Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA 053653, Lawrence J. Mira, Judge. Affirmed.
Garrett J. Zelen for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Roberta L Davis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
WOODS, J.
Defendant Pooyan Nasibi was charged in count 1, with assault with a deadly weapon on January 24, 2003, upon Amir Khirabadi, and in count 2, with assault with intent to commit great bodily injury on November 29, 2003, on [REDACTED]. A jury found defendant not guilty on both counts, but guilty of the lesser offense of simple assault on count 2. The court denied defendant’s motion to dismiss the misdemeanor assault charge based on the statute of limitations and his motion for new trial. The court suspended sentence and placed defendant on probation for 36 months. Defendant filed a timely notice of appeal and raises issues pertaining to the addition of the misdemeanor assault charge and the court’s denial of his request for pinpoint self-defense instructions. We affirm.
After the People rested, the court struck the hate crime allegations on both counts.
FACTUAL BACKGROUND
I. Prosecution Case
On November 29, 2003, around 10 p.m., Shervin Shaffiy, Shayan [REDACTED] and a few of their friends went to a party in Los Angeles. Shaffiy and [REDACTED] drove separately and parked their cars near each other on the street in front of the house where the party was being held. [REDACTED] and his passengers, Ashkan and Surush, sat in [REDACTED]’s car talking on their cell phones. Shaffiy and his passenger Andrew Pourmassa got out of the car and waited in the driveway. An Infinity with three passengers was parked in the driveway. Adib Saghizadeh sat in the driver’s seat of the Infinity, and Samoel Davoudpour sat in the front passenger seat.
Shortly thereafter, [REDACTED] exited his car and approached the driveway. [REDACTED] approached the group casually; he had his hands by his side, and he did not say anything to any member of the group. Saghizadeh and Davoudpour exited the Infinity. Pourmassa and Saghizadeh exchanged greetings near the front end of the car while Shaffiy stayed near the back end of the car. Once [REDACTED] reached Shaffiy’s side, Davoudpour greeted him. Appellant then exited from the passenger-side, rear door of the Infinity.
Appellant walked around the front of the car and asked Davoudpour “‘is this the guy.’” Davoudpour replied, “‘Yeah.’” Appellant took his right hand out of his pocket, quickly walked over to [REDACTED], and punched [REDACTED] in the face. [REDACTED] rolled with the punch and then took off. [REDACTED] “knew of” appellant, but he had never personally met appellant before that night. [REDACTED] did not change his position, raise his hands, or move his body in any way until he was hit.
Shaffiy and Pourmassa stood in front of appellant so that nothing more would happen. Appellant shook his hand as if it hurt. Shaffiy and Pourmassa went to their car to find [REDACTED]. [REDACTED], who was sitting on the grass of a house about two blocks away from the party, saw the Infinity drive away quickly. Shaffiy and Andrew found [REDACTED]. [REDACTED] was bleeding profusely, his lip was cut open on the top and bottom, and he had two broken teeth.
[REDACTED] was taken to the hospital where he received at least seven stitches in his lips. Appellant went to the same hospital that night for treatment because his hand had been cut open. For some time after the assault, [REDACTED] had to attend a series of dental appointments to have artificial molds applied to his broken teeth.
In either late 2002 or early 2003, [REDACTED] had been involved in a physical altercation with his friend Shayan Rezai. Rezai and [REDACTED] had been good friends since the fourth grade; at the time of the fight, they were in the 11th grade. [REDACTED] could not remember why he and Rezai became angry with each other. Rezai and [REDACTED], who were with a group of friends in an indoor parking lot, fought for seven or eight minutes. Neither boy was injured. Rezai and [REDACTED] continued to yell at each other after the fight and then went their separate ways. [REDACTED] had not fought with Rezai since that time.
One of [REDACTED]’s friends videotaped the fight between [REDACTED] and Rezai. Someone transferred the recording onto a compact disc and distributed copies to [REDACTED] and his classmates. [REDACTED] did not direct that the fight be videotaped. [REDACTED] was not proud of the fight, and he considered himself a nonviolent person who did not provoke fights.
II. Defense Case
Evidence was offered for [REDACTED]’s character for violence. The defense played the video recording of the fight between [REDACTED] and Rezai to the jury. [REDACTED] denied he had anything to do with creating or distributing the film or putting it on the internet. [REDACTED] claimed he asked the person who gave him a copy not to distribute it. The defense also played a video recording of [REDACTED] boxing with Fadi in the summer of 2003. [REDACTED] and Fadi wore boxing gloves, and neither was injured. [REDACTED] was unaware the boxing match was being recorded or that a recording existed until it was played in court. Another recording of a fight between two men in early 2004 was played. [REDACTED] was not involved in the fight other than to watch it. [REDACTED] pushed one of the combatants off the other in order to break up the fight. [REDACTED] stated he appeared in another recording in which someone threatened another person with a gun. [REDACTED] did not make the threat and testified he tried to help stop the incident.
Two to three weeks before the incident outside the party, [REDACTED] was at a park with 20 to 30 of his classmates. About 15 minutes later, appellant arrived with about 10 of his friends. A fight broke out between the two groups. Appellant joined in the fight, wielding a small bat. At some point, appellant was hit by someone with a small bat. [REDACTED] denied he did anything but watch the fight.
Regarding the fight in the park, Saghizadeh and Davoudpour saw [REDACTED] participate in the fight, but Saghizadeh did not see [REDACTED] fight with appellant. Davoudpour saw [REDACTED] strike appellant, but was unable to give specific details about the fight because he was involved in it and unable to see much of the action.
Saghizadeh and Davoudpour testified they had known appellant and [REDACTED] for years. Saghizadeh knew of the events depicted in the three defense videos. [REDACTED] told Saghizadeh that he had asked his friends to make copies of the first video and distribute it around school. Saghizadeh and Davoudpour believed [REDACTED] had a reputation for violence and purposefully put forth such a reputation to scare people. Saghizadeh and Davoudpour knew [REDACTED] to be a member of the Brentwood Locos, a gang [REDACTED] and his friends created. Saghizadeh and Davoudpour knew appellant was aware of [REDACTED]’s reputation for violence and membership in the Brentwood Locos.
[REDACTED] denied he was in a gang.
Regarding the night of the party, after Saghizadeh exited his car, he looked behind the car and saw [REDACTED], Pourmassa and another person he did not recognize walking toward the car. [REDACTED]’s hands were at his side, but they were clenched into fists. [REDACTED] looked angry and walked quickly. Appellant exited the car and looked in [REDACTED]’s direction, and asked Davoudpour “if that’s the guy,” and Davoudpour responded in the affirmative. [REDACTED] walked within two feet of appellant, who looked scared and hit [REDACTED].
A couple of weeks later, [REDACTED] returned to school. After school, [REDACTED] told Saghizadeh that he was mad at Saghizadeh. [REDACTED] said it was Saghizadeh’s fault [REDACTED] had been hit. [REDACTED] told Saghizadeh that he did not want to see Saghizadeh sitting in the area of the school where they and their friends usually sat and, if he saw Saghizadeh there or in the neighborhood, he was going to hurt Saghizadeh.
Rohom Tabankia testified he had known [REDACTED] for three years and used to be friends with [REDACTED]. Tabankia believed [REDACTED] had a reputation for violence. [REDACTED] went to Tabankia’s place of employment one day and indicated he was angry with Tabankia for providing the defense with a copy of one of the videos, but [REDACTED] did not threaten Tabankia.
III. Rebuttal
On April 6, 2004, Detective Joel Price of the Los Angeles Police Department interviewed Davoudpour by telephone. While Davoudpour expressed his opinion that appellant was justified in striking [REDACTED], Davoudpour told Price that [REDACTED] had done nothing to provoke appellant’s punch. Davoudpour did not tell Price that [REDACTED] walked directly up to appellant with clenched fists and an angry look on his face.
DISCUSSION
I. Lesser Included Offense
Although appellant was charged with two counts of felony assault, he was acquitted of those charges and convicted of misdemeanor assault on count 2. (See People v. Mincey (1992) 2 Cal.4th 408, 453 [“If . . . the initial charge is a felony but the defendant is convicted of a necessarily included misdemeanor, the one-year limitation period for misdemeanors applies.”].) Appellant raises several issues: the addition of the charge of misdemeanor assault as a jury instruction after the presentation of evidence was completed, without amending the information and over defense objection, violated his rights to due process and a jury trial and the burden of proof requirements; the court erred by providing the jury with the option of convicting on a lesser included offense which was time barred by the statute of limitations; the court erred in denying appellant’s motion to dismiss the misdemeanor assault conviction made on the grounds the conviction violated the statute of limitations; and there was insufficient evidence to support the misdemeanor assault conviction.
A. Procedural Background
Count 2 of the current information alleged that on November 29, 2003, appellant violated section 245, in an incident involving [REDACTED]. That count was originally charged in case No. SA050787 as the only count alleged. That information was filed on May 13, 2004. On August 23, 2004, that case was dismissed for lack of prosecution.
On August 26, 2004, a felony complaint for arrest warrant was filed in case No. SA053653, the subject of this appeal. This complaint alleged two felony violations of section 245, including one new count, count 1, occurring on January 24, 2003, involving victim Amir Khirabadi. Count 2 was the incident charged in the prior case involving [REDACTED]. On December 1, 2004, appellant was arraigned in this case. The instant information was filed on December 1, 2004.
The court noted this procedural history at the hearing on appellant’s post-trial motions.
Although appellant objected to the court’s giving lesser included instructions, he did not do so on the grounds of the statute of limitations. However, appellant did raise the violation of the statute of limitations in his motions for new trial and to dismiss the misdemeanor assault conviction, arguing the conviction violated the statute of limitations as the information was filed on December 1, 2004, more than a year after the charged incident on November 29, 2003. At the hearing on appellant’s motions, the court found the statute of limitations was tolled during the period for which the original case was prosecuted (i.e., May 13 to August 23 of 2004), meaning the conviction did not violate the statute of limitations.
Appellant objected the lesser included instructions did not need to be given as the evidence showed he committed only the greater offense. (See People v. Lema (1987) 188 Cal.App.3d 1541, 1544-1545.) The court did not agree noting that on count 2 the jury had to determine whether the injury suffered was substantial and serious.
B. The Statute of Limitations
“[A] defendant may assert the statute of limitations at any time.” (People v. Williams (1999) 21 Cal.4th 335, 339.) “[I]n California the statute of limitations constitutes a substantive rather than a procedural right which is not waived by failure to assert it at the pleading stage. . . . [I]t is now well settled that a conviction, even if based on a plea of guilty, is subject to collateral [or direct] attack if the charge was originally barred by the applicable limitation period.” (Fn. & internal quotation marks omitted.) (Id., at pp. 339-340.) The court concluded, “when the charging document indicates on its face that the action is time-barred, a person convicted of a charged offense may raise the statute of limitations at any time. If the court cannot determine from the available record whether the action is barred, it should hold a hearing or, if it is an appellate court, it should remand for a hearing.” (Id., at p. 341.)
1. Forfeiture
Respondent contends appellant forfeited his statute of limitations claim as he failed to raise the issue of the statute at the time the trial court indicated it would instruct on misdemeanor (simple) assault.
Although a defendant may expressly waive the statute of limitations when the waiver is for his benefit (Cowan v. Superior Court (1996) 14 Cal.4th 367, 370), appellant did not expressly waive the statute.
In People v. Stanfill (1999) 76 Cal.App.4th 1137, 1150, the court held “a defendant forfeits the right to complain on appeal of conviction of a time-barred lesser included offense where the charged offense was not time-barred and the defendant either requested or acquiesced in the giving of instructions on the lesser offense. In other words, a defendant must raise the issue in the trial court in order to preserve it for appeal.” The court noted its holding did not distract from the advice of the California Supreme Court that “trial courts and prosecutors should, whenever instructions on lesser included offenses are considered, determine whether there may be a problem with the statute of limitations and, if so, elicit a waiver of the statute as a condition of giving the instruction. That remains the better course, for it removes all ambiguity.” (Citation omitted.) (Ibid.) The court reasoned that requiring a defendant to raise the statute of limitations in the trial court would remove the incentive for gamesmanship and encourage the parties to focus on the issue at that level when it could be fully explored and an adequate record developed. (Id., at pp. 1148-1149.) Furthermore, the rule “would also prevent surprise and prejudice to the prosecution. . . . Raising the issue in the trial court would allow an opportunity to amend the accusatory pleading to rectify those situations where tolling provisions might apply to the lesser offense.” (Citations omitted.) (Id., at p. 1149.)
Noting he objected to giving the misdemeanor assault instructions, appellant argues he did not forfeit his statute of limitations claim because he did not request lesser offense instructions be given or acquiesce in giving them. The California Supreme Court noted: “If the court cannot determine from the available record whether the action is barred, it should hold a hearing or, if it is an appellate court, it should remand for a hearing.” (People v. Williams, supra, 21 Cal.4th at p. 341.) The court went on to explain that, “if on remand, the trial court determines the action is not time-barred, the conviction will stand despite the prosecution’s error in filing an information that appeared time-barred.” (Id., at p. 346; see also People v. Smith (2002) 98 Cal.App.4th 1182, 1189 [“By analogy to Williams, we are convinced that, when the trial court determines that certain counts are not time-barred, defendant’s convictions as to those charged offenses will stand if the reviewing court can determine from the available record, including both the trial record and the preliminary hearing transcript, that the action is not time-barred despite the prosecution’s error in filing an information in which those counts appeared to be time-barred.”].)
Thus, appellant did not forfeit the statute of limitations issue as he raised it in his post-trial motions.
2. Due Process
Appellant asserts he had no opportunity to challenge the lesser included misdemeanor assault because there was no pretrial notice charging the misdemeanor and no pretrial hearing on the applicability of the statute of limitations. In addition, appellant posits his misdemeanor assault conviction cannot stand because the pleading did not allege facts on its face showing the charged offense was not time barred. (See People v. Crosby (1962) 58 Cal.2d 713, 724 [“An accusatory pleading must allege facts showing that the prosecution is not barred by the statute of limitations, and if a period of time in excess of that permitted by the statute has elapsed since the commission of the offense, further facts must be alleged . . . to toll the statute . . . .” (Citations omitted.)].) In Crosby, the court was referring to the charged offense. However, in People v. Stanfill, supra, 76 Cal.App.4th at page 1149, the court noted: “‘Because lesser included offenses are not charged in the accusatory pleading, ‘. . . there is no reason for the prosecution to include discovery or tolling allegations as to those offenses.’”
“The question whether one offense is necessarily included in another arises in various contexts. A common one is deciding whether a defendant charged with one crime may be convicted of a lesser uncharged crime. A defendant may be convicted of an uncharged crime if, but only if, the uncharged crime is necessarily included in the charged crime. The reason for this rule is settled. ‘“This reasoning rests upon a constitutional basis: ‘Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.’”’ The required notice is provided as to any charged offense and any lesser offense that is necessarily committed when the charged offense is committed.” (Citations omitted; original emphasis.) (People v. Reed (2006) 38 Cal.4th 1224, 1227.) Thus, appellant had notice he could be convicted of misdemeanor assault as a necessarily lesser included of felony assault. (See People v. Berry (1976) 18 Cal.3d 509, 518-519.)
Furthermore, where “[t]he existence of an event tolling the period [is] an undisputed fact, the error in failing to plead that event or to prove it to the jury is harmless.” (People v. Lewis (1986) 180 Cal.App.3d 816, 821; see also People v. Williams, supra, 21 Cal.4th at p. 344 [“Although, under our cases, defendants may not forfeit the statute of limitations if it has expired as a matter of law, they may certainly lose the ability to litigate factual issues such as questions of tolling.”].)
Citing to Lewis, the court in People v. Le (2000) 82 Cal.App.4th 1352, 1359, noted: “Because the facts were undisputed, it would be a waste of resources to remand the case for a predestined result.” The court also noted that a number of cases in which a defendant who had pled guilty or been convicted of a lesser included offense had attacked the prosecution’s failure to plead, and sometimes to prove as well, that the statute of limitations had not run, but the courts had found the jurisdictional errors caused by the pleading problems “were either cured on the record presented or that the prosecution was entitled to attempt to cure on remand.” (Id., at p. 1360.) On the other hand, the court reasoned “the result is different when the defense has challenged the prosecution to prove at trial that the statute of limitations has not run.” (Emphasis deleted.) (Id., at p. 1361.) In the case at bar, appellant did not challenge the prosecution to prove that the statute of limitations had not run until his post-trial motions.
Thus, even though addressing the application of the statute of limitations pretrial or at trial is preferred, it is not mandatory, and appellant had notice and the opportunity to be heard on whether or not misdemeanor assault was time-barred. Moreover, it is not necessary to plead facts showing that an unpled lesser included offense is not barred by the statute of limitations.
3. Tolling
Appellant argues that there was no evidence the statute of limitations was tolled and that this action does not relate back to the filing of the prior case as this action added a new victim in count 1. Appellant urges this court to view the information as a whole and not look at each count separately to determine if that particular count relates back.
Appellant cites Harris v. Superior Court (1988) 201 Cal.App.3d 624 to support his theory the relation-back doctrine was inapplicable because the new information charged an offense not charged in the original information. In Harris, the issue was whether a prosecutor might amend an information to include new charges on which the statute of limitations had run such that the prosecution of the new charges would relate back to the original filing of the information. (Id., at pp. 627-628.) The court held an information may not be amended to include a charge which is not a necessarily included offense. (Id., at p. 628.)
The applicable doctrine here is tolling not relation-back as the instant case involves a new complaint not an amended complaint. Penal Code section 803, subdivision (b) provides: “No time during which prosecution of the same person for the same conduct is pending in a court of this state is a part of a limitation of time prescribed in this chapter.” The statute does not state the prosecution must be for the same charges.
The superior court found the statute of limitations was tolled during the time between when the original information was filed and the time the case was dismissed. We agree with the superior court that period tolled the statute for count 2 as it involved the same person and the same conduct. (See People v. Whitfield (1993) 19 Cal.App.4th 1652, 1659.) The addition of a second count involving another victim did not affect that tolling. However, had appellant been convicted of a misdemeanor assault on count 1 (involving the other victim), the statute of limitations would not have been tolled for that count because of the prior action against [REDACTED].
As the prosecution proved the statute of limitations was tolled, the court did not err in providing the jury with the option of convicting on the lesser included offense or by not dismissing the conviction on the lesser included offense.
C. Substantial Evidence
“‘“When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence -- i.e., evidence that is credible and of solid value -- from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.”’” (People v. Hill (1998) 17 Cal.4th 800, 848-849.)
Appellant contends there was insufficient evidence he committed misdemeanor assault because the evidence showed he acted in self-defense and the jury was improperly instructed on self-defense. Appellant suggests the jury must have accepted he acted in self-defense when it acquitted him of the more serious charge. We disagree. As explained by the trial court when it indicated it would give the lesser included instructions, the jury had to determine whether the injury was significant and serious. It is a reasonable inference that the jury found the victim’s injuries (a cut lip requiring seven stitches and two broken teeth), which were the result of a single “sucker” punch, were not significant or substantial. (CALJIC Nos. 9.02 & 17.20.) Appellant’s argument the jury was improperly instructed on self-defense is discussed below.
II. Pinpoint Instructions
Appellant contends the court erred in denying his request for pinpoint instructions on self-defense. 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. (People v. Hughes (2002) 27 Cal.4th 287, 361.) Moreover, even if proper, pinpoint instructions are not required to be given sua sponte. (Ibid.) “A trial court is not required to give pinpoint instructions that merely duplicate other instructions.” (People v. Panah (2005) 35 Cal.4th 395, 486.)
The 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.) The absence of an essential element in one instruction may be supplied by another or cured in the light of the instructions as a whole; we must look to the entire charge, rather than merely one part, to determine whether error occurred. (Ibid.) We also assume jurors are intelligent persons capable of understanding and correlating all jury instructions given. (People v. Guerra (2006) 37 Cal.4th 1067, 1148.)
Appellant requested the court instruct:
“It is not necessary for the defendant to establish self-defense by evidence to satisfy the jury that the self-defense was true, but if the evidence is sufficient to leave you with a reasonable doubt as to whether the defendant was justified, then he is entitled to an acquittal.”
As an alternative, appellant offered:
“The burden is on the Prosecutin [sic] to prove beyond a reasonable doubt that Pooyan Nasibi did not act in self-defense. You must be satisfied beyond a reasonable doubt that he was not acting in self-defense before you may convict him. If from all of the circumstances of the case you have a reasonable doubt whether Pooyan Nasibi was acting in self-defense, you must give him the benefit of the doubt and find him not guilty.”
Citing People v. Adrian (1982) 135 Cal.App.3d 335, appellant asserts the court should have given CALJIC No 5.15 for assault. The court refused appellant’s request stating the requested instructions either misstated the law or were covered by other instructions. It appears that appellant’s position is that the instructions did not state the prosecution bears the burden of proof of showing the absence of circumstances (i.e., self-defense) beyond a reasonable doubt. By citing People v. Banks (1976) 67 Cal.App.3d 379, 383-384, appellant seems to imply the court shifted burden of proof to him, but he cites no instruction doing so.
The court instructed the jury on the general burden of proof with CALJIC No. 2.90: presumption of innocence -- reasonable doubt -- burden of proof. The court instructed on the substantive law of self-defense with CALJIC No. 5.30, self-defense against assault; CALJIC No. 5.50, self-defense -- assailed person need not retreat; CALJIC No. 5.50.1, prior threats/assaults by victim; CALJIC No. 5.51, self-defense --actual danger not necessary; CALJIC No. 5.52, self-defense -- when danger ceases; and CALJIC No. 5.56, self-defense -- participants in mutual combat. Even more importantly, the court instructed the jury on the burden of proof on self-defense with CALJIC No. 9.00, which defined “assault” and provided in part:
“A willful application of physical force upon the person of another is not unlawful when done in lawful self-defense. The People have the burden to prove that the application of physical force was not in lawful self-defense. If you have a reasonable doubt that the application of physical force was unlawful, you must find the defendant not guilty.”
Looking at the instructions as a whole, appellant has failed to demonstrate the court erred in refusing to give his requested pinpoint instructions.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P.J. JOHNSON, J.