People v. Lattin (2024) · DecisionDepot

People v. Lattin

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Dec 18, 2024 No. D083262Published

Filed 12/18/24

CERTIFIED FOR PARTIAL PUBLICATION*

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D083262

Plaintiff and Respondent,

v. (Super. Ct. No. FVI22003394)

STEPHEN JAMES LATTIN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Bernardino County, Melissa Rodriguez, Judge. Affirmed in part, reversed in part and remanded for further proceedings. Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A.

* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts DISCUSSION III, IV, V, VI.

Swenson and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent. INTRODUCTION Stephen James Lattin contends a gun must be loaded to commit

assault with a firearm unless it is used as a club or bludgeon. (Pen. Code,1 § 245, subd. (a)(4).) He asserts the present ability element of assault cannot be satisfied with an unloaded gun if the defendant is too far from the victim to inflict injury with the firearm as a club or bludgeon. Based on his understanding of the law, he requested a pinpoint instruction that an assault with a deadly weapon is not committed by a person “pointing an unloaded gun . . . with no effort or threat to use it as a baton” or “pointing an unloaded gun in a threatening manner” at another person. The trial court declined to give his pinpoint instruction to the jury. He asserts this was prejudicial error, and further claims the evidence was insufficient on present ability to support his conviction for assault with a firearm. We reject both contentions. In the published portion of our opinion, we conclude there is no brightline rule in California that, unless it is used as a club or bludgeon, a gun must be loaded for an assault to be committed. Proof that a firearm was unloaded can be a complete defense to charges of assault, but it is not a complete defense in all circumstances as a matter of law. If ammunition is readily available—and here there was sufficient evidence it was—it is a question for the jury whether a defendant with an unloaded gun possesses the means to load the gun and shoot immediately, or whether he is too many steps away from inflicting injury to have the present ability to commit assault.

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“An appellate court reviews the denial of a section 1118.1 motion under the standard employed in reviewing the sufficiency of the evidence to support a conviction.” (People v. Houston (2012) 54 Cal.4th 1186, 1215.) Under that standard, we determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 319 (Jackson); People v. Lagunas (1994) 8 Cal.4th 1030, 1038, fn. 6.) Our task is “to determine whether [the record] contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar).) A reversal for insufficient evidence “ ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Substantial evidence supported the prosecution’s primary theory that the shotgun was loaded when Lattin returned to the gas station and pointed it at Michael. “California courts have often held that a defendant’s statements and behavior while making an armed threat against a victim may warrant a jury’s finding the weapon was loaded.” (Rodriguez, supra, 20 Cal.4th at p. 12.) All four victims testified Lattin threatened to kill them while he was pointing the shotgun at them during the first encounter at the gas station. A jury could reasonably have interpreted Lattin’s threats to kill the victims to be an admission the weapon was loaded. They could have resolved conflicting evidence in favor of concluding the shotgun remained loaded throughout the second encounter until Lattin or his friends emptied it before placing it in the trunk of the black Mazda. (See Lochtefeld, supra,

whether they were in custody in Riverside County, San Bernardino County, or Orange County. He checked the witnesses’ “employment status through the California . . . equal employment division.” He “checked both of their previous work location[s],” but learned “they were let go back in August.” He ran the license plates of vehicles registered to both witnesses to see whether “those vehicles hit cameras in the area of this current address or any other associated address which [was] known,” but “[t]he last hit for each vehicle for each subject [was] months ago.” He called phone numbers of friends and family members associated with the witnesses and left messages. He “did a social media search to see if there [was] anything . . . to show a current location of each subject.” He checked the state’s welfare database to see if either witness was receiving benefits at a current address. He checked the local school district to see if either witness had children in school. Lozano went in person to each last known address he found for each missing witness and “knocked on the doors, left copies of subpoenas, business cards, [and] spoke to neighbors.” He went to the current listed addresses for the witnesses’ spouses and other family members and spoke to them or to the new tenants at those addresses unless “they would not talk to [him] at all because [he] was in law enforcement.” With help from five other investigators from the Bureau of Investigation of the San Bernardino County District Attorney’s office, he “conducted surveillance on different dates and different times—sometimes in the morning, sometimes in the afternoon, sometimes in the evening—to see if [he] could catch them at home or going.” On cross-examination, Lozano made one minor admission: He did not check “the voter rolls.” Lozano initially did not contact the victims, Jz.R., Michael, An.D., and Anthony, because the Sheriff Department’s policy is to not “ask other victims

elements . . . have to be tried to the jury and proved beyond a reasonable doubt.” (Washington v. Recuenco (2006) 548 U.S. 212, 220.) Not instructing on essential elements is “very serious constitutional error because it threatens the right to a jury trial that both the United States and California Constitutions guarantee.” (Merritt, supra, 2 Cal.5th at p. 824.) Where a defendant’s substantial rights are affected, no objection is required to raise this type of error on appeal. (§ 1259.) The Attorney General’s reliance on People v. Scott (1994) 9 Cal.4th 331 is misplaced. The Court in Scott addressed forfeiture in the context of a former version of section 1170(b). Under the former version, the trial court had “broad discretion” based on its own finding of facts “to impose the lower or upper term instead of the middle term of imprisonment” so as “to tailor the sentence to the particular case.” (Scott, supra, at p. 349.) For many policy reasons, the Court concluded “that the waiver doctrine should apply to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices.” (Id. at p. 353, italics added.) Its specific holding was: “[W]e hold that complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal.” (Id. at p. 356.) By contrast, the sentencing error here involves a new version of section 1170(b), and the non-discretionary federal constitutional right to a jury trial on every aggravating fact used to increase a defendant’s sentence. (Lynch, supra, 16 Cal.5th at p. 742.) The holding in Scott does not apply to this type of error. Regardless, the law was in a state of uncertainty when Lattin was sentenced. At the time, it was not clear whether every aggravating fact used to support the imposition of an upper term sentence had to be found true beyond a reasonable doubt by a jury or whether a true finding by a jury on a