People v. Stewart CA5

California Court of Appeal Mar 21, 2016 No. F069716Unpublished

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Holding. The court held that the trial court did not err in failing to provide a self-defense instruction, as the defendant did not request one and the evidence did not support it, and that the flight instruction was properly given based on evidence of the defendant's attempted escape.

Issues

Whether the trial court erred in failing to instruct the jury on self-defense regarding charges of felon in possession of a firearm and ammunition.
Whether the trial court erred in instructing the jury on flight under CALCRIM No. 372.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the defense put forth no evidence giving the trial court notice defendant was relying on a theory of self-defense as to counts 2 and 3”

“the trial court did not err in failing to give a self-defense instruction on counts 2 and 3.”

“we find sufficient evidence supported the flight instruction.”

Filed 3/21/16 P. v. Stewart CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, F069716 Plaintiff and Respondent, (Super. Ct. No. BF152169A) v.

BILLY MARTIN STEWART, JR., OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge.

Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and Jeffrey Grant, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

INTRODUCTION Defendant Billy Martin Stewart, Jr., was charged with assault with a firearm (Pen. Code, § 245, subd. (a)(2), count 1),1 unlawful possession of a firearm by a felon (§ 29800, subd. (a)(1), count 2), unlawful possession of ammunition by a felon (§ 30305, subd. (a)(1), count 3), and receipt of stolen property (§ 496d, subd. (a), count 4). The information also alleged defendant committed the offenses charged in counts 1 and 2 while released on bond (§ 12022.1); defendant was armed with a firearm during the commission of the offenses charged in counts 3 and 4 (§ 12022, subd. (a)(1)), and as to all counts, defendant suffered a prior prison commitment within the meaning of section 667.5. A jury found defendant guilty of counts 2, 3, and 4. In addition, the court found true the bail enhancement as to count 2. Defendant was sentenced to five years eight months in prison. On appeal, defendant contends the trial court erred (1) in failing to give a self- defense instruction on counts 2 and 3; and, (2) by giving a flight instruction. We disagree and affirm the judgment. FACTS Nathan Flud II (Senior) and Nathan Flud III (Junior) both owned several water trucks. On November 26, 2013, Junior noticed one of his water trucks was missing, and reported it stolen to police. On December 11, 2013, Junior received a phone call from an individual who believed the missing truck was parked at a Denny’s restaurant near Highway 99. The Fluds drove separately to Denny’s and, upon arriving, saw the water truck parked in the parking lot. Junior had brought a .22 rifle with him, as well as a .45-caliber handgun. Junior and Senior parked across the street from the Denny’s and surveilled the truck for several hours. Senior believed whoever had stolen the truck was using it to steal

People v. Stewart CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

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