California Court of Appeal May 14, 2013 No. E053321Unpublished
Filed 5/14/13 P. v. Wiggins 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E053321
v. (Super.Ct.No. FVA701726)
KRIST ANTONIO WIGGINS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,
Judge. Affirmed.
Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, William M. Wood, Gary W.
Brozio and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
1
I
INTRODUCTION
Defendant Krist Antonio Wiggins shot and killed Police Officer Sergio Carrera
during a SWAT team‟s execution of a search warrant on defendant. Defendant appeals
from judgment entered following a jury conviction for involuntary manslaughter, as a
When a jury resolves the credibility issues against the defendant, the reviewing court is
“bound by that resolution.” (Ibid.) Therefore, any conflict in the evidence supporting the
personal use enhancement does not render the evidence supporting the enhancement
insufficient.
33
XI
JURY INSTRUCTION ON PERSONAL USE ENHANCEMENT
Defendant contends the trial court gave the jury an incorrect modified version of
CALCRIM No. 3146, which instructs on the personal use enhancement. (§ 12022.5.)
Specifically, defendant argues the modified instruction incorrectly defined “personal use
of a firearm.” CALCRIM No. 3146 defines “personal use of a firearm” as follows:
“Someone personally uses a firearm if he or she intentionally does any of the following:
[¶] 1 Displays the weapon in a menacing manner; [¶] 2 Hits someone with the weapon;
[¶] OR [¶] 3 Fires the weapon.”
Because the circumstances in the instant case were unique, the trial court modified
CALCRIM No. 3146, over defendant‟s objection, to add that a defendant also personally
uses a firearm under section 12022.5 when he or she: “4. Possesses, grabs, handles or
controls the weapon knowing it‟s a weapon during the course of a struggle. [¶] Two or
more people may possess something at the same time. [¶] It is possible to find a
personal use even if the weapon is not pointed at the victim or the defendant does not
issue explicit threats of harm toward the victim or a third person. [¶] It is not required
that a victim be aware of the weapon to find that a defendant personally used the weapon.
[¶] It is possible to find a personal use of a weapon even if the use is directed toward
someone other than the victim of that crime.”
Defendant asserts that this additional “personal use” allowed the jury to find true
the enhancement based on an erroneous legal theory. This instructional error, defendant
34
argues, constitutes Guiton2 error, which arises “„when the prosecution presents its case to
the jury on alternate theories, some of which are legally correct and others legally
incorrect, and the reviewing court cannot determine from the record on which theory the
ensuing general verdict of guilt rested, the conviction cannot stand.‟” (Guiton, at p. 1122;
see also People v. Morales (2001) 25 Cal.4th 34, 43.) Defendant further argues it is
apparent the instructional error was prejudicial because the instructional error did not
exist in the first trial and the jury was unable to reach a finding on the personal use
enhancement. Therefore the verdict in the second trial, in which the jury found true the
enhancement, could be attributable to the erroneously modified CALCRIM No. 3146
instruction given to the jury in the second trial.
The issue here is whether the mere possessing, grabbing, handling, or controlling a
gun during the course of a struggle with a peace officer constitutes “personal use of a
firearm” within the meaning of section 12022.5, rather than a mere “arming.”3 The
phrase “use of a firearm” means “to display a firearm in a menacing manner, to
intentionally fire it, to intentionally strike or hit a human being with it, or to use it in any
manner that qualifies under Section 12022.5.” (§ 1203.06, subd. (b)(2).4) “„“Use”
2 People v. Guiton (1993) 4 Cal.4th 1116.
3 We recognize there is no mention of peace officers in the instruction but it is undisputed officers were involved and therefore it was not necessary to state this in the instruction.
4 “The definition of personal use given in section 1203.06 has been accepted as applicable to section 12022.5(a).” (People v. Johnson (1995) 38 Cal.App.4th 1315, 1319.)
35
means, among other things, “to carry out a purpose or action by means of,” to “make
instrumental to an end or process,” and to “apply to advantage.” (Webster‟s New
Internat. Dict. (3d ed. 1961).) The obvious legislative intent to deter the use of firearms
in the commission of the specified felonies requires that “uses” be broadly construed.‟
[Citation.]” (People v. Wardell, supra, 162 Cal.App.4th at p. 1492.) “[A] gun is „used‟
when there is evidence of gun-related conduct coupled with the intent the gun-related
action facilitate the crime . . . .” (Alvarado, supra, 146 Cal.App.4th at p. 1005.)
Under the unique circumstances in the instant case, the trial court did not err or
expand the law ex post facto by modifying CALCRIM No. 3146, to add the fourth
“personal use” of possessing, grabbing, handling, or controlling a gun during the course
of a struggle. Such acts were committed while an armed peace officer was attempting to
apprehend defendant and the gun belonged to an officer. Defendant‟s act of taking or
grabbing an officer‟s gun during a struggle with a peace officer who was attempting to
execute a search warrant constituted more than a mere arming. Such conduct could even
be found to qualify as the personal use of displaying a weapon in a menacing manner.
While normally possessing, grabbing, handling, or controlling a gun, alone, would not
constitute personal use of a firearm under section 12022.5, here the conduct qualified as a
“personal use” under section 12022.5 because it occurred during a struggle with a peace
officer and involved the officer‟s gun. We accordingly reject defendant‟s objection to
CALCRIM No. 3146 as modified.
36
XII
CALCRIM NO. 3146 PINPOINT INSTRUCTION
Defendant contends the trial court erred in refusing to give a pinpoint instruction
modifying CALCRIM No. 3146. Defendant‟s proposed pinpoint instruction placed the
word “intentionally” in front of each of the four subpoints defining “use” in CALCRIM
No. 3146, and added a sentence informing the jury that incidental or inadvertent use of a
firearm is not personal use.
A trial court has a duty to instruct the jury on matters closely and openly
connected with the facts in evidence and necessary to the jury‟s understanding of the
case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) A court must give instructions
“pinpointing” the defense theory when defendant requests them and where substantial
evidence supports the theory. (People v. Mincey (1992) 2 Cal.4th 408, 437.)
In the instant case, CALCRIM No. 3146, as modified, adequately and properly
instructed the jury on the personal use enhancement. The pinpoint language defendant
requested was appropriately rejected because it was repetitive of instructions already
given. (People v. Farmer (1989) 47 Cal.3d 888, 913.) The modified CALCRIM
No. 3146 instruction given to the jury clearly states that intent was required as to each of
the four types of “personal use,” by prefacing the four enumerated personal uses, with the
statement, when defendant “intentionally does any of the following.” Adding the word
intentional again before each of the four types of personal use would have been
unnecessarily repetitive.
We further note that it appears from the portion of the transcript cited by defendant
37
in his appellate opening brief, that defendant did not request a pinpoint instruction
inserting the word, “intentional” before each of the four listed types of personal use.
Failure to request a pinpoint instruction in the trial court forfeits the issue on appeal.
(People v. Cox (1991) 53 Cal.3d 618, 669.) “„. . . defendant is not entitled to remain
mute at trial and scream foul on appeal for the court‟s failure to expand, modify, and
1246-1247, quoting People v. Daya (1994) 29 Cal.App.4th 697, 714.)
Furthermore, by stating that each of the four types of personal use must be
intentional, there was no need additionally to specify that incidental or inadvertent use of
a firearm is not personal use. “A trial court is not required to give pinpoint instructions
that merely duplicate other instructions.” (People v. Panah (2005) 35 Cal.4th 395, 486.)
Accordingly, the trial court did not err in refusing to give defendant‟s superfluous
pinpoint instruction.
XIII
ADMISSIBILITY OF SERGEANT GILLIAM‟S TESTIMONY
Defendant contends the trial court abused its discretion in excluding from both
trials Sheriff‟s Sergeant Gilliam‟s testimony regarding the investigators‟ initial theory
that the rifle was discharged accidentally.
Gilliam arrived at defendant‟s home to investigate right after the shooting. He
attended a briefing, during which he was given a rough idea of what had occurred. One
of the officers conducting the briefing said that the shooting was believed to have been an
accidental discharge of an officer‟s weapon. Based on information provided at the
38
briefing, Gilliam drafted a new search warrant for defendant‟s home. Gilliam stated in
his declaration of probable cause that, during the altercation between defendant and an
officer, “it is believed that one of the Rialto Police Officer‟s weapons accidentally
discharged, striking Rialto Police Officer Sergio Carrera in the side of the face.”
Before the first trial, the trial court held an Evidence Code section 402 hearing
(402 hearing) to determine whether defendant could introduce evidence of Gilliam‟s
affidavit statement that it was believed an officer‟s gun accidentally discharged. Gilliam
testified at the 402 hearing that he wrote the statement before he had done any
investigation or interviews, and assumed that the discharge was accidental because one of
the officer‟s weapons was involved and it was stated during the briefing that the
discharge was believed to have been accidental. Gilliam did not know any of the
circumstances surrounding the gun discharge other than that the weapon belonged to an
officer. Gilliam had not yet spoken to Black, Jones, or anyone else with the Rialto Police
Department. When he wrote his affidavit, he did not have any information as to how the
weapon discharged.
The trial court ruled that Gilliam‟s testimony was inadmissible other than for
impeachment of the original declarant. The court also stated that his testimony concerned
multiple hearsay and there was a lack of foundation as to the basis of knowledge of the
declarant.
“A trial court‟s decision to admit or exclude evidence is reviewable for abuse of
discretion.” (People v. Vieira (2005) 35 Cal.4th 264, 292.) No such abuse occurred here.
Although defendant argues Gilliam‟s testimony would not be used to establish the truth
39
of the statement that the rifle was believed to have discharged accidentally, the testimony
would have had no other relevancy. Gilliam‟s testimony therefore constituted
inadmissible multiple hearsay used to prove the rifle discharged accidentally. Gilliam‟s
probable cause statement was based on the statement of an unidentified declarant and the
basis or foundation for the statement was unknown. Furthermore, Gilliam speculated that
the rifle fired accidentally merely because the rifle belonged to another officer.
Defendant argues Gilliam‟s testimony did not constitute inadmissible hearsay
because it would be used to show the investigators‟ course of investigation and state of
mind, not that the rifle fired accidentally. But since the statement Gilliam relied upon
was made during a preliminary briefing, right after the shooting, before the officers had
investigated the incident, the belief was speculative. Without establishing any well-
founded basis for the belief that the rifle was discharged accidentally, there was no abuse
of discretion in excluding Gilliam‟s testimony. There was no evidence presented at the
402 hearing showing that the declarant‟s statement was anything other than speculation
since the investigation had not yet begun.
XIV
EXCLUSION OF TESTIMONY BY BELL, HICE, AND GUERRERO
Defendant asserts that during the second trial, the trial court erred in excluding the
testimony of defendant‟s girlfriend, Nashalia Bell, and Officers Hice and Guerrero.
Defendant contends their testimony would have established defendant‟s state of mind, the
lighting conditions, and the officers‟ demeanor and state of mind. This evidence,
defendant argues, was relevant to refute the prosecution‟s theory that defendant
40
intentionally fired Black‟s rifle during his violent struggle with Black. We conclude the
evidence was not relevant to proving the firearm personal use enhancement, and even if it
was relevant, exclusion of the evidence was harmless. (People v. Watson (1956) 46
Cal.2d 818, 836 (Watson).)
Defendant argues the trial court should have permitted Bell‟s testimony that, when
the SWAT team entered defendant‟s home, defendant was startled out of a deep sleep.
Defendant claims this was relevant to showing defendant‟s state of mind, that he was not
entirely awake and did not fully grasp what was occurring or who the intruders were.
The only evidence of this was that defendant was asleep on the living room couch when
the SWAT team burst into defendant‟s home, with a loud “flashbang.” There was no
evidence that thereafter defendant was not fully awake or aware that officers were
serving a search warrant on him. There was overwhelming evidence establishing that, by
the time Black‟s rifle was fired, defendant was wide awake. He had run down the
hallway with the SWAT team pursuing him, repeatedly yelling, “Police department.
Search warrant.” In addition, defendant had punched Black in the face and, when the
rifle discharged, defendant and Black were on the floor, violently fighting each other.
During the fight, Black had yelled, “police department” and, “Stop resisting,” and Jones
had yelled, “Taser, Taser, Taser.” Bell‟s testimony that defendant was startled out of a
deep sleep would have added little, if anything, and there was no prejudice in excluding
the evidence. (Watson, supra, 46 Cal.2d at p. 836.)
Defendant also argues the trial court erred in excluding Hice and Guerrero‟s
testimony that defendant‟s house was dimly lit and the hallway was darker than the
41
kitchen. Defendant asserts that this testimony was relevant to show the bedroom at the
end of the hallway was dark and therefore defendant was unaware of Black‟s weapon.
Such evidence, defendant argues, refuted that defendant intentionally grabbed Black‟s
rifle, displayed it in a menacing manner, and fired it. Hice and Guerrero‟s testimony on
the lighting was of little relevance since Hice and Guerrero were in the kitchen, not in the
back bedroom where the gun was fired. In addition, it was unrefuted that Black entered
the room with his rifle drawn and defendant punched him in the face, indicating that there
was enough light for defendant to see Black and his rifle. Even if Hice‟s and Guerrero‟s
testimony was relevant and they had been permitted to testify regarding the lighting, it is
unlikely the trial outcome would have been any different. (Watson, supra, 46 Cal.2d at
p. 836.)
Defendant further objects to exclusion of Guerrero‟s testimony establishing that
immediately after the shooting, none of the officers directly involved knew how the gun
fired. This evidence, defendant argues, corroborates the defense that whatever caused the
gun to discharge could not be determined or attributed solely to defendant. But there was
already evidence that the officers who were in the room (Black and Jones) admitted they
did not know how the rifle fired, and Guerrero‟s testimony concerned circumstances and
the state of mind of officers after the shooting incident. Guerrero was not a percipient
witness to the shooting. He was not in the room when the gun discharged. Therefore his
testimony was irrelevant, lacked foundation, and was potentially misleading.
42
XV
DEFENDANT‟S PITCHESS5 MOTION
Defendant requests this court to review independently the trial court‟s in camera
hearing on defendant‟s Pitchess motions to determine whether the trial court improperly
withheld any records. Defendant seeks records that impeach the officers‟ credibility and
support his claims that the officers were attempting to conceal the truth by blaming him
for the shooting and were not engaged in the lawful performance of their duties.
Pursuant to a Pitchess motion, on June 19, 2009, the trial court reviewed in camera
the personnel records of Black, Guerrero, and Jones for complaints regarding excessive
force. The trial court found no relevant complaints as to Jones and Guerrero, and found
one complaint as to Black, which the court turned over to defense counsel. In response to
a supplemental Pitchess motion, on September 25, 2009, the trial court reviewed in
camera personnel records of officers Becnel, Hice, Karol, Partida, Jones, Guerrero, Vigil,
Black, Quinonez, and Quarker, regarding allegations of dishonesty, filing false police
reports, and other official misconduct. The trial court found no discoverable records as to
any of the officers.
A. Applicable Law
In Pitchess, supra, 11 Cal.3d 531, the court held that a criminal defendant could
“compel discovery” of certain information in police officer personnel files by
demonstrating good cause. Good cause is demonstrated by making “general allegations
5 Pitchess v. Superior Court (1974) 11 Cal.3d 531.
43
which establish some cause for discovery” of the information and by showing how it
would support a defense to the charge against him. (Id. at pp. 536-538.) In 1978, the
California Legislature codified the holding in Pitchess by enacting Penal Code sections
832.7 and 832.8 and Evidence Code sections 1043 through 1045. (City of Santa Cruz v.
Municipal Court (1989) 49 Cal.3d 74, 81-82 (Santa Cruz).) To initiate discovery of such
records, the defendant must file a written noticed motion supported by affidavits showing
“good cause for the discovery or disclosure sought, setting forth the materiality” of the
information to the pending litigation, and “stating upon reasonable belief” that the police
agency has the records or information sought. (Evid. Code, § 1043, subd. (b)(3); see also
Santa Cruz, at p. 82.)
When the trial court reviews an officer‟s files in camera and then denies disclosure
of information, the reviewing court should examine the materials to determine whether
the lower court abused its discretion. (People v. Mooc (2001) 26 Cal.4th 1216, 1232
(Mooc).) The custodian of the personnel records is required to provide “all potentially
relevant” materials to the court. (Id. at p. 1228-1229.) The court reviews the files in
camera with a court reporter present. (Ibid.) The custodian should state on the record
what other documents contained in the file were not presented to the court and why those
were deemed irrelevant or otherwise nonresponsive to the Pitchess motion. (Mooc, at
p. 1229.) The court then makes a record of what it has reviewed. (Ibid.) The trial court
has broad discretion in ruling on both the good cause and disclosure components of a
Pitchess motion, and a reviewing court will not reverse the trial court‟s rulings absent a
showing that the trial court abused its discretion. (Haggerty v. Superior Court (2004) 117
44
Cal.App.4th 1079, 1086.)
B. Discussion
This court has conducted an independent Pitchess review and concludes that the
trial court did not abuse its discretion in finding no discoverable records, other than those
produced. (Mooc, supra, 26 Cal.4th at pp. 1229-1232.) We have reviewed the reporter‟s
transcript of the in camera hearing on defendant‟s Pitchess motions. We conclude that
there are no records, other than those produced, containing discoverable material
pertinent to the officers‟ credibility or excessive use of force. It appears from the record
that the officials of the City of Rialto and Rialto Police Department produced all records
that were potentially responsive to the motion. (Id. at p. 1230 [custodian of records
obligated to produce documents that are “potentially responsive” to the defendant‟s
request, and trial court is to determine whether all potentially responsive documents have
been produced].)
XVI
DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON J. We concur:
HOLLENHORST Acting P. J.
RICHLI J.
45
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's conviction for involuntary manslaughter and the true finding on a personal firearm use enhancement, concluding that the evidence was sufficient to support the conviction and that there was no prejudicial instructional error. The court held that the defendant's conduct of fleeing and resisting officers during the execution of a search warrant was a substantial factor in the victim's death.
Issues
Whether there was sufficient evidence to support the conviction for involuntary manslaughter, specifically regarding criminal negligence and proximate causation.
Whether the trial court erred by failing to instruct the jury on the causation element within the involuntary manslaughter instruction.
Whether the trial court's response to jury question No. 31 regarding the requirement of criminal negligence for the unlawful act theory of involuntary manslaughter was erroneous.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“We conclude there was no prejudicial or cumulative error and affirm the judgment.”
“The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.”