Filed 3/19/13 P. v. Locke CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F063520
         Plaintiff and Respondent,
                                                                                 (Madera Super. Ct. No.
                   v.                                                                MCR033665)

TYRIK LOCKE,
                                                                                         OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Madera County. Joseph A.
Soldani, Judge.
         Kendall Dawson Wasley, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne
LeMon, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                                INTRODUCTION
         Appellant/defendant Tyrik Locke (defendant) was charged with count I, battery
causing great bodily injury (Pen. Code,1 § 243, subd. (d)), and count II, criminal threats
         1   All further statutory citations are to the Penal Code unless otherwise indicated.
(§ 422), based on an incident where defendant punched and threatened Monica Galvan.
After a jury trial, defendant was convicted as charged in count I and, as to count II, he
was convicted of the lesser included offense of attempting to make a criminal threat
(§§ 664/422). He was sentenced to three years in prison.
       On appeal, defendant contends his conviction for attempted criminal threats must
be reversed because the jury was not properly instructed on the elements of the offense.
He also contends the court should have granted his motion to instruct the jury about
accident as a defense to battery. We will affirm.
                                          FACTS
       Defendant Tyrik “Ti” Locke, Monica Galvan, Robert “Bobby” Morales, and
“Rick” Alvarez had known each other for many years. Galvan was not dating defendant
or the others.
       On the evening of June 23, 2008, Galvan joined defendant, Morales, and Alvarez
for an evening at Chukchansi Casino to celebrate their recent birthdays. Morales drove
the group from Fresno to the casino in his two-door Honda Accord coupe. They spent
several hours socializing and drinking, and everyone got along with one another. They
had smoked marijuana earlier in the evening.
       After several hours, Galvan and the three men left the casino. As they walked to
Morales‟s car, defendant and Galvan were “kind of flirting a little bit.” The flirting
stopped when defendant approached and talked to another woman. Defendant then
joined the others in Morales‟s car. Morales was the driver, and defendant sat in the front
passenger seat. Galvan sat behind the driver, and Alvarez was behind defendant.
       As Morales drove back to Fresno, Galvan asked defendant about the woman.
Galvan described it as “friendly banter” and “not anything aggressive.” Galvan and
defendant were exchanging “friendly insults” with each other.
       As the drive continued, however, Galvan testified that defendant became upset and
“proceeded to get a little irate” at her. Defendant turned around to look over his shoulder

                                             2.
at Galvan. He became “[p]rogressively” angry, started yelling, and then went “on a
rampage.”
       Galvan tried to calm defendant, and explained that she did not mean to offend him.
However, defendant became more upset and continued his verbal rant. Defendant turned
around in the front seat so that he faced her in the backseat. Defendant said “very, very
ugly, ugly” and hurtful things to her. Galvan thought defendant was intoxicated because
he did not seem like himself. Galvan testified that neither Morales nor Alvarez
intervened.
       Galvan testified that defendant yelled at her for about 20 to 25 minutes.
Defendant turned around and was about halfway into the backseat. Galvan looked down
and tried to ignore him. Galvan testified that defendant suddenly punched her in the
mouth and nose. Galvan did not see the punch coming since she was looking down.
“My nose was split all the way up and my teeth were broken,” and her two front teeth fell
into her hand. Galvan looked up and saw defendant kneeling on the front seat, facing
her, and he was “trying to get to me again.”
       Galvan was crying and screaming at defendant, “ „Look at – look what you did.‟ ”
Alvarez, who was sitting next to Galvan in the back seat, got completely on top of Galvan
to protect her from defendant. Alvarez grabbed defendant‟s left arm, and used his weight
to push Galvan down to the floor. Galvan believed Alvarez saved her life. Morales, the
driver, grabbed defendant‟s right arm, and kept driving as he held onto defendant.
       Galvan testified that it took another 8 to 10 minutes to get to Fresno. During that
time, defendant repeatedly said: “ „I‟m going to kill this bitch.‟ ” Galvan was afraid
because defendant “was really trying to kill me and I thought he was.”
       Galvan testified that when they arrived in Fresno, Morales pulled into the
shopping center where Alvarez had parked his car earlier in the evening. Morales opened
his driver‟s door while the car was still rolling. Morales and Alvarez pulled Galvan out



                                               3.
of the backseat without moving the driver‟s seat forward. Alvarez held Galvan, took her
to his car, and drove her home. Galvan called the police as soon as she got home.
Initial investigation
       On June 24, 2008, Officer Glenn Turk responded to Galvan‟s residence and
interviewed her about the assault. Galvan was “still upset from being assaulted.” There
was dried blood on her nose, and she had at least two chipped teeth. Turk testified her
facial injuries were consistent with being punched.
       Officer Turk testified that Morales arrived at Galvan‟s residence during the
interview. Turk separately interviewed Morales, who was quite a bit calmer than Galvan.
Morales said that defendant had been very drunk that night. Morales said that Galvan
and defendant argued because she thought defendant “could do better” than the women
who he was dating, and defendant kept calling Galvan a “bitch.” Morales said that
defendant threatened Galvan. Galvan kept asking defendant why he was “disrespecting
her.” Morales saw defendant punch Galvan once in the face with his fist. Morales and
Alvarez held back defendant because he was trying to hit her again. Morales said they
held down defendant until he finally stopped resisting.
       On June 30, 2008, Sergeant Jason Clark interviewed Morales, who said that
defendant and Galvan argued in the car; defendant turned around in the front seat and
faced Galvan in the back seat; Morales knew something happened based on things that
defendant and Galvan said. Alvarez tried to shield Galvan, and Morales grabbed
defendant‟s arm to hold him back. Defendant continued to yell at Galvan, and he
repeatedly told her to shut up. During this second interview, Morales did not say
anything about defendant making threats to Galvan.
Additional prosecution evidence
       Galvan testified she went to the emergency room for her facial injuries, and she
subsequently needed multiple dental treatments to deal with her broken and chipped



                                            4.
teeth. She also suffered a gash on her nose, with the skin split open “quite deeply” from
the bottom of the inner nostril almost to her sinuses.
       Galvan testified that a couple of days after the assault, Alvarez told her that
defendant was getting scared. Alvarez advised Galvan that defendant offered to pay for
the damage to Galvan‟s teeth. Galvan testified that she replied no, that she had “just
spent $10,000 on my teeth six months prior [for unrelated dental work] and hell no, not
even for $100,000 I would ever .…” Galvan denied that she made a statement that “this
could go away” for $10,000.
       Galvan testified that when she was interviewed by the police, she gave them
Alvarez‟s contact information. After the police interviewed Alvarez, he called her and he
“cursed me out to the highest” for “sending the cops to his house.” Galvan testified that
she was no longer friends with Morales or Alvarez because they remained friends with
defendant, and she felt betrayed.
Morales’s trial testimony
       Morales testified as a prosecution witness that defendant was still his friend, and
he did not want to testify. Morales claimed that he could not recall making any prior
statements about the incident, or saying that defendant punched Galvan in the face.
Instead, Morales testified that defendant and Galvan had a friendly disagreement during
the drive back to Fresno. He did not get involved because it was personal between them.
Morales testified that at some point, Galvan‟s attitude changed, she became “more
violent” towards defendant, and they were “verbally aggressive towards each other.”
Morales testified that defendant did not sit up on his seat. Morales knew something
happened but did not see it, and he never saw any blood. Morales could not recall
holding defendant‟s arm or restraining him.
       Morales testified that defendant never threatened to kill Galvan. Morales further
testified that on a later occasion, he was at Galvan‟s apartment and heard her say: “ „For
$10,000, this can go away.‟ ”

                                              5.
                                 DEFENSE EVIDENCE
Testimony of Alvarez
       Alvarez testified as a defense witness and said that he did not want to appear at
trial. Alvarez testified that during the drive from the casino, everyone was joking and
insulting each other. Galvan criticized “the genre of girls [defendant] liked,” and things
became a little tense between them. Defendant responded about “the genre of guys she
liked,” and Galvan did not like that. Defendant might have called her a “bitch,” and
Galvan used a racial expletive toward him. Alvarez never saw defendant get out of his
seat or try to get into the back seat. He thought defendant was rolling a marijuana joint
on his lap. He never saw defendant punch Galvan. However, something happened and
her teeth came out.
       Alvarez denied that he had to protect Galvan from defendant. Alvarez said he
never got on top of her, and he never saw any blood. Defendant and Galvan exchanged
more words. Galvan was upset and things remained tense. When they arrived in Fresno,
Alvarez drove Galvan back to her house and tried to calm her down. Galvan was upset
because of how her teeth looked.
       Alvarez admitted that after the police interviewed him, he called Galvan and
complained that she gave his name to the officers. He never cursed or yelled at her. He
knew Galvan was angry at him, but he did not know why.
Defendant’s trial testimony
       Defendant testified that he did not drink any alcohol when he was at the casino,
and he could not recall anyone else drinking. However, he gave some money to Galvan
so she could buy drinks. During the ride back to Fresno, he moved his front seat forward
to give Alvarez more room in the backseat. Defendant wore his seatbelt during the trip.
       Defendant testified that they talked and joked during the drive. Galvan made
jokes about the type of women who defendant was dating, and she used a racial expletive
but not in a derogatory manner. However, he revealed a secret that had been between

                                             6.
defendant and Galvan, and Galvan became upset. Galvan told defendant not to say that
anymore. She yelled at him not to call her a “bitch,” and threatened to slap him if he did
so again.
       Defendant testified that he was being “childish” and “just egged her on.” Galvan
screamed at him. He felt Galvan get out of her seat and come up from behind him. He
saw a sudden movement from his peripheral vision, and thought she was going to slap
him. He “threw up” his elbow as “more of a flinch” or reaction as opposed to trying to
hit someone. “I felt she was going to slap me, so I just put my elbow up to protect my
face.” Defendant said he was “absolutely not” trying to hit her in the face.2
       Defendant testified he looked into the backseat and saw defendant holding her
mouth. The car became quiet because they were concerned about Galvan‟s “well-being
at that point,” although they did not take her for any medical treatment. Defendant
testified he did not get out of his seat or threaten Galvan. Defendant testified that when
they arrived in Fresno, Galvan did not climb out of the backseat while the car was still
rolling.
       Defendant testified he was still friends with Morales and Alvarez, but he no longer
had any contact with Galvan. It was stipulated that defendant was convicted of a
misdemeanor crime of moral turpitude in February 2000.
                                      DISCUSSION
I. Instructions on attempted criminal threat
       Defendant was charged in count II with criminal threat, based on his statements to
Galvan in the car. The jury was instructed that attempted criminal threat was a lesser
included offense of count II. Defendant was found not guilty of a criminal threat but
convicted of the lesser included offense of an attempted criminal threat.

       2In section II, post, we will fully address defendant‟s trial testimony about what
happened in the car, and whether the court should have instructed on accident as a
defense to count I, battery causing serious bodily injury.


                                             7.
       On appeal, defendant contends his due process rights were violated, and his
conviction for attempted criminal threat must be reversed, because the court failed to
fully instruct the jury on the elements of the lesser included offense – particularly
whether the defendant‟s intended threat “reasonably could have caused [the victim] to
suffer sustained fear.”
       A. Criminal threats
       We begin with the statutory definitions of the relevant offenses. In order to prove
the offense of criminal threat in violation of section 422, the prosecution has the burden
of proving five elements:

       “(1) [T]hat the defendant „willfully threaten[ed] to commit a crime which
       will result in death or great bodily injury to another person,‟ (2) that the
       defendant made the threat „with the specific intent that the statement ... is to
       be taken as a threat, even if there is no intent of actually carrying it out,‟ (3)
       that the threat – which may be „made verbally, in writing, or by means of
       an electronic communication device‟ – was „on its face and under the
       circumstances in which it [was] made, ... so unequivocal, unconditional,
       immediate, and specific as to convey to the person threatened, a gravity of
       purpose and an immediate prospect of execution of the threat,‟ (4) that the
       threat actually caused the person threatened „to be in sustained fear for his
       or her own safety or for his or her immediate family‟s safety,‟ and (5) that
       the threatened person‟s fear was „reasonabl[e]‟ under the circumstances.
       [Citation.]” (People v. Toledo (2001) 26 Cal.4th 221, 227-228 (Toledo); In
       re George T. (2004) 33 Cal.4th 620, 630.)
       Section 422 is not unconstitutionally overbroad because it is narrowly tailored to
true threats, which are not protected by the First Amendment. (Toledo, supra, 26 Cal.4th
at p. 233.)
       B. Attempted criminal threat
       The California Supreme Court has held that “there is a crime of attempted criminal
threat in this state, defined through the interplay of section 422 and the statutory
provisions relating to attempts,” i.e., sections 21a and 664. (Toledo, supra, 26 Cal.4th at
p. 230.) Section 664, which defines attempt, “provides that „[e]very person who attempts
to commit any crime‟ (italics added) is subject to the criminal punishment set forth in that

                                               8.
provision, and this language on its face thus includes those who attempt to commit the
crime of criminal threat set forth in section 422.” (Id. at p. 230.)

       “[A] defendant properly may be found guilty of attempted criminal threat
       whenever, acting with the specific intent to commit the offense of criminal
       threat, the defendant performs an act that goes beyond mere preparation and
       indicates that he or she is putting a plan into action. Furthermore, in view
       of the elements of the offense of criminal threat, a defendant acts with the
       specific intent to commit the offense of criminal threat only if he or she
       specifically intends to threaten to commit a crime resulting in death or great
       bodily injury with the further intent that the threat be taken as a threat,
       under circumstances sufficient to convey to the person threatened a gravity
       of purpose and an immediate prospect of execution so as to reasonably
       cause the person to be in sustained fear for his or her own safety or for his
       or her family‟s safety.” (Id. at pp. 230-231, italics added.)
       Toledo further held that the offense of attempted criminal threat was not
unconstitutionally overbroad, and explained that such an argument “misconceives the
general circumstances to which the crime of attempted criminal threat ordinarily will
apply.” (Toledo, supra, 26 Cal.4th at p. 233.)
       Toledo noted that there were a “variety of potential circumstances” which fell
within the offense of attempted criminal threat, and provided three examples “of some of
the most common situations that would support a conviction of attempted criminal
threat.” (Toledo, supra, 26 Cal.4th at pp. 231, 234.) First, “if a defendant takes all steps
necessary to perpetrate the completed crime of criminal threat by means of a written
threat, but the crime is not completed only because the written threat is intercepted before
delivery to the threatened person, the defendant properly may be found guilty of
attempted criminal threat.” (Id. at p. 231, italics added.)
       Second, “if a defendant, with the requisite intent, orally makes a sufficient threat
directly to the threatened person, but for some reason the threatened person does not
understand the threat, an attempted criminal threat also would occur.” (Toledo, supra,
26 Cal.4th at p. 231, italics added.)



                                              9.
       Third, “if a defendant, again acting with the requisite intent, makes a sufficient
threat that is received and understood by the threatened person, but, for whatever reason,
the threat does not actually cause the threatened person to be in sustained fear for his or
her safety even though, under the circumstances, that person reasonably could have been
placed in such fear, the defendant properly may be found to have committed the offense
of attempted criminal threat.” (Toledo, supra, 26 Cal.4th at p. 231, italics in original.)
       Toledo explained that in these situations, “only a fortuity, not intended by the
defendant, has prevented the defendant from perpetrating the completed offense of
criminal threat itself.” (Toledo, supra, 26 Cal.4th at p. 231.)

       “[I]n most instances the crime of attempted criminal threat will involve
       circumstances in which the defendant in fact has engaged in all of the
       conduct that would support a conviction for criminal threat, but where the
       crime of criminal threat has not been completed only because of some
       fortuity outside the defendant‟s control or anticipation (for example,
       because the threat is intercepted or not understood, or because the victim
       for some reason does not actually suffer the sustained fear that he or she
       reasonably could have sustained under the circumstances). In each of
       these situations, a defendant who is convicted of attempted criminal threat
       will be held criminally responsible only for speech that clearly is not
       constitutionally protected, and thus it is evident that in these instances a
       conviction of attempted criminal threat will pose no constitutional
       problems.” (Id. at p. 234, first italics in original, second italics added.)
       With these standards in mind, we turn to the instructions given in this case and
defendant‟s claim of error.
       C. Instructions
       In the instant case, defendant was charged in count II with the crime of criminal
threat in violation of section 422. The jury was instructed that count II, criminal threat,
and attempted criminal threat as a lesser included offense, required a specific intent or
mental state, that the person “must not only intentionally commit the prohibited act, but
must do so with a specific intent and/or mental state. The act and the specific intent




                                             10.
and/or mental state required are explained in the instructions for that crime.” (CALCRIM
No. 252.)
       As to count II, the jury was instructed with CALCRIM No. 1300, that the
prosecution had the burden of proving the following elements of violating section 422,
criminal threat:

       “[O]ne, the defendant willfully threatened to kill or unlawfully cause great
       bodily injury to Monica Galvan; the defendant made the threat orally; the
       defendant intended that his statement be understood as a threat; and
       intended that it be communicated to Monica Galvan; the threat was so
       clear, immediate, unconditional, and specific, that it communicated to
       Monica Galvan a serious intention and the immediate prospect that the
       threat would be carried out; the threat actually caused Monica Galvan to be
       in sustained fear for her own safety; and Monica Galvan‟s fear was
       reasonable under the circumstances.

              “Someone commits an act willfully when he or she does it willingly
       or on purpose. In deciding whether a threat was sufficiently clear,
       immediate, unconditional and specific, consider the words themselves as
       well as the surrounding circumstances. Someone who intends that a
       statement be understood as a threat does not have to actually intend to carry
       out the threatened act. [¶] … [¶]

               “Sustained fear means fear for a period of time that is more than
       momentary, pleading or transitory. An immediate ability to carry out the
       threat is not required.”
       The jury was also instructed with CALCRIM No. 460, that attempted criminal
threat was a lesser included offense of count II, and that the prosecution had the burden
of proving the following elements:

               “To prove that the defendant is guilty of this crime, the People must
       prove that one, the defendant took a direct but ineffective step towards
       committing criminal threats; and, two, the defendant intended to commit
       criminal threats. A direct step requires more than mere planning or
       preparing to commit the criminal threats or obtaining or arranging for
       something needed to commit criminal threats. A direct step is one that goes
       beyond planning and preparation and shows that a person is putting his or
       her plan into action. A direct step indicates a definite and unambiguous
       intent to commit criminal threats. It is a direct movement towards the
       commission of the crime after preparations are made. It is an immediate
                                            11.
       step that puts the plan in motion so that the plan would have been
       completed if some circumstance outside the plan had not undirected the
       attempt.

              “The person who attempts to commit criminal threats is guilty of
       attempted criminal threats even if after taking a direct step towards
       committing the crime, he or she abandoned further efforts to complete the
       crime or if his or her attempt failed or was interrupted by someone or
       something beyond his or her control. On the other hand, if a person freely
       and voluntarily abandons his or her plans before taking a direct step
       towards committing criminal threats, then that person is not guilty of
       attempted criminal threats. To decide whether the defendant intended to
       commit the criminal threats, please refer to the separate instruction [on
       criminal threats].” (Italics added.)
       D. The jury’s question about count II
       During deliberations, the jury asked the following question:

       “[W]e request a clarification of what Penal Code 664 differs from [section]
       422 in writing.”
The court stated that the jury had attached CALCRIM No. 1300, the definition of
criminal threats, to the question.
       The court interpreted the jury‟s question as meaning that it wanted to know “the
difference between Count 2 and the lesser included of Count 2, the attempted 422. They
do have a jury instruction they have my copy.…” The court decided to answer the jury‟s
question by again providing it with CALCRIM No. 460, and explaining that it was the
instruction that defined attempted criminal threats. Neither the district attorney nor
defense counsel objected.
       The court gave the following written response to the jury, and attached CALCRIM
No. 460 to the written response:

       “Attached to this is jury instruction number 460, which describes the crime
       of [sections] 664/422, attempted criminal threats.”
       The jury found defendant not guilty of count II, criminal threats, but guilty of
attempted criminal threats as a lesser included offense.



                                            12.
       E. Jackson
       Defendant contends the jury instructions in this case were erroneous based on
People v. Jackson (2009) 178 Cal.App.4th 590 (Jackson), which interpreted Toledo,
supra, 26 Cal.4th 221 and attempt, and that the jury in this case should have been
instructed that any fear felt by the victim was reasonable in order to convict defendant of
attempt.
       In Jackson, the landlords asked the defendant to leave the apartment where he had
been staying. He refused and threatened to get a rifle and “ „blow‟ ” the “ „heads off‟ ” of
the two landlords. (Jackson, supra, 178 Cal.App.4th at p. 594.) The defendant was
charged with two counts of criminal threats. The jury was instructed that attempted
criminal threats were lesser included offenses and received the pattern instructions for
attempt and the substantive offense. (Id. at pp. 593, 598-599.) The defendant was not
convicted of the charged offenses but was convicted of two counts of attempt as lesser
included offenses. (Id. at p. 593.)
       Jackson addressed the defendant‟s appellate arguments that the trial court erred by
failing to instruct the jury sua sponte that, “in order to find him guilty of attempted
criminal threat, it must find that „it would have been reasonable for a person to have
suffered sustained fear as a result of the threat under the circumstances of this case.‟ ”
(Jackson, supra, 178 Cal.App.4th at p. 595.) The People responded that when a
defendant has done everything he needs to do to complete the crime of criminal threat,
but did not achieve his intended result, he has committed an attempted criminal threat
regardless of whether the intended threat reasonably could have caused the target to
suffer sustained fear. (Id. at pp. 595-596.)
       Jackson rejected the People‟s argument “because the Supreme Court‟s definition
of the crime of attempted criminal threat expressly includes a reasonableness element,”
based on its interpretation of Toledo. (Jackson, supra, 178 Cal.App.4th at p. 596.)
Jackson held that the jury instructions were erroneous because the reasonableness

                                               13.
element was included only in the instruction which defined the substantive offense, and
not in the separate instruction on attempt. (Id. at pp. 599-600.) Thus, the “jury was not
instructed to consider whether the intended threat reasonably could have caused sustained
fear under the circumstances.” (Id. at p. 599.) “By insisting that the intended threat be
evaluated from the point of view of a reasonable person under the circumstances of the
case, we can insure that punishment will apply only to speech that clearly falls outside
First Amendment protection.” (Id. at p. 598.)
       Jackson held the instructional error was prejudicial because the jury must have
found that the defendant made threats and intended them to be taken as threats, but also
found “that one or both of the last two elements of the completed crime was missing,…”
(Jackson, supra, 178 Cal.App.4th at p. 600.) Jackson noted that the evidence would have
supported findings that one or both elements were missing. (Ibid.) Thus, the jury could
have concluded that the victims did not suffer sustained fear, i.e., the jury might not have
believed the victims‟ testimony that they feared for their lives. Such a scenario would
have supported a conviction of attempted criminal threats only upon a finding that a
reasonable person could have suffered fear in those circumstances, something the jury
was not asked to decide. (Id. at p. 600.) Alternatively, the jury could have concluded
that the victims‟ fear was unreasonable under the circumstances, i.e., the victims were
safely inside the house with a telephone to call the police while the defendant sat out
front. This alternate scenario would have been legally insufficient to support an
attempted criminal threat conviction. (Ibid.)
       Jackson thus expanded on Toledo by affirmatively requiring the trial court to
instruct the jury that, on a charge of attempted criminal threat, it must decide whether the
“intended threat reasonably could have caused sustained fear under the circumstances.”
(Jackson, supra, 178 Cal.App.4th at p. 599.) Jackson reversed the defendant‟s conviction
because such an instruction was not given, and the jury could have concluded that



                                            14.
defendant‟s statements could not have reasonably caused the victims to suffer sustained
fear. (Id. at p. 600.)
       F. Analysis
       Defendant contends that the court erroneously instructed the jury with the pattern
instructions of CALCRIM Nos. 1300 and 460, as to the elements of attempted criminal
threat. Defendant argues that Jackson required the court to separately instruct the jury
that to convict him of attempt, it had to find that it would have been reasonable for a
person to have suffered sustained fear as a result of the threat under the circumstances of
the case. Defendant further argues the claimed error is prejudicial because the jury in this
case could have reached the same conflicting conclusions as the jury in Jackson.
       Jackson is distinguishable from the instant case. Jackson noted that the jury in
that case may have found the defendant‟s statements – that he was going to blow off the
landlords‟ heads – did not reasonably cause the victims fear under the circumstances
because they were “safely inside the house with a telephone to call the police while
defendant sat out front,” and further characterized defendant‟s statements as “outlandish.”
(Jackson, supra, 178 Cal.App.4th at p. 600.) In contrast, defendant‟s statements in the
instant case – that he was going to kill Galvan – were made in the close confines of a
compact car, immediately after he had turned around in the front seat and punched
Galvan as she sat in the back seat. Unlike the victims in Jackson, Galvan was not in a
place of safety or able to call for help, and she was completely at the mercy of Morales
and Alvarez, who apparently protected her until they reached Fresno. Given defendant‟s
violent physical and verbal behavior, and the injuries sustained by Galvan, it could only
have been reasonable for a person in Galvan‟s situation to feel fear at the time that
defendant made the statements. In light of the evidence, defendant‟s conviction for
attempt cannot be attributed to the omission of a specific jury instruction requiring the
jury to find the victim‟s fear was reasonable, and any error would be harmless. (People
v. Flood (1998) 18 Cal.4th 470, 502-503.)

                                            15.
       We thus conclude that to the extent the jury instructions may have been incorrect,
any error is necessarily harmless under any standard given the nature and circumstances
of the threat in this case.3
II. Instructions on accident
       Defendant next contends the court should have granted his motion to instruct the
jury on accident as a defense to count I, battery causing serious bodily injury. Defendant
contends his trial testimony supported the instructional request because he testified that
he “flinched” in reaction to Galvan‟s movements in the backseat, thus negating his intent.
       A. Defendant’s trial testimony
       As set forth ante, defendant testified at trial to a vastly different version of events
from Galvan‟s description of what happened in the car. Defendant testified that Galvan
was screaming at him because he had revealed a secret that had been between them.
Defendant felt Galvan “was coming up behind me because she was upset about the
comment I made, she said that if I said the bitch word again, that she would slap me.”
Defendant testified that he “just egged her on” and he was “being childish.”

               “Q     And then what?

               “A    I – as I proceeded to egg her on, I felt a sudden movement and
       I just threw my elbow up and –

               “Q     Okay.

               “A     And I looked back and she was holding her mouth.

               “Q     You say you felt a sudden movement. Was it kind of moving
       in the air or was it a sight through your peripheral vision?




       3 We note that the California Supreme Court recently granted a petition for review
in People v. Chandler (review granted Feb. 13, 2013, S207542). Chandler strongly
criticized and disagreed with Jackson‟s holding about the instructions required for
attempting to make criminal threats.


                                              16.
              “A     It was a little bit of both. Like I said, it‟s – I already felt her
       out of her seat. Besides her, you know, her – her voice escalated. You can
       tell when somebody‟s right behind you or if they‟re further away.

               “Q     Okay. [¶] Now, you say you threw your elbow out, were you
       trying to hit somebody or was it just a flinch?

               “A     It was more of a flinch because I thought that she was going
       to slap me because I called her a bitch one last time. And I didn’t just call
       her a bitch, I – I used it in an egg-ish kind of fashion. I said ‘bitch’ and I
       felt that she was going to slap me, so I just put my elbow up to protect my
       face.

              “Q     Was that a conscious decision that, okay, you‟re going to
       stick your elbow in somebody‟s face, or was it more of just a flinch?

              “A     Just a flinch.

              “Q     Were you trying to hit her in the mouth?

              “A     Oh, absolutely not.” (Italics added.)
       On cross-examination, defendant testified that Galvan said she was “going to slap
me” just before he felt “the sudden movement” behind him. Defendant felt Galvan‟s
“presence lunging forward,” but he never felt slapped.

       “Q     Now, you stated that you threw your elbow up and you stated that
       was to block?

       “A     It was a reaction, a flinch.”
Defendant testified that he tried to protect the side of his face from Galvan.
       B. The instructions
       During the instructional phase, the court asked the parties whether it should give
CALCRIM No. 3404 on “accident.” The court read the proposed instruction:

       “ „The defendant is not guilty of the crimes charged in the Information or
       any lesser included offenses if he acted without the intent required for that
       crime but acted instead accidentally. You may … not find the defendant
       guilty of the crimes unless you are convinced beyond a reasonable doubt
       that he acted with the required intent.‟ ”



                                              17.
       The prosecutor objected to CALCRIM No. 3404 because defendant testified he
was “moving to block himself from being hit. It was not an accidental movement.”
Defense counsel said that it was “unclear exactly … what was going on, but I think there
was an element of defending self from this person suddenly showing up and there was
also an element of accident. He didn‟t mean to actually make contact with her.” Defense
counsel believed the court should instruct on both accident and self-defense.
       The court replied that defendant said he “raised his arm to protect himself. It
sounds like self-defense. It doesn‟t sound like an accident. It‟s not like he was leaning
over to tie his shoe and bumped somebody‟s head. This is where he put his arm in that
location so that anybody coming forward would be hit or would be blocked. It does not
appear to sound like an accident to me.”
       Defense counsel argued that defendant said “it was a flinch,” and “a reasonable
jury could find either way.” The court replied that defendant testified “the purpose of
that flinch, it wasn‟t an action that just occurred without thinking. He put his hand there
in order to block … any blows that might come towards him. I mean, to me, it sounded
intentional is what he was saying.” Defense counsel again argued that defendant said he
moved without thinking. The prosecutor replied that it might have been a reflex motion,
but defendant was trying to cover his face and he never admitted being in contact with the
victim.
       The court decided to instruct the jury on self-defense, but held that the accident
instruction was not supported by the evidence.
       C. Analysis
       Defendant contends the court committed reversible error by failing to grant his
motion to instruct the jury about accident pursuant to CALCRIM No. 3404. A court does
not have a sua sponte duty to instruct on an accident defense, but it must give a pinpoint
instruction on the defense when it is requested and supported by the evidence. (People v.
Anderson (2011) 51 Cal.4th 989, 996-998 (Anderson).) “In determining whether the

                                            18.
evidence is sufficient to warrant a jury instruction, the trial court does not determine the
credibility of the defense evidence, but only whether „there was evidence which, if
believed by the jury, was sufficient to raise a reasonable doubt .…‟ [Citations.]” (People
v. Salas (2006) 37 Cal.4th 967, 982-983.) Given defendant‟s instructional request in this
case, we must thus determine whether there was substantial evidence to support
CALCRIM No. 3404, and the court should have given the instruction as a defense to the
charged offense of battery.
       The crime of assault requires that the defendant commit an act that by its nature
will probably result in the application of wrongful physical force on another, and the
crime of battery requires that the defendant actually apply this force on another. (People
v. Williams (2001) 26 Cal.4th 779, 782 (Williams); People v. Marshall (1997) 15 Cal.4th
1, 38; People v. Colantuono (1994) 7 Cal.4th 206, 214 & fn. 4, 216 (Colantuono).)
Assault and battery are general intent crimes, requiring that the defendant commit the
proscribed act willfully, i.e., on purpose. (Williams, supra, 26 Cal.4th at pp. 782, 785;
Colantuono, supra, 7 Cal.4th at pp. 213-214; People v. Lara (1996) 44 Cal.App.4th 102,
107 (Lara).) Further, the defendant must have had knowledge of facts that would lead a
reasonable person to realize the application of force was likely to result from the act.
(Williams, supra, 26 Cal.4th at p. 788.)
       Section 26 provides: “All persons are capable of committing crimes except those
belonging to the following classes: [¶] ... [¶] 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.” (Italics added.) “The accident
defense amounts to a claim that the defendant acted without forming the mental state
necessary to make his or her actions a crime. [Citations.]” (Lara, supra, 44 Cal.App.4th
at p. 110.) “The defense appears in CALCRIM No. 3404, which explains a defendant is
not guilty of a charged crime if he or she acted „without the intent required for that crime,
but acted instead accidentally.‟ ” (Anderson, supra, 51 Cal.4th at p. 996.)

                                             19.
       The defense of accident may be raised to rebut the mental element of the charged
offense. (Anderson, supra, 51 Cal.4th at p. 998.) Thus, an accident defense can apply to
charges of assault or battery when the defendant unwillingly or unknowingly (i.e.,
accidentally) directed force towards, or touched, the victim. (Lara, supra, 44
Cal.App.4th at p. 106; People v. Gonzales (1999) 74 Cal.App.4th 382, 385, 390,
disapproved on other grounds in Anderson, supra, 51 Cal.4th at p. 998, fn. 3 [accident
instruction supported by evidence showing defendant accidentally struck victim with
door when he entered room as victim was leaving].)
       As applied to the instant case, defendant tried to characterize the movement of his
arm as an alleged “flinch,” but he repeatedly admitted that he raised his arm to protect
himself from what he believed was Galvan‟s attempt to slap him in response to his
repeated and “childish” name-calling. Even under defendant‟s version of the incident,
there are no facts showing his movement towards the victim was accidental or without
knowledge of the relevant facts. Instead, defendant moved his arm out of his own
volition to protect himself based on his belief that Galvan was moving forward to slap
him.
       Defendant‟s trial testimony did not support the accident instruction, but the court
properly instructed the jury with CALCRIM No. 3470 on self-defense, as follows:

              “The defendant acted in lawful self-[defense] if, one, the defendant
       reasonably believed that he was in imminent danger of being touched
       unlawfully; two, the defendant reasonably believed that the immediate use
       of force was necessary to defend against the danger; and, three, the
       defendant used no more force than was reasonably necessary to defend …
       against that danger.

               “Belief in future harm is not sufficient, no matter how great or how
       likely the harm is believed to be. The defendant must have believed there
       was imminent danger of violence to himself. Defendant‟s belief must have
       been reasonable and he must have acted because of that belief.

             “The defendant is only entitled to use that amount of force that a
       reasonable person would believe is necessary in the same situation. If the

                                            20.
     defendant used more force than was reasonable, the defendant did not act in
     lawful self-defense.

             “When deciding whether the defendant‟s belief was reasonable,
     consider all of the circumstances as they were known to you and appeared
     to the defendant and consider … what a reasonable person in a similar
     situation with similar knowledge would have believed.

            “If the defendant‟s belief were reasonable, the danger does not need
     to have actually existed.

            “A defendant is not required to retreat. He is or she is entitled to
     stand his or her ground and defend himself and if reasonably necessary to
     pursue an assailant until the danger of unlawful touching has passed.

            “This is so even if safety could have been achieved by [retreating].

             “The People have the burden of proving beyond a reasonable doubt
     that the defendant did not act in lawful self-defense.…”
                                   DISPOSITION
     The judgment is affirmed.

                                                              _____________________
                                                              Poochigian, J.
WE CONCUR:


 _____________________
Cornell, Acting P.J.


 _____________________
Kane, J.




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