No. 875 (assault with force likely to produce great bodily injury) without modification. We see no merit to his claim and affirm.
Factual and Procedural Background
The charges filed against defendant arose from two separate incidents in April 2016.
On April 7, G.V. and R.D. as well as others were working in a fast food restaurant when defendant entered, repeatedly yelled "Call the police," and jumped over the front counter.
R.D. was working at the cash register, saw defendant jump over the counter, and R.D. ran toward the back of the restaurant. Defendant caught R.D. and put her in a headlock for approximately 30 seconds, squeezing her neck so hard she had problems breathing. While defendant had her in the headlock, R.D. was able to move approximately five feet, at which point defendant threw her against a deep fryer and continued to run toward the back of the restaurant. R.D.'s arm struck the outside structure of the deep fryer, but her arm was not injured and she did not recall if the fryer was in use at the time. Her neck hurt for a few minutes after defendant released her.
G.V., who was working in the kitchen, then saw defendant grab another employee by her shirt, but the employee was able to shrug him off. When G.V. saw defendant looking at her, she ran towards the back of the restaurant with defendant in pursuit. Defendant caught G.V., grabbed her around the neck, and threw her to the floor while falling on top of her. Defendant repeatedly banged G.V.'s head on the floor until other employees and customers were able to restrain defendant and hold him until the police arrived and arrested him. G.V. sustained an injury from her left elbow to shoulder; her shoulder still hurt at the time of the 2018 trial.
Four days later, on April 11, defendant was in a courthouse holding cell awaiting a court appearance with others. R.A. was in the same holding cell. R.A. did not say anything, including anything "racial," prior to defendant appearing upset with and yelling at R.A. Defendant then approached R.A. and struck R.A.'s jaw with his fist. Defendant stated, " 'You better not talk or say anything or I will attack you again.' " R.A. notified a deputy sheriff his mouth was bleeding and the deputy sheriff took him to a nurse in the building. R.A. was subsequently taken to a hospital where his jaw was wired shut for a week. At the time of the 2018 trial, R.A. still had problems caused by the broken jaw; he had a slight clicking in his jaw and slurred speech "every so often."
The jurors viewed a portion of surveillance video showing some angles of defendant's assault on R.A. as well as a portion of surveillance video and still photographs taken from the surveillance video showing some of the restaurant incident.
Defendant did not testify or present any evidence in his defense. Because he waived his right to be present during the trial, the parties stipulated to the following facts: "Defendant Willie Pittman, II, is the man discussed by witnesses that ran into the [restaurant] and vaulted the counter. Defendant, Willie Pittman, II, is also the man in the checkered shirt that was in the holding cell with [R.A.]"
DISCUSSION
Defendant seeks reversal of his convictions for assaulting G.V. and R.D. in the restaurant on the ground that the court improperly instructed the jury using CALCRIM No. 875 (assault with force likely to produce great bodily injury) without modification.
The People argue defendant has forfeited review because he failed to object to the given instruction or request any clarification in the trial court. However, "to the extent [defendant] is claiming that the instruction was erroneous (and not merely that the court should have clarified certain terms within it), his claims are reviewable under section 1259. [Citation.]" (People v. Sattiewhite (2014) 59 Cal.4th 446, 475; see § 1259 [appellate court may, without objection being made in the trial court, review whether a given instruction is a correct statement of the law or affected defendant's substantial rights].) We therefore review defendant's claim of error.
I. CALCRIM No. 875 Was A Correct Statement of Law
A. Relevant Facts
Without objection, the trial court instructed the jury on the crime of assault with force likely to produce great bodily injury using the language in CALCRIM No. 875. In pertinent part, the instruction advised the jury as follows:
"The defendant is charged in Counts 1, 2, and 3 with assault with force likely to produce great bodily injury.
"To prove that the defendant is guilty of this crime, the People must prove that:
"1A. The defendant did an act that by its nature would directly and probably result in the application of force to a person, and
"1B. The force used was likely to produce great bodily injury;
"2. The defendant did that act willfully;
"3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone;
"4. When the defendant acted, he had the present ability to apply force likely to produce great bodily injury to a person;
AND
"5. The defendant did not act in self-defense.
"Someone commits an act willfully when he or she does it willingly or on purpose. . . .
"The terms application of force and apply force mean to touch in a harmful or offensive manner. . . . The touching does not have to cause pain or injury of any kind.
"The People are not required to prove that the defendant actually intended to use force against someone when he acted.
"No one needs to actually have been injured by defendant's act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault, and if so, what kind of assault it was. . . ." (Italics in original.)
The court also instructed the jury using the language in CALCRIM No. 3515: "Each of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one."
The verdict forms identified each count and the specific victim named in that count.
B. Analysis
Defendant contends that, as given in this case, CALCRIM No. 875 was an incorrect statement of the law because he was charged with assault against three people, and the instruction indicated he could be convicted if he committed an act that by its nature would directly and probably result in the application of force " 'to a person . . .,' " he " 'was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone . . . ,' " and he " 'had the present ability to apply force likely to produce great bodily injury to a person.' " (Italics in original.) In other words, it is defendant's position that by not modifying the instruction to name the victim as the person or someone against whom he had the present ability to apply force or the probable application of force, the jury could have erroneously believed his assaultive act against R.A. (a person or someone) was necessarily sufficient to show he assaulted G.V. and R.D. We see no merit to defendant's argument.
"In reviewing any claim of instructional error, we must consider the jury instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record. [Citations.] When a claim is made that instructions are deficient, we must determine whether their meaning was objectionable as communicated to the jury. If the meaning of instructions as communicated to the jury was unobjectionable, the instructions cannot be deemed erroneous. [Citations.] The meaning of instructions is . . . determined [under the test of] . . . whether there is a 'reasonable likelihood' that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel. [Citations.]" (People v. Dieguez (2001) 89 Cal.App.4th 266, 276-277; see People v. Sattiewhite, supra, 59 Cal.4th at p. 475 [in analyzing a claim of instructional error " '[t]he relevant inquiry . . . is whether in the context of the instructions as a whole and the trial record, there is a reasonable likelihood that the jury was misled to defendant's prejudice' " ].)
The record here shows the jury would understand that defendant had been charged with three separate counts of assault, one as to each named victim. The evidence presented to the jury described three distinct assaults separated in time (G.V. and R.D. on April 7 and R.A. on April 11) and place (G.V. and R.D. in different areas of the restaurant and R.A. in the court holding cell). The prosecutor's closing argument explained that the theory of the case was based on defendant's specific acts directed at each victim. No argument was made that defendant could be found guilty of assaulting G.V. and R.D. based solely on the conduct directed at R.A. In addition to CALCRIM No. 875, the trial court instructed the jury that each count was a separate crime, to be considered separately and reported on a separate verdict form for each count that identified the specific victim named in that count.
Thus, given the trial record, and based on a reasonable interpretation of CALCRIM No. 875 in the context of the instructions as a whole, there is no doubt that the jury would have considered each assault against the named victim separately in deciding whether the prosecution had met its burden of proof as to each count. In so concluding, "[w]e credit jurors with intelligence and common sense [citation] and do not assume that these virtues will abandon them when presented with a court's instructions." (People v. Coddington (2000) 23 Cal.4th 529, 594.)
In support of his request for reversal defendant asks us to consider People v. Velasquez (2012) 211 Cal.App.4th 1170 (Velasquez). In that case, Velasquez drove by a house and shot a gun 10 times into a garage. (Id. at p. 1172.) One person was in the garage at the time, and four other individuals were in other areas of the house. (Ibid.) The prosecution's theory was that Velasquez's act of shooting into the garage put all the persons in the house at risk, regardless of how far they were from the shots or whether or not he knew of the existence of the people in the house. (Id. at p. 1175). Velasquez was convicted of five counts of assault, one for the person in the garage and one for each person in the house. (Id. at p.1174.) On appeal, the Velasquez court reversed the assault convictions for the four persons in the house because CALCRIM No. 875's reference to a " 'person' " and " 'someone,' " rather than each particularly alleged assault victim, might have misled the jury to believe that the prosecution did not have to prove Velasquez's shooting into the garage would directly and probably result in an application of force against each victim named in each count. (Velasquez, supra, at p. 1177.)
The recitation of the factual scenario in Velasquez makes clear it does not support reversal here. Defendant asks us to consider that the weak nature of the evidence of his assaultive acts against G.V. and R.D. might not have been sufficient to satisfy the prosecution's burden of proof but the instruction, nevertheless, allowed the jurors to convict him of all three assaults based solely on his act of striking R.A. and breaking his jaw. However, regardless of the sufficiency of the evidence to support the assault charges against G.V. and R.D., it cannot be disputed that defendant committed separate assaultive acts directed at each victim, and his conduct against one victim was not related to his conduct against the other victims. On this record, the jurors could not have interpreted CALCRIM No. 875 as defendant argues.
Defendant correctly notes that the bench note for CALCRIM No. 875, advises trial courts that, "If the charging document names more than one victim, modification of this instruction may be necessary to clarify that each victim must have been subject to the application of force," citing to Velasquez, supra, 211 Cal.App.4th 1170. However, the bench note also recognizes that modification is not required in all cases in which the charging document names more than one victim. Here, we have no problem concluding that the trial court was not faced with a factual scenario requiring sua sponte modification of the standard language in CALCRIM No. 875.
Accordingly, we reject defendant's argument that CALCRIM No. 875 as given in this case violated his due process rights to require the prosecution to prove each element beyond a reasonable doubt. By using CALCRIM No. 875, when considered with the other instructions and the trial record, the court properly instructed the jury on the concept of the law of assault applicable in this case.
Nor do we see any merit to defendant's argument that his due process rights were violated because CALCRIM No. 875 presented the jury with two possible theories of guilty, one which was legally correct and one which was illegally incorrect. Defendant relies on People v. Aledamat (2019) 8 Cal.5th 1 (Aledamat), in which Aledamat was charged with assault with a deadly weapon, specifically a box cutter. (Id. at p. 3.) The Aledamat court found the trial court erred by allowing the jury to consider two possible theories of guilt: (1) that the box cutter was inherently deadly, and (2) that Aledamat used the box cutter in a deadly fashion, with the first theory being erroneous because a box cutter is, as a matter of law, not inherently deadly. (Id. at pp. 6-7.)
Arguing that the CALCRIM No. 875 instruction suffered from the same defect as the instruction given in Aledamat, defendant asserts the jury could have found him guilty of a given assault count "(1) if he did the acts described in the instruction to any person, or (2) if he did the acts described in the instruction to the victim of the assault at issue," and that the first theory was an incorrect statement of law. We disagree. Defendant did not assault the three victims by a single act directed at "any person," but by specific acts directed at each victim separately and unrelated to the other victims. Thus, unlike the situation in Aledamat, defendant was "not tried on alternate grounds that included" a legally inadequate theory that he could be found guilty of three counts of assault based solely on his conduct directed at one victim. (People v. Brown (2012) 210 Cal.App.4th 1, 13.) Because the jury was not presented with a legally impermissible theory, Aledamat does not support reversal and CALCRIM No. 875 did not implicate defendant's due process rights.
For the reasons stated above, we conclude defendant's claim of error—that CALCRIM No. 875 without modification was an incorrect statement of the law in this case—fails. In light of our determination, we do not address his argument that he was prejudiced by the instruction.
DISPOSITION
The judgment is affirmed.
/s/_________
Petrou, J.
WE CONCUR:
/s/_________
Fujisaki, Acting P.J.
/s/_________
Jackson, J.