PEOPLE v. MILLER (1991)

OPINION

Defendant, an intoxicated, off-duty police officer, was convicted of two counts of violating Penal Code section 417.3, entitled “Drawing or exhibiting firearm in presence of motor vehicle occupant,” and one count of driving under the influence of alcohol (Veh.Code, § 23152, subd. (b).)  He was acquitted of three other charges.¹

Defendant appeals, contending that the brandishing convictions should be reversed because (1) he was a pedestrian at the time of the brandishing;  (2) the brandishing instruction, CALJIC No. 9.07, is incorrect and erroneous;  and (3) the trial court erroneously failed to instruct on the lesser included offense of misdemeanor brandishing (Pen.Code, § 417, subd. (a)(2)).

FACTS

On December 26, 1989, defendant was an off-duty Ontario police officer.   He went to dinner that evening with a friend, Tim Abshire.   Defendant testified that he and the waitress, Maralene, were flirting, and that they made a date to meet at another restaurant after she got off work at midnight.   Defendant and Mr. Abshire then went to two other restaurants to drink and dance.   Defendant then went to meet Maralene, but she failed to show up.

On the way home defendant saw Maralene's car at the restaurant where she worked.   He pulled into the parking lot and saw Maralene kissing another man in the front seat of a Cadillac.   He then parked nearby for Mr. Abshire to urinate against a wall.

Maralene testified that she saw defendant's truck pull into the parking lot and thought it was a truck used by a former boyfriend.   Since her former boyfriend had threatened her with a gun, she became frightened and told the man she was with, Frank Vermillion, that the man in the truck had been harassing her, and that Frank should follow her home if the truck followed her.   Maralene then left in her car.   Mr. Vermillion's brother, James, was also in the parking lot in a truck with another waitress.   Frank told James of Maralene's fear.

Frank and James then left the parking lot in their respective vehicles.   Defendant testified that he was going the same direction to take Mr. Abshire home.   As he passed Frank's Cadillac, the man subsequently identified as Frank started cursing and making obscene gestures at him.   Defendant made a U-turn to avoid Frank's Cadillac, but the two other vehicles made U-turns to follow him.

Eventually, a confrontation occurred in front of a security guard.   The security guard, Mr. Hernandez, testified that defendant parked his truck behind Frank's Cadillac, exited with a badge in one hand and his gun in the other, approached the Cadillac, and told the driver to exit.   The driver of the Cadillac fled.   The guard then testified that the second vehicle approached and that defendant pointed his gun at the second vehicle.   That vehicle did not stop.

Defendant denied that he had his gun out as he approached Frank's Cadillac.   He testified that, as he approached the Cadillac, Frank exited and announced that he was an Ontario policeman.   Since defendant knew this statement was false, he intended to arrest Frank for a misdemeanor.

The vehicles went up the street, leaving Mr. Abshire standing in front of the security guard, and then made a U-turn.   Mr. Abshire testified that he went to the center of the street, and that Frank attempted to run him down with the Cadillac by swerving directly at him.   He jumped away.   Defendant testified that he saw this and again attempted to stop Frank's Cadillac at the next intersection.   When Frank would not stop, defendant opened fire.   He fired 13 shots but only managed to flatten a tire on the Cadillac.   Defendant testified that he thought he was acting within department guidelines as a police officer apprehending a person who had committed misdemeanors in his presence.²

The group ended up at the police station, and defendant's blood was tested.   The parties stipulated that defendant's blood alcohol content was .10.

PENAL CODE SECTION 417.3

Penal Code Section 417.3³ provides:  “Every person who, except in self-defense, in the presence of any other person who is an occupant of a motor vehicle proceeding on a public street or highway, draws or exhibits any firearm, whether loaded or unloaded, in a threatening manner against another person in such a way as to cause a reasonable person apprehension or fear of bodily harm is guilty of a felony․”  This statute was enacted in 1987, and no reported cases interpret its meaning.

DOES THE STATUTE APPLY TO PEDESTRIANS?

Defendant contends that the statute does not prohibit his conduct because the statute requires the defendant to be an occupant of a motor vehicle proceeding on a public street or highway and there was evidence of only one occasion that he brandished a weapon while he was the occupant of a motor vehicle proceeding on a public street or highway.

To decide whether the statute applies to pedestrians who brandish weapons, we examine the words of the statute and its context and purpose under the familiar rules of statutory interpretation.  “The fundamental rule [of statutory interpretation] is that a court ‘should ascertain the intent of the Legislature so as to effectuate the purpose of the law.’  [Citation.]  In determining such intent ‘[t]he court turns first to the words themselves for the answer.’  [Citation.]  ‘If possible, significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose.’  [Citation.]  ‘[A] construction making some words surplusage is to be avoided.’  [Citation.]  When used in a statute words must be construed in context, keeping in mind the nature and obvious purpose of the statute where they appear, and the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole.  [Citations.]  In addition, we consider the legislative history of the statute as well as the historical circumstances of its enactment in determining the intent of the Legislature.  [Citation.]”  (People v. Black (1982) 32 Cal.3d 1, 5, 184 Cal.Rptr. 454, 648 P.2d 104;  Kimmel v. Goland (1990) 51 Cal.3d 202, 208–209, 271 Cal.Rptr. 191, 793 P.2d 524.)

“ ‘It is a prime rule of construction that the legislative intent underlying a statute must be ascertained from its language;  if the language is clear, there can be no room for interpretation, and effect must be given to its plain meaning.  [Citations.]  “An intent that finds no expression in the words of the statute cannot be found to exist.   The courts may not speculate that the legislature meant something other than what it said.   Nor may they rewrite a statute to make it express an intention not expressed therein.” ’ ”   (Mutual Life Ins. Co. v. City of Los Angeles (1990) 50 Cal.3d 402, 412, 267 Cal.Rptr. 589, 787 P.2d 996, quoting Hennigan v. United Pacific Ins. Co. (1975) 53 Cal.App.3d 1, 7, 125 Cal.Rptr. 408.)

 In our view the language of section 417.3 clearly defeats defendant's interpretation.   Grammatically, the section refers to (1) the person committing the offense (herein, the “brandisher”);  (2) another person in whose presence the brandishing occurs (herein, the “person satisfying the presence requirement”);  and (3) another person (herein, the “victim”).   The person satisfying the presence requirement must be “an occupant of a motor vehicle proceeding on a public street or highway.”   The brandisher must draw or exhibit the firearm in a threatening manner against a victim “in such a way as to cause a reasonable person apprehension or fear of bodily harm.”   It is not clear whether the victim and the person satisfying the presence requirement can or must be the same person, and, if the victim is a separate person, it is unclear whether the victim must be in a motor vehicle proceeding on a public street or highway.   Since those questions have not been raised in this case, we express no opinion on them.

Since the phrase “occupant of a motor vehicle proceeding on a public street or highway” clearly refers to the person satisfying the presence requirement, there is no requirement that the brandisher be in a motor vehicle proceeding on a public street or highway.   Accordingly, the statute prohibits brandishing whether or not the brandisher is in a motor vehicle.

This conclusion is reinforced by examination of the statutory context.   Section 417.3 is part of Title 11, entitled “Of Crimes Against the Public Peace.”   Title 11 generally prohibits various acts which disturb the peace.   Section 417, subdivision (a)(2) provides that it is a misdemeanor to draw or exhibit a firearm “in a rude, angry, or threatening manner” in the presence of another.

In People v. McKinzie (1986) 179 Cal.App.3d 789, 224 Cal.Rptr. 891, this court considered the elements of the misdemeanor offense under section 417, subdivision (a)(2).   These elements include the exhibition of a firearm in a rude, angry or threatening manner.   Although the exhibition must be in the presence of the victim, the court held that the victim did not have to be aware of the weapon.  (Id., at p. 794, 224 Cal.Rptr. 891.)   The court said:  “For purposes of the conduct which the statute is meant to deter, it is enough that the brandishing be in public, in the presence of the victim, where some third party happening along might get the idea that either the victim or brandisher need help, or might think a brawl is in the making which he might join.”  (Ibid.)  The court also held that firing the weapon is not an element of the offense.  (Ibid.;  see, also, CALJIC No. 16.290;  2 Witkin, Cal.Criminal Law (2d ed. 1988) § 883, pp. 1010–1011.⁴ )

Section 417.3 uses the same introductory language as section 417, subdivision (a)(2), but (1) adds the phrase “who is an occupant of a motor vehicle proceeding on a public street or highway,” (2) deletes the “rude or angry” language and (3) adds the phrase “against another person in such a way as to cause a reasonable person apprehension or fear of bodily harm.”   The phrase “who is an occupant of a motor vehicle proceeding on a public street or highway” clearly modifies and grammatically refers to the person who satisfies the presence requirement.

The legislative history submitted to us includes a History of Assembly Bill 2625, the bill that added section 417.3, prepared for the Senate Committee On Judiciary.   The History recites that the bill is a response to a recent rash of “freeway shootings” in California.  (History, p. 2.)   Several of these incidents were incidents in which a firearm was brandished towards the occupant of a vehicle.   One involved a motorcyclist who was shot at from a Los Angeles freeway overpass (presumably by a pedestrian) for no apparent reason.   (History, pp. 2–3.)   The History then states:  “The author feels that such a situation directed toward an occupant of a vehicle is particularly dangerous and deserving of stiffer punishment.  [¶]  It is quite easy to postulate that the driver of a vehicle, when faced with someone threatening him or her with a gun, will drive erratically in an attempt to escape the danger, quite possibly in such a manner as to increase the danger to either motorists or passengers.”  (History, p. 3.)   The Legislature apparently thought that the danger of serious vehicle accidents would therefore justify the elevation of the misdemeanor to a felony when the victim was in a moving motor vehicle.   The legislative history also indicates a concern with firearms being brandished at occupants of vehicles proceeding on public streets or highways.  (History, p. 1.)   Nevertheless, as stated earlier, the statute is unclear as to whether the victim must be in a vehicle proceeding on a public street or highway.   It only requires that the brandishing be in the presence of a person in a vehicle proceeding on a public street or highway.

Defendant contends, however, that the Legislature did not mean what it said and did not say what it meant.   To support this contention, defendant cites a Senate Rules Committee digest of Assembly Bill 2625.   That digest states that “This bill provides that anyone in a vehicle on a public road who draws a gun in a threatening manner is guilty of a felony.”  (Emphasis added.⁵ )  While the Committee digest supports defendant's position, the Legislative Counsel digest states:  “This bill would make it a felony for any person, except in self-defense, in the presence of any other person who is an occupant of a motor vehicle proceeding on a public street or highway to draw or exhibit any firearm, whether loaded or unloaded, in a threatening manner against another person in such a way as to cause a reasonable person apprehension or fear of bodily harm, thereby imposing a state-mandated local program by creating a new crime.”

We think that the History prepared for the Senate Judiciary Committee and the Legislative Counsel digest state the purpose of the legislation more accurately.   We cannot accept the Senate Rules Committee digest because it contradicts the plain language of the statute.   Even if we agreed with the Senate Rules Committee interpretation as a statement of legislative intent, we could not adopt defendant's contention without contradicting the plain words of the statute.  “The courts may not speculate that the legislature meant something other than what it said.”  (Mutual Life Ins. Co. v. City of Los Angeles, supra, 50 Cal.3d 402, 412, 267 Cal.Rptr. 589, 787 P.2d 996, quoting Hennigan v. United Pacific Ins. Co., supra, 53 Cal.App.3d 1, 7, 125 Cal.Rptr. 408.)

We therefore conclude that the language of the statute as to the brandisher is clear, there is no room for interpretation, that effect must be given to the plain meaning of the statute, and that the Committee digest relied on by defendant is insufficient to establish a legislative intent which would be directly contrary to the clear language used.

The elements of the felony brandishing offense (§ 417.3) are, therefore, that the defendant draws or exhibits a firearm in a threatening manner (i.e., “in such a way as to cause a reasonable person apprehension or fear of bodily harm”) against another person in the presence of a person who is in a vehicle proceeding on a public street or highway.

We therefore conclude that there is no requirement that the brandisher be in a motor vehicle proceeding on a public street or highway.   Since the brandisher may be a pedestrian, substantial evidence supports defendant's conviction on two brandishing charges.⁶

IS CALJIC NO. 9.07 MISLEADING AND ERRONEOUS?

Defendant next contends that the trial court failed to meet its obligation to correctly instruct the jury in the elements of the offense.  (People v. Wickersham (1982) 32 Cal.3d 307, 323, 185 Cal.Rptr. 436, 650 P.2d 311.)   Specifically, he contends that the trial court erred in giving CALJIC No. 9.07 (5th ed. 1988) because that instruction does not correctly state the elements of the offense.

 CALJIC No. 9.07 is entitled “Exhibiting Firearm Within Vehicle.” ⁷  As given here, it states:  “The defendant is accused in Counts 1, 2, and 3 of the Information of having violated Section 417.3 of the Penal Code, a crime.   Every person who except in self-defense in the presence of any other person who is an occupant of a motor vehicle proceeding on a public street or highway, draws or exhibits any firearm whether loaded or unloaded in a threatening manner against another person in such a way as to cause a reasonable person apprehension or fear of bodily harm, is guilty of a violation of Penal Code Section 417.3, a crime.  [¶] A firearm includes a pistol.   In order to prove such a crime, each of the following elements must be proved:  1) a person not acting in self-defense drew or exhibited a firearm in the presence of another person, 2) such person was an occupant of a motor vehicle proceeding on a public highway or street, and 3) drawing or exhibiting was done in a threatening manner against another person in such a way as to cause a reasonable person to be placed in apprehension of fear or bodily harm.”

We agree with defendant that CALJIC No. 9.07 is ambiguous.   Specifically, the reference to “such person” in the second numbered element of the crime is ambiguous because two persons, the brandisher and the person satisfying the presence requirement, are referred to in the preceding numbered paragraph.   The jury could mistakenly believe that the person referred to in the second element was the brandisher rather than the person satisfying the presence requirement.⁸  The instruction, including its title, should be revised to make it clear that the brandishing must be done in the presence of a person in a vehicle proceeding on a public street or highway and that the person doing the brandishing may or may not be in a vehicle.⁹  We also suggest that the CALJIC Committee consider whether it is desirable to specify that, so long as the person satisfying the presence requirement is in a vehicle proceeding on a public street or highway, it does not matter if the brandisher is or is not in one or more vehicles.

Even though the instruction is ambiguous, the entire instruction, read as a whole, adequately informed the jury of the elements of the crimes charged under section 417.3.   The second numbered paragraph of the instruction could not have misled the jury, since defendant concedes that there was evidence of only one incident where he was in the vehicle while brandishing and there was no evidence of any instance in which he brandished his gun while he was in a vehicle and the person satisfying the presence requirement was not.   If there was no such evidence, there is no possibility that the jury could have erroneously used the ambiguity to convict him of two brandishing offenses.   Since there was ample substantial evidence of at least two fully supported brandishing incidents, the error in giving the ambiguous instruction was harmless.

FAILURE TO INSTRUCT ON MISDEMEANOR BRANDISHING

 Defendant next contends that the trial court erred in failing to give CALJIC No. 16.290 (misdemeanor brandishing) sua sponte as a lesser included offense to the felony brandishing of section 417.3.   Under Wickersham, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence.  “That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present․”  (People v. Wickersham, supra, 32 Cal.3d 307, 323, 185 Cal.Rptr. 436, 650 P.2d 311.)

 We agree with defendant that misdemeanor brandishing (§ 417, subd. (a)(2)) is a lesser included offense of felony brandishing (§ 417.3).   The elements are the same except that section 417.3 added the phrase, “who is an occupant of a motor vehicle proceeding on a public street or highway”;  deleted the phrase “rude or angry”;  and added the phrase “against another person in such a way as to cause a reasonable person apprehension or fear of bodily harm.”   As discussed above, the additions reflect a legislative concern that the brandishing offense is more serious when it occurs in the presence of a person in a moving vehicle.   The deletion of the phrase “rude or angry” does not substantially change the offense.

 The instruction on misdemeanor brandishing would be required if there was insufficient evidence to support two counts of felony brandishing and sufficient evidence to support a conviction on misdemeanor brandishing.   As noted above, the testimony here supported more than three possible brandishing incidents, and a conviction of two such incidents was supported by substantial evidence.

While there was evidence of at least one other incident which did not occur in the presence of a person in a motor vehicle proceeding on a public street or highway, thereby supporting a misdemeanor brandishing charge, we cannot say that the jury improperly relied on this incident to convict defendant on either of the felony brandishing charges.   If defendant had wished to obtain a specification of the acts supporting the particular charges, he should have required the prosecutor to elect which of the acts was relied on to support each individual charge.  (People v. Salvato, supra, 234 Cal.App.3d 872, 285 Cal.Rptr. 837.)   Having failed to do so, he cannot complain of the possible ambiguity.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   Defendant was acquitted of one charge of violating Penal Code section 417.3, one charge of assault with a firearm (Pen.Code, § 245, subd. (a)(2)) and one charge of shooting at an occupied vehicle (Pen.Code, § 246).

2.   The jury apparently agreed and acquitted defendant on the charges of assault and firing at a vehicle.

3.   All further statutory references are to the Penal Code.

4.   If the gun is fired by a passenger, the driver commits a crime and the person who fires is guilty of a felony.  (§ 12034.)   The driver is guilty of a misdemeanor if he merely allows a person to bring a gun into the vehicle.

5.   It is interesting to note that the Senate Rules Committee digest states that the source of the legislation was the Peace Officers Research Association of California.   Despite this parentage, the statute does not provide any exemption for law enforcement officers.  (Cf. §§ 12027, 12031, subd. (b), 12501.)   It could therefore be argued that a police officer commits a felony any time he draws his weapon (not in self-defense) in a threatening manner against a person in the presence of a person in a motor vehicle proceeding on a public street or highway.   While prosecutors normally exercise their discretion to avoid absurd results, the case here demonstrates that, if the elements of the crime are otherwise present, the prosecutor could charge any police officer with a felony violation of section 417.3 if the prosecutor thought that the police officer acted improperly or in violation of department policies, even if, as here, the officer contends that he was acting properly.   We would suggest that the Legislature reconsider whether it intended such a result.

6.   Except for the question of sua sponte instructions on lesser included offenses, discussed below, defendant does not otherwise question the sufficiency of the evidence to support his convictions.   We note, however, that three brandishing violations were alleged, but neither the prosecution nor the defense identified the acts charged for the benefit of the jury.  (Cf. People v. Salvato (1991) 234 Cal.App.3d 872, 285 Cal.Rptr. 837.)   Nevertheless, the jury convicted defendant on two violations, and acquitted him of the third.   Since there was evidence supporting at least two violations, the defendant apparently concedes the sufficiency of the evidence.

7.   The title of the instruction is incorrect because the offense is exhibiting a firearm in the presence of a person in a motor vehicle proceeding on a public street or highway, not “Exhibiting Firearm Within Vehicle.”   Even though the title is not read to the jury, the error should be corrected.   We suggest that the CALJIC Committee use the title in the Code:  “Drawing or Exhibiting Firearm in Presence of Motor Vehicle Occupant.”

8.   The trial court also erroneously informed the jury that the charge against defendant was “brandishing at a person in a motor vehicle.”

9.   Although, as noted above, we have not found it necessary to express an opinion as to whether the victim and the person satisfying the presence requirement can or must be the same person, or, if the victim can be a separate person, whether the victim must be in a motor vehicle proceeding on a public street or highway, we suggest that the Legislature reconsider those issues.

HOLLENHORST, Acting Presiding Justice.

TIMLIN and McKINSTER, JJ., concur.