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People v. Tirone

California Court of Appeals, Fourth District, Second Division
Mar 13, 2008
No. E042759 (Cal. Ct. App. Mar. 13, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. EDWARD MARK TIRONE, Defendant and Appellant. E042759 California Court of Appeal, Fourth District, Second Division March 13, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

APPEAL from the Superior Court of San Bernardino County. Joan M. Borba, Judge, Super.Ct.No. FWV029386.

Martin Kassman, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

OPINION

Gaut, J.

Defendant was sentenced to two years in state prison following a conviction by jury of battery with infliction of serious bodily injury.

BACKGROUND

On October 20, 2003, Dale Ross was attempting to park his fifth wheel trailer at the back of his house after he and his wife returned from a camping trip with friend Richard Horn and his wife. He drove the trailer into the alley behind his home, and let Horn out so Horn could assist Ross by giving directions, as he had done on prior occasions. Horn stood away from the pickup truck Ross was driving, but within sight of Ross’s rearview mirror, using hand signals to guide Ross’s movement.

While directing Ross, Horn backed up, until he bumped into something with the heel of his foot. Horn turned, and as he did so, he was struck by what appeared to be the upper part of a fist or the back of a hand. Ross saw the incident from his pickup truck and identified defendant as the attacker. Ross had observed defendant come into the alley with a video camera, and stand behind Horn. When Horn backed into defendant, Ross saw the camera come down and saw defendant smash Horn in the face with his forearm coming across the bridge of Horn’s nose and glasses. Horn suffered an orbital floor fracture to his right eye along with some bruising and a small cut above his right eye. Additionally, his nose was tender and had some swelling. Horn was treated for five hours at San Antonio Community Hospital, and then transferred to Kaiser Permanente Hospital, where he was released early the next morning.

Defendant told police he had been videotaping Ross parking the trailer because on a previous occasion, Ross had hit defendant’s fence while backing the trailer. While he was taping, Horn bumped into him. Then Horn took two or three shuffled steps toward defendant. In his own testimony at trial, defendant explained Horn grabbed defendant’s left arm and screamed “Get out of my way,” and then pushed defendant. As defendant was going down on his knee, he put the camera up and, in an automatic reaction, defendant swung his arm.

By an amended information, defendant was charged with battery with infliction of serious bodily injury (Pen. Code, § 243, subd. (d), count 1), and assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1), count 2). As to each count, it was further alleged defendant personally inflicted great bodily injury. (Pen. Code, § 12022.7, subd. (a).)

Following a trial, the jury returned a verdict of guilty as to count 1, and an acquittal as to count 2. The jury found the special allegation was not true. Defendant made a motion for a new trial which was denied, and was sentenced to state prison for the mitigated term of two years because he did not wish to be placed on probation. He appealed.

DISCUSSION

At his request, this court appointed counsel to represent defendant on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1386, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. We offered appellant an opportunity to file a personal supplemental brief, but he has not done so.

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error, and address certain points raised by counsel pursuant to Anders v. California (1967) 386 U.S. 738, 744 [87 S.Ct. 1396, 18 L.Ed.2d 493].

The record reveals that over defendant’s objection, the trial court instructed the jury that a person who engages in mutual combat or is the first one to use physical force has a right to self-defend only when the opponent continues to fight after the person (1) actually and in good faith tries to stop fighting, and (2) indicates to the opponent he wants to stop, and has stopped, fighting. (Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 3471.) The prosecutor argued that because witnesses had testified that the defendant was the aggressor, and the court found the evidence supported giving the instruction. We agree. The defendant claimed self-defense, but there was substantial evidence placed before the jury to support an inference that defendant was the aggressor. It was not error to give the instruction. (People v. Hernandez (2003) 111 Cal.App.4th 582, 589-590.)

We have also considered whether the trial court omitted elements of battery from the instructions relating to the charge of battery causing serious bodily injury. (Pen. Code, § 243, subd. (d).) The drafters of the instruction at issue, CALCRIM No. 925, included a third element to be included when instructing on self-defense, which requires the jury to consider whether or not the defendant acted in self-defense or defense of others when committing the crime. The court did instruct the jury on the elements of self-defense. Any error in omitting the third element is necessarily harmless. (People v. Beames (2007) 40 Cal.4th 907, 928.)

Finally, we have reviewed the denial of defendant’s motion for new trial. While it has been acknowledged that the terms “serious bodily injury,” which is an element of the substantive offense of battery with serious bodily injury, and “great bodily injury,” an element of the enhancement which the jury found was not true, the verdicts may stand. Even if the two are considered inconsistent, it is settled that an inconsistent verdict is allowed to stand; if an acquittal of one count is factually irreconcilable with a conviction on another, or if a not true finding of an enhancement allegation is inconsistent with a conviction of a substantive offense, effect is given to both. (People v. Abilez (2007) 41 Cal.4th 472, 512-513.)

We have completed our independent review of the record and find no arguable issues.

DISPOSITION

The judgment is affirmed.

We concur: Ramirez, P. J., McKinster, J.


Summaries of

People v. Tirone

California Court of Appeals, Fourth District, Second Division
Mar 13, 2008
No. E042759 (Cal. Ct. App. Mar. 13, 2008)
Case details for

People v. Tirone

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. EDWARD MARK TIRONE, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Mar 13, 2008

Citations

No. E042759 (Cal. Ct. App. Mar. 13, 2008)