Filed 6/18/15 P. v. Haro CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E061222
v. (Super.Ct.No. SWF1300832)
CARLOS HARO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Angel M. Bermudez,
Judge. Affirmed with directions.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland and
Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
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I. INTRODUCTION
A jury found defendant and appellant Carlos Haro guilty of second degree robbery
(Pen. Code, § 211; count 1),1 making criminal threats (§ 422; count 2), second degree
burglary (§ 459; count 3), and assault with a deadly weapon, a knife (§ 245, subd. (a)(1);
count 4). The jury also found defendant personally used a knife in committing each
crime. (§ 12022, subd. (b)(1).) Defendant admitted two prior serious felony convictions
and two prior strike convictions (§ 667, subds. (a), (c), (e)(2)(A)) and was sentenced to
11 years plus 25 years to life in prison.
On this appeal, defendant claims the trial court prejudicially erred in refusing to
instruct the jury on the defense of accident to the charge of assault with a deadly weapon
in count 4. At trial, the evidence showed that on April 26, 2013, defendant went into the
Moreno Market in Hemet, robbed the store, and assaulted and threatened to kill the store
clerk, Beatriz Gomez, with a knife. The evidence indicated that defendant accidentally
cut Gomez’s arm with the knife during the robbery and assault. Defendant argues this
evidence supported an instruction on accident, essentially telling the jury he was not
guilty of assault with a deadly weapon if he accidentally cut Gomez.
We conclude the instruction was properly refused because insufficient evidence
supported it. Though substantial evidence indicated that defendant may have accidentally
and unintentionally cut Gomez’s arm with the knife, there was no evidence that defendant
accidentally assaulted Gomez with the knife.
1 All further statutory references are to the Penal Code unless otherwise indicated.
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Defendant also claims the abstract of judgment contains a clerical error and must
be corrected to show he was convicted of second degree robbery in count 1 rather than
robbery in concert, as the abstract indicates. The People concede the error. We remand
the matter to the trial court with directions to amend the abstract of judgment, as
requested. In all other respects, we affirm the judgment.
II. FACTUAL BACKGROUND
A. Prosecution Evidence
On April 26, 2013, Gomez was working alone at the Moreno Market, a small
grocery store in Hemet. Around 7:30 p.m., Gomez was in the back of the store when she
heard someone in the store calling for help and asking where to pay. At that point,
defendant, wearing a baseball hat and a bandanna over his mouth, ran up to Gomez,
pointed a knife at her, and told her “it was not a game,” to “hurry up,” and to give him
“all the money” in the cash register or he would kill her. Defendant grabbed Gomez’s
blouse from behind and rushed her to the register near the front of the store. On the way
there, defendant was continually “trying to stab everywhere” with the knife and “cutting
everywhere he was seeing,” including food items and small coolers.
At the register, defendant stood behind Gomez’s right side and, while still pointing
the knife at her, told her to open the register. As Gomez was opening the register,
defendant told her to “open it faster” and cut her right arm with the knife. The cut bled,
but it was small and did not require stitches or medical attention. Defendant took the
money from the register and the money in Gomez’s purse, then left the store through the
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front door. Gomez began to call 911, then looked outside and saw that defendant was on
a bike and the police were already there.
Officer Douglas Klinzing of the Hemet Police Department was on his way home
from work, driving a marked police car and still in uniform, when he noticed defendant
walk quickly out of the Moreno Market, “holding a bandan[n]a over his face and holding
his waistband area.” Defendant pulled the mask away from his face and walked towards
a bicycle, then jumped on the bicycle and “started to pedal off as quickly as he could,”
after making eye contact with the officer. The officer pulled into the parking lot and
began following defendant. Gomez then came out of the market, waving frantically and
pointing at defendant. Defendant did not yield after the officer activated his emergency
lights and siren, and the officer called for backup. Officer Klinzing followed defendant
onto State Street, and defendant kept turning around and looking at the officer.
Officer Klinzing continued following defendant. Several blocks away from the
market, defendant stopped at a house, jumped off his bicycle, and ran inside the house
after ignoring the officer’s order to “[s]top.” Other officers arrived and apprehended
defendant inside the house. The baseball hat defendant was wearing was found inside a
sink in the washroom, the bandanna was inside a toilet, and Gomez’s wallet and cash
were inside the refrigerator.
Daniel O’Connell was working across the street from the Moreno Market when he
“heard . . . car tires squealing” and noticed a police car following a man on a bicycle. As
he walked over to the market, O’Connell found a knife on the ground between two
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parked cars, near where the man on the bicycle had passed. At the market, Gomez told
O’Connell she had just been just robbed and showed him her cut which he saw had “a
little bit of blood.”
B. Defense Evidence
Defendant testified in his own defense. He was 52 years old at the time of trial in
February 2014 and had lived in Hemet for 18 years. He began using drugs when he was
15 years old, and began using methamphetamine, heroin, and cocaine in his early 20’s.
At the time of the robbery, he was homeless and living on the streets because he had lost
his job as a cook. He had no recollection of the robbery or the events of April 26, 2013.
He only recalled sleeping on the streets and suddenly waking up in jail. During the two-
week period before the robbery, he was using methamphetamine, heroin, marijuana, and
alcohol on a daily basis; he had not eaten and had slept very little. After viewing the
surveillance videotape from the robbery, defendant admitted he went into the market,
armed with a knife, to steal money.
Dr. William Jones, a psychologist, testified for the defense. To prepare for his
testimony, Dr. Jones reviewed information about methamphetamine and other drugs, the
police reports, and the preliminary hearing transcript in the case.
Dr. Jones testified that one-third of long-term methamphetamine addicts end up
with methamphetamine psychosis, a condition similar to paranoid schizophrenia, in
which individuals “hallucinate, hear voices” and have paranoid delusions. Because the
human brain needs a minimum amount of sleep to function and because
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methamphetamine is a stimulus, methamphetamine addicts may stay awake for several
days at a time. People who lose sleep for several days “can get distortions [in their]
thinking, it’s hard to tell reality.”
It is also “fairly common” for long-term alcoholics to have “blackouts.” In a
blackout, the person “continues to function” as if they are awake but they do not recall
what happened. They “may do things that are not characteristic of them during an
alcohol blackout.” Because heroin, marijuana, and alcohol are “downer-type” drugs and
methamphetamine is a stimulant, a person using a combination of all these drugs would
be less likely to pass out, but their judgment and self-control would probably be poorer.
Long-term drug and alcohol use can lead to blackouts, bizarre behaviors, and psychosis.
C. The Requested Instruction on Accident
Following the close of the evidence, defense counsel asked the court to instruct the
jury on accident as a defense to the charge in count 4 of assault with a deadly weapon, by
using CALCRIM No. 3404. Counsel argued that the evidence supported an inference
that defendant accidentally cut Gomez’s arm as the two of them were standing by the
register. Counsel pointed out that when Gomez moved to open the register, defendant
was moving toward the register at the same time, and, at that point, the knife apparently
“came down” and accidentally inflicted the small cut on Gomez’s arm. The prosecutor
objected to instructing the jury on accident on the ground that assault with a deadly
weapon is a general intent crime and does not require an intent to inflict injury, and based
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on the surveillance videotape, the assault was not an accident. The trial court refused to
give the instruction because insufficient evidence supported it.
III. DISCUSSION
A. The Instruction on Accident Was Properly Refused
As indicated, defendant claims the court prejudicially erred in refusing to instruct
the jury on accident as a defense to the charge that he assaulted Gomez with a knife. As
we explain, the instruction was properly refused.
1. Applicable Legal Principles
Accident is a statutory defense. Section 26 provides: “All persons are capable of
committing crimes except . . . . [¶] . . . [¶] Five—Persons who committed the act or
made the omission charged through misfortune or by accident, when it appears that there
was no evil design, intention, or culpable negligence.” Generally, the defense of accident
amounts to a claim that the defendant acted without forming the mental state necessary to
make his or her actions a crime. (People v. Anderson (2011) 51 Cal.4th 989, 996-998.)
As CALCRIM No. 3404 explains, a defendant “is not guilty of” a charged crime if he or
she acted “without the intent required for that crime, but acted instead accidentally.”
A trial court does not have a duty to instruct on the defense of accident sua sponte.
(People v. Anderson, supra, 51 Cal.4th at pp. 997-998.) Instead, the court’s duty to
instruct on accident, “generally extends no further than the obligation to provide, upon
request, a pinpoint instruction relating the evidence to the mental element required for the
charged crime.” (Id. at p. 997.) “Pinpoint instructions ‘relate particular facts to a legal
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issue in the case or “pinpoint” the crux of a defendant’s case . . . .’” (People v. Wilkins
(2013) 56 Cal.4th 333, 348-349.) But pinpoint instructions are not required to be given,
even upon request, unless substantial evidence supports them. (People v. Enraca (2012)
53 Cal.4th 735, 760; People v. Ward (2005) 36 Cal.4th 186, 214.)
Assault with a deadly weapon is a general intent crime. (People v. Colantuono
(1994) 7 Cal.4th 206, 215-216.) An assault is “an unlawful attempt, coupled with a
present ability, to commit a violent injury on the person of another.” (§ 240.) “The mens
rea [required for assault] is established upon proof the defendant willfully committed an
act that by its nature will probably and directly result in injury to another . . . .” (People
v. Colantuono, supra, at p. at 214.) The defendant must actually “be aware of the facts
that would lead a reasonable person to realize that a battery would directly, naturally and
probably result from his conduct.” (People v. Williams (2001) 26 Cal.4th 779, 788 & fn.
3.) No touching or intent to harm the victim is required in order to commit an assault.
(People v. Colantuono, supra, at pp. 214-215.)
2. There Was No Instructional Error
Here, we agree that substantial evidence showed that defendant accidentally and
unintentionally cut Gomez’s arm with the knife he was wielding as Gomez removed the
money from the cash register. As defendant points out, the cut was minor, and defendant
could have accidentally brought the knife down on Gomez’s arm as he stood behind her,
“flailing a knife around.” Still, the evidence that the cut was accidental was utterly
insufficient to support an instruction on the defense of accident to the charge of assaulting
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Gomez with the knife. The evidence that defendant did not intend to cut Gomez in no
way indicated that defendant was unaware he was assaulting Gomez with the knife.
Further, defendant was not required to intentionally cut Gomez in order to commit the
assault. (See People v. Colantuono, supra, 7 Cal.4th at pp. 214-215.)
Simply put, there was no evidence defendant accidentally assaulted Gomez with
the knife. The evidence showed that, while accosting and holding Gomez at knifepoint,
defendant threatened to kill Gomez if she did not give him the money from the register.
There is no way the assault was an accident—even if defendant did not recall committing
the crime. In sum, defendant was not entitled to an instruction that he was not guilty of
the assault if the jury found he accidentally cut Gomez with the knife.
B. Defendant’s Abstract of Judgment Must Be Corrected
Lastly, defendant claims his abstract of judgment contains a clerical error: it
indicates defendant was convicted of robbery “[i]n [c]oncert” in count 1 when, in fact, he
was convicted of second degree robbery in count 1. The People concede the error. We
therefore remand the matter to the trial court with directions to correct the error. (People
v. Mitchell (2001) 26 Cal.4th 181, 185 [a court has inherent authority to correct clerical
errors in its records].)
IV. DISPOSITION
The matter is remanded to the trial court with directions to prepare an amended
abstract of judgment indicating that defendant was convicted in count 1 of second degree
robbery rather than robbery “[i]n [c]oncert.” The trial court is further directed to forward
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a copy of the amended abstract of judgment to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING
J.
We concur:
HOLLENHORST
Acting P. J.
MILLER
J.
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