Filed 1/22/20 P. v. Brown CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID HIDEO BROWN,

Defendant and Appellant.

B293058

(Los Angeles County

Super. Ct. No. TA145263)

APPEAL from a judgment of the Superior Court of Los Angeles County, H. Clay Jacke II, Judge. Affirmed and remanded with directions.

Helen Hoeffel, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven E. Mercer, Acting Supervising Deputy Attorney General, and John Yang, Deputy Attorney General, for Plaintiff and Respondent.

_______________________________

INTRODUCTION

A jury convicted David Brown of battery against a person with whom he had a dating relationship and simple assault as a lesser included offense of assault with a deadly weapon. Brown argues the trial court erred in refusing his request for an instruction on the theory of accident and in precluding his trial attorney from using the word “accident” during closing argument. We conclude the trial court’s errors in refusing the accident instruction and in prohibiting counsel from using the word “accident” were harmless. We affirm the convictions and remand the matter to allow Brown to request a hearing under People v. Dueñas (2019) 30 Cal.App.5th 1157 on his ability to pay the assessments and fines the trial court imposed.

FACTUAL AND PROCEDURAL BACKGROUND

A. Brown Shoots a BB Gun or Air Pistol at His Girlfriend and Gets into a Fight Outside Her Mobile Home

Brown lived with his girlfriend Shirley Hardley and their daughter in a mobile home. Angelita Perez and her family also lived in the mobile home.

Early one evening Brown, who had been sleeping in his car for several nights, stood outside the mobile home shouting at Hardley and demanding she return his possessions. According to Perez, Brown had been drinking and smelled of alcohol. Hardley denied she had Brown’s belongings. Perez and Hardley went outside to talk to Brown.

At some point, Brown fired three or four shots from a BB gun or air pistol at Hardley. One shot hit Hardley in the forehead and another on the arm.

Perez and a neighbor spoke with Brown and attempted to calm him down. Brown said he would not leave without his possessions. He threw a punch at Hardley, but Perez stood between them and prevented Brown from hitting Hardley with much force.

Hardley and Perez went back inside the mobile home, and Perez locked the front door behind them. Brown knocked on the door and demanded his belongings. Brown said he “was going to kill” everyone in the mobile home. Someone opened the door, and Victor Gunnoe, Perez’s 19-year-old son, and Alex, Perez’s 18 year old-son, ran out and attacked Brown. Gunnoe said that he and Brown “got into a little scuffle or whatever” and that he hit Brown at least three times before Gunnoe fell down the front stairs of the mobile home.

Brown walked backed to his car. Perez tried to pursue Brown, but Hardley stopped her. Hardley testified that, before he drove away, Brown said to Perez, “I would never do this, Angie. I love Vic.”

Still on the ground, Gunnoe noticed his arm was cut, which he did not realize until he saw Brown walking away and holding a knife. Perez observed that “dark” flesh was visible and that some of the skin and muscle in Gunnoe’s upper left arm “fell down.” Hardley applied rags to stop the bleeding. Gunnoe suffered an eight-centimeter laceration in his arm that required surgery and 18 staples.

Police arrested Brown three days later. Officers found two steak knives, a BB gun, and a liquor bottle in Brown’s car.

B. The Jury Convicts Brown of Misdemeanor Domestic Battery and Misdemeanor Assault

The People charged Brown with two counts of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1), one based on the assault with the knife and one based on the assault with the BB gun. The court subsequently granted a motion by the People to amend the latter count to battery on a person with whom the defendant had a dating relationship, in violation of section 243, subdivision (e)(1).

Counsel for Brown asked the trial court to instruct the jury on the issue of accident, either with CALCRIM No. 3404 or CALJIC No. 4.45. The trial court refused, finding “there is no substantial evidence . . . supporting the giving of the accident instruction.” The court stated counsel for Brown could still “argue that [Brown] did not have the required intent or that it was not willful.” The trial court further ordered counsel for Brown not to use the word “accident” during closing argument.

The jury found Brown not guilty of assault with a deadly weapon based on the use of the knife, but guilty of the lesser included offense of simple assault. The jury also found Brown guilty of battery on a person with whom he had a dating relationship.

The court sentenced Brown to probation for three years. The court ordered Brown to pay two $40 court operations assessments under section 1465.8, two $30 court facilities assessments under Government Code section 70373, and a $150 restitution fine under section 1202.4. The court also imposed and stayed execution of a $150 probation revocation fine. During the sentencing hearing, Brown did not object to imposition of the assessments or fines, nor did he argue he did not have the ability to pay them.

Brown challenges his conviction for assault, but not his conviction for domestic battery. He also argues the trial court violated his due process rights by imposing the fines and assessments without determining Brown’s ability to pay them.

DISCUSSION

A. The Trial Court’s Error in Refusing To Instruct on the Theory of Accident Was Harmless
B.

1. The Trial Court Erred in Denying Brown’s Request for an Accident Instruction

Accident is not an affirmative defense. “Instead, it is a request for an instruction that negates the intent element” of a crime. (People v. Gonzalez (2018) 5 Cal.5th 186, 199, fn. 3; see People v. Jennings (2010) 50 Cal.4th 616, 674 [accident is not an affirmative defense, but is “‘a claim that the defendant acted without forming the mental state necessary to make his or her actions a crime’”].) Thus, a request for an instruction on the theory of accident is a pinpoint instruction that “‘relate[s] particular facts to a legal issue in the case or “pinpoint[s]” the crux of a defendant’s case . . . .’” (Jennings, at p. 675.) The trial court must give an accident instruction “upon request when there is evidence supportive of the theory.’” (Ibid.; see Gonzalez, at p. 199, fn. 3 [“a trial court must provide a requested pinpoint instruction on such issues [as accident] where ‘“there is evidence supportive of the theory”’”]; People v. Anderson (2011) 51 Cal.4th 989, 996-997 [“‘“when a defendant presents evidence to attempt to negate or rebut the prosecution’s proof of an element of the offense, . . . a ‘pinpoint instruction’ . . . must be given only upon request”’”].) But the court “‘has the authority to refuse requested instructions on a defense theory for which there is no supporting evidence.’” (People v. Larsen (2012) 205 Cal.App.4th 810, 823.)

“Substantial evidence in this context ‘“is ‘evidence sufficient “to deserve consideration by the jury,” not “whenever any evidence is presented, no matter how weak.”’”’” (People v. Larsen, supra, 205 Cal.App.4th at p. 823.) In particular, “‘the jury must be instructed when there is evidence that “deserve[s] consideration by the jury, i.e., ‘evidence from which a jury composed of reasonable [people] could have concluded’” that the specific facts supporting the instruction existed.’” (Id. at p. 824.) “‘“Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused.”’” (People v. Eid (2010) 187 Cal.App.4th 859, 879.) We review the trial court’s refusal to give an instruction on the theory of accident de novo. (People v. Manriquez (2005) 37 Cal.4th 547, 581.)

Substantial evidence supported Brown’s theory of accident. When Brown knocked on the door, it opened from inside. Gunnoe came out, approached Brown, and punched him multiple times. There were several witnesses to the fight, but no one saw Brown use a knife, and there was no evidence concerning how Brown’s knife cut Gunnoe. After the fight, Brown stated he loved Gunnoe and would never hurt him. It was a reasonable inference from this evidence that Gunnoe startled Brown when he came out the door to fight Brown and that Brown accidently cut Gunnoe in the ensuing struggle. (See People v. Brooks (2017) 3 Cal.5th 1, 57 [“‘Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.’”].)

Citing People v. Hendricks (1988) 44 Cal.3d 635, the People argue Brown’s “self-serving hearsay declaration that he would ‘never hurt [Gunnoe]’ because he ‘love[d] him’” was insufficient to justify giving the instruction. The People, however, do not argue the trial court abused its discretion in ruling the statement was admissible under Evidence Code section 1250. And Hendricks is distinguishable. There the Supreme Court held the “defendant’s self-serving tape-recorded statements denying an intent to kill” was not substantial evidence to support giving a voluntary manslaughter instruction “in light of [the] evidence” the defendant “shot [the first victim] six times at point-blank range, the last three times as [the first victim] lay on the floor unconscious,” and shot the second victim “five times at point-blank range, the last three times as [the second victim] lay prone on the bed.” (Id. at p. 643.) The evidence here was very different: Although, as the People point out, Brown obviously brought a knife with him to the mobile home, there was little if any evidence regarding how he used it or whether he intended to use it during the physical altercation with Gunnoe.

Moreover, the trial court admitted certain testimony as relevant because it tended to prove or disprove the knifing was an accident. For example, when the court ruled (over counsel for Brown’s objections) that Brown’s statement he was going to kill everyone inside the mobile home was admissible, the court stated the statement was relevant to show Brown was the aggressor and “it’s not an accident what happened.” When counsel for Brown raised the issue again, the court ruled: “I understand your objection, but it’s overruled. I will allow the statement, ‘I’m going to kill all of you,’ to be admitted. I think it does negate any accident.” Conversely, when the court ruled (over the prosecutor’s objections) that Hardley could testify Brown said he loved Gunnoe and would never hurt him, the court stated the statement was relevant to Brown’s state of mind and “to negate accident and self-defense.” And yet when Brown asked the court to give an accident instruction that would have told the jury how to evaluate this evidence, the court refused. The court erred in refusing to give an instruction on the theory of accident after admitting evidence, from both sides, that the court ruled was relevant to that very theory.

2. The Trial Court’s Instructional Error Was Harmless

In noncapital cases, we review instructional error for prejudice under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (See People v. Beltran (2013) 56 Cal.4th 935, 955; People v. Wharton (1991) 53 Cal.3d 522, 571; People v. Larsen, supra, 205 Cal.App.4th at p. 830.) Under the Watson standard, “a conviction ‘may be reversed in consequence of [instructional] error only if, “after an examination of the entire cause, including the evidence” [citation]), it appears “reasonably probable” the defendant would have obtained a more favorable outcome had the error not occurred.’” (People v. Molano (2019) 7 Cal.5th 620, 670; see People v. Gonzalez, supra, 5 Cal.5th at p. 200, fn. 4 [“Under Watson, the error is harmless unless there is a reasonable probability of a different result absent the error.”].)

The trial court instructed the jury pursuant to CALJIC No. 9.00 that, to prove Brown committed an assault, the People had to prove Brown acted “willfully,” which meant he acted “intentionally.” The trial court also instructed the jury on the definition of willfully and its relationship to intent. Thus, when the jury convicted Brown of assault, the jury necessarily found Brown acted intentionally, not accidentally. (See People v. Jones (1991) 234 Cal.App.3d 1303, 1315-1316 [failure to give an accident instruction was harmless where the trial court properly instructed the jury on the elements of the offense, “thus implicitly resolving the question of that defense adversely to defendant”], disapproved on another ground in People v. Anderson, supra, 51 Cal.4th at p. 998, fn. 3; see also People v. Wright (2006) 40 Cal.4th 81, 98 [instructional error is “harmless beyond a reasonable doubt under circumstances in which ‘the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions’”]; People v. Lujano (2017) 15 Cal.App.5th 187, 195-196 [same].) There is no reasonable probability Brown would have obtained a better result had the trial court given an accident instruction.

B. The Trial Court’s Error in Ordering Counsel for Brown Not To Use the Word “Accident” in Closing Argument Was Harmless

“It is firmly established that a criminal defendant has a constitutional right to have counsel present closing argument to the trier of fact. [Citations.] Nonetheless, it is equally settled that a judge in a criminal case ‘must be and is given great latitude in controlling the duration and limiting the scope of closing summations.’” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1184; see People v. Simon (2016) 1 Cal.5th 98, 147.) We review limitations on closing argument for abuse of discretion. (Simon, at p. 147; People v. Benavides (2005) 35 Cal.4th 69, 110.)

The trial court prevented counsel for Brown from using the word “accident” during closing argument:

“[Counsel for Brown]: You’re saying I can argue it as I wish, but I can’t use the word ‘accident.’

“The Court: Correct, unless you have authority to the contrary.

“[Counsel for Brown]: Well, I think ‘accident,’ just the plain meaning of the word, is the opposite of not acting with the general intent and not acting willfully.

“The Court: All right. As I indicated, absent either statutory or case authority—I appreciate your wisdom as always—but I am ordering you not to use that language.”

The trial court’s prohibition on using the word “accident” in closing argument was erroneous. There was little reason to preclude counsel for Brown from using the word “accident” but allow him, perhaps aided by a thesaurus at counsel table, to use the word’s synonyms. And counsel for Brown had a point: If Brown acted accidentally, he did not assault Gunnoe with the requisite mental state to commit assault with a deadly weapon. (See People v. Anderson, supra, 51 Cal.4th at p. 998 [“‘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.’”]; People v. Coria (1999) 21 Cal.4th 868, 876 [“a crime cannot be committed by mere misfortune or accident”].)

Nevertheless, the court’s erroneous gag order was harmless. Counsel for Brown was able to and did argue concepts legally equivalent to accident. For example, counsel for Brown argued that the prosecutor had not proven beyond a reasonable doubt Brown acted willfully and intentionally, that Gunnoe’s punching or falling onto Brown while Brown stood with a knife was not a willful act by Brown, that there was no evidence Brown willfully or intentionally pulled out a knife and swung it or used it to stab Gunnoe, that Brown “might have cut [Gunnoe] unintentionally,” that the issue was whether Brown “willfully and unlawfully did something with that knife,” that the prosecution had not proven “the wound was inflicted willfully, that is, on purpose,” and that Brown “didn’t mean to do this.” Counsel essentially argued it was an accident. Therefore, any error in ordering counsel for Brown not to use the word “accident” was harmless.

C. Remand Is Necessary To Give Brown the Opportunity To Request a Hearing on His Ability To Pay the Assessments and Fines

In People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) this court held trial courts cannot impose a court operations assessment under section 1465.8 or a court facilities assessment under Government Code section 70373 without first determining the defendant’s ability to pay. (Dueñas, at pp. 1168, 1172.) Brown argues that Dueñas mandates reversal of the two court operations assessments and the two court facilities assessments the trial court imposed and that Dueñas requires the trial court to stay execution of the criminal restitution fine imposed under section 1202.4.

The People state they do “not take issue with the Dueñas opinion insofar as it holds the imposition of assessments for court operations and court facilities may not be imposed where a defendant demonstrates the inability to pay.” The People also state they do “not seek to uphold the imposition of these assessments on those who have no ability to pay.” The People argue only that Brown forfeited this argument by failing to raise it in the trial court and that the record does not establish Brown is unable to pay the assessments and fines. On the latter issue, the People argue that Brown’s restitution fine “should be reviewed under the excessive fines clause” of the Eighth Amendment to the United States Constitution and that this court’s due process analysis in Dueñas was incorrect.

Brown did not forfeit the argument. As we explained in People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano), at the time the trial court sentenced Brown, “Dueñas had not yet been decided; and no California court prior to Dueñas had held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant’s ability to pay. Moreover, none of the statutes authorizing the imposition of the fines, fees or assessments at issue authorized the court’s consideration of a defendant’s ability to pay. Indeed . . . in the case of the restitution fine, . . . section 1202.4, subdivision (c), expressly precluded consideration of the defendant’s inability to pay. When, as here, the defendant’s challenge on direct appeal is based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial, reviewing courts have declined to find forfeiture.” (Castellano, at p. 489; see People v. Santos (2019) 38 Cal.App.5th 923, 929-934; People v. Jones (2019) 36 Cal.App.5th 1028, 1032; see generally People v. Brooks (2017) 3 Cal.5th 1, 92 [“‘[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence’”].)

Nor does Dueñas require the defendant to demonstrate adverse consequences from imposition of the fines, fees, and assessments. “[A] defendant must in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court. In doing so, the defendant need not present evidence of potential adverse consequences beyond the fee or assessment itself, as the imposition of a fine on a defendant unable to pay it is sufficient detriment to trigger due process protections.” (Castellano, supra, 33 Cal.App.5th at p. 490; see Dueñas, supra, 30 Cal.App.5th at pp. 1168-1169.) Thus, on remand Brown does not need to present evidence of potential adverse consequences beyond the amount of the assessments or fines, and the trial court should consider all relevant factors in determining Brown’s ability to pay. (See Castellano, at p. 490.)

The People’s Eighth Amendment argument does not change the result. As we explained in People v. Belloso (Nov. 26, 2019, B290968) ___ Cal.App.5th ___ [2019 WL 6317269], the Supreme Court has held that, in analyzing “the constitutionality of civil penalties imposed by the trial court, ‘It makes no difference whether we examine the issue as an excessive fine or a violation of due process.’ Because both the Dueñas due process and [the] excessive fines analyses require consideration of a defendant’s ability to pay, there is no need to analyze the constitutionality of fines and fees under the Eighth Amendment.” (Id. at p. ___ [p. 8], quoting People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728.) An Eighth Amendment analysis must include an evaluation of the defendant’s ability to pay, which is “critical to the analysis, especially for the minimum restitution fine (currently $300) that must be imposed in every case regardless of the defendant’s culpability and the defendant’s ability to pay.” (Belloso, at p. ___ [p. 9].) Cases analyzing the constitutionality of imposing fines and assessments on indigent defendants under the Eighth Amendment are asking the wrong question and then answering it incompletely. (See, e.g., People v. Aviles (2019) 39 Cal.App.5th 1055.)

Finally, imposition of the fines and assessments violated Brown’s due process rights. As we explained in People v. Belloso, supra, ___ Cal.App.5th ___ [2019 WL 6317269], it is “a basic principle of fairness that the rich and poor should have equal access to the justice system, consistent with the principle underlying the holding in [Griffin v. Illinois (1956) 351 U.S. 12, 17 [76 S.Ct. 585]] that ‘all people charged with crime must, so far as the law is concerned, “stand on an equality before the bar of justice in every American court.”’” (Belloso, at p. ___ [p. 6].) “Without an ability-to-pay determination, the consequences to a defendant from imposition of an assessment or fine differ solely because of his or her financial condition. As this court observed in Dueñas, collection of unpaid assessments could damage the defendant’s credit, potentially interfere with child support obligations, restrict employment opportunities, and otherwise impact the defendant’s reentry to society and rehabilitation. [Citation.] These consequences are particularly troubling as to the assessments because they are imposed not as a punishment, but to fund the court system. [Citation.] . . . [F]ailure to pay the restitution fine could similarly result in serious consequences, including preventing a defendant from obtaining dismissal of his or her conviction and enforcement of a civil judgment against the defendant. [Citation.] In light of these differing consequences, under Griffin, there is no ‘“equality before the bar of justice.”’” (Ibid.) Thus, a “defendant who does not pay fines or fees faces potentially severe consequences that punish him or her based on poverty, not the underlying crime.” (Ibid.) Cases finding no due process violation are wrongly decided. (See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946; People v. Caceres (2019) 39 Cal.App.5th 917, 920.)

DISPOSITION

The judgment is affirmed. The matter is remanded to allow Brown to request a hearing to determine his ability to pay the assessments and fines imposed by the trial court. If Brown demonstrates his inability to pay, the trial court must strike the court facilities and court operations assessments and stay the execution of the restitution fines. If Brown fails to demonstrate his inability to pay, the court may enforce the assessments and fines the court previously imposed.

SEGAL, J.

We concur:

PERLUSS, P. J. FEUER, J.