People v. Flores

68 Cal.Rptr.3d 472

157 Cal.App.4th 216

The PEOPLE, Plaintiff and Respondent, v. Juan Junior FLORES, Defendant and Appellant.

No. G037695.

Court of Appeal, Fourth District, Division 3.

November 27, 2007.

Peter Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RYLAARSDAM, Acting P.J.

Defendant Juan Junior Flores appeals from a judgment sentencing him to prison after a jury found him guilty of assault with a semiautomatic firearm, possession of a firearm by a felon, possession of methamphetamine, and discharge of a firearm with gross negligence, along with true findings that he personally used a firearm and had suffered prior serious felony and strike convictions. He contends the trial court committed several errors in instructing the jury and violated his constitutional rights by imposing consecutive sentences. Finding no error, we affirm.

FACTS

Shortly after midnight, defendant fired seven rounds from a semiautomatic handgun outside of an apartment complex. One witness testified she heard people fighting before the shooting. Witnesses testified they subsequently saw people in the street running in opposite directions.

The police arrested defendant as he attempted to drive away from the shooting. He had gunshot residue on his hands and illegal drugs in his pocket. The next day, the police recovered the gun used in the shooting near the location of the arrest.

Investigators discovered bullet casings in the street in front of the apartment complex, bullet damage to a car parked 20 to 25 feet away, and bullet entry and exit holes in the windows of a truck parked 50 to 75 feet farther down the street. Later the police retrieved the remains of a bullet that struck a door on the apartment complex.

Defendant waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) and spoke to the police. Initially he denied being involved in any shooting. After the interrogating officers showed him a photograph of the weapon they had recovered and noted the gunshot residue on his hands, defendant admitted firing the gun "up in the air" to scare some people he claimed had "disrespect[ed]" him. When the police mentioned the damage to the parked vehicles, defendant conceded he "might have just popped one" as he raised the gun skyward.

DISCUSSION

1. Jury Instructions

a. CALCRIM No. 875

On the assault charge, the trial court gave Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 875. The first part of the instruction informed the jury the assault offense required proof defendant "did an act with a semiautomatic firearm that by its nature would directly and probably result in the application of force to a person," had "the present ability to apply force," and 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." It further required the prosecution to prove "defendant did th[e] act willfully."

In addition, the instruction provided: "Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else or gain any advantage. [¶] The terms `application of force' and `apply force' mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind. [¶] The touching can be done indirectly by causing an object to touch the other person. [¶] The People are not required to prove that the defendant actually touched someone. 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." (CALCRIM No. 875.)

Defendant attacks the latter portion of this instruction, contending that, because it "purports to describe what does not have to be proven," it is both "duplicative" and "an improper, argumentative pinpoint instruction favoring the prosecution." We are not persuaded.

First, CALCRIM No. 875 does not constitute a pinpoint instruction, i.e., one that "relate[s] particular facts to a legal issue in the case or `pinpoints]' the crux of a [party's] case.... [Citation.]" (People v. Saille (1991) 54 Cal.3d 1103, 1119, 2 Cal. Rptr.2d 364, 820 P.2d 588.) It defines the crime of felony assault and explains the elements of that offense.

Second, the instruction's latter part is not argumentative. An argumentative instruction "invite[s] the jury to draw inferences favorable to [a party] from specified items of evidence on a disputed question of fact, and therefore properly belongs ... in the arguments of counsel to the jury." (People v. Wright (1988) 45 Cal.3d 1126, 1135, 248 Cal.Rptr. 600, 755 P.2d 1049.) Defendant complains CALCRIM No. 875's latter part informs the jury the prosecution need not "prove ... [he] actually intended to use force against someone" or "touched someone," or that anyone "needs to ... have been injured by [his] act." But it is undisputed defendant did not strike anyone when he fired the gun. Also, because assault requires only that the perpetrator act "willfully," i.e., with "a purpose or willingness to commit the act" without "any intent to ... injure another" (Pen.Code, § 7, subd. 1), it was appropriate to advise the jury the prosecution need not prove defendant harbored an intent to use force against another. Thus, "[t]he subject instruction did not specify items of evidence, identify witnesses [citation], or in any way favor the prosecution over the defense." (People v. Savedra (1993) 15 Cal.App.4th 738, 746, 19 Cal.Rptr.2d 115.)

Finally, the latter portion of CALCRIM No. 875 did not merely repeat the instruction's first part. Felony assault requires proof the perpetrator committed "an act ... that by its nature would directly and probably result in the application of force to a person" (CALCRIM No. 875), and that "a defendant ... be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct." (People v. Williams (2001) 26 Cal.4th 779, 788, 111 Cal.Rptr.2d 114, 29 P.3d 197.) But because Penal Code section 245 "focuses on use of a[n] ... instrument ..., whether the victim in fact suffers any harm is immaterial." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028, 68 Cal.Rptr.2d 655, 945 P.2d 1204.) Thus, to avoid any possible juror confusion, it was appropriate for the instruction to clarify that proof of an actual touching, injury, or intent to injure was not essential to support a conviction of this offense.

b. CALCRIM No. 362

The court also gave CALCRIM No. 362: "If the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself." Defendant contends the trial court erred by giving this instruction because, "although [he] initially made a misleading statement [concerning the assault charge], he later admitted to everything except the intent with which he fired the weapon."

Defendant's argument lacks merit. "False statements regarding incriminating circumstances constitute evidence which may support an inference of consciousness of guilt. [Citations.]" (People v. Showers (1968) 68 Cal.2d 639, 643, 68 Cal.Rptr. 459, 440 P.2d 939; see also People v. Hughes (2002) 27 Cal.4th 287, 335, 116 Cal.Rptr.2d 401, 39 P.3d 432.) Cases have upheld the use of an analogous standard instruction, CALJIC No. 2.03, where the defendant later makes incriminating statements concerning his or her criminal activity. (People v. San Nicolas (2004) 34 Cal.4th 614, 666, 21 Cal.Rptr.3d 612, 101 P.3d 509; People v. Wimberly (1992) 5 Cal.App.4th-773, 795, 7 Cal.Rptr.2d 152.) San Nicolas recognized the instruction merely "`advise[s] the jury to determine what significance, if any, should be given to evidence of consciousness of guilt, and caution[s] that such evidence is not sufficient to establish guilt, thereby clearly implying that the evidence is not the equivalent of a confession and is to be evaluated with reason and common sense. The instruction[ ] do[es] not address the defendant's mental state at the time of the offense and do[es] not direct or compel the drawing of impermissible inferences in regard thereto.' [Citation.]" (People v. San Nicolas, supra, 34 Cal.4th at pp. 666-667, 21 Cal. Rptr.3d 612,101 P.3d 509.)

Defendant relies on People v. Mattson (1990) 50 Cal.3d 826, 268 Cal.Rptr. 802, 789 P.2d 983, where the Supreme Court stated "the probative value of, and inference of consciousness of, guilt from [an] initial denial [is] tenuous" when a defendant "later g[ives] a full confession to th[e] crimes...." (Id. at p. 872, 268 Cal. Rptr. 802, 789 P.2d 983.) But where an admission does not establish all of the elements of the charged offense, it will "not render the inference [of a consciousness of guilt] irrelevant or superfluous." (People v. San Nicolas, supra, 34 Cal.4th at p. 667, fn. 11, 21 Cal.Rptr.3d 612...