People v. James CA3 ( 2021 )

Filed 10/20/21 P. v. James CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C091081
Plaintiff and Respondent, (Super. Ct. No. 18FE023239)
v.
ZURI JAMES,
Defendant and Appellant.
Defendant Zuri James and codefendant Derrick O’Neal Henderson entered an
apartment, pointed guns at the occupants, and threatened to shoot them. A jury found
defendant guilty of two counts of assault with a semiautomatic firearm, and found true
personal use of a semiautomatic firearm allegations as to both of those counts. On
appeal, defendant argues the trial court: (1) erred when it failed to instruct the jury on
lesser included offenses, including assault with a firearm and assault; and (2) abused its
discretion when it denied defendant’s request for probation. We disagree with both
contentions and will affirm the judgment.
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BACKGROUND
Defendant’s sister and brother, C.J. and A.J. respectively, were in C.J.’s apartment
one evening, along with C.J.’s boyfriend and daughter. Defendant had lived at the
apartment, but moved out to stay with Henderson, whom she was dating. Some of
defendant’s possessions, including a rice cooker, were still at the apartment. C.J. and
defendant had recently argued, and defendant had threatened to “beat [C.J.] up.”
While C.J. was in the shower, defendant knocked on the apartment door. C.J. did
not want to let her in the apartment, but decided she was there to pick up the rice cooker,
so C.J. got out of the shower to give it to her. A.J. opened the door and defendant rushed
into the apartment, grabbed the rice cooker, and confronted C.J. She challenged C.J.,
asking if she wanted to fight, but C.J. refused. Defendant then pulled out a handgun,
pointed it at C.J., and started “waving it around.” A.J. put his hand on defendant’s
shoulder and told her to calm down.
Henderson then came into the room with a “compact assault rifle,” pointed it at
A.J., and said, “get your hands off my bitch.” A.J. raised his hands in the air and said
defendant was his sister, and Henderson replied, “no, that’s my bitch.” Henderson
continued pointing his gun at A.J., called A.J. a “bitch ass nigga,” and said he would “air
this mother fucker out,” which A.J. interpreted as a threat to “shoot up the place.”
Henderson pointed his gun at both C.J. and A.J., although his focus was on A.J.
Defendant and Henderson threatened both C.J. and A.J., saying they would “blow [their]
heads off.”
Defendant and Henderson then left, backing out of the apartment and pointing
their guns. After they had left, police arrived at the apartment and defendant called C.J.
to tell her “I will kill you next time, cuz.” Henderson then got on the phone, called C.J.
names, and accused C.J. of getting defendant raped.
The next day, police saw defendant and Henderson in a truck and tried to pull
them over. The pair fled, and led officers on a high speed chase.
2
Police arrested defendant, who was walking on the side of the road after the chase
ended. After the arrest, police found a .40-caliber Smith & Wesson semiautomatic
firearm, along with .40-caliber ammunition and a magazine, that had been discarded
along the route of the chase.
The prosecution charged defendant with two counts of assault with a
semiautomatic firearm. (Pen. Code, § 245, subd. (b).)1 The prosecution also alleged
defendant personally used a semiautomatic firearm (§ 12022.5, subds. (a), (d)) with
respect to both counts.2
A jury found defendant guilty of all counts and found true the firearm
enhancement allegations. The court denied defendant’s request for probation and
sentenced defendant to an aggregate term of nine years in state prison.
DISCUSSION
I
Instruction on Lesser Included Offenses
Defendant contends the trial court erred in failing to sua sponte instruct the jury on
assault with a firearm (§ 245, subd. (a)(2)) and assault (§ 240, subd. (a)(2)) as lesser
included offenses of assault with a semiautomatic firearm (§ 245, subd. (b)).
A. Additional Background
At trial, the jury heard testimony about the gun defendant used. A.J. testified he
was “somewhat familiar with handguns,” and said he was “almost positive it was a Glock
for sure.” He described the difference between a semiautomatic gun and a revolver to the
prosecutor, who then asked him whether the gun defendant used was a revolver. A.J.
1 Undesignated statutory references are to the Penal Code.
2 Defendant was also charged with selling or transferring a firearm (§ 27545), but the
charge was dismissed. Henderson was charged in the same complaint with charges that
are not relevant to this appeal.
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replied that it was not. The prosecutor then showed A.J. a picture of the .40-caliber
firearm police officers had recovered and A.J. said “[t]hat’s the gun [¶] . . . [¶] That’s a
Glock pistol.” He confirmed it was the gun defendant had been holding, and explained
he recognized it because of the design and color of the frame. On cross-examination,
A.J. stated he had held and fired handguns before, and had also held replica guns that
looked and felt like real guns.
C.J. testified consistently with A.J. about the color of defendant’s gun, but said she
had never seen a gun like that before. She stated that the gun looked similar to the type
of gun police officers carry, and that she thought it was a “semi-automatic hand-held
gun,” but she was not sure whether or not it had a “little spinner, like a revolver would
have.” The prosecutor showed C.J. a picture of the same firearm she had shown A.J., and
C.J. agreed it looked “similar to the gun” defendant had used. While the color and size
were the same, the picture looked slightly different than the gun defendant had pointed at
her because the slide on the gun in the picture was pulled back, while the slide on
defendant’s gun had been forward.
Sergeant Aurellio Villegas identified the .40-caliber firearm police had found as a
semiautomatic firearm, and explained he could tell it was semiautomatic because it had a
slide that could slide back to load a new round into the chamber from the magazine.
Officer Joshua Brown testified replica firearms can look and feel “very much like a real
gun” and that it could be difficult to tell whether someone had a real gun or a replica gun.
The parties stipulated: (1) DNA swabs had been taken from the firearm,
magazine, and ammunition police officers had found, but that the results were “unsuitable
for comparison purposes due to the uncertain number of contributors,” (2) no fingerprints
had been found on the firearm, magazine, and ammunition, and (3) gunshot residue
swabs from defendant’s and Henderson’s hands were rejected for analysis because too
much time had passed between the incident and swab collection.
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Before instructing the jury, the court stated it would be giving CALCRIM No. 875
for assault with a semiautomatic firearm. The court noted “all parties are in concurrence
there are no lesser included offenses.”
B. Analysis
According to defendant, assault with a firearm and/or assault instructions were
supported by substantial evidence on the theory that the semiautomatic firearm police
recovered was not the same gun defendant used to assault C.J. and A.J. In particular,
defendant argues, A.J.’s misidentification of the gun as a Glock, rather than a Smith &
Wesson, and C.J.’s generally vague description of the gun, provide substantial evidence
defendant’s gun was only a replica. In addition, C.J.’s uncertainty about whether the gun
was a revolver supports the conclusion defendant did not use a semiautomatic firearm.
Defendant’s contentions are without merit.
“We apply the independent or de novo standard of review to the failure by the trial
court to instruct on an assertedly lesser included offense. [Citation.]” (People v. Cole
(2004) 33 Cal.4th 1158, 1218.) In reviewing whether the trial court had a sua sponte duty
to instruct the jury on a lesser included offense, we construe the evidence in the light
most favorable to the appellant. (People v. Turk (2008) 164 Cal.App.4th 1361, 1368.)
“It is error, however, to instruct on a lesser included offense when a defendant, if guilty at
all, could only be guilty of the greater offense, i.e., when the evidence, even construed
most favorably to the defendant, would not support a finding of guilt of the lesser
included offense but would support a finding of guilt of the offense charged.” (People v.
Stewart (2000) 77 Cal.App.4th 785, 795-796.)
The People do not dispute assault with a firearm is a lesser included offense of
assault with a semiautomatic firearm or that assault is a lesser included offense of assault
with a firearm. (People v. Martinez (2012) 208 Cal.App.4th 197, 199 [“firearm assault is
a lesser included offense of a semiautomatic firearm assault”]; People v. Miceli (2002)
104 Cal.App.4th 256, 272.) A trial court “must instruct on an uncharged offense that is
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less serious than, and included in, a charged greater offense, even in the absence of a
request, whenever there is substantial evidence raising a question as to whether all of the
elements of the charged greater offense are present.” (People v. Huggins (2006)
38 Cal.4th 175, 215.)
The trial court was not required to instruct the jury sua sponte as to assault with a
firearm or assault because there was no evidence defendant used anything other than a
semiautomatic handgun in the assault. (See People v. Breverman (1998) 19 Cal.4th 142,
154 [trial court has no obligation to give instructions on lesser included offenses, “ ‘when
there is no evidence that the offense was less than that charged’ ”].) A.J. expressed no
confusion about whether the gun defendant used was a semiautomatic firearm or a
revolver, was able to describe the salient distinctions between the two, and affirmatively
identified the semiautomatic firearm recovered by police as the gun defendant used.
Although he misidentified the gun as a “Glock,” rather than a Smith & Wesson, the
misidentification did not suggest that anything other than a semiautomatic gun was used;
the make of the gun was irrelevant to that conclusion.
C.J.’s testimony corroborated the relevant details of A.J.’s conclusions. She
agreed with his description of the gun and observed that it seemed similar to the
semiautomatic guns used by police officers. The fact C.J. did not remember whether the
gun had a “little spinner” like a revolver is not substantial evidence that defendant
actually used a revolver, rather than a semiautomatic firearm, particularly given her later
identification of the gun police found as the gun defendant used. And, when identifying
the gun, she noted the slide on the gun--one of the key differences between a
semiautomatic gun and a revolver--in the picture was different because it was pulled
back, unlike when defendant was using the gun, undermining any assertion that defendant
used a revolver.
Nor was any of the testimony about the characteristics of replica firearms linked to
the firearm defendant used in the crime. Although A.J. and Officer Brown both testified
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replica guns may look like real firearms, no testimony even hinted at the possibility
defendant’s gun was only a replica firearm. Defendant’s suggestion she may have used
anything other than a semiautomatic firearm is purely speculative, which is an
insufficient basis to require an instruction on a lesser included offense. (People v.
Sakarias (2000) 22 Cal.4th 596, 620.) We conclude the court was not required to offer
such instructions.
II
Denial of Probation
Defendant contends it was inappropriate for the court to deny her probation based
on the fact she used a firearm because the use of a firearm is an element of the underlying
offenses and sentence enhancements.
A. Additional Background
Before the sentencing hearing, defendant filed a mitigation brief arguing defendant
had no prior criminal record, was the passive partner in the crime, and had been stuck in
an abusive relationship with Henderson at the time of the crime. At the hearing, defense
counsel asked for a grant of probation, arguing Henderson was the dominant partner in
the crime and defendant had “very little choice in what was going on in her own life.”
Defendant addressed the court, saying she took accountability for her actions.
The prosecution responded that, regardless of her “unhealthy relationship,”
defendant was an adult who engaged in “incredibly dangerous conduct.” The prosecution
also noted that defendant had several rules violations while in custody, suggesting her
behavior had not changed. The court expressed agreement with the prosecution’s
argument, noting that although defendant said she was only doing what Henderson
wanted, her behavior in custody suggested the crime was not “aberrational.”
Defense counsel responded that defendant was a “victim” of Henderson, despite
her behavior, and the court interrupted, saying, “I would not consider Ms. James to be a
victim in this equation. Now there may be a reason why she engaged in this conduct, but
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to characterize her as a victim when she goes into a home, and although it’s charged as a
245 with a use, if--for lack of a better word, isn’t this terroristic conduct?” The court
pressed counsel to explain how defendant had taken responsibility for her actions, and
counsel responded defendant had given a statement to officers after her arrest admitting
she had been at the apartment.
The court observed defendant and Henderson originally went to C.J.’s apartment
to get defendant’s rice cooker, which seemed inconsistent with a theory that Henderson
was the instigator for the crime. The court noted defendant entered the apartment with a
gun before Henderson did.
The court then denied probation, saying, “The defendant is not eligible for
probation pursuant to Penal Code Section 1203(e)(2) unless the Court finds unusual
circumstances. The Court does not find unusual circumstance[s] in light of the fact that
the nature, seriousness, and circumstances of this case, including the use of a firearm, do
not warrant a probationary sentence, notwithstanding the fact the defendant was youthful
and had no prior criminal record.
“The Court has also contemplated whether or not--although there wasn’t a specific
request to do so, whether or not the Court should exercise its discretion in terms of
striking the firearm enhancement. In light of the manner in which firearms were used in
this case and the conduct that took place, again the Court has considered potentially,
notwithstanding the lack of a request, but if a request had been made, the Court would not
have granted that request. So the Court does not find that it is in the interest of justice to
exercise its discretion in terms of striking 12022.5(a) allegation.”
B. Analysis
Defendant contends the “only articulated factor justifying denying probation” was
an element of the underlying offense, and therefore could not be used to deny probation.
The People respond defendant forfeited this issue on appeal because counsel did not
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object to the use of the factor before the trial court. Even assuming the issue was not
forfeited, however, we disagree that the trial court abused its discretion.
“Except in unusual cases in which the interests of justice would best be served if
the person is granted probation, probation shall not be granted to . . . [a]ny person who
used, or attempted to use, a deadly weapon upon a human being in connection with the
perpetration of the crime of which that person has been convicted.” (§ 1203, subd.
(e)(2).) California Rules of Court, rule 4.413(c) sets forth the factors which may indicate
an “unusual case” in which probation may be granted. One such factor is where the
defendant is youthful or aged and has no significant record of prior criminal offenses.
(Cal. Rules of Court, rule 4.413(c)(2).) These factors are indicators the trial court may
use to find the case unusual, but it is not required to do so. (People v. Stuart (2007)
156 Cal.App.4th 165, 178.) If the court determines presumptive ineligibility is
overcome, that is not the end of the inquiry; the court must still decide whether to grant
probation based on the criteria in California Rules of Court, rule 4.414. (Stuart, at
p. 178.)
“ ‘The sentencing court has broad discretion to determine whether an eligible
defendant is suitable for probation . . . .’ [Citation.] There is likewise broad discretion to
determine whether a given case is ‘unusual’ and entitles the defendant to probation in the
interests of justice. [Citation.] To establish abuse, the defendant bears the burden on
appeal to show that the denial of probation was, under the circumstances, arbitrary,
capricious, or exceeding the bounds of reason. [Citation.]” (People v. Nuno (2018)
26 Cal.App.5th 43, 49.)
Here, the trial court determined probation was not warranted, despite defendant’s
youth and lack of prior record. Contrary to defendant’s contention that the court relied
only on defendant’s use of a firearm to deny probation, the court also cited more
generally the “nature, seriousness, and circumstances” of the case, which is a permissible
factor to consider. (Cal. Rules of Court, rule 4.414(a)(1).) Defendant contends the court
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merely gave a “word-for-word recitation” of the rule without articulating the basis for its
decision, but this strips the court’s statement of its context. Shortly before issuing its
decision, the court had a colloquy with defense counsel in which the court described
defendant’s actions as “terroristic conduct” based on the fact that defendant entered into
the victim’s home to threaten her with a gun. The court also noted defendant’s actions
were not “aberrational” or purely motivated by her relationship with Henderson based on
her conduct while in custody, and suggested defendant had, in fact, been the instigator in
the crime because she was the first to enter the apartment with a gun.
Each of these statements was supported by the record. Testimony at trial
established defendant was the first to enter C.J.’s apartment, the first to threaten C.J. with
a gun, and had multiple rules violations while in custody. Moreover, defendant entered
C.J.’s apartment late at night when C.J.’s young daughter was sleeping, much of the
encounter occurred shortly after C.J. had just gotten out of the shower and was wearing a
towel, and defendant called C.J. after the incident to threaten her, supporting the court’s
description of defendant’s crime as “terroristic conduct.” The court was thus within its
discretion to deny probation based on the nature, seriousness, and circumstances of the
offense, and defendant has not shown the trial court’s decision was arbitrary, capricious,
or exceeded the bounds of reason. (See People v. Nuno, supra, 26 Cal.App.5th at p. 49.)
DISPOSITION
The judgment is affirmed.
\s\
Blease, Acting P. J.
We concur:
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\s\
Hull J.
\s\
Duarte, J.
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