Modification: People v. Brugman

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL ARTHUR BRUGMAN,

Defendant and Appellant.

No. D076658

(Super. Ct. No. SCE362485)

California Courts of Appeal

Fourth Appellate District

Division One

Filed April 16, 2021

ORDER MODIFYING OPINION AND DENYING REHEARING

NO CHANGE IN JUDGMENT

THE COURT:

The opinion filed March 30, 2021, is hereby modified as follows:

On the second line of page 16, add a new footnote 5 and renumber the remaining footnotes. Specifically, new footnote 5 shall be inserted on page 16, following the sentence ending "how that term was intended to be understood."

5 For the first time in a petition for rehearing, Brugman argues that instead of rejecting the pinpoint instruction requested by defense counsel, the trial court, sua sponte, should have modified the proposed instruction to prevent any jury confusion regarding the definition of "reckless conduct." Specifically, Brugman argues the trial court should have given defense counsel's proposed instruction, but also should have informed the jury that, as used in the instruction, the term "reckless conduct" referred to criminal negligence.

We need not, and do not, decide whether a trial court might ever be required to sua sponte modify a confusing pinpoint instruction proposed by defense counsel. Instead, we reject Brugman's argument because a trial court may properly reject a pinpoint instruction that is duplicative of other instructions. (Moon, supra, 37 Cal.4th at p. 30.) As Williams explains, criminally negligent conduct is "not enough" to support an assault conviction "because a jury cannot find a defendant guilty of assault based on facts he should have known but did not know." (Williams, supra, 26 Cal.4th at p. 788, italics added.) The jury was already informed of this principle in CALCRIM No. 875, which states that, for assault, the People must prove that "[w]hen the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone."

Appellant's petition for rehearing is denied. There is no change in judgment.

O'ROURKE, Acting P. J.