People v. Lara

• Decision Date: 27 March 1996
• Docket Number: No. A069286,A069286
• Citation: 51 Cal.Rptr.2d 349,43 Cal.App.4th 1560
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 2094, 96 Daily Journal D.A.R. 3569 The PEOPLE, Plaintiff and Respondent, v. Miguel Moreno LARA, Defendant and Appellant.

Page 349

51 Cal.Rptr.2d 349

43 Cal.App.4th 1560, 96 Cal. Daily Op. Serv. 2094,

96 Daily Journal D.A.R. 3569

The PEOPLE, Plaintiff and Respondent, v. Miguel Moreno LARA, Defendant and Appellant.

No. A069286.

Court of Appeal, First District, Division 4, California.

March 27, 1996.

Rehearing Denied April 26, 1996.

Review Denied June 26, 1996. ^*

Barbara Michel, Berkeley, for appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Susan E. Myster, Deputy Attorney General, San Francisco, for respondent.

ANDERSON, Presiding Justice.

Today we are called upon to determine whether a brandishing statute enacted in 1987 requires that the victim of the brandishing be an occupant of a motor vehicle and, if so, whether the jury in this case was properly instructed on this element of the crime.

PENAL CODE SECTION 417.3¹ provides: "Every person who except in self-defense, in the presence of any other person who is an occupant of a motor vehicle proceeding on a public street or highway, draws or exhibits any firearm, whether loaded or unloaded, in a threatening manner against another person in such a way as to cause a reasonable person apprehension or fear of bodily injury is guilty of a felony...." The question presented is whether section 417.3 is violated only when the person who is placed in fear as a result of the exhibiting of a firearm is also the occupant of a motor vehicle proceeding on a public street or highway. We hold it is: the person against whom the brandishing is committed must be an occupant of a motor vehicle proceeding on a public street.

Appellant herein asserts that CALJIC No. 9.07 (5th ed.1988, bound vol.) does not instruct the trier of fact that the person threatened must be an occupant of a motor vehicle. We find that, while the instruction may be somewhat ambiguous, even if clarified it is not reasonably probable the jury would have reached a different result. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

I. FACTS

A. Procedural History

Miguel Moreno Lara (appellant) was acquitted by jury of a violation of section 417, subdivision (c) (brandishing a firearm in the presence of a peace officer), but he was convicted of three remaining counts: (1) a felony: section 12021, subdivision (a) (felon in possession of a firearm), (2) a misdemeanor: section 12031, subdivision (a)(carrying a loaded firearm in public), and (3) a felony: section 417.3. The trial court found a prior prison term enhancement, alleged pursuant to section 667.5, subdivision (b), true in a separate bench trial. Appellant was sentenced to two years in prison for the section 12021, subdivision (a), violation, enhanced by one year for the prior prison term. A 90-day sentence for carrying a loaded firearm and a 2-year sentence for the section 417.3 violation were stayed.

B. Trial Testimony

The prosecution case was based on the testimony of Sonoma County Sheriff's Deputy John Eubanks. Deputy Eubanks testified that he was on patrol on the night of October 15, 1994, when he noticed a number of people walking away from Cooper's Cantina, a bar. He suspected that a disturbance was taking place; so, he slowed his vehicle to investigate. Deputy Eubanks saw appellant on the west shoulder of the road across the street from the Cantina, walking toward both the Cantina and Deputy Eubanks's car. Appellant had a rifle in his hands with his right hand near the trigger and his left hand holding the muzzle, resting the stock against his right hip. Deputy Eubanks could not see if appellant's fingers were in the trigger guard. The rifle was pointed toward Deputy Eubanks, who ducked down and accelerated away.

Deputy Eubanks stopped and turned the car around to return to the place he had seen appellant. He saw appellant standing by a car with no gun in hand. Deputy Eubanks put appellant in the patrol car and searched the area. He found a rifle, partially covered with dirt, in a vineyard nearby. Prior to instituting the search, Deputy Eubanks asked appellant where the rifle was, and appellant replied that someone had taken it from him.

Appellant testified that he had been drinking at the Cantina on the evening of October 15, 1994; at one point, he was told that his brother and some friends were having trouble outside. He went outside and saw his brother fighting. Appellant tried to calm his brother down. At that juncture, someone hit him from behind, and he fell to the ground. He eventually asked his attackers to let him up, and they did.

Appellant then went across the street and leaned on a parked Monte Carlo. While leaning against the car, he saw Deputy Eubanks's patrol car pass by. He denied being in possession of a rifle that evening but did indicate that he had been doing some target shooting with a rifle on the morning of October 15. Edwardo Gonzalez, a patron of the Cantina on the night of October 15, testified for the defense and corroborated appellant's testimony about target shooting in the morning and the events leading up to appellant's arrest.

C. Contentions on Appeal

Appellant finds no fault with his conviction and two year prison sentence for being a felon in possession of a firearm (§ 12021, subd. (a)), nor does he complain of his misdemeanor conviction and stayed 90 day sentence for carrying a loaded firearm in a public place (§ 12031, subd. (a)). Instead, he attacks his conviction of section 417.3 (for which he received a stayed two-year sentence), and he complains of the imposition of the consecutive one-year prison sentence for his prior conviction of Vehicle Code section 23153.

He first argues that his conviction of violation of section 417.3 must be reversed due to instructional error. His second contention is that the trial court erred in failing to instruct that a violation of section 417.3 requires awareness of the presence of a motor vehicle, and his third contention is that the court erred in failing to instruct, sua sponte, on the lesser included offense of misdemeanor brandishing of a firearm. Appellant's final argument is that the section 667.5, subdivision (b), enhancement must be stricken because the same felony conviction (a violation of Veh.Code, § 23152) was impermissibly used both to prove the convicted felon element of section 12021, subdivision (a), and to impose the consecutive one-year enhancement for a prior prison term pursuant to section 667.5, subdivision (b).

II. ANALYSIS

A. Section 417.3 Should be Interpreted to Require That the Brandishing be Directed Against an Occupant of a Motor Vehicle

Because Section 417.3 does not explicitly require that the brandishing be against the occupant of a motor vehicle but rather against another person it is susceptible to two interpretations. The first would make it a felony to brandish a firearm at anyone, as long as (a) the brandishing reasonably generated apprehension or fear of bodily harm on the part of the person threatened and (b) the brandishing occurred in the "presence" of an occupied motor vehicle. The second interpretation would make it a felony to brandish a firearm at an occupant of a motor vehicle if the brandishing reasonably generated apprehension or fear of bodily harm on the part of the occupant. Appellant urges us to adopt the latter interpretation, and the Attorney General, without conceding its correctness, assumes so for the purpose of his argument. We find this interpretation the more logical manifestation of legislative intent.

A statute should be construed with reference to the statutory scheme of which it is a part. (Bowland v. Municipal Court (1976) 18 Cal.3d 479, 489, 134 Cal.Rptr. 630, 556 P.2d 1081.) At the time section 417.3 was enacted, misdemeanor brandishing was defined by section 417, subdivision (a)(2): "Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses the same in any fight or quarrel is guilty of a misdemeanor...." ²

There are three principal differences between then section 417, subdivision (a)(2), and section 417.3. First, "rude" or "angry" brandishing of a firearm are not required for a violation of section 417.3. Second, "presence" of an occupied vehicle, proceeding on a public street or highway, is required for a violation of section 417.3. And third, the threatening behavior required to constitute a violation of section 417.3 must cause a "reasonable" person apprehension or fear of bodily harm. It defies reason to conclude that the Legislature did not intend to require that the person who is placed in fear by the brandishing actually be the occupant of a vehicle. Section 417.3 defines a more restrictive standard of conduct than that required for simple brandishing (section 417, subdivision (a)(2))--i.e., threatening behavior which, in fact, causes fear or apprehension of harm. It seems illogical to elevate this more dangerous act to a felony simply because an occupied vehicle happens by. The obvious purpose of section 417.3 is to deter, and/or to punish more severely, substantially more dangerous conduct--threats to persons inside vehicles, which threats may well result in erratic driving endangering the safety of the innocent driving and pedestrian public. ³

B. The Jury Was Correctly Instructed That the Brandishing Must be Directed Against an Occupant of a Vehicle

CALJIC No. 9.07 was given to the jury and required the prosecution to establish each of the following elements in order to prove a violation of section 417.3: "1. A person [not acting in self-defense], drew or exhibited a firearm in the presence of another person, [p] 2. Such person was an occupant of a motor vehicle proceeding on a public street or highway, and [p] 3. The drawing or exhibiting was done in a threatening...