People v. Rich

2005 | Cited 0 times | California Court of Appeal | December 29, 2005


California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

A jury convicted appellant Eddie L. Rich of carjacking in violation of Penal Code section 215, subdivision (a) (count 1); evading an officer with willful disregard in violation of Vehicle Code section 2800.2, subdivision (a) (count 2); and resisting an executive officer in violation of Penal Code section 69 (count 3). The trial court sentenced appellant to a total term of 18 years four months.

Appellant appeals on the grounds that: (1) his convictions should be reversed because the trial court abused its discretion and violated his Sixth Amendment constitutional right to counsel when it failed to appoint counsel; (2) the trial court prejudicially erred by failing to properly instruct the jury on appellant's defenses of necessity, mistake of fact, and accident or misfortune, resulting in a violation of appellant's Sixth Amendment rights and his rights to due process, a fair trial, fundamental fairness, and a reliable verdict under the Fifth, Fourteenth, and Eighth Amendments; and (3) the cumulative effect of the errors deprived appellant of his due process right to a fair trial under the Fifth and Fourteenth Amendments.


I. Prosecution Evidence

On the afternoon of August 9, 2003, between 2:00 and 2:30 p.m., Darina Vaquera was driving with her sister, Daisy, in Darina's white Toyota Camry. Darina drove to a 99-Cent store, parked in front, and got out of her car. Darina left her keys in the ignition, and Daisy remained in the passenger seat with the car windows rolled down. Before Darina could make any purchases she heard an employee telling the people inside the store to hit the alarm because something was occurring outside. Darina was concerned for her sister and ran outside. She saw someone sitting in her car, next to her sister. At appellant's trial she identified appellant as the person sitting in the driver's seat of her car and trying to start the car. Darina saw Daisy trying to take the keys away from appellant, and "a lot of people around the car trying to stop him." She later testified that she saw two persons outside the car trying to take the keys and stop appellant from leaving.

The car began backing up, and Darina reached in and grabbed her sister, unsuccessfully trying to get her out of the car. After appellant had backed up, Daisy managed to get out of the car through the passenger-side window with the help of Darina and a bystander. A black bag came out the window along with Daisy and fell to the ground.

Appellant drove off in Darina's car.

Store workers showed Darina a California identification card from the black bag, and the card bore the picture of the person who had taken her car. The photograph on the card was appellant's. When police arrived, Darina gave them the black bag. Detectives later showed Darina a photographic lineup (six-pack), and Darina circled appellant's photograph.

Daisy recalled that while waiting for her sister, she saw appellant walk in front of the car and then walk down the driver's side of the car. Darina's car was parked between two other cars. Appellant looked inside the car and asked Daisy for the time. After Daisy replied, appellant continued walking toward the back of the car, then returned and got in the car. Daisy asked him what he was doing, but appellant did not respond. Appellant tried to start the car and Daisy tried to grab the keys. Appellant said, "Don't do that." Daisy was yelling, "Stop," but appellant began to reverse the car. Daisy feared she would be injured if she opened her door, and she tried to get out of the window. She noticed there were three or four people around the car. They were trying to get her out and trying to stop appellant. Daisy eventually escaped through the window. She saw appellant hit a truck with the Camry and keep on going.

Daisy identified the picture on the identification card as that of the man who took the car. Daisy also chose appellant's photograph from the six-pack. Neither Daisy nor Darina saw the windshield being broken at the store. Daisy did not see any of the bystanders strike or touch appellant.

Manuel Mariscal (Mariscal) was working at the 99-Cent store and was acquainted with Darina as a customer. He was standing in front of the store as Darina entered it, and he saw Darina's car with Daisy inside. He saw a light-skinned Black man jogging to Darina's car. The man opened the door and got inside. Mariscal ran inside the store and told his boss to press the panic alarm. Mariscal and a friend then went up to the driver's side of Darina's car and unsuccessfully tried to get the keys from the man, whom Mariscal later identified as appellant. Appellant started the car and reversed into the parking lot, and Daisy jumped out of the window. Mariscal testified at appellant's trial that he did not grab or touch appellant apart from trying to get the keys from appellant's hands. Mariscal saw appellant hit both cars parked beside him as he maneuvered the car out of the lot. Mariscal did not see anyone throw a toy scooter at the car, and he saw that the windshield was intact when the car drove off.

Between 3:00 and 3:30 p.m., Officers Edward Tsai and Brett Hayhoe of the Los Angeles Police Department were patrolling an area approximately 35 blocks from the scene of the carjacking. They noticed a white Camry parked in a red zone. As the officers approached the car, the two men inside began sliding down in their seats. The driver, later identified as appellant, then pulled away from the curb and accelerated. As the officers followed in their car, appellant made several turns and ran through several stop signs. The officers activated their lights and siren, but appellant did not stop. Appellant drove through a stop sign and caused a woman entering a crosswalk to move back to avoid being struck by appellant's car. On Main Street appellant collided with another vehicle in an intersection, which caused the Camry to spin around and collide with the police car. Appellant got out of the Camry but jumped back inside after the officers got out of their patrol car. He accelerated toward a second police car that had arrived on the scene, striking the patrol car's passenger door.

Appellant drove off, and Officer Hayhoe continued the pursuit on his own in the patrol car. Although the police car's lights and siren were activated, appellant did not stop and ran through numerous stop signs and red lights, often driving on the wrong side of the street. Appellant traveled at speeds of up to 70 miles per hour and struck several vehicles during the pursuit.

At the intersection of Alameda Street and 46th Street, appellant abandoned the Camry and fled on foot. Officer Hayhoe pursued appellant and repeatedly ordered him to stop. Officer Hayhoe eventually tackled appellant and brought him to the ground. Appellant said he would not be arrested and resisted Officer Hayhoe's attempts to handcuff him. Other officers arrived to assist Officer Hayhoe in handcuffing and hobbling appellant.

II. Defense Evidence

Appellant testified that he had just left the 99-Cent store when he saw a young woman walking toward him. He thought she looked nice, and he noticed another young woman still in the car that the first had exited. He approached the woman in the car and asked her for the time, just to "get a . . . vibe from her," and the young woman told him the time. He thought she smiled at him, so he opened up the car door and sat down with one leg outside the door. The woman looked at him and asked him what he was doing. At that point, appellant noticed a man running up to him on the left, and the man began to pull on him. Another man came up behind and grabbed appellant. Appellant tried to get the people off him and push them away. Another person threw a toy scooter at the car and broke the windshield. Appellant tried to start the car as a means of getting away from the "situation." He put the car in reverse, but he was not aware of what Daisy was doing or how she got out of the car because of his concerns for himself. The driver's door was not closed during the entire incident. Because the man was still trying to grab appellant after appellant reversed the car, appellant put the car in drive gear and pulled forward. He left the parking lot and was in shock. He had had no intention of causing Daisy any harm.

As appellant drove down the street he was wondering what to do, and he felt paranoid. He did not know why he failed to contact the authorities. He pulled over and saw a transient, a stranger to appellant, and explained the situation to him. He asked the man for help in taking the car back and explaining what had happened. The man got in the car and they drove for a time. Appellant admitted to the jury that he had been a cocaine user. He pulled the car over to the curb because the man he had picked up told him he had some cocaine. Appellant sought refuge in taking a hit of the cocaine.

Appellant admitted sliding down in his seat when the police drove up behind him. He pulled out and drove away because the cocaine had intensified his paranoia. Appellant acknowledged committing many of the traffic violations recounted by the officers. He did not stop after the intersection accident because the police had drawn their weapons and he was afraid. When he abandoned the car and ran, he was tackled and struck in the forehead. Other officers began grabbing him and kicking him. His feet were strapped and he was dragged to his feet and placed in the police car. He received a dislocated shoulder and numerous head injuries. When treated at a hospital, he required stitches, and he was given a foot brace.

Appellant asserted he had no intention of taking someone's car at the beginning of the incident, and he had no intention of keeping the car. He admitted he may have "over-impos[ed]" himself, but he did not commit a crime in driving away for his own safety. He did not say, "Don't do that" to Daisy when she tried to get the car keys. Appellant admitted he had been convicted of two counts of robbery in 1989 and of receiving stolen property in 1996.


I. Denial of Appointed Counsel

A. Appellant's Argument

Appellant contends the trial court abused its discretion by failing to fairly evaluate his compelling reasons for wishing to abandon his pro. per. status and have counsel appointed prior to trial. He maintains that, had the trial court held a hearing, it would have learned about appellant's difficulties in obtaining the services of an investigator and access to the law library. The trial court merely relied on what it believed prior judges had done and did not consider the prejudice that would result from its ruling. Applying to his case the factors set out in the "totality of the circumstances" analysis of People v. Gallego (1990) 52 Cal.3d 115 (Gallego), appellant argues that his conviction must be reversed.

B. Proceedings Below

On September 30, 2003, appellant's counsel announced that appellant wished to represent himself, and, after confirming with appellant that this was his wish, Judge Steven Suzukawa gave appellant a form to fill out. On the following day, appellant returned the form to the court. The trial court noted that appellant had left blank the section stating the charges against him. Appellant assured the judge he knew the charges but did not know the Penal Code section numbers. Appellant also did not fill out the portion regarding his prior convictions. Appellant explained that he wanted first to see his file. The judge explained that appellant's priors could add at least 17 years to his sentence. The judge then explained the disadvantages of self-representation and the fact that appellant would not be given any advantage and would be expected to conduct himself as a lawyer. Appellant formally waived his right to counsel.

The trial court set October 16, 2003, as the date for the next pretrial proceeding, and trial was set for November 10, 2003. Appellant was given his file that day, October 1, 2003.

At the next proceeding (on October 27, 2003) appellant filed a number of motions, including a motion for an investigator. The trial court provided him a list of names from which to choose. The trial court granted appellant a continuance of the trial date to November 18, 2003.

The next proceeding actually occurred on December 3, 2003. Appellant filed a discovery motion, and the prosecutor told the trial court that he and appellant had narrowed down appellant's discovery list to a few items. These included photographs of appellant immediately following arrest. The public defender, who was present in court, explained that the photographs were needed to replace those the sheriffs had thrown away when appellant was moved from one facility to another. The prosecutor, acknowledging that some of appellant's other materials were destroyed, asked for a two-week continuance to obtain more discovery for appellant. Appellant related to the judge that his chosen investigator, a Ms. Dorsey, had yet to contact him despite his various efforts. The trial court reset the trial date to 30 days from December 17, 2003.

On December 17, 2003, the prosecutor gave appellant the photographs he had requested, and appellant made a last-minute request for 911 tapes. The prosecutor agreed to obtain them. When the court asked if there were any other matters, appellant discussed a medical order and his funding. He also asked for a continuance because he was representing himself in a traffic case. Appellant asked that trial not begin until January 14, 2004, and the trial court agreed that trial would begin 15 days from that date. Appellant made no mention of his investigator.

On January 14, 2004, the prosecutor turned over copies of the 911 transmission and said he was still trying to obtain an audiotape. He also turned over appellant's booking photograph and other photographs appellant had requested. Appellant had filed a supplemental request for discovery that day, and the trial court went through the motion with the prosecutor and ruled that discovery had been complied with. Appellant requested funds for his investigator and some indication of the number of hours she was allowed to work on his case. The trial court informed appellant the amount of money authorized was $750. Appellant made no complaints about his investigator, and the trial was set for February 9, 2004.

At a pretrial proceeding on January 22, 2004 -- the last proceeding before Judge Suzukawa -- the prosecutor handed over the requested audiotape. Judge Suzukawa gave appellant his requested medical records. The trial court stated that it appeared discovery was complete and asked appellant if he had any other motions. Appellant said, "No, not at this time, your Honor," and the trial court noted the case would be sent to trial in Department D, and February 9, 2004 was the last day for trial. Appellant made no complaints regarding his investigator.

On February 9, 2004, in Department D, Judge Cheroske noted for the record that appellant had refused to come to court that day. An extraction order was issued, but traffic problems prevented the sheriffs from delivering appellant to the courthouse on time. Therefore, a one-day continuance was granted. A new jury panel was ordered.

On February 10, 2004, the case was called for trial before Judge William R. Chidsey (the court) in Department 10 of the Compton Courthouse. When the court said there were jurors waiting and trial could begin, appellant stated he was not prepared for trial and that Judge Cheroske had denied his motion for a continuance. The trial court told appellant that Judge Cheroske was in charge of the master calendar, had entertained appellant's motion, and had denied it. The trial court stated it was bound by that ruling.

Appellant told the court he had just received the 911 tape and his investigator had yet to comply with any of his investigation requests. The trial court stated, "We are a trial court, a dedicated trial court, and we're prepared to try your case unless a disposition is reached. That's where we are." The trial court went on to state that the parties are deemed ready once a case is sent out for trial from the master calendar court. Appellant again complained about his investigator, and the court asked its clerk to call the investigator. Appellant also complained that the books in the jail law library were outdated, and he repeated that he was really not ready to start trial. The trial court stated that appellant's problems were typical of those associated with pro. per. status. The trial court assumed appellant's concerns had been addressed to prior courts, which were the courts charged with dealing with those concerns before the case was sent to the trial court. The trial court stated it was ready to go forward, and a jury panel was brought in.

After the lunch recess from voir dire, appellant handed the trial court a motion for appointment of counsel. The trial court stated that the motion was untimely and reiterated that it was implicit in the transfer order that the case was ready for trial. Appellant again complained about his investigator and said he could not stand trial without proper investigation for his defense. The trial court replied that appellant's concerns about his investigator and the materials available to him should have been addressed earlier. Appellant then asked if Ms. Telfer of the Public Defender's Office could be reappointed. The trial court agreed to appoint Ms. Telfer if she was able to proceed without delay. Ms. Telfer appeared and stated she was handling other matters and was unable to proceed until the second week of March -- four or more weeks in the future.

When appellant revived his complaints about his investigator on the following day, the trial court restated the facts of the case to confirm its understanding of them. After the prosecutor filled in the details, the trial court asked appellant to state his theory of defense. Appellant said he was attacked by friends of the woman in the car. The trial court verified that the prosecutor was attempting to contact the bystanders appellant wanted to interview, and the prosecutor confirmed that Mariscal would be in court that afternoon and appellant could speak with him. At that point, the trial court stated they were ready to proceed.

C. Relevant Authority

The ruling on a defendant's request to change from self-representation to counsel-representation is within the trial court's discretion. (People v. Elliott (1977) 70 Cal.App.3d 984, 997-998 (Elliott).) In determining whether the trial court abused its discretion in denying a request for appointment of counsel after a defendant has been granted pro. per. status, we examine the totality of the circumstances surrounding the trial court's ruling. (Gallego, supra, 52 Cal.3d at pp. 161, 163-164.) Relevant factors include: "`(1) defendant's prior history in the substitution of counsel and the desire to change from self-representation to counsel-representation, (2) the reasons set forth for the request, (3) the length and stage of the trial proceedings, (4) disruption or delay which reasonably might be expected to ensue from the granting of such motion, and (5) the likelihood of defendant's effectiveness in defending against the charges if required to continue to act as his own attorney.'" (Id. at p. 164; Elliott, supra, at pp. 993-994.) Gallego adopted the reasoning of People v. Smith (1980) 109 Cal.App.3d 476, 484, which held that "[w]hile the consideration of all of these criteria is obviously relevant and helpful to a trial court in resolving the issue, they are not absolutes, and in the final analysis it is the totality of the facts and circumstances which the trial court must consider in exercising its discretion as to whether or not to permit a defendant to again change his mind regarding representation in midtrial." (See Gallego, supra, at p. 164.)

D. Totality of Circumstances Justifies Court's Refusal to Appoint Counsel

In the instant case, appellant revealed no desire to be represented by counsel until voir dire began. The reasons he gave for his request -- the lack of a response from his investigator and the scarcity of current law books -- did not justify the disruption and delay appointment of counsel would have required. There had been no change in circumstances from the time of appellant's last three appearances before Judge Suzukawa -- from December 17, 2003, through January 22, 2004, and the beginning of trial, other than that the inevitable had arrived. Appellant was as able to defend himself as he had been when Judge Suzukawa stated that discovery was complete and the case was ready for trial. Appellant made no request for a continuance or appointment of counsel at that time. Rather, he was in agreement that the trial date would be February 9, 2004, in Department D.

Moreover, the record shows that a delay in order to obtain the witnesses who were the cause of appellant's complaints would have entailed lengthy and probably fruitless delay. There were indications that tracing anyone besides Mariscal would be difficult, and it is not clear whether any of the persons could have been served. Had counsel been appointed, these same circumstances would have prevailed. In any event, it is speculative to assume any testimony from the other person or persons who attempted to take the car keys from appellant would have been favorable to him. As it was, appellant was able to tell his story to the jurors without having any participant other than Mariscal to contradict him. Finally, appellant had successfully represented himself up to that point and had demonstrated that he was articulate and able to research the law. There was no indication he would not continue to credibly defend himself.

The cases appellant relies upon are distinguishable. In Elliott, after the jury had been selected, the prosecutor announced his intention to call witnesses to testify about a prior uncharged offense. (Elliot, supra, 70 Cal.App.3d at p. 994.) This new information made the trial suddenly more complicated, and the defendant said he could not compete with the prosecutor. (Id. at pp. 994-995.) The Elliott court also believed the trial court had an inkling that the defendant would be ineffective in defending himself because of an incident that occurred during a suggestive in-court identification. (Id. at pp. 996-997.) Here, the content of the case had been consistent for months, and appellant had adequately represented himself in this as well as in another case during that time.

In People v. Cruz (1978) 83 Cal.App.3d 308, the defendant told the court that he felt incompetent to proceed further. (Id. at p. 320.) Also, the court concluded there was a series of cumulative errors by the trial court, including a failure to sufficiently inquire into the defendant's Marsden claim,1 which weighed in favor of granting the defendant's request for counsel. (People v. Cruz, supra, at pp. 317, 334.) Likewise, in People v. Hill (1983) 148 Cal.App.3d 744, the domino effect of multiple errors by the trial court led the court to conclude counsel should have been reappointed. (Id. at pp. 758, 762.) The court determined that the erroneous denial of a Marsden motion led to the Faretta2 motion in the first place. (People v. Hill, supra, at p. 762.) Also, Hill apologetically asked the court to reappoint counsel, stating he was afraid to proceed and had made a wrong move. (Id. at p. 752.) Here, appellant did not declare he felt incompetent to proceed, and there is no indication in the record that cumulative errors by the various courts handling appellant's case culminated in an erroneous decision to deny him reappointment of counsel.

Under the circumstances of this case, the trial court did not abuse its discretion. The trial court's references to the decisions of prior judges reflect only the reality of appellant's completion of the pretrial process rather than a lack of due consideration by the actual trial court, which had been assigned a case deemed ready for trial by both parties 18 days earlier. Moreover, the record shows that the trial court took pains to ensure it understood the facts of the case and appellant's defense. Only after verifying that the prosecutor was attempting to find the witnesses appellant wanted and that one of these witnesses would be in court that day did the trial court make the final decision to proceed.

II. Instructional Error Claim

A. Appellant's Argument

Appellant contends the trial court prejudicially erred in refusing to instruct on his theories of defense, since he relied upon them and they were supported by substantial evidence provided by his own testimony and that of other witnesses. According to appellant, the error was not harmless under any standard, and his state and federal rights to present a defense were violated.

B. Proceedings Below

During the discussion of proposed jury instructions, appellant asked the trial court to read CALJIC Nos. 4.35 (ignorance or mistake of fact),3 4.43 (defense of necessity),4 and 4.45 (accident and misfortune).5 With respect to mistake of fact, the trial court stated that appellant's case was not the type of case in which the instruction should be given. As for the defense of necessity, appellant explained that the evidence showed he was being attacked and that was his theory of defense. The trial court ruled there was no evidence to support the instruction. The trial court rejected the accident or misfortune instruction as well on the grounds there were insufficient facts to support reading it.

During deliberations, the jury submitted the following query: "If this jury were to find the defendant did intend to flee for his safety, but in doing so satisfies all the elements of a carjacking, does his intent to preserve himself have any effect upon his required specific intent to commit a carjacking?" In response, the trial court read CALJIC No. 4.40 (duress -- threats and menaces) to the jury as a supplementary instruction.

C. Relevant Authority

A trial court is obliged to instruct, even without a request, on the general principles of law that relate to the issues presented by the evidence.6 (People v. Breverman (1998) 19 Cal.4th 142, 154.) A defendant has a right to an instruction that pinpoints the theory of the defense; but the judge must give only those instructions supported by substantial evidence, and must refuse instructions on a defense theory for which there is no supporting evidence. (People v. Ponce (1996) 44 Cal.App.4th 1380, 1386; see also People v. Marshall (1997) 15 Cal.4th 1, 39-40.) The standard of review for claims relating to alleged instructional error is de novo. (People v. Berryman (1993) 6 Cal.4th 1048, 1089, disapproved on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)

D. Mistake of Fact Instruction Erroneously Rejected; Harmless Error

1. Accident or Misfortune

"The accident defense [essentially puts forth the] claim that the defendant acted without forming the mental state necessary to make his actions a crime." (People v. Gonzales (1999) 74 Cal.App.4th 382, 390.) The trial court properly excluded this instruction, since there was no evidence of any misfortune befalling appellant, and only a strained interpretation of appellant's theory could find it was based on an accident. None of his actions, from entering the car to driving out of the parking space, were caused by an accident or some unlucky occurrence.

2. Necessity

We also believe that there was no factual basis for appellant's claim of necessity. "An instruction on the defense of necessity is required where there is evidence `sufficient to establish that defendant violated the law (1) to prevent a significant evil, (2) with no adequate alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief in the necessity, (5) with such belief being objectively reasonable, and (6) under circumstances in which he did not substantially contribute to the emergency. [Citations.]'" (In re Eichorn (1998) 69 Cal.App.4th 382, 389.) "The standard for evaluating the sufficiency of the evidentiary foundation [to support a necessity instruction] is whether a reasonable jury, accepting all the evidence as true, could find the defendant's actions justified by necessity. [Citation.]" (People v. Trippet (1997) 56 Cal.App.4th 1532, 1539.)

Viewing the evidence in the light most favorable to appellant, we conclude appellant failed to show at a minimum that he had no adequate alternative, that he did not create a greater danger than the one he purportedly sought to avoid, and that he did not contribute to the emergency. Appellant could have stepped out of the car and run away or sought help from a security guard if he truly believed he was in danger. Appellant acknowledged to the trial court that no one "beat [him] up." The risk to Daisy, who was desperately trying to get out of the car window while appellant drove the car in reverse, was greater than any danger appellant would have faced had he merely desisted and left the car. And appellant's actions of entering the car and sitting down in the driver's seat were the cause of all that subsequently occurred. Because the evidence offered by appellant was insufficient to permit a reasonable jury to find that his action of starting the car and backing out of the parking space met these criteria, the trial court properly refused to instruct the jury on the necessity defense.

3. Mistake of Fact

"When a person commits an act based on a mistake of fact, his guilt or innocence is determined as if the facts were as he perceived them." (People v. Scott (1983) 146 Cal.App.3d 823, 831.) A mistake of fact alone, however, does not provide a defense unless the mistake relates to an element of the crime. (People v. Vineberg (1981) 125 Cal.App.3d 127, 135.) The elements of carjacking are that a person had possession of a motor vehicle; the vehicle was taken from his or her person or immediate presence; the vehicle was taken against the will of the person in possession; the taking was accomplished by force or fear; and the person who took the vehicle had the intent to permanently or temporarily deprive the person in possession of the vehicle of his or her possession. (Pen. Code, § 215; see CALJIC No. 9.46.) In this case, the jury correctly reached the conclusion that all the elements of the offense of carjacking were met. Any mistaken belief of appellant that he was going to be attacked by the bystanders does not negate any of these elements.

Nevertheless, as the trial court noted, the jury clearly wished to know what effect appellant's stated intention to flee for his safety would have on his liability for the crime of carjacking. When the prosecutor recommended merely repeating the carjacking instruction to the jury, the trial court stated, "I know what the elements of carjacking are. There's an exception to every rule and the question is if one is in fear for his safety and one does an act which, under normal circumstances, would constitute a crime, does the fact that he takes something mitigate against the specific intent?" The trial court went on to state, "Well, the defendant, and I don't want to speak on behalf of Mr. Rich, but I think throughout the course of the trial raised enough by way of his questioning to the effect that he may have intended to come onto this woman, was in the vehicle, other people reacted, he then reacted and drove away the car. That's the sum and substance of what his argument was. [¶] . . . [¶] And that he didn't have the intent either to take the car or to commit any other criminal acts at that point in time. The situation just got out of hand. I mean, that's giving due deference to his argument." The trial court said it would look at the instructions it had rejected and at the instructions in general for an appropriate jury instruction.

After considering the instructions, the trial court stated that CALJIC 4.40 might be appropriate and read the instruction to the parties, as follows: "A person is not guilty of a crime when he engages in conduct, otherwise criminal, when acting under threat and menace under the following circumstances: [¶] 1. Where the threat and menace are such that they would cause a reasonable person to fear that his life would be in immediate danger if he did not engage in the conduct charged; and [¶] 2. If this person then actually believed that his life was so endangered." The trial court stated that "the instruction appears to limit itself to situations in which the threat and menace are such that would cause a reasonable person to fear that his life would be in immediate danger if he did not engage in the conduct charged." Appellant replied to the trial court, "Your honor, when I submitted the jury instruction, that was basically the grounds that I had wanted to submit it on." After further objection by the prosecutor, the trial court read the instruction to the jury. The jury foreperson said the jury had no further questions, and the trial court gave the jury a copy of the instruction.

The foregoing reveals that appellant was satisfied with the instruction chosen by the trial court, and that it contained the essence of what he had tried to convey to the jury. CALJIC No. 4.40 on its face, therefore, covered appellant's theory of the case. Of course, CALJIC No. 4.40 is meant to be given only in those situations in which the threats and menaces are employed by someone to coerce another person to commit a crime, with the result that the coercing party is liable for the crime. (People v. Petznick (2003) 114 Cal.App.4th 663, 676-678.) Appellant made no such argument, however, and it was highly improbable that the jury, given the facts of this case, would glean this interpretation from the language of the instruction.

Therefore, although in retrospect the trial court should perhaps have chosen to read the mistake of fact instruction, the error was harmless. Appellant was satisfied that the instruction given conveyed his theory of defense. Moreover, it is not reasonably probable the jury would have reached a different verdict had the mistake of fact or other requested instructions been given. (People v. Flood (1998) 18 Cal.4th 470, 489-490 [standard of prejudice of People v. Watson (1956) 46 Cal.2d 818, 836 applies to claim of instructional error]; see People v. Mayer (2003) 108 Cal.App.4th 403, 413 [any error in not giving the mistake-of-fact instruction was harmless under the miscarriage of justice standard].) Even if appellant's assertions that he took the car because he was afraid of the bystanders were plausible, his further actions belied this version of events. After appellant left the parking lot he kept driving instead of abandoning the vehicle out of sight of the bystanders and contacting the police. Appellant drove for approximately 35 blocks and ultimately led the police on a wild chase.

We conclude appellant was able to present his defense to the jury and the jury was adequately instructed. Therefore, there was no miscarriage of justice and no violation of appellant's constitutional rights.

III. Cumulative Error

Appellant contends that the combined effect of the trial court's errors prejudiced his right to a fair trial and reversal is required. We also find no merit in appellant's cumulative error argument. There has been no showing of cumulative prejudicial error of a degree sufficient to permit reversal. Our review of the record assures us that appellant received due process and a fair trial. (People v. Ashmus (1991) 54 Cal.3d 932, 1006.)


The judgment is affirmed.

We concur: BOREN, P. J., DOI TODD, J.

1. People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

2. Faretta v. California (1975) 422 U.S. 806 (Faretta).

3. CALJIC No. 4.35 provides: "An act committed or an omission made in ignorance or by reason of a mistake of fact which disproves any criminal intent is not a crime. [¶] Thus a person is not guilty of a crime if [he] [she] commits an act or omits to act under an actual [and reasonable] belief in the existence of certain facts and circumstances which, if true, would make the act or omission lawful."

4. CALJIC No. 4.43 provides: "A person is not guilty of a crime when [he] [she] engages in an act, otherwise criminal, through necessity. The defendant has the burden of proving by a preponderance of the evidence all of the facts necessary to establish the elements of this defense, namely: [¶] 1. The act charged as criminal was done to prevent a significant and imminent evil, name, [a threat of bodily harm to oneself or another person] [or] [_____]; [¶] 2. There was no reasonable legal alternative to the commission of the act; [¶] 3. The reasonably foreseeable harm likely to be caused by the act was not disproportionate to the harm avoided; [¶] 4. The defendant entertained a good-faith belief that [his] [her] act was necessary to prevent the greater harm; [¶] 5. That belief was objectively reasonable under all the circumstances; and [¶] 6. The defendant did not substantially contribute to the creation of the emergency."

5. CALJIC No. 4.45 provides: "When a person commits an act or makes an omission through misfortune or by accident under circumstances that show [no] [neither] [criminal intent [n]or purpose,] [nor] [[criminal] negligence,] [he] [she] does not thereby commit a crime."

6. Penal Code section 26 provides in pertinent part: "All persons are capable of committing crimes except those belonging to the following classes: [¶] . . . [¶] Three --Persons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent. [¶] . . . [¶] Five -- Persons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence. [¶] Six -- Persons (unless the crime be punishable with death) who committed the act or made the omission charged under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused."

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