People v. Timms CA1/5

Filed 6/14/23 P. v. Timms CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 1

otherwise indicated.

1

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.”