IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
September 16, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
SHANNON CHAPMAN, DEFENDANT AND APPELLANT.
(Super. Ct. No. 10F03332)
The opinion of the court was delivered by: Raye , P. J.
P. v. Chapman
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following a jury trial, defendant Shannon Chapman was convicted of assault with a firearm (Pen. Code, § 245, subd. (a)(2))*fn1 with enhancements for personally using a firearm (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)(1)), discharge of a firearm at an unoccupied motor vehicle (§ 247, subd. (b)), negligent discharge of a firearm (§ 246.3), and possession of a firearm by a convicted felon (§ 12021, subd. (a)). The trial court sentenced defendant to eight years four months in state prison, plus a consecutive eight-month term in an unrelated case.
On appeal, defendant contends (1) the standard instruction on assault with a firearm (CALCRIM No. 875) impermissibly lowers the People's burden of proof, (2) there was insufficient evidence to convict him of assault with a firearm, (3) part of the restitution award was unauthorized, and (4) ineffective assistance of counsel. We shall vacate the restitution order and remand for a new restitution hearing. In all other respects, we affirm.
Patrick Alexander and defendant were friends who lived in the same neighborhood. Defendant's girlfriend, Malena Duncan, lived with Alexander. David Maddox was a friend of Alexander, defendant, and Duncan.
On the morning of May 9, 2010, Alexander was in his Rio Linda home with Maddox and another person. Defendant and Duncan pulled up in defendant's red Chevrolet Tahoe sport utility vehicle (SUV) and parked across the street, where they talked for about 10 to 20 minutes. Alexander decided to go outside and talk to defendant about fixing the front door to the house, which defendant had broken during an argument with Duncan a few days earlier.
Alexander approached and asked defendant if he was going to fix the door. Defendant lowered his sunglasses and said, "I'll get right on that." Thinking defendant was teasing him, Alexander asked defendant, "Are you fucking with me?" to which defendant replied, "Yes, I am."
Defendant got out of his SUV and punched Alexander in the mouth. Maddox and the other person then came out of the house and tackled defendant. When defendant managed to get off the ground, Alexander hit him. Defendant then went to his Tahoe, looked at his bloody nose in the side-view mirror, entered the SUV, and drove away.
Alexander returned to his house and heard two gunshots a few minutes later. Alexander ran out his side door and found defendant in his SUV at a stop sign, ready to turn right. After Alexander yelled, "That was a smart move," defendant made eye contact and backed up the SUV until it was parallel to Alexander's driveway. Defendant leveled a black pistol at Alexander, who dove into the house for cover. After Alexander heard a shot, he ran to the kitchen, looked out the window, and saw defendant drive away.
Alexander's vehicle sustained two bullet holes in the hood and a flat tire. A brick on the front of Alexander's house was also damaged. Two .45-caliber shell casings were found near the east curb by Alexander's home, and Alexander later found a spent large-caliber bullet resting on his car's engine.
Alexander testified at the preliminary hearing that he did not see defendant backing up his SUV, and he did not see defendant level a gun at him. At trial, Alexander testified that he felt threatened at the time, and his preliminary hearing testimony was not true. Alexander had received several threatening phone calls and was threatened in person a few days before the preliminary hearing.
Alexander also signed a letter exonerating defendant, which Duncan gave to him. Alexander disavowed the letter at trial, characterizing it as a foolish attempt to help a friend.
According to Duncan, Alexander and defense counsel asked her to write the letter, which Alexander later signed. Alexander gave Duncan the relevant information, which she put into her own words in the letter. Alexander told Duncan he did not see defendant do anything, and he did not see who drove by and shot at his house.
Randolph Moore lived across the street and one house down from Alexander. He was inside his house on the morning of the incident when he heard an argument between two people and someone from Alexander's house. Moore went outside and saw a man and a woman in a dark blue truck or van arguing with someone from Alexander's house. Moore went back into his house after the couple drove off. He then heard a shot and went outside, where he heard two more shots. A red Chevrolet SUV was parked by Alexander's driveway. The SUV turned the corner and left after the shots.
Duncan testified that defendant and Alexander argued over the broken door and then came to blows. Defendant, Alexander, Maddox, and a man named Phil were involved in the altercation. Phil jumped on top of defendant, who was injured in the fight. Duncan and defendant then went to a friend's shop for 20 to 30 minutes before leaving. Duncan never saw defendant with a gun.
Maddox saw Alexander go outside and talk to defendant about the broken door. They talked briefly before defendant leapt out of the car and took a swing at Alexander, who struck back at defendant. Maddox and a man named Phil then came out of the house; Maddox pushed them apart, but the other man "banged into" them and fell on defendant. Duncan jumped on top of the man, and the melee ended when Maddox pulled Duncan and the man from the fray. Defendant was angry and said, "man, you guys didn't have to jump on me. That's messed up."
Maddox returned to the house after defendant drove away. He dove to the carpet after two gunshots rang out 10 to 15 minutes later. He heard some loud voices after the shots, and might also have heard them before the shots. Maddox went outside, where he saw defendant and Alexander yelling at each other. Defendant was parked parallel to the driveway and held a gun, which was not pointed at anyone.
Maddox told a sheriff's deputy that defendant said, "Okay. You mother fuckers, you all jumped on me. Four on one, that ain't cool. I'll be back." He heard gunshots from outside the house about five minutes after defendant left; he went outside and saw defendant by his red Chevrolet Tahoe, holding a black handgun, possibly a .45 caliber.
Defendant testified that he drove to his friend Roy's shop after the fight with Alexander. He stayed there for 30 to 45 minutes, during which Roy and Duncan cleaned and bandaged his injuries. Defendant never went back to Alexander's after the fight. He did not own or possess a gun.
Defendant contends the standard jury instruction on assault with a firearm, CALCRIM No. 875, lessens the People's burden of proof.
The trial court instructed the jury with the pattern jury instruction on assault with a firearm, CALCRIM No. 875. The first part of the instruction stated the assault offense required proof defendant "did an act with a firearm that by its nature would directly and probably result in the application of force to a person," had "the present ability to apply force," and 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." It further required the People to prove "defendant did [the] act willfully."
In addition, the instruction provided: "Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else or gain any advantage. [¶] The terms application of force and apply force mean to touch in a harmful or offensive manner. The 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 or someone else to touch the other person. [¶] The People are not required to prove that the defendant 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." (CALCRIM No. 875, italics added.)
Defendant asserts the sentence "The People are not required to prove that the defendant actually intended to use force against someone when he acted" lowers the burden of proof by undermining the definition of assault as an attempted battery. In support of his contention, he relies on the Supreme Court's statement: "'[T]he intent for an assault with a deadly weapon is the intent to attempt to commit a battery, a battery being "any willful and unlawful use of force or violence upon the person of another." [Citation.]'" (People v. Colantuono (1994) 7 Cal.4th 206, 214 (Colantuono).) He further observes "assault 'lies on a definitional . . . continuum of conduct that describes its essential relation to battery: An assault is an incipient or inchoate battery; a battery is a consummated assault.' [Citation.] As a result, a specific intent to injure is not an element of assault because the assaultive act, by its nature, subsumes such an intent." (People v. Williams (2001) 26 Cal.4th 779, 786 (Williams).) According to defendant, instructing the jury that the People do not have to prove he intended to use force "eliminates the requirement that the conduct be an attempt to commit a battery, an attempt to apply physical force on another."
Defendant is wrong. In Colantuono, the Supreme Court rejected "the traditional shorthand characterization of assault as 'attempted battery' and the unexamined assumption that, as with other attempted crimes, it must require a specific intent to commit the underlying offense. [Citations.]" (Colantuono, supra, 7 Cal.4th at p. 215.) "[A]ssault is a general intent crime"; while assault is "often described as 'attempted battery' for historical reasons, assault is not simply an adjunct of some underlying offense, but an independent crime statutorily delineated in terms of certain unlawful conduct immediately antecedent to battery." (Id. at pp. 215-216.)
"Consequently, criminal attempt and assault require different mental states." (Williams, supra, 26 Cal.4th at p. 786.) Since a criminal attempt "need not be the last proximate or ultimate step toward commission of the substantive crime," criminal attempt has always required "a specific intent to commit the crime." (People v. Kipp (1998) 18 Cal.4th 349, 376.) Assault, however, "has always focused on the nature of the act and not on the perpetrator's specific intent." (Williams, at p. 786.) Since assault is on a continuum of conduct falling short of a battery, "a specific intent to injure is not an element of assault because the assaultive act, by its nature, subsumes such an intent." (Ibid.)
Assault requires only "an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (Williams, supra, 26 Cal.4th at p. 790.) Once assault is separated from the crime of battery, it is clear assault does not require an intent to apply force. CALCRIM No. 875 correctly instructs the jury on the mental element of assault with a firearm.
Defendant contends there is insufficient evidence to convict him of assault with a firearm. We disagree.
In determining whether the evidence is sufficient to support a conviction, the court must review "the whole record in the light most favorable to the judgment" and decide "whether it discloses substantial evidence . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
"Under this standard, the court does not '"ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.]" (People v. Hatch (2000) 22 Cal.4th 260, 272.)
In order to prove assault with a firearm, a general intent crime, a person must have been assaulted and the assault must have been committed with a firearm. One can commit the crime without actually discharging the firearm. (Colantuono, supra, 7 Cal.4th at p. 219.) Holding up a fist in a menacing manner or presenting a gun at someone who is within range constitutes assault. (Ibid., citing People v. McMakin (1857) 8 Cal. 547, 548.) "'[A]ny other similar act, accompanied by such circumstances as denote an intention existing at the time, coupled with a present ability of using actual violence against the person of another, will be considered an assault.'" (Colantuono, at p. 219, quoting McMakin, at p. 548, italics omitted.) Nor must the prosecution prove that defendant made an attempt to use the weapon upon the person of another. (People v. McCoy (1944) 25 Cal.2d 177, 189.)
Alexander testified that defendant backed up the SUV parallel to his driveway and leveled his gun at Alexander, after which Alexander dove into the house and heard another gunshot. This is substantial evidence supporting defendant's conviction for assault with a firearm.
Defendant asserts the trial court lacked authority to order $300 in restitution for the damage defendant inflicted on Alexander's front door.
The trial court awarded $450 in victim restitution without specifying the underlying losses. According to the probation report, Alexander initially identified $450 in losses, consisting of a $300 estimate for the door defendant damaged in his argument with Duncan, $100 to fix the bullet holes in the hood of Alexander's car, and $50 to repair the blown tire. Alexander later completed a statement of loss form, asking for restitution of $300 for the front door, $900 for repairs to his car, $300 in medical expenses, and $250 in gas and parking expenses for court appearances. Alexander did not supply additional documents to support the claimed losses.
Defendant asserts that $300 of the $450 restitution award was for damage to Alexander's front door. Since that loss occurred in an incident that was not part of defendant's crimes, he asserts the trial court was without authority to award $300 of the $450 restitution award.
Section 1202.4 states that a "victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime." (§ 1202.4, subd. (a)(1); see People v. Woods (2008) 161 Cal.App.4th 1045, 1049.) Courts have interpreted section 1202.4 -- in the context in which a prison sentence has been imposed, as here -- "as limiting restitution awards to those losses arising out of the criminal activity that formed the basis of the conviction." (Woods, supra, 161 Cal.App.4th at p. 1049; see also People v. Rubics (2006) 136 Cal.App.4th 452, 460 ["restitution must be for economic damages resulting from the crime of which (the defendant is) convicted, not merely those 'reasonably related' to the crime"].*fn2
The trial court was not authorized to award restitution for damage to Alexander's front door since it was damaged in an incident taking place before defendant's criminal conduct. The probation report provides some evidence in support of defendant's inference that $300 of the restitution is for damage to the front door -- the restitution award equals the amount initially claimed by Alexander, of which $300 is attributable to fixing the front door. However, Alexander's subsequent statement of loss indicated additional losses exceeding $300 for which he could be entitled to victim restitution.
The Attorney General concedes that restitution for the damaged front door was unauthorized, but notes the $450 seems to be based on the victim's initial claim and does not account for the additional expenses identified in the statement of loss form. The Attorney General suggests we remand the matter to the trial court for another restitution hearing.
The trial court did not provide a sufficient record of its ruling to determine whether the restitution award was based in part on an unauthorized item. (See People v. Giordano (2007) 42 Cal.4th 644, 663-664 [trial court must "make a clear statement of the calculation method used and how that method justifies the amount ordered"].) Since the record suggests part of the award may be unauthorized and there are identifiable losses for which the victim may be entitled to compensation but has not been compensated, we shall vacate the restitution award and remand for a new restitution hearing.
Defendant contends trial counsel was ineffective for failing to object to the restitution award. We need not consider his claim since we are vacating the award and remanding for a new hearing on the matter.
The restitution award is vacated and the matter is remanded to the trial court to hold a new hearing on victim restitution consistent with this opinion. In all other respects, the judgment is affirmed.
We concur: BUTZ , J. HOCH , J.