Filed 6/14/23 P. v. Timms CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A163864
v.
(City & County of San Francisco
JOVAUGHN TIMMS, County Super Ct. Nos. 229454,
Defendant and Appellant. 229279, CT18008239 and
CT18010985.)
A jury convicted appellant Jovaughn Timms of assault with a firearm
(Pen. Code1, § 245, subd. (a), count 2), domestic violence (§ 273.5, subd. (a),
count 3), and intimidating a witness (§ 136.1, subd. (b), count 5), along with
two other crimes. In this appeal, he argues that instructional errors affected
the verdicts on counts 2 and 3, and he challenges the sufficiency of the
evidence for count 5. We reject appellant’s instructional error claims but
agree with him about the sufficiency of the evidence. Accordingly, we reverse
the judgment as to count 5 and otherwise affirm.
All subsequent statutory references are to the Penal Code unless
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otherwise indicated.
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I. DISCUSSION
The parties are familiar with the facts and our opinion does not meet
the criteria for publication. (Cal. Rules of Court, rule 8.1105(c).)
Consequently, we resolve the cause before us, consistent with constitutional
requirements, in an abbreviated opinion with reasons stated. (Cal. Const.,
art. VI, § 14; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1262 [“ ‘An
opinion is not a controversial tract, much less a brief in reply to the counsel
against whose views we decide. It is merely a statement of conclusions, and
of the principal reasons which have led us to them.’ [Citation.]”].)
A. Alleged Instructional Errors Concerning Counts 2 and 3
Appellant alleges two instructional errors. First, the trial “court
misinstructed the jury on the intent requirement” for domestic violence under
section 273.5. Second, the instructions defined “domestic violence” in a way
that “improperly expand[ed] the scope of conduct prohibited by . . . section
273.5.” According to appellant, these errors were prejudicial as to counts 2
and 3. We find no prejudice in either respect.
1. The First Alleged Instructional Error
Count 3 of the information charged appellant with domestic violence in
violation of section 273.5, subdivision (a). For this count, the trial court
instructed the jury with the Judicial Council’s Criminal Jury Instruction
(CALCRIM) No. 840, setting forth the following intent requirement: The
defendant must “willfully inflict[] a physical injury,” where someone
“commits an act willfully when he . . . does it willingly or on purpose.”
CALCRIM No. 3404 instructed jurors that the “defendant is not guilty of . . .
assault with a firearm (Count 2), [or] domestic violence (Count 3), . . . if he
acted without the intent required for those crimes, but instead acted
accidentally.”
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During deliberation, the trial court responded to questions clarifying
this instruction. When jurors asked for “a definition of ‘willingly or on
purpose’ as it appears in . . . [section] 273.5, [subdivision] (a),” the trial court
instructed the jurors to give those “words . . . their ordinary, everyday
meaning.” Then, the jury asked: “If the defendant withdrew the firearm and
accidentally pulled the trigger resulting in a physical injury, does that count
as willfully inflicting a physical injury?” The trial court replied: “To willfully
inflict a physical injury means to have a purpose or willingness to inflict a
physical injury. It is up to you to decide what the facts are and whether that
element has been proven beyond a reasonable doubt. See also instructions
840 and 3404.”
The parties agree that this final instruction was erroneous and that
instructional error is not reversible in the absence of prejudice.2 The
controversy is therefore limited to whether the instructional error was
prejudicial.
Appellant rightly notes that the jury’s question about accidentally
pulling the trigger “might fairly be read as asking whether i[t] impacted
appellant’s guilt if he drew the weapon intentionally but discharged it
accidentally.” He argues that the court’s response to the question amounted
to reversible error because it allowed the jurors to convict him of violating
section 273.5 even if they believed that the act causing the
2 Respondent argues that the error should be “reviewed for prejudice
under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836,”
providing that “an error is harmless unless it is reasonably probable that the
defendant would have obtained a more favorable outcome absent the error.
(People v. Molano (2019) 7 Cal.5th 620, 670.)” On the other hand, appellant
asks us to apply the “harmless” “beyond a reasonable doubt” standard
articulated in Chapman v. California (1967) 386 U.S. 18, 22–23. We need not
decide which is the correct standard because our analysis demonstrates that
there was no prejudice under either.
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injury—discharging the firearm—was accidental. He further claims
prejudicial error because the court’s response allegedly “pushed appellant’s
defense of accident out of reach” and “lightened the prosecution’s burden of
proof.” We disagree.
The court’s instruction to the jury that “[t]o willfully inflict a physical
injury means to have a purpose or willingness to inflict a physical injury” was
erroneous, but not prejudicial as it did not lessen the prosecutor’s burden. In
fact, it imposed a greater burden on the prosecution to prove specific intent to
injure rather than general intent to commit an assaultive act. Whether
appellant benefited from this error, (as argued by respondent), this court
need not decide. Despite the erroneous instruction requiring specific intent
to injure, the court correctly referred the jury back to the instruction that
explained the elements of section 273.5 and the CALCRIM 3404 instruction
regarding “accident.” Thus, it cannot be said that appellant’s defense was
somehow pushed out of reach. Instead, the more reasonable inference is that
the jury considered the totality of the court’s instructions along with the
evidence that appellant fled the scene after he shot the victim in her right
lower abdomen, and ultimately determined that appellant’s discharge of the
firearm was not accidental. Logic dictates, as noted by respondent, that “ [i]f
the jury had found that appellant accidentally discharged the firearm, it
could not have found that he had a purpose or willingness to inflict a physical
injury.”
Appellant is also wrong to suggest that “[n]o other jury finding
established that the discharge was intentional.” The jury convicted appellant
of count 2—assault with a firearm. (§ 245, subd. (a)(2).) For that crime, the
jury was instructed with CALCRIM No. 875, allowing the jury to find
appellant guilty only if he “did an act with a firearm that by its nature would
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directly and probably result in the application of force to a person,” and “did
that act willfully.” Merely drawing a firearm is not an act that by its nature
would directly and probably result in the application of force to a person. For
that reason, it was necessarily the discharge of the firearm that the jury
found appellant to have done willfully.
In sum, because the jury found that appellant willfully discharged the
firearm, they found that he had the general intent required by section 273.5,
subdivision (a), thus rendering harmless any instructional error in that
respect.
2. The Second Alleged Instructional Error
At trial, the parties stipulated that appellant had been convicted twice
before for “felony domestic violence in violation of . . . section 273.5.”
Accordingly, the trial court instructed the jurors with CALCRIM No. 852A,
on the use of evidence of uncharged domestic violence to establish a
defendant’s inclination to commit such violence. Appellant argues that
purportedly inapplicable portions of this instruction might have led jurors to
believe that they could convict him on count 3 for mere “reckless acts” or “acts
that caused fear,” as opposed to a willful act inflicting a physical injury. This
argument is belied by the fact that when the jury requested the definition of
“felony domestic violence” the trial court directed the jury to review
CALCRIM 840, which specifically defined the elements of the charged crime.
As respondent argues and we agree, “…it is inconceivable that the jury would
. . . believe that an instruction concerning the permissible use of uncharged
acts could somehow eliminate requirements for the charged crime.” Even
still, appellant asserts that this alleged instructional error, in combination
with the erroneous response to the meaning of willful requires reversal.
However, as we have already shown, the jury did find that appellant
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committed a willful act inflicting a physical injury, so any instructional error
in this respect was harmless.
B. Sufficiency of the Evidence for Count 5
Appellant argues that there is insufficient evidence to support his
conviction for violating section 136.1, subd. (b)(2), which proscribes attempts
to dissuade a witness from “[c]ausing a complaint, indictment, information,
probation or parole violation to be sought and prosecuted, and assisting in
the prosecution thereof.” (Italics added.) Here, respondent does not dispute
appellant’s contention that the record lacks any evidence showing that
appellant sought to dissuade the victim from causing the felony complaint to
be sought and prosecuted. Thus, the question is whether a subdivision (b)(2)
conviction can be affirmed on the sole basis of an attempt to dissuade a
witness from assisting in the prosecution of an already-filed complaint.
“Issues of statutory interpretation are questions of law subject to de
novo review. [Citation.] ‘Our fundamental task in interpreting a statute is to
determine the Legislature’s intent so as to effectuate the law's purpose. We
first examine the statutory language, giving it a plain and commonsense
meaning. We do not examine that language in isolation, but in the context of
the statutory framework as a whole in order to determine its scope and
purpose and to harmonize the various parts of the enactment. If the
language is clear, courts must generally follow its plain meaning unless a
literal interpretation would result in absurd consequences the Legislature did
not intend. If the statutory language permits more than one reasonable
interpretation, courts may consider other aids, such as the statute's purpose,
legislative history, and public policy.” (People v. Simmons (2012) 210
Cal.App.4th 778, 790.)
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In People v. Reynoza (2022) 75 Cal.App.5th 181, 189 (Reynoza), our
colleagues in the Sixth District held that section 136.1, subdivision (b)(2)
“requires proof that, among other things, the defendant attempted to prevent
or dissuade another person from causing a [charging document] to be filed.”
Thus, Reynoza disagreed with People v. Velazquez (2011) 201 Cal.App.4th
219, 233, which held that subdivision (b)(2) “encompasses . . . attempts to
dissuade a victim from causing a complaint or information to be prosecuted or
assisting in that prosecution.” (Italics added.) This issue is currently
pending before our Supreme Court, which has granted review in Reynoza to
address whether subdivision (b)(2) “encompass attempts to dissuade a victim
or witness after a charging document has been filed.” (Reynoza, supra, 75
Cal.App.5th 181, review granted May 11, 2022, S273797.)
We agree with Reynoza that the Velazquez court’s holding “ignored the
canon of statutory construction that ‘ “significance must be given to every
word [in a statute] in pursuing the legislative purpose, and the court should
avoid a construction that makes some words surplusage.” ’ ” (Reynoza, supra,
75 Cal.App.5th at p. 188, quoting People v. Leiva (2013) 56 Cal.4th 498, 506.)
The conduct forbidden by subdivision (b)(2) is an attempt to dissuade a victim
from causing a charging document “to be sought and prosecuted, and
assisting in the prosecution thereof.” (Id.) As a result of the conjunctive
effect of the word “and,” an attempt to dissuade a victim from assisting in the
prosecution of an already-filed complaint cannot be an independent basis for
prosecution under subdivision (b)(2).3
3Nor does our adherence to the statute’s plain meaning result in
absurd consequences, as implied by respondent’s assertion that “[n]o other
statutory provision covered some of appellant’s conduct.” With respect to
appellant specifically, our record of his conduct is in part an artifact of the
People’s apparent misunderstanding of the scope of subdivision (b)(2); given a
proper understanding, the People might have highlighted other evidence at
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Finally, while our analysis of the statute is dispositive, we note as well
that the conduct underlying the dissuasion charges in Reynoza and Valazquez
is factually distinguishable from appellant’s conduct, and arguably more
severe. In those other cases, the defendants urged their respective victims to
“drop” the charges. (Reynoza, supra, 75 Cal.App.5th at p. 184; Velazquez,
supra, 201 Cal.App.4th at p. 227.)
Here, in our case, after felony charges were filed, appellant wrote
letters to the victim admonishing her not to “speak to the DA,” not to “come
to court unless” appellant’s attorney “tells you to,” and to “write an affidivate
[sic] saying you are not going to testify on your husband . . . .” Thus, the
conduct in Reynoza and Velazquez evinced an intent (however misplaced) to
induce the victim to affirmatively thwart a prosecution, while appellant’s
conduct sought only to dissuade the victim from assisting.
Accordingly, we conclude that there is insufficient evidence to support
the verdict as to count 5.
III. DISPOSITION
The judgment is reversed as to appellant’s conviction on count 5 and
affirmed in all other respects. The matter is remanded to the trial court for
resentencing on the remaining counts and allegations.
trial or filed different charges. More generally, “[o]ther statutory provisions
prohibit attempts to dissuade victims or witnesses where charges have
already been filed. (See . . . § 136.1, subds. (a)(1) & (a)(2) [prohibiting
dissuasion or attempted dissuasion of a victim or witness from giving
testimony or attending trial]; [§] 137 [applying to attempts to influence
testimony or information given to law enforcement].)” (Reynoza, supra, 75
Cal.App.5th at pp. 189–90.)
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_________________________
Langhorne, J. *
We concur:
_________________________
Jackson, P.J.
_________________________
Simons, J.
People v. Timms / A163864
* Judge of the Superior Court of Napa County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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