Filed 5/17/13 P. v. Sands CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047159

         v.                                                            (Super. Ct. No. 11CF2061)

MICHAEL LAURENCE SANDS,                                                OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County,
M. Marc Kelly, Judge. Affirmed.
                   Richard Schwartzberg, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Kevin Vienna and
Heidi T. Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
                                          *                  *                  *
                                       INTRODUCTION
              Defendant Michael Laurence Sands appeals from the judgment entered
after a jury found him guilty of two counts of carjacking, two counts of second degree
robbery, two counts of assault with a semiautomatic firearm, and one count of making
criminal threats. The jury also found Sands personally used a firearm in the commission
of each of those offenses. Sands argues his convictions for assault with a semiautomatic
firearm must be reversed because the trial court erred by failing to instruct the jury that it
must find the semiautomatic firearm that he used was loaded.
              We affirm. The trial court properly instructed the jury with CALCRIM
No. 875 on the offense of assault with a semiautomatic firearm. That instruction
accurately informed the jury that before finding Sands guilty of assault with a
semiautomatic firearm, it must find that at the time Sands acted, “he had the present
ability to apply force with a semiautomatic firearm to a person.” Sands did not request
that the trial court provide any further clarification to the jury and thus forfeited the
argument that such clarification was required. Sands concedes substantial evidence
supported the reasonable inference the semiautomatic firearm was loaded at the time of
the offenses. We find no error.


                                            FACTS
              In July 2011, Matthew Stingley was employed by Seven Star Recovery
Services as a field repossession agent. Around 6:30 p.m. on July 24, Stingley was
driving through a mall parking lot, scanning license plates in search of “delinquent cars.”
When the license plate of a parked blue Honda was scanned, the alert on the computer
system in Stingley‟s car sounded. Stingley called the finance company connected to that
car, and obtained an order to repossess it. Stingley called his partner, Brian Mason, who
then drove a tow truck to the mall parking lot to recover the car.

                                               2
              After Stingley and Mason applied “go jacks” to the car, Stingley saw Sands
running through the parking structure toward them. Stingley told Mason, who had
already broken into the car, “I think our R.O. [(registered owner)] is coming out.” Mason
jumped into the car through the front passenger door and then moved over into the
driver‟s seat. Sands ran around Stingley, opened the driver‟s side door, and almost sat on
Mason as Sands tried to put the keys in the ignition. Mason grabbed Sands‟s hands and
tried to stop him from starting the car. Stingley successfully pulled Sands out of the car;
Mason remained sitting in the driver‟s seat.
              Sands stepped back, pulled out a pocketknife from his pocket, and
“flip[ped] it out” but held it down at his side. Stingley told Mason that the “R.O.” pulled
out a knife. Stingley asked Sands, “are you really going to pull a knife out on me?”
Sands “kind of stepped back,” looked at Stingley, and appeared to calm down. Stingley
testified Sands “put the knife even further back down at his side, and then proceeded to
ask [Stingley] if he could get his stuff out of his car.” Stingley said Sands could “get his
stuff.”
              Sands reached into a bag in the trunk, pulled out a semiautomatic handgun
(which he “pull[ed] . . . down to his side”), and said to Stingley, “get the fuck away from
my car.” Stingley backed up from the car and told Mason that Sands had a gun. Sands
approached Mason, who was still sitting in the driver‟s seat, and pointed the gun at
Mason‟s face. Mason testified Sands “told me to get the fuck out of the vehicle or he was
going to fucking shoot me.” Mason got out of the car and told Sands that he would get
his stuff out of the passenger side of the car. Sands said, “okay. Fine.” Mason picked up
his sunglasses and a tool, and closed the door.
              Sands started the car and punched the accelerator three times before the car
was free of the go jacks. He backed out of the parking structure in reverse. Mason got
into his truck and followed Sands before losing sight of him on a freeway. Sands was
arrested on August 2, 2011.

                                               3
                                PROCEDURAL BACKGROUND
              Sands was charged in an amended information with two counts of
carjacking in violation of Penal Code section 215, subdivision (a) (counts 1 and 2); two
counts of second degree robbery in violation of Penal Code sections 211 and 212.5,
subdivision (c) (counts 3 and 4); two counts of assault with a semiautomatic firearm in
violation of Penal Code section 245, subdivision (b) (counts 5 and 6); and two counts of
                                                                                  1
making criminal threats in violation of Penal Code section 422 (counts 7 and 8). (All
further statutory references are to the Penal Code.) The information contained multiple
prior conviction allegations, and also alleged that Sands personally used a firearm in the
commission of the carjacking and second degree robbery offenses pursuant to
section 12022.53, subdivision (b) and within the meaning of sections 1192.7 and 667.5.
The information further alleged that pursuant to section 12022.5, subdivision (a) and
within the meaning of sections 1192.7 and 667.5, Sands personally used a firearm in the
commission of the criminal threats offenses.
              The jury found Sands guilty as charged in the amended information of all
counts but count 7. The jury found true the personal use of a firearm enhancement
alleged as to counts 1, 2, 3, 4, and 8.
              The trial court sentenced Sands to a total prison term of 13 years, by
imposing the three-year low term for count 1 and a consecutive 10-year term for the
personal use of a firearm enhancement as to count 1. The court stayed execution of
sentence on counts 2, 3, 4, 5, 6, and 8, under section 654. The court struck the personal
use of a firearm enhancement as to counts 2, 3, 4, and 8 for purposes of sentencing.
              Sands appealed.


       1
         The amended information included two misdemeanor counts of brandishing a
firearm capable of being concealed upon the person in a public place in violation of Penal
Code section 417, subdivision (a)(2)(A). The trial court granted the prosecution‟s motion
to dismiss those two counts.

                                               4
                                        DISCUSSION
              The offense of assault with a semiautomatic firearm is codified at
section 245, subdivision (b), which provides: “Any person who commits an assault upon
the person of another with a semiautomatic firearm shall be punished by imprisonment in
the state prison for three, six, or nine years.” Section 240 defines assault as “an unlawful
attempt, coupled with a present ability, to commit a violent injury on the person of
another.”
              Here, the trial court instructed the jury on the offense of assault with a
semiautomatic firearm with CALCRIM No. 875, without any objection by Sands or the
prosecution, as follows: “The defendant is charged in Counts 5 and 6 with assault with a
semiautomatic firearm in violation of Penal Code section 245(b). [¶] To prove that the
defendant is guilty of this crime, the People must prove 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 that 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 the present ability to apply
force with a semiautomatic firearm to a person. . . . [¶] Someone commits an act willfully
when he does it willingly or on purpose. It is not required that he 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 slightest touching can be
enough if it is done in a rude or angry way. Making contact with another person,
including through his or her clothing, is enough. The touching does not have to cause
pain or injury of any kind. [¶] The touching can be done indirectly by causing an object
to touch the other person. [¶] The People are not required to prove that the defendant



                                              5
actually touched someone. [¶] The People are not required to prove that the defendant
actually intended to use force against someone when he acted. [¶] No one needs to
actually have been injured by defendant‟s act. But if someone was injured, you may
consider that fact, along with all the other evidence, in deciding whether the defendant
committed an assault, and if so what kind of assault it was. [¶] A firearm is any device
designed to be used as a weapon, from which a projectile is discharged or expelled
through a barrel by the force of an explosion or other form of combustion. [¶] A
semiautomatic pistol extracts a fired cartridge and chambers a fresh cartridge with each
single pull of the trigger.” (Italics added.)
              CALCRIM No. 875, as given to the jury here, accurately tracks the
language of sections 240 and 245, subdivision (b); Sands does not argue otherwise.
Citing People v. Rodriguez (1999) 20 Cal.4th 1 (Rodriguez), Sands contends that the
crime of assault with a semiautomatic firearm in violation of section 245, subdivision (b),
however, “requires proof that the firearm was loaded” and that the trial court erred by
failing to instruct the jury accordingly.
              In People v. Miceli (2002) 104 Cal.App.4th 256, 268 (Miceli), the appellate
court explained: “[T]he offense of assault with a semiautomatic firearm does not require
proof that the weapon was operable as a semiautomatic firearm (i.e., loaded); the crime
may also be committed by using the weapon as a bludgeon.” The Miceli court stated,
“nothing in section 245, subdivision (b), or in any apposite case law, indicates that assault
with a semiautomatic weapon requires proof the gun was operable as a semiautomatic at
the time of the assault. A person may commit an assault under the statute by using the
gun as a club or bludgeon, regardless of whether he could also have fired it in a
semiautomatic manner at that moment. [Citations.] [¶] „A firearm does not cease to be a
firearm when it is unloaded or inoperable.‟ [Citation.] This applies to semiautomatic
firearms as well as any other kind. When a clip is removed from a semiautomatic



                                                6
firearm, the firearm does not suddenly become a billy club, a stick, or a duck. [¶]
Furthermore, section 245, subdivision (b), does not say, „assault with a loaded
semiautomatic firearm‟—it says simply, „assault . . . with a semiautomatic firearm.‟ By
contrast, numerous provisions in the Penal Code plainly require that a firearm be loaded
as an element of an offense or a prerequisite to a specific sentence. . . . [¶] Thus the
Legislature knows how to specify that a firearm must be loaded in order for a criminal
statute to apply. It did not so specify in section 245, subdivision (b).” (Miceli, supra, at
p. 270.) Sands does not cite any legal authority showing that assault with a
semiautomatic firearm necessarily involves a loaded firearm.
              In a footnote in Rodriguez, supra, 20 Cal.4th at page 11, footnote 3, the
California Supreme Court acknowledged, “[a] long line of California decisions holds that
an assault is not committed by a person‟s merely pointing an (unloaded) gun in a
threatening manner at another person.” The Supreme Court in Rodriguez, however, did
not address “[t]he continuing viability of this rule” because it was not questioned in that
case. (Ibid.) In People v. Lochtefeld (2000) 77 Cal.App.4th 533, 542, footnote 10, the
appellate court called the rule an “anachronism” that the Supreme Court should
                         2
reexamine and discard. Thus, Rodriguez does not support Sands‟s proposition that
assault with a semiautomatic firearm in violation of section 245, subdivision (b) can only
be accomplished with a loaded firearm; Sands does not cite to any other case that
supports his position.



       2
          In People v. Lochtefeld, supra, 77 Cal.App.4th at page 542, footnote 10, the
appellate court stated: “This „operability‟ requirement is an anachronism which is
incompatible with the realities of a society in which the unlawful use of guns is a major
and continuing problem, and in light of the fact [citation] that both replica guns and real
but unloaded or otherwise inoperable guns pose to those threatened with them . . . an
identical sense of dread as does a loaded gun, as well as raising an identical likelihood of
a deadly response . . . , we urge our Supreme Court not only to reexamine the continuing
viability of this rule, which cannot serve any valid societal function, but to discard it.”

                                              7
              In any event, under the instruction given, the jury had to find that Sands had
the “present ability to apply force with a semiautomatic firearm to a person.” To the
extent Sands argues that the trial court should have further defined the “present ability”
element contained in CALCRIM No. 875 to require a loaded semiautomatic firearm, in
light of the absence of any evidence that Sands used or attempted to use the firearm as a
bludgeon-type weapon, any such argument is forfeited due to his failure to object to the
instruction or request further clarification of it by the trial court. In People v. Whalen
(2013) 56 Cal.4th 1, 81-82, the California Supreme Court stated, “„[a] trial court has no
sua sponte duty to revise or improve upon an accurate statement of law without a request
from counsel [citation], and failure to request clarification of an otherwise correct
instruction forfeits the claim of error for purposes of appeal.‟”
              Furthermore, Sands concedes substantial evidence supports the reasonable
inference that his semiautomatic firearm was indeed loaded. Sands‟s conduct of
retrieving the semiautomatic firearm from the trunk and telling Stingley to “get the fuck
away from my car,” and Mason to “get the fuck out of the vehicle” or he would shoot
Mason, supports the inference that Sands stood before Stingley and Mason ready to fire a
fully operable and loaded semiautomatic firearm unless they cooperated with his
demands. (Rodriguez, supra, 20 Cal.4th at p. 13 [“A defendant‟s own words and conduct
in the course of an offense may support a rational fact finder‟s determination that he used
a loaded weapon”].) In his opening brief, Sands states he “concedes that jurors could
have inferred that the firearm was loaded.” He does not otherwise mount any substantial
evidence to challenge his convictions.
              We find no error.




                                              8
                                 DISPOSITION
          The judgment is affirmed.


                                          FYBEL, J.

WE CONCUR:



MOORE, ACTING P. J.



ARONSON, J.




                                      9
