Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County No. BA358997 Leslie A. Swain, Judge.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Susan S. Kim, Deputy Attorney General, for Plaintiff and Respondent.
GRIMES, J.
SUMMARY
Alexander Marquez (defendant) was charged by information with assault on a police officer with a semiautomatic firearm (Pen. Code, § 245, subd. (d)(2)) (count 1) and as a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) (count 2), in addition to special firearm allegations for the assault count (Pen. Code, §§ 12022.53, subd. (b), 12022.5, subds. (a) and (d)). The jury found him guilty of both charges, and the firearm allegations were found true. Defendant contends on appeal: (1) insufficient evidence supports the assault conviction, because there was no evidence the peace officer was lawfully performing his duties; (2) he was deprived of a fair trial and due process because the jury briefly saw him in jail clothes during deliberations; (3) the trial court erred when it failed to provide a sua sponte instruction on the lesser included offense of assault with a firearm for count 1; and (4) the trial court wrongfully failed to give defendant’s requested pinpoint instruction on intent. We disagree and therefore affirm.
FACTS
On the night of July 11, 2009, sheriff’s deputies Noel Lopez and David Duran were patrolling South Townsend Avenue in East Los Angeles, which is Laguna Park Vikings gang territory. They were in uniform, driving a marked car. Deputy Duran, who was in the passenger seat of the patrol car, noticed defendant drinking a beer in the street. Duran immediately recognized him as a member of the Laguna Park Vikings gang, whom he had come across on previous patrols of the area. Defendant had a shaved head, horn tattoos on his forehead, and “Parquero” tattooed above his upper lip, which means “Park Boy.” When defendant saw the deputies, he started running.
Deputy Duran got out of the patrol car first, and Deputy Lopez followed. Lopez, who had been driving, did not see defendant with a beer but saw him run and reach toward his waistband as if to conceal something. Almost immediately after getting out of the patrol car, Lopez saw a gun in defendant’s hand, and yelled that “he had a gun!” Duran also saw the gun in defendant’s hand. Both deputies chased defendant and ordered him to stop, but he did not comply. Deputy Duran lost his footing and fell behind in the chase.
With Deputy Lopez close on his trail, defendant ran behind a large SUV and turned toward Lopez. Defendant pointed his gun at Deputy Lopez as he was turning. Believing that defendant was going to shoot him, Deputy Lopez fired twice, shooting defendant in his arm and stomach. Defendant’s gun flew out of his hand and landed on the sidewalk. Lopez then recognized defendant as a gang member he had contact with in the past. Duran called for an ambulance.
David Kim, a forensic firearms examiner with the sheriff’s department, examined defendant’s gun. It was a semiautomatic pistol with six live rounds in the magazine, and one in the chamber. The gun was operable, but the safety was engaged.
Defendant testified in his own defense. He is a member of the Laguna Park Vikings gang and had the gun for protection. He knew he was not supposed to have it because he was a convicted felon. On July 11, 2009, he was drinking a beer on the sidewalk when he first saw the deputies. He was intoxicated. He had been stopped by Deputy Lopez on a number of occasions, and each time Lopez patted him down. He ran because he did not want to get caught with the gun. He wanted “to get rid of it.” The deputies told him to stop more than once. He continued running, and the “gun was flying out of [his] waist.” He ran behind an SUV and tried to “throw the gun away.” That is when he was shot. He did not point the gun at Deputy Lopez.
The parties stipulated to defendant’s prior felony convictions.
DISCUSSION
Defendant contends: (1) insufficient evidence supports the assault conviction, as there was no evidence Deputy Lopez was lawfully performing his duties; (2) he was deprived of a fair trial and due process when the jury briefly saw him in jail clothes during deliberations; (3) the trial court erred when it failed to provide a sua sponte instruction on the lesser included offense of assault with a firearm for count 1; and (4) the trial court wrongfully failed to give defendant’s requested pinpoint instruction on intent. We disagree, finding ample evidence Deputy Lopez was engaged in the lawful performance of his duties, the record is insufficient to establish the jury saw defendant in jail clothes or that their verdict was influenced by any brief observation of defendant in jail attire, and there was no prejudicial instructional error. We therefore affirm.
1. Sufficiency of the Evidence
Defendant contends there was insufficient evidence Deputy Lopez had any lawful reason to detain him, and therefore the trial court erroneously denied his motion to dismiss count one. Defendant maintains that “running down the sidewalk” is an insufficient justification for a detention. That may be so, but we find many additional facts support Deputy Lopez’s pursuit of defendant, and therefore the jury’s determination is supported by ample evidence.
The crime of aggravated assault on a peace officer requires that the officer be “engaged in the performance of his... duties” at the time of the assault. (Pen. Code, § 245, subd. (d)(2).) The officer must be acting lawfully, because there is no “duty” for an officer to act unlawfully. Therefore, if the officer uses excessive force or the detention is unjustified, a defendant may be found guilty only of the lesser offense of simple assault. (People v. White (1980) 101 Cal.App.3d 161, 166.) The “lawfulness of the arrest is an element... which... must be submitted to the jury. ‘California cases hold that although the court, not the jury, usually decides whether police action was supported by legal cause, disputed facts bearing on the issue of legal cause must be submitted to the jury considering an engaged-in-duty element, since the lawfulness of the [officer] victim’s conduct forms a part of the corpus delicti of the offense. [Citation.]’ ” (People v. Wilkins (1993) 14 Cal.App.4th 761, 778.)
Defendant does not contend that Deputy Lopez used excessive force when he shot him.
Before a judgment of conviction can be set aside for insufficiency of the evidence, it must clearly appear that on no hypothesis whatsoever is there sufficient substantial evidence to support the judgment. (People v. Redmond (1969) 71 Cal.2d 745, 755; People v. Johnson (1980) 26 Cal.3d 557, 575-578.) The record must be reviewed in its entirety when determining whether any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 316-320; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Deputy Lopez encountered defendant after 9:00 p.m. in gang territory, where he had previously responded to many reported crimes. Defendant immediately fled upon seeing the police, and it appeared that he was attempting to conceal something. As Deputy Lopez was getting out of the car to investigate further, he saw a gun in defendant’s hand, and he was concerned for the public’s safety. “A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231.) Running from the police, alone, is insufficient to justify a detention, because a person is free to avoid contact with the police. But flight may be a considerable factor in determining whether police had sufficient cause to detain a suspect. (Id. at p. 235.) An area’s reputation for criminal activity is another appropriate consideration. (Id. at p. 240.) Also, the time of day is relevant. (Id. at p. 241.) Here, the facts to which Deputy Lopez testified are sufficient to support a determination that the deputy was “engaged in the performance of his... duties.” Deputy Lopez testified that he pursued defendant out of concern for public safety when he saw him running, brandishing a gun, at night, in gang territory. It can hardly be contested that he was acting within his duty under such circumstances, and that defendant’s flight was not the only basis for the detention.
“A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.” (Pen. Code, § 12031, subd. (a)(1).)
Deputy Duran saw a beer can in defendant’s hand, on a public street. This conduct was a clear violation of the Los Angeles Municipal Code section 41.27 against public intoxication, which forbids drinking “liquor... upon any street, [or] sidewalk.” (L.A. Mun. Code, § 41.27.) Defendant does not contest that this act would justify the detention, but argues that Lopez did not see defendant drinking a beer. Although it is unclear from the record whether Duran told Lopez about the beer, it is reasonable to infer Duran said something to Lopez to cause him to stop the patrol car, and Deputy Lopez testified to sufficient facts after he got out of the car to justify the detention.
2. Jail Clothes
Defendant contends he was deprived of his right to a fair trial and due process when he was observed by jurors in jail clothes during deliberations, and the trial court denied his motion for a mistrial. Compelling a defendant to go to trial wearing jail clothing violates his constitutional rights to a fair trial, due process, and equal protection. It creates an unacceptable risk that the presumption of innocence will be undermined. Furthermore, it does not serve any essential state interest, and discriminatorily impacts those who cannot afford bail. Such a constitutional error is subject to the harmless beyond a reasonable doubt standard of prejudice. (Estelle v. Williams (1976) 425 U.S. 501, 503-505; People v. Taylor (1982) 31 Cal.3d 488, 494-495 (Taylor).)
The only record of the claimed error is as follows: “[Defense counsel]: Just so the record’s clear, as to Mr. Marquez’s dress and what he was wearing when the jury left this afternoon for lunch, I want to make it clear that the jury did not just walk out and leave out the door. They actually stopped at the bar behind counsel table near the bailiff’s desk, asked the bailiff and the clerk some questions which allowed them to see the side view of Mr. Marquez, which on the leg says ‘L.A. County Jail’ written on the side with white bold letters.”
The trial court asked if defendant wanted an instruction to the jury to disregard his jail clothing, to which defense counsel responded: “I think it pours salt in a wound and I think it just brings it to their attention even more. The ones that aren’t considering might make them consider it and I think we’re not going to be asking for that.”
Defense counsel’s comments do not demonstrate that any of the jurors actually saw defendant in jail clothes. At most, it appears that some jurors may have had a brief opportunity to see defendant’s pant leg with the words “L.A. County Jail” as they passed through the courtroom from the jury room on the way to lunch. We do not know if any juror actually saw defendant’s pant leg, or whether they understood his clothing to be jail issued. Defense counsel’s reticence to request a curative instruction suggests to us that counsel was uncertain that any juror noticed the writing on defendant’s pant leg or that any juror behaved in a way suggesting the juror realized defendant was in custody.
In sharp contrast, defendant’s cited case, Taylor, involved a defendant who was tried and testified in his jail clothes in clear view of the jury. There was no question that the jury saw him in jail clothes throughout the trial. (See Taylor, supra, 31 Cal.3d at pp. 499-501.) Here, any prejudice is merely hypothetical. If any juror did see defendant’s pant leg, it was only for a moment, and under circumstances having no bearing on his credibility, and therefore unlikely to impact the presumption of innocence. (Ibid.) No prejudice could have possibly resulted under these circumstances.
3. Instruction on Lesser Included Offense
Defendant contends the trial court erroneously failed to instruct the jury on the lesser included offense of assault with a firearm. (Pen. Code, § 245, subd. (a)(2).) Assault against a peace officer is differentiated from assault with a firearm by the following relevant elements: (1) the victim is a peace officer; (2) defendant knows or reasonably should know that the victim is a peace officer engaged in the performance of his duties; and (3) the peace officer is engaged in the performance of his duties. (See Pen. Code, § 245, subds. (a)(2), (d)(2).) Generally, the trial court must instruct the jury on all lesser included offenses if there is substantial evidence defendant is guilty of the lesser offense, but not the charged offense. No instruction on a lesser offense is required if the evidence shows the defendant, if guilty, is only guilty as charged. (People v. Taylor (2010) 48 Cal.4th 574, 623.) “[E]rror in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses... must be reviewed for prejudice exclusively under Watson.” (People v. Breverman (1998) 19 Cal.4th 142, 178, citing People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) [“it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error”].)
Defendant contends there was insufficient evidence that he was guilty of the charged offense, because there was no evidence that Deputy Lopez was lawfully performing his duties at the time of the assault. Therefore, defendant reasons that substantial evidence supports his guilt for only the lesser offense of assault with a firearm. However, as we have concluded above, ample evidence supported the conviction of assault on a peace officer. The only fact seriously disputed at trial was whether defendant pointed his gun at Deputy Lopez, a fact which, if proved beyond a reasonable doubt, did not establish only assault with a firearm since no reasonable juror could find that Deputy Lopez was not “engaged in the performance of his... duties” at the time of the assault.
The jury could not have believed Deputy Lopez’s testimony that defendant pointed the gun at him but disbelieved the deputy was performing his duty in pursuing defendant when defendant committed the assault. The evidence supporting the reasonableness of the police conduct, and defendant’s guilt, was substantial. Defendant admitted he unlawfully possessed a loaded firearm, was drinking in public, ran from the police, belonged to a gang, was present in gang territory, and had the gun in plain sight during the chase. On this evidence, it would have been error to instruct on the lesser offense of assault, because the jury could not have convicted defendant of assault with a firearm unless they also found Deputy Lopez’s testimony proved beyond a reasonable doubt that the deputy was pursuing defendant in the line of duty at the time of the assault.
4. Pinpoint Instruction
Lastly, defendant contends the trial court improperly refused his requested pinpoint instruction on intent. “Upon request, a trial court must give jury instructions ‘that “pinpoint[] the theory of the defense, ” ’ but it can refuse instructions that highlight ‘ “specific evidence as such.” ’ [Citations.]” (People v. Earp (1999) 20 Cal.4th 826, 886.) A pinpoint instruction is properly rejected if it is argumentative and invites the jury to draw an inference favorable to one of the parties from specified items of evidence, or if the instruction is duplicative of others given. (Ibid.) Any error in refusing a requested pinpoint instruction is subject to the Watson test for harmless error. (Id. at pp. 886-887; see Watson, supra, 46 Cal.2d at p. 836.) Here, the requested pinpoint instruction was omitted from the clerk’s transcript, and we denied defendant’s request to augment the record on appeal to include the instruction, because defendant did not establish that the proposed instruction was ever submitted to the superior court. Nevertheless, from the colloquy appearing in the reporter’s transcript, we can discern that the requested instruction sought to instruct the jury that defendant could not be found guilty under Penal Code section 245 if his intent was merely to discard the firearm, rather than commit any wrongful act upon the officer.
Defendant relies on dicta in People v. Garcia (1984) 159 Cal.App.3d 781 (Garcia) in support of the requested instruction. In Garcia, the defendant was found guilty of assault for throwing a tire iron at an officer. Garcia’s defense was that he threw the tire iron to distract the officer. (Id. at p. 784.) The issue on appeal was whether the trial court had a sua sponte duty to instruct the jury that defendant could not be found guilty of the assault if his only intent in throwing the object was to distract the victim. The court noted that “had the defendant requested an instruction to the effect that the defendant could not be found guilty of assault if he intended to throw the tire iron in a direction which would not make it pass dangerously near a person, and if his intent was not an attempt to commit a wrongful act by means of physical force against the officer but was an attempt to distract, the instruction should have been given.” (Id. at p. 789.)
Defendant has seized upon this language to support his argument that because he asked for such an instruction, he was entitled to it. However, Garcia did not decide such a pinpoint instruction should have been given, as no such instruction was requested. Instead, the court was asked to decide whether such an instruction must be provided sua sponte, and the court found no such duty. “[G]eneral observations unnecessary to the decision[]... are dicta, with no force as precedent.” (Fireman’s Fund Ins. Co. v. Maryland Casualty Co. (1998) 65 Cal.App.4th 1279, 1301.)
The trial court here used CALCRIM No. 860, which instructed the jury could not convict defendant of assault on a peace officer with a semiautomatic firearm unless they found true beyond a reasonable doubt that: “1. The 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; [¶] 2. The defendant did the act willfully; [¶] 3. When the defendant acted, he 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; [¶] 4. When the defendant acted, he had a present ability to apply force with a semiautomatic firearm to a person; [¶]... [¶] 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 People are not required to prove that the defendant actually intended to use force against someone when he acted.”
Clearly, the jury was properly instructed on the required intent for the crime, and defendant does not contend that the instructions given were improper. (See Pen. Code, § 245, subd. (d)(2).) Defendant’s requested instruction was duplicative of the standard instruction, above, to the extent that the standard instruction already made it clear that the jury had to find beyond a reasonable doubt that defendant’s conduct was willful, and of such a nature as “would directly and probably result in the application of force to a person.”
Moreover, defendant’s requested instruction was misleading and argumentative, because it would have completely absolved defendant of culpability if the jury found his intent was to dispose of the gun. (See Garcia, supra, 159 Cal.App.3d at p. 789 [even if the tire iron was thrown to distract, if it was thrown close to officer, it was likely to apply force and could constitute an assault].) Therefore, the trial court did not err in refusing the requested instruction.
5. Motion for Judicial Notice
Respondent seeks judicial notice of a Los Angeles Municipal Code section 41.27. Evidence Code section 452, subdivision (b) permits judicial notice of “[r]egulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States.” (See also Evid. Code, § 459.) Defendant has not opposed the request. Because it is relevant to the conduct of the deputies, the motion is granted.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BIGELOW, P. J., FLIER, J.