Opinion
D069228
03-27-2017
THE PEOPLE, Plaintiff and Respondent, v. ERIC MICHAEL HARE, Defendant and Appellant.
Stephen M. Vasil, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Alana Butler and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD260880) APPEAL from a judgment of the Superior Court of San Diego County, David M. Rubin, Judge. Affirmed. Stephen M. Vasil, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Alana Butler and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Eric Michael Hare of attempting to carjack Noelani V. (Pen Code, §§ 664, 215), carjacking Michael H. and Deanna K. (§ 215), and assaulting Michael by means of force likely to produce great bodily injury. (§ 245.) The jurors found true allegations that Hare personally inflicted great bodily injury on Michael. (§12022.7, subd. (a).) The trial court sentenced Hare to an aggregate term of eight years 10 months. Hare appeals, contending the trial court erred by instructing the jurors that they could not consider his voluntary intoxication in determining whether he knowingly fled or made false statements to police. We affirm the judgment.
Undesignated statutory references are to the Penal Code.
California Rules of Court, rule 8.90 became effective on January 1, 2017. Rule 8.90, subdivision (b) requires appellate courts to "consider referring to" certain individuals "by first name and last initial or, if the first name is unusual or other circumstances would defeat the objective of anonymity, by initials only," in order to protect those individuals' privacy. The list of people to whom this rule applies includes crime victims. (Rule 8.90, subd. (b)(4).) In this opinion, we refer to the victims by their first name and last initial, and thereafter by first name only, to provide the victims with some measure of anonymity.
GENERAL BACKGROUND
While on probation for a drug conviction, Hare tested positive for methamphetamine. After the court revoked his probation, he was taken into custody and ordered to enter a residential rehabilitation facility. While in custody, Hare took several medications because he had auditory hallucinations. On February 11, 2015, Hare attempted to enter a dual-diagnosis drug-treatment program. The program, however, could not admit him because he had mental health issues. Hare eventually decided to get high on methamphetamine. He smoked about one-quarter to one-half a gram of the drug. At some point, Hare started to hear voices telling him that "everyone is out to get [him]."
At approximately 6:40 that evening, Noelani drove her CR-V looking for parking. Her friend, Nicole C., was with her. A man, later identified as Hare, approached the car, banged on the windows and side panels, tried to open the door, and screamed at them to let him in. The door was locked and Noelani sped away as Nicole called 911. Noelani testified that Hare appeared crazed and panicked, as if someone was out to get him.
Deanna was sitting on the passenger side of her parked BMW while her boyfriend, Michael, used an ATM. The engine was running and the doors were unlocked. While waiting for Michael, Deanna saw Hare try to get into Noelani's CR-V. After failing to get into the CR-V, Hare got into the driver's side of Deanna's BMW. Deanna got out of the car because she was afraid that Hare would hurt her. She repeatedly told him to get out, but he refused, telling her that he needed her car. Michael tried to get Hare out of the car, but was unsuccessful. Hare hit Michael with his hand and dragged Michael until Michael eventually fell from the car.
The airbags in the BMV deployed when Hare drove through an intersection with a big dip. Hare abandoned the car and discarded his shirt, wallet and everything in his pockets thinking they contained global positioning system devices. When police found Hare, he falsely identified himself as Ted Michael Billings. Hare later fled when police led him to an ambulance to check his vital signs. Police apprehended Hare three houses away.
DISCUSSION
A. General Legal Principles
We review a claim of instructional error de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) "In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights." (People v. Andrade (2000) 85 Cal.App.4th 579, 585.) Where the "determination of error depends on the meaning communicated by an instruction, we must ascertain how a hypothetical 'reasonable juror' would have, or at least could have, understood the words in question." (People v. Mickey (1991) 54 Cal.3d 612, 670.) " ' "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." ' " (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) Additionally, we must interpret the instructions at issue to support the judgment rather than defeat it, so long as the instructions are reasonably susceptible of such an interpretation. (People v. Sy (2014) 223 Cal.App.4th 44, 59.)
Generally, a defendant who believes that an instruction is erroneous or requires clarification must request correction or clarification of the instruction to avoid waiving the issue on appeal. (People v. Coddington (2000) 23 Cal.4th 529, 584, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Where a defendant did not object to the instructions, his contention is forfeited unless the instruction affected his substantial rights. (§ 1259; People v. Christopher (2006) 137 Cal.App.4th 418, 426-427.) Substantial rights are equated with a miscarriage of justice, which results if it is reasonably probable the defendant would have obtained a more favorable result had the correct instruction been given. (People v. Christopher, at pp. 426-427.)
B. Additional Background
Without objection, the trial court instructed the jury with CALCRIM No. 3426. This instruction provided:
"You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with the specific intent or mental state necessary to commit carjacking or attempted carjacking.
"A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect.
"In connection with the charge of carjacking and attempted carjacking the People have the burden of proving beyond a reasonable doubt that the defendant acted with the specific intent and mental states required for those crimes.
"You may not consider evidence of voluntary intoxication for any other purpose.
"Voluntary intoxication is not a defense to assault with force likely to produce great bodily injury, nor is voluntary intoxication a defense to the allegation of personal infliction of great bodily injury." (Italics added.)
Based on defense counsel's request, the trial court instructed the jury with CALCRIM No. 3428:
"You have heard evidence that the defendant may have suffered from a mental disease, defect[,] or disorder. You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted with the intent or mental state required for that crime. [¶] The People . . . have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state, specifically: the intent to deprive another person of possession of a vehicle[,] either temporarily or permanently. If the People have not met this burden, you must find the defendant not guilty of carjacking or attempted carjacking."
The court also instructed the jurors with CALCRIM No. 362: "If the defendant made a false or misleading statement before this trial 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." Finally, the court instructed the jurors with CALCRIM No. 372: "If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself."
C. Analysis
Relying on People v. Wiidanen (2011) 201 Cal.App.4th 526 (Wiidanen) and People v. McGehee (2016) 246 Cal.App.4th 1190, 1204-1205 (McGehee), Hare argues that the trial court's instructions on consciousness of guilt based on his false statement to police (CALCRIM No. 362) and his flight from police (CALCRIM No. 372; together the consciousness of guilt instructions) were incompatible with the voluntary intoxication instruction (CALCRIM No. 3426) as those instructions advised the jury that it could infer defendant's consciousness of guilt if they found he knowingly made a false or misleading statement to police and fled, but CALCRIM No. 3426 informed the jury that it could not consider defendant's intoxication at the time he made the statement and fled. He contends the error prejudiced him and violated his rights to present a defense and due process.
In Wiidanen, the reviewing court concluded that the trial court erred in giving the consciousness of guilt instruction regarding false or misleading statements (CALCRIM No. 362) with an unmodified version of the voluntary intoxication instruction (CALCRIM No. 3426) because, if the jury believed the defendant made false or misleading statements, it should be allowed to consider whether defendant was intoxicated at the time he made the statements and whether his intoxication prevented him from knowing that those statements were false or misleading. (Wiidanen, supra, 201 Cal.App.4th at p. 533.) "If the jury so believed, those statements would not have been probative of defendant's consciousness of guilt." (Ibid.) Nonetheless, the Wiidanen court found the instructional error was harmless because the instruction's permissive inference; i.e., defendant was aware of his guilt when he made the false statements, was reasonable " 'in light of the proven facts before the jury.' " (Id. at p. 534.) Citing Wiidanen, the Bench Notes to CALCRIM 3426 acknowledge that the trial "court may need to modify this instruction if given with CALCRIM No. 362" so that the jury can also consider voluntary intoxication regarding a defendant's knowledge whether his or her statements were false or misleading. (Vol. 2, Judicial Council of Cal., Crim. Jury Instns. (2016 ed.) Bench Notes to CALCRIM No. 3426, p. 939.)
In McGehee, another panel of the Wiidanen court applied the reasoning in Wiidanen to conclude that the trial court erred by instructing the jurors with a version of CALCRIM No. 3428 that told them they could only consider the defendant's mental illness in deciding whether in killing his mother, the defendant premeditated, deliberated, or harbored malice. (McGehee, supra, 246 Cal.App.4th at pp. 1194, 1204-1205.) The McGehee court held that the trial court should have modified the instruction to allow the jurors to consider whether the defendant knowingly made false statements to his sister after he killed their mother. (Id. at p. 1205.) Nonetheless, the McGehee court concluded that there was no miscarriage of justice and that defendant's due process rights were not violated; accordingly, it found the claim forfeited. (Id. at pp. 1206-1207.)
The People argue that defense counsel forfeited any challenge to the jury instructions by failing to object to the instructions below or request that CALCRIM No. 3426 be modified. Alternatively, the People assert that Wiidanen and McGehee were wrongly decided and should not be followed. Even assuming we recognize these cases, the People contend any error was harmless. We will assume, without deciding, that the trial court erred in failing to modify CALCRIM No. 3426 to instruct the jury to consider Hare's voluntary intoxication on the issue of whether Hare made false or misleading statements or fled the crime scene. On this record, however, the assumed error did not result in a miscarriage of justice as overwhelming evidence supporting Hare's convictions and it is not reasonably probable he would have obtained a more favorable result had the correct instruction been given. (People v. Christopher, supra, 137 Cal.App.4th at pp. 426-427.) Accordingly, the claim is forfeited.
Hare testified that after he smoked the methamphetamine he began to hear voices telling him that people were out to get him. Police officer Benjamin Downing testified that Hare looked "very confused" and "[l]ike he was completely out of it." Deanna similarly testified that Hare looked "kind of out of it." Noelani described Hare as "crazed and panicked." Nicole testified that Hare appeared "very distressed." This evidence supported Hare's claim of voluntary intoxication or mental illness.
" 'Carjacking' is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear." (§ 215, subd. (a).) "Carjacking requires two elements that are not required for theft: that the vehicle be taken from the possession or immediate presence of another, and that the taking be 'accomplished by means of force or fear.' " (People v. Ortega (1998) 19 Cal.4th 686, 693, overruled on another ground in People v. Reed (2006) 38 Cal.4th 1224, 1228.) "An attempt to commit a crime occurs when the perpetrator, with the specific intent to commit the crime, performs a direct but ineffectual act towards its commission." (People v. Marshall (1997) 15 Cal.4th 1, 36.)
During closing argument, defense counsel conceded that Hare stole a car, but argued that Hare's actions did not amount to carjacking or attempted carjacking because Hare's mind was so scrambled from the methamphetamine and mental illness that he could not form the required specific intent to commit the crimes. Hare's testimony revealed, however, that he was fully aware of his actions and that he acted with a specific purpose.
Hare claimed that he heard voices telling him that "everyone [was] out to get [him]." He admitted, however, that the voices were not an excuse for his actions. Hare admitted that he tried to get into Noelani's car because he wanted to leave the area. He then saw Deanna's BMW and jumped in the car, ignoring Deanna's demands that he get out. After Deanna jumped out of the car fearing that Hare would hurt her, Hare successfully thwarted Michael's attempt to stop the taking. Hare then drove off, believing the car was there to help him get out of the area.
While Hare's drug altered mind likely caused him to believe people wanted to kill him, Hare admitted that he made conscious decisions on his own and that his actions were of his own volition so that he could get away from the people he thought were trying to kill him. Specifically, Hare testified:
"Q And you know if [the voices] tell you to do something wrong you don't do it; right?
"A Yes.
"Q So you did all this stuff to [Deanna], [Noelani], [Michael] on your own volition, didn't you?
"A I did do it, yes.
"Q And you did that because you wanted to take the car and you wanted to take the car to use for yourself; right?
"A I wanted to get away from the people that I thought were trying to kill me."
"Q And you told the Detective the voices don't control you.
"A They normally don't, no.
"Q And so on this occasion, you made conscious decisions on your own, didn't you?
"A I did, yes."
This evidence overwhelmingly showed that Hare engaged in a decisionmaking process in advance of each crime and that he committed his actions with the intent to temporarily or permanently deprive the victims of possession of their cars for the purpose of leaving the area. (People v. Marquez (2007) 152 Cal.App.4th 1064, 1067-1068 [carjacking or attempted carjacking conviction can be based on intent to permanently or temporarily deprive victim of a car].)
Thus, even if CALCRIM No. 3426 had been modified to allow the jury to consider Hare's voluntary intoxication on the issues of his flight and single false statement, it is clear beyond a reasonable doubt that the jury would not have rendered a more favorable verdict for Hare. (People v. Palmer (2005) 133 Cal.App.4th 1141, 1158.) The assumed error did not affect Hare's substantial rights. (People v. Christopher, supra, 137 Cal.App.4th at p. 429.) Accordingly, the claim is forfeited.
DISPOSITION
The judgment is affirmed.
NARES, J. WE CONCUR: BENKE, Acting P. J. HALLER, J.