People v. Sickman

THE PEOPLE, Plaintiff and Respondent, v. RICKY EUGENE SICKMAN, Defendant and Appellant.

C088251

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)

May 10, 2021

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 18F2148)

Defendant Ricky Eugene Sickman was convicted of assault, child abuse, and child endangerment, and placed on probation. On appeal, he contends the trial court erred in failing to instruct the jury on defense of others. He also argues the trial court erred in excluding evidence relevant to his self-defense claim. Defendant also challenges several of his probation conditions and, citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), argues the trial court erred in imposing various fines and fees without holding a hearing regarding defendant's ability to pay them. We will modify certain probation conditions, order the trial court to modify the minute order to reflect the trial court's oral pronouncement of judgment, and otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Instant offense

High school students T., J., Z., and C. were walking home after school on the afternoon of April 18, 2018. The friends stopped on the sidewalk and started "play fighting," by yelling profanity and throwing punches at each other. Defendant came out of his house, which abuts the school property, and started "yelling" at the boys. Defendant seemed angry and threatened to call the police if the boys threw another punch. The boys yelled back, swearing at defendant and saying they had not done anything wrong. Defendant, who was behind the fence separating his yard from the sidewalk, approached the boys, and they all continued yelling at each other.

A minute later, the boys started walking back toward school when defendant suddenly jumped the fence. They all continued yelling at each other as defendant approached. When defendant was only a few feet away, T. asked, "What are you gonna do?" Defendant responded, "I'm going to take you out," and lunged at T. and grabbed him around his neck. T., who was experiencing trouble breathing and blurry vision, unsuccessfully tried to pull defendant's hands off.

Meanwhile, J. hit defendant twice with a skateboard. Defendant let go of T. and grabbed J., holding J.'s arms behind his back and pushing him to the ground. J. testified he "th[ought]" defendant's hands were around his throat, and he felt pressure and was having trouble breathing. Defendant only let go after T. hit defendant twice with the skateboard. T. and J. each testified that neither he nor any of his friends threatened defendant or his family during the incident.

Police spoke with defendant one hour and 15 minutes after the incident. Defendant said he saw kids fighting in front of his house and went out to tell them to stop. One of the kids told defendant he was an adult and "came after [defendant]." Defendant jumped a fence to confront the kids, who started hitting defendant with a skateboard. Defendant, who appeared uninjured, said he was "only protecting himself."

Police also spoke with defendant's wife, who said she did not hear any threats during the altercation. At trial, however, the wife testified that when defendant first left the house and confronted the boys, she saw one of the boys raise a fist. Defendant and the boys began swearing at each other. One boy threated to "mess up [defendant's] old lady," and defendant's "next action" was to jump the fence and confront the boys.¹ The wife testified that, when the boy threatened to hurt her, she was standing behind their car in the driveway.

The jury was shown video of the incident from the school's surveillance cameras and an eyewitness's cell phone. The video shows the four boys walking on a paved path toward defendant's house. There was a chain link fence between the path and defendant's home, and defendant's driveway was on the side of the house farthest from the school. The boys stopped near defendant's home and began fighting amongst themselves. Defendant then walked out of his home and approached the boys. The boys start walking away from defendant and his house, heading toward the school via the path. The boys had nearly reached the edge of defendant's fence and property when defendant suddenly jumped the fence. One of the victims turned to face defendant, who then began assaulting the victims. After the altercation, the boys returned to the school grounds.

2. Jury instructions, jury verdict, and sentencing

The jury instructions included the self-defense portion of CALCRIM No. 3470.² Defense counsel did not object to this instruction, nor did she request that the jury be instructed regarding defense of others.

The jury found defendant guilty of one count of assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)),³ one count of child abuse (§ 273a, subd. (a)), and one count of child endangerment (§ 273a, subd. (b)).

In September 2018, the trial court suspended imposition of sentence and placed defendant on four years' probation. The trial court also imposed a $300 restitution fine (§ 1202.4, subd. (b)), a corresponding $300 probation revocation fine, suspended unless probation is revoked (§ 1202.44), a $200 base fine (§ 672), a $200 penalty assessment (§ 1464, subd. (a)), a $20 DNA penalty assessment (Gov. Code, § 76104.6), an $80 DNA penalty assessment (Gov. Code, § 76104.7), a $100 court facilities construction fee (Gov. Code, § 70372, subd. (a)(1)), a $140 county penalty assessment (Gov. Code, § 76000, subd. (a)(1)), a $40 state criminal fine surcharge (§ 1465.7, subd. (a)), a $60 criminal conviction assessment fee (Gov. Code, § 70373) and a court operation assessment fee (§ 1465.8), and these fees are reflected in the minute order. The minute order also states the trial court separately ordered defendant to pay according to his financial ability the cost of probation services, not to exceed $75 per month, a booking fee of $151, and a $250 probation report fee (§ 1203.1b, subd. (a)); these additional fees were not pronounced by the court during the sentencing hearing. Defendant's only objection to the fines and fees imposed was to request the trial court impose a $300 restitution fine, ratherthan the $1,200 recommended by the probation officer, "in light of the family's financial status, his length of incarceration, and inability to pay."

DISCUSSION

I

Defendant argues the trial court erred in failing to include the portion of CALCRIM No. 3470 that instructs on defense of others.⁴ According to defendant, the trial court had a sua sponte duty to instruct on the issue because there was substantial evidence in support of such a defense. Defendant points to his wife's testimony that he only jumped over the fence after one of the boys threatened to "mess up [his] old lady."

The People argue that defendant has forfeited the issue on appeal because he failed to seek such an instruction during trial. We will proceed to the merits because a trial court has a sua sponte duty to instruct on a defense even absent a request from counsel if it appears the defendant is relying on such a defense, or if there is substantial evidence of such a defense and the defense is not inconsistent with the defendant's theory of the case.(People v. Sedeno (1974) 10 Cal.3d 703, 716, overruled on other grounds in People v. Breverman (1998) 19 Cal.4th 142, 149.) In considering whether there is sufficient evidence to require a jury instruction, a court "does not determine the credibility of the defense evidence, but only whether 'there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.' " (People v. Salas (2006) 37 Cal.4th 967, 982-983.)

Similar to self-defense, a defendant acts in defense of others for an assault charge under section 245 only if he or she has an honest and reasonable belief that bodily injury is about to be inflicted on him or her. The threat of bodily injury must be imminent, and the defendant may only use such force as is reasonable under the circumstances. (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065 [elements of self-defense for an assault charge]; CALCRIM No. 3470 [laying out elements for defense of others].)

In People v. Strozier (1993) 20 Cal.App.4th 55, the reviewing court found the trial court did not err in refusing to give an instruction on defense of others. (Id. at p. 63.) The defendant waited about five minutes before intervening in a fight between his friends and the victim, and only after he himself had been accidentally struck in the head. (Id. at p. 58.) Under the circumstances, there was no substantial evidence that the defendant acted in defense of his friends when he entered the fight, rather than in self-defense. (Id. at p. 63.)

Similarly here, defendant has failed to point to substantial evidence that he acted in defense of his wife when he assaulted the victims. Even if we credit the testimony of defendant's wife that defendant jumped the fence and physically confronted the boys only after hearing the threat against her, defendant could not have reasonably believed at the time that she was in imminent danger of bodily injury or being touched unlawfully. When the wife heard the threat, she was behind a parked car in their driveway, which was on the side of the house furthest from the school. The boys, meanwhile, were separated from defendant and his property by a fence. As shown in the video, the boys had alreadystarted walking away toward the school when defendant suddenly hopped the fence. At that point, the boys had almost reached the edge of defendant's property. Given the physical separation between the boys and defendant's wife, defendant...