People v. Brown
| Decision Date | 17 October 2012 |
| Docket Number | No. B233877.,B233877. |
| Citation | 147 Cal.Rptr.3d 848,210 Cal.App.4th 1 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Quamie BROWN, Defendant and Appellant. |
OPINION TEXT STARTS HERE
See 1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against the Person, § 46, 47.
John Alan Cohan, Beverly Hills, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Pamela C. Hamanaka, Deputy Attorneys General, for Plaintiff and Respondent.
Quamie Brown was convicted following a jury trial of two counts of assault with a deadly weapon. On appeal Brown contends the guilty verdicts for aggravated assault, as opposed to the lesser included offense of simple assault, are not supported by substantial evidence and the court committed prejudicial error in instructing the jury with the erroneous definition of “deadly weapon” contained in CALCRIM No. 875. Although we agree CALCRIM No. 875's definition of “deadly weapon,” which includes objects that are inherently “dangerous” as well as inherently “deadly,” is, at best, ambiguous and, at worst, overbroad, any instructional error was harmless; and Brown's two convictions are amply supported by the record. Accordingly, we affirm.
Brown was charged in an amended information with six counts of assault with a deadly weapon, “to wit, [a] BB gun” (Pen.Code, § 245, subd. (a)(1)). 1 As to each count it was also specially alleged the offense was committed to benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)). Brown pleaded not guilty and denied the special gang allegation.
Brown was tried along with codefendants Brian Eric Speight and Virgeon Leeton Mayberry. According to the evidence at trial, Gerardo Calderon and Jesus Castro were standing on the sidewalk near a parked car when Brown, accompanied by Speight and Mayberry, drove up alongside them in a white Cadillac and stopped the car approximately five feet from Calderon and Castro. Brown called Castro over to the car and through his open driver's side window said, Castro told Calderon, “Let's get out of here.” At that moment Castro and Calderon saw Brown holding a black handgun. Castro shouted, “They're going to shoot at us,” and the two men dove to the ground for cover. Calderon was hit in the foot with pellets from the BB gun. Castro was shot two times in the back. Although both Castro and Calderon had red welts on their bodies, neither man went to the hospital or sought medical attention for his injuries.
The People also presented evidence that, the day before Castro and Calderon were shot, three other people in the same neighborhood were shot with a BB gun by a driver of a white sedan. None of those victims (the subjects of the remaining counts) was able to identify Brown or his codefendants as the men in the white sedan.
Los Angeles Police Detective Eric Mendoza testified Brown was a member of the Black P–Stones criminal street gang and the shooting had occurred in territory claimed by the gang. Mendoza opined the shootings were committed for the benefit of, or in association with, a criminal street gang.
The jury was instructed on the elements of assault with a deadly weapon and on simple assault as a lesser included offense. Pursuant to CALCRIM No. 875, the jury was instructed a “deadly weapon” under section 245 is “any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.”
The jury found Brown guilty of two counts of assault with a deadly weapon on Castro and Calderon (counts 1 and 2) and found the gang enhancement allegation as to each of those counts true. The jury deadlocked on the remaining counts.
At sentencing the court struck the special gang enhancement allegation in the interest of justice (§§ 1385, 186.22, subd. (g)) and sentenced Brown to an aggregate state prison term of four years: three years for the aggravated assault on Castro, plus a consecutive one-year term (one third the middle term) for the aggravated assault on Calderon. The court awarded Brown 256 days of presentence custody credit (171 days of actual custody credit plus 85 days of conduct credit).
“As used in section 245, subdivision (a)(1), a ‘deadly weapon’ is ‘any object, instrument, or weapon that is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.’ ” ( People v. Aguilar (1997) 16 Cal.4th 1023, 1028–1029, 68 Cal.Rptr.2d 655, 945 P.2d 1204( Aguilar ).) The Supreme Court has explained section 245 contemplates two categories of deadly weapons: In the first category are objects that are “deadly weapons as a matter of law” such as dirks and blackjacks because ( Aguilar, at p. 1029, 68 Cal.Rptr.2d 655, 945 P.2d 1204; accord, In re David V. (2010) 48 Cal.4th 23, 30, fn. 5, 104 Cal.Rptr.3d 471, 223 P.3d 603; see Aguilar, at p. 1030, 68 Cal.Rptr.2d 655, 945 P.2d 1204 [].) For example, a bottle or a pencil, while not deadly per se, may be a deadly weapon within the meaning of section 245, subdivision (a)(1), when used in a manner capable of producing and likely to produce great bodily injury. (See, e.g., People v. Zermeno (1999) 21 Cal.4th 927, 931, 89 Cal.Rptr.2d 863, 986 P.2d 196 [beer bottle]; People v. Page (2004) 123 Cal.App.4th 1466, 1472, 20 Cal.Rptr.3d 857 [pencil].)
Great bodily injury, as used in section 245, means significant or substantial injury. ( People v. Beasley (2003) 105 Cal.App.4th 1078, 1086, 130 Cal.Rptr.2d 717.) Because the statute speaks to the capability of inflicting significant injury, neither physical contact nor actual injury is required to support a conviction. ( Id. at p. 1086, 130 Cal.Rptr.2d 717.) However, if injuries do result, the nature of such injuries and their location are relevant facts for consideration in determining whether an object was used in a manner capable of producing and likely to produce great bodily injury. ( Ibid.; see Aguilar, supra, 16 Cal.4th at pp. 1028–1029, 68 Cal.Rptr.2d 655, 945 P.2d 1204;People v. Russell (1943) 59 Cal.App.2d 660, 665, 139 P.2d 661.)
Brown contends the evidence was insufficient to support the jury's finding the BB gun used to shoot Calderon and Castro was a deadly weapon. 2 In particular, he asserts, there was no evidence presented as to the type of BB gun used, its operating speed or the extent to which the projectiles fired from it could penetrate muscle or tissue. (Cf. People v. Lochtefeld (2000) 77 Cal.App.4th 533, 541, 91 Cal.Rptr.2d 778 [].) He further argues the relatively minor nature of the injuries suffered by Calderon and Castro—red welts on Calderon's foot and Castro's back—does not support a reasonable inference the weapon was either capable of causing great bodily injury or used in a manner capable of producing and likely to produce great bodily injury. (See, e.g., People v. Beasley, supra, 105 Cal.App.4th at p. 1088, 130 Cal.Rptr.2d 717 [].)
Neither argument supports reversal on this ground. While it certainly would have been good practice for the People to have introduced evidence concerning the nature of the BB gun and its ability to inflict substantial injury (see, e.g., People v. Lochtefeld, supra, 77 Cal.App.4th at p. 540, 91 Cal.Rptr.2d 778), such evidence is not essential to establish the deadly nature of the weapon (see Aguilar, supra, 16 Cal.4th at p. 1028, 68 Cal.Rptr.2d 655, 945 P.2d 1204 [] ). Here, the evidence established Brown was, at most, five feet away from Calderon, and likely even closer to Castro whom he had called over to his car, when he aimed the BB gun out the driver's side window and shot at them. Although the shots hit Calderon in the foot and Castro in the back, the jury could have reasonably inferred the location and severity of their injuries were fortuitous: Had Calderon and Castro not thrown themselves on the ground for cover, they just as easily could have been hit in the face, causing serious injury. Under these circumstances there is substantial evidence from which the jury could reasonably find a BB gun, when shot at close range in the manner indicated, was a deadly weapon under section 245, subdivision (a)(1).
As discussed, CALCRIM No. 875 provides in part, “A deadly weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in...
To continue reading
Request your trial