Opinion
A130134
10-03-2011
THE PEOPLE, Plaintiff and Respondent, v. SAM YOUMTOUB, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Napa County Super. Ct. No. CR150373)
Like many who visit the wineries of Napa County, appellant Sam Youmtoub decided to sample a local vintage. The winery he chose, however, was closed to the public at the time he decided to enter, and the wine he selected was taken without the owner's permission. As he exited the winery, he encountered the owner, who objected to Youmtoub's after-hours self-guided wine tour and pursued Youmtoub as he fled, apprehending him over his forcible objection and detaining him until the police arrived.
A jury convicted Youmtoub of burglary and trespass, as well as assault with a deadly weapon (a rock) and battery upon the owner during the struggle between them. He argues the trial court erred in failing to instruct the jury that he had no duty to remain passive when he was detained unless he knew or had reason to know that he had been placed under a citizen's arrest. We conclude the claim of error was forfeited and, in any event, Youmtoub suffered no prejudice. We affirm the judgment.
I. BACKGROUND
In March 2010, Youmtoub was charged by information with felony second degree commercial burglary (Pen. Code, § 459; count 1); felony assault with a deadly weapon (a rock) on Christopher Madrigal (§ 245, subd. (a)(1); count 2); misdemeanor battery on Madrigal (§ 242; count 3); and misdemeanor trespass (§ 602, subd. (m); count 4). Youmtoub chose to represent himself at trial.
All statutory references are to the Penal Code unless otherwise indicated.
The information originally described this crime as assault with a deadly weapon and by means of force likely to produce great bodily injury, but on the morning of trial the court granted the prosecutor's motion to amend the information to delete the great bodily injury language.
Christopher Madrigal testified that he was a partner in Madrigal Vineyard, which owned a 40-acre vineyard located across Highway 29 from Bothe State Park in Napa County. A gate and fence ran along the length of the property's border with Highway 29, and a person who walked around the gate and fence to enter the property would have passed private property signs on adjacent vineyards. Two structures were on the property: a winery and a winery house, a residence that also housed offices and a shop on its ground floor. In February 2010, the winery house was undergoing renovation and was uninhabited.
On Sunday, February 14, 2010, the winery closed at 4:00 or 4:30 p.m. and the gate automatically shut at 5:00 p.m. The tasting room manager usually locked the winery house at the end of the day, but sometimes its doors swelled and did not shut all the way. At about 6:00 p.m., Madrigal and his wife, Christina Madrigal, stopped by the winery house to pick up some wine for a party. The property's gate was locked when they arrived and automatically closed again after they drove to the winery house and parked. As Madrigal walked toward the wine cellar behind the house, he heard a door open and saw Youmtoub exit the building. Youmtoub acted agitated and Madrigal believed he was trespassing. Madrigal called over to Christina, who was still in the car, to call 911. Christina first called her father-in-law and then called 411 to get a direct number for the Calistoga Police Department. It took police about 20 minutes to arrive.
Meanwhile, Youmtoub insisted, "I was just here for a wine tasting. This is bullshit, I'm out of here," and started walking to Madrigal's right. Madrigal blocked his path and told him that he could explain to the police why he was there. Madrigal told Youmtoub the police were on their way "too many [times] to count." Youmtoub bolted to Madrigal's left and ran, but Christina blocked his path with the car. Madrigal then tackled Youmtoub to the ground and held him there. "[B]asically, what happened over the course of the next, probably 20 minutes or so, was . . . every time . . . I would just loosen up a little bit, . . . he would do something, like he would try to bite me, and then the battle would be on again, until I could get him pinned down . . . . [¶] There [were] several different times where it was a back-and-forth struggle. . . . I know at least twice I punched him in . . . the top of the nose. [¶] . . . [¶] . . . And at one point he actually reached back and grabbed a rock that must have been about the size of a grapefruit [or a baseball], big enough where it really scared me. And . . . he was going to try to hit me with it. . . . [¶] . . . [¶] . . . There [were] a couple of moments where he was swinging [the rock], looking for a shot, and I was able to grab his hands and get rid of the rock." During the struggle, Youmtoub punched or scratched Madrigal's face, causing a nose bleed, "a broken lip," and some scratches on Madrigal's face.
After the police arrived, Madrigal surveyed the house and found a bottle of wine, a corkscrew with a cork in it, and an empty glass in an upstairs guest bedroom on a table by a couch. Before Youmtoub entered the house, the bottle had been on a piano downstairs and the glass and corkscrew had been stored upstairs.
Youmtoub testified that he was walking along the vineyard when he noticed that the winery was closed but that a door to the winery house was "swung open" about six inches and there were cases of wine "kind of propped up near the door." "I did open up a bottle of wine. But I didn't think I was doing anything wrong. . . . I went in there just thinking . . . that because the owner obviously didn't care about 100 bottles of wine, how could he care about one bottle? How could he care if somebody is doing a little bit of wine tasting? [¶] So I go inside. I . . . grab a . . . nice looking bottle . . . , it said . . . Madrigal Winery . . . . I'm thinking mad rig all. And . . . I'm a little bit superstitious . . . . [¶] . . . [¶] We booby trap everything. Mad rig all. So . . . I say forget it. . . . I'm not going to do any wine tasting there. [¶] . . . [J]ust as I'm ready to walk out, I see a bottle of Charles Shaw, which . . . I think . . . costs $2.00 . . . . [¶] Okay. So I'm thinking, you know what, maybe I'll try that bottle. . . . [¶] . . . I bring the bottle . . . back upstairs. And I'm sitting there relaxed. There is a sofa there. There is a television set there." He testified that he was about to pour himself a glass of wine when he remembered an episode of Columbo in which someone drugged a bottle of wine by pushing the needle of a syringe through the cork. Youmtoub checked the foil that had covered the cork of the Charles Shaw bottle for prick holes and "lo and behold on the metal cellophane w[ere] three little holes." "I started to have a weird vibe, like I'm being watched or something. . . . [¶] . . . [¶] . . . I was like screw this, I'm getting out of here. And just as I thought that, simultaneously, the black S.U.V. rolls up."
"So I walk out the door, and . . . Mr. Madrigal was walking by. And . . . then immediately he accuses me . . . . [¶] . . . [¶] . . . So I run. . . . [J]ust as I start to run, his wife drives that black S.U.V., . . . which perfectly blocks that whole area. . . . [¶] . . . I'm on the ground. . . . Mr. Madrigal is on top of me . . . . [¶] . . . [W]e're struggling. . . . Meanwhile . . . not once did I hear him say 9-1-1. Okay. Not once. All I heard was, you know, call Tom, call Fred, call Mark. [¶] . . . This is like out in the boonies. There is nobody around. . . . Bothe State Park is across the street. . . . [¶] . . . [¶] He said . . . when . . . they get here, these guys have guns too. So . . . I didn't know what was going on." Madrigal told Youmtoub, "[W]hen they get here, I should let you run so they can shoot you." Youmtoub testified, "I'm thinking something much worse. . . . I'd be hooked up in . . . some damned dungeon. . . . [T]his kind of crap happens. There are people in dungeons right now without you and I knowing where they are or what's going on." "So . . . we're fighting . . . . I'm thinking that when his friends get there, . . . they're going to . . . beat the living lights out of me. . . . [¶] So I'm on the ground, and I'm trying to do anything I can to get up." He saw a "little sort of seashell kind of rock" that was very thin and he reached for it. "I grabbed it and I held the rock up to him. And I was just desperate. I was just hoping that he would just get off of me. I didn't know what was going on." "[Madrigal] throws the rock . . . out of my hand." Youmtoub did not punch or scratch Madrigal. To the extent he struggled, he did so because he was in fear of his life. Youmtoub acknowledged that he had a previous conviction for second degree commercial burglary, a felony.
Madrigal testified that he told Christina several times to call 911 and did not tell her to call anyone else. Christina testified that Madrigal might have told her to call "Curtis," a police officer they knew personally.
Madrigal acknowledged that he probably told Youmtoub he was lucky Madrigal's father did not find him on the property because his father probably would have shot him.
The prosecutor argued to the jury that Youmtoub entered the winery house with the intent to steal wine. When Madrigal saw him exit the winery house, Madrigal had the right to make a citizen's arrest because he had seen him commit the crime of trespassing. In making the arrest, Madrigal had the right to use reasonable force to detain Youmtoub until the police arrived. Madrigal used no more force than was necessary. Youmtoub knew he was being detained for arrest because he heard Madrigal tell Christina to call 911. Therefore, Youmtoub had a duty to cooperate with the arrest. Instead, he struggled and tried to get away. He committed assault with a deadly weapon by raising the rock to Madrigal and battery when he punched or scratched Madrigal.
Youmtoub argued to the jury the burglary count was overcharged: "You know, if you went into a house, and you grabbed a television set, grabbed a laptop computer, grabbed jewelry, put it inside a bag, . . . and you walk out. . . . To me, that's what burglary means. . . . Not this other crap about a glass of wine . . . ." He admitted committing a trespass, but argued entering with intent to drink from a $2.00 bottle of wine should not constitute burglary. On assault, he similarly argued, "If I'm in a [S]afe[way], . . . and I try a couple of grapes to see if I want to buy some grapes, you know, I don't consider that a theft. I really don't. [¶] Now, if some security guard comes up from behind me and tackles me, brings me down to the ground, and says, you know, look, I'm going to arrest you, you ate a couple grapes, . . . I mean I would think the guy was nuts." He denied that he punched or scratched Madrigal and argued that Madrigal was barely injured: "[T]his cat held me down for 20 minutes. Okay. He was on top of me. All right. He had a little scratch. I don't know how he got the little scratch." Finally and most significantly for purposes of this appeal, Youmtoub argued that he did not know Madrigal was detaining him for the purpose of delivering him to the police. "I didn't know what was going on. He's got Tom, Dick and Fred on their way or something like that. Oh. And they have guns. They have guns."
When the jury entered the court to deliver their verdicts, Youmtoub repeatedly interrupted the proceedings and had to be removed from the courtroom for disruptive behavior. The court reappointed counsel to represent Youmtoub. The jury found Youmtoub guilty of burglary, assault with a deadly weapon, battery and trespass.
As later recounted by the court, Youmtoub stood up without warning and "[t]hrew a very heavy table over upside down causing a very large crash in the courtroom. It took . . . four armed deputy sheriffs who are bailiffs to restrain him. There was pandemonium in the courtroom for a moment. Court staff and [the judge] were ordered to leave by the bailiffs. And then the jury was quickly escorted out as soon as some semblance of safety could be given to them."
At the initial sentencing hearing, defense counsel declared a doubt as to Youmtoub's competency, but the court declined to suspend proceedings pursuant to section 1368. Following the probation department's recommendation, the court referred Youmtoub to the Department of Corrections and Rehabilitation for a diagnostic evaluation pursuant to section 1203.03. After receipt of the diagnostic report and a supplemental probation report, the court denied Youmtoub probation and sentenced him to a total of three years eight months in prison: a three-year middle term for the assault with a deadly weapon conviction, a consecutive eight-month term (one-third of the middle term) for the burglary, a stayed six-month term for the battery, and a stayed six-month term for the trespass.
II. DISCUSSION
Youmtoub argues the trial court erred in its instructions on the law governing citizen's arrest and self-defense. We find no error and affirm. A. Standard of Review
Appellate courts determine de novo whether a jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) "Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' [Citation.] ' "In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." [Citation.]' [Citation.]" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) B. Citizen's Arrest and Self-Defense
The relevant law of citizen's arrest is clear. "A private person may arrest another: [¶] 1. For a public offense committed or attempted in his presence. [¶] 2. When the person arrested has committed a felony, although not in his presence. [¶] 3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it." (§ 837; People v. Fosselman (1983) 33 Cal.3d 572, 579 (Fosselman).) The person making the arrest may use reasonable force to detain the arrestee (Fosselman, at p. 579; § 835), and the arrestee has a duty not to resist the use of reasonable force to effect the arrest (Fosselman, at p. 579; People v. Adams (2009) 176 Cal.App.4th 946, 952 (Adams); cf. § 834a [duty not to resist arrest by peace officer]). However, if the person making the arrest uses excessive force, the arrestee may resist the use of excessive force under general principles governing the right to self defense. (Adams, at pp. 952-953.)
The trial court's special instruction on citizen's arrest correctly stated these governing legal principles. The court instructed: "A private person may arrest another: [¶] 1. For a public offense committed or attempted in his presence; or, [¶] 2. When the person arrested has committed a felony, although not in his presence; or, [¶] 3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it. [¶] When a private person makes a lawful citizen's arrest, he is entitled to use reasonable force to detain the person arrested. Reasonable force is that amount of force a reasonable person would believe is necessary in the same situation. If he uses unreasonable force, then the arrest is not lawful. [¶] When a private person makes a lawful citizen's arrest, the defendant has a duty to remain passive. He may not forcibly resist, even though his objective may be escape or withdrawal. [¶] If assaulted, the private person making the arrest may use such force as is reasonable for defendant's arrest and detention." The court also provided the standard instruction on self-defense, CALCRIM No. 3470.
In relevant part, this instruction stated: "Self-defense is a defense to Assault with a Deadly Weapon and Simple Assault and Battery. The defendant is not guilty of those crimes if he used force against the other person in lawful self-defense. The defendant acted in lawful self-defense if: [¶] 1. The defendant reasonably believed that he was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully; [¶] 2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of violence to himself. Defendant's belief must have been reasonable and he must have acted because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful self-defense. [¶] . . . [¶] The People have a burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. If the People have not met this burden, you must find the defendant not guilty of Assault with a Deadly Weapon and Simple Assault and Battery." The instructions on assault with a deadly weapon, simple assault and battery also each stated that the People had the burden of proving, as an element of the offense, that Youmtoub did not act in self-defense.
Youmtoub argues that the court erred in failing to instruct sua sponte that a person's duty to "remain passive" arises only if he is advised that he is being placed under citizen's arrest. Youmtoub relies on section 841, which provides in relevant part: "The person making the arrest must inform the person to be arrested of the intention to arrest him, of the cause of the arrest, and the authority to make it, except when the person making the arrest has reasonable cause to believe that the person to be arrested is actually engaged in the commission of or an attempt to commit an offense, or the person to be arrested is pursued immediately after its commission, or after an escape." (See People v. Score (1941) 48 Cal.App.2d 495, 498 [applying § 841 to a citizen's arrest].) The People do not dispute that section 841 is applicable. They argue persuasively, however, that no reversible error occurred.
Preliminarily, the People correctly observe that Youmtoub has forfeited the argument because he failed to request an instruction on section 841 in the trial court. Although the trial court has a sua sponte duty to instruct on all applicable principles of general law, "[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. [Citation.]" (People v. Lang (1989) 49 Cal.3d 991, 1024.) The court's special instruction on citizen's arrest correctly stated the law. Youmtoub's argument is that the instruction was incomplete for failing to include the requirements set forth in section 841. Youmtoub made no such argument at trial and the issue is therefore forfeited. Youmtoub's election to represent himself does not excuse him from making timely objections where required. (See People v. Barnum (2003) 29 Cal.4th 1210, 1221-1222 [self-represented defendants not entitled to any privileges not given to an attorney].) Youmtoub's argument fails on the merits in any event.
Evidence, albeit disputed, was presented to the jury that Madrigal complied with the requirements of section 841 by informing Youmtoub he was being detained for arrest: Madrigal testified that Youmtoub heard him tell Christina repeatedly to call 911 and that Madrigal himself repeatedly told Youmtoub the police were on their way. Moreover, under the first clause of section 841, the circumstances of an arrest may be sufficient to "inform" the arrestee of the nature of and reason for the detention such that a failure to expressly inform the arrestee of those matters would not violate the statute. (See People v. Valenzuela (1959) 171 Cal.App.2d 331, 333-334 [circumstances sufficient to put defendant on notice of arrest by peace officer without express statement by officer; cases with similar holdings reviewed], overruled on another ground by In re Culver (1968) 69 Cal.2d 898, 904 & fn. 8; People v. Allen (1980) 109 Cal.App.3d 981, 986-987.)
Even under Youmtoub's version of events, the evidence established that the Madrigal confronted and detained Youmtoub during or immediately following the commission of the crime of (at minimum) trespassing. Thus, if the jury had accepted Youmtoub's testimony, section 841's exception "when the person making the arrest has reasonable cause to believe that the person to be arrested is actually engaged in the commission of or an attempt to commit an offense, or the person to be arrested is pursued immediately after its commission" would apply and Madrigal would have had no duty under the plain terms of the statute to expressly inform Youmtoub that he was under citizen's arrest.
Youmtoub argues, "Even assuming that the exception . . . applied and no announcement was required before tackling appellant in Madrigal's belief appellant was in the process of leaving the crime scene, an announcement of Madrigal's purpose was still required immediately thereafter to negate appellant fighting back against an assault." (Italics added.) However, section 841 imposes no such duty by its terms, and Youmtoub cites no legal authority in support of this assertion. When an appellant fails to support a point with reasoned argument and citations to authority, we treat the point as waived. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
Youmtoub also argues more generally that a person has no duty to remain passive unless he actually knows, or has reason to know, he is being placed under citizen's arrest. Youmtoub relies on authority applicable to arrests by law enforcement officers. Section 834a provides, "If a person has knowledge, or by the exercise of reasonable care, should have knowledge, that he is being arrested by a peace officer, it is the duty of such person to refrain from using force or any weapon to resist such arrest." (Italics added.) A standard jury instruction on arrest by a peace officer incorporates both the "must inform" requirement of section 841 and the knowledge requirement of section 834a. The instruction provides in relevant part: "The officer must tell that person that the officer intends to arrest him or her, why the arrest is being made, and the authority for the arrest. [¶] The officer does not have to tell the arrested person these things if the officer has probable cause to believe that the person is committing or attempting to commit a crime, is fleeing immediately after having committed a crime, or has escaped from custody. . . . [¶] . . . [¶] If a person knows, or reasonably should know, that a peace officer is arresting or detaining him or her, the person must not use force or any weapon to resist an officer's use of reasonable force." (CALCRIM No. 2670, italics added.) Youmtoub argues the jury in his case similarly should have been instructed that he had a duty to remain passive only if he actually knew or had reason to know he was being placed under citizen's arrest. (See People v. Randle (2005) 35 Cal.4th 987, 1002 & fn. 5 [no duty to remain passive where private parties detaining defendant after commission of theft demonstrated intent to take law into own hands—e.g., beating defendant, calling relatives rather than police, telling defendant they would take him into "the hills" rather than police station], overruled on other grounds by People v. Chun (2009) 45 Cal.4th 1172, 1201.) Instead, the jury was simply told, "When a private person makes a lawful citizen's arrest, the defendant has a duty to remain passive." C. Any Error was Harmless
We will assume for purposes of argument that the duty to remain passive in the face of a citizen's arrest arises only if the arrestee knows or should know that he is being placed under citizen's arrest. We still find no basis for reversal. First, as noted, the claim of error was forfeited. We conclude in any event that any error in failure to so instruct the jury here was harmless, since there is no reasonable likelihood the jury would have returned more favorable verdicts if it had been so instructed.
Instructional errors are ordinarily reviewed for prejudice under the Watson standard, which requires reversal only if there is a reasonable likelihood that the jury would have returned a more favorable verdict if the instructional error had not occurred. (People v. Watson (1956) 46 Cal.2d 818, 836; see e.g., People v. Humphrey (1996) 13 Cal.4th 1073, 1089 [Watson standard applies where instructional error adversely affected defense]; People v. Woodward (2004) 116 Cal.App.4th 821, 842 [Watson standard applies where instruction on defense erroneously included certain factors for the jury to consider].) Youmtoub argues the more demanding Chapman standard, requiring reversal unless we determine beyond a reasonable doubt that the error was harmless, applies because the instruction effectively negated his defense of self-defense. (Chapman v. California (1967) 386 U.S. 18.) We disagree. The trial court instructed the jury on Youmtoub's right to defend himself. Youmtoub simply argues that the court incompletely instructed on an exception to that right, the duty to remain passive when being placed under a lawful citizen's right. Youmtoub's cited authority (People v. Lee (1987) 43 Cal.3d 666, 674) is distinguishable because the instructional error there effectively removed an element of the charged offense from the jury's consideration, an error of federal constitutional magnitude.
Youmtoub argues that if the jury believed his testimony that Madrigal said he was summoning friends with guns rather than the police, the jury might have had reasonable doubt about whether he knew or had reason to know Madrigal was placing him under citizen's arrest. We conclude there is no reasonable likelihood of such an outcome.
First, it is apparent that the jury credited Madrigal's testimony over Youmtoub's testimony. Madrigal testified that Youmtoub punched or scratched him during their struggle. Youmtoub flatly denied doing so, and the jury clearly found that he did because it convicted him of battery. We see no reason why the jury would have nevertheless credited Youmtoub's testimony on the issue of Madrigal's statement to Youmtoub during the struggle.
Second, under the correct and applicable instructions given, the jury necessarily found that Madrigal made a "lawful arrest," and necessarily rejected Youmtoub's claims that he was acting in self-defense.
Finally, even if the jury accepted Youmtoub's testimony as to what was said during the struggle, Youmtoub conceded that he committed at least a trespass when he entered the winery house and he acknowledged that Madrigal accused him of wrongdoing when they encountered each other behind the winery house. On the undisputed facts, Youmtoub fled, and Madrigal pursued him while calling to Christina to summon assistance. On the objective circumstances, even as described by Youmtoub, it is clear that he reasonably should have known that he was being placed under citizen's arrest by Madrigal, whether or not he denied actual knowledge.
We find no reasonable probability of a different result.
III. DISPOSITION
The judgment is affirmed.
Bruiniers, J.
We concur:
Jones, P. J.
Needham, J.