P. v. Pope

P. v. Pope

Filed 9/24/08 P. v. Pope CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

THE PEOPLE, Plaintiff and Respondent, v. NATHANIEL POPE, Defendant and Appellant.

C054687 (Super. Ct. No. 05F09421)

A jury convicted defendant Nathaniel Pope of attempted murder and found true an enhancement that he intentionally and personally discharged a firearm, causing great bodily injury. (Pen. Code, 664, 187, 12022.53, subd. (d).) Defendant was sentenced to seven years for the attempted murder plus 25 years to life on the enhancement (as well as to concurrent terms in two unrelated matters involving drug possession).

The principal issue at trial was whether defendant acted in self-defense in a context which featured gang undercurrents. On appeal, defendant contends the trial court erred in responding to a series of questions from the deliberating jury on this issue.

We shall affirm the judgment.

Background

At the Florin Mall on an October night in 2005, Sheela A. and Treasure R. were angrily confronted by Mimi A., a former school rival of Sheelas. Mimi was accompanied by Mona F.^[1] Sheela admitted using gang-related language (e.g., Blood) and wearing red during the confrontation. Sheela informed Mimi that while she (Sheela) could not fight Mimi because she might be pregnant, Sakiron D., a friend of Sheelas whom Sheela had cell-phoned during the confrontation, could step in. Sakiron, in turn, informed her friends, Shantel C. and Brittany L., what was underway. And Sakiron and Shantel then drove together to the Florin Mall.

In the meantime, Sheela and Treasure had been shown the door by a mall security guard. Out in the parking lot, these two then ran into Sakiron and Shantel, as well as Brittany and her then-boyfriend, defendant (aka Mack June). The confrontation with Mimi was discussed, Sheela and Treasure left, and Brittany and defendant entered the mall and encountered Mimi and Mona.

With defendant essentially behaving like a fight promoter, he and Brittany returned to the parking lot and told Sakiron and Shantel that Mimi wanted to fight someone. Then Mona came out to the parking lot, accompanied by the principal victim in this case, Semisi V.

Mona and Semisi were apparently Tongans, and both were much bigger than Sakiron, Shantel, and defendant (Brittany had left by this point). Semisi stood six feet two inches tall and weighed 280 pounds. Defendant was five feet four inches tall and weighed 130 pounds. Mona and Semisi were talking smack, making fun of Sheela and the whole situation.

Given the Tongans size and behavior, Sakiron and Shantel felt nervous. As Semisi spoke, he paced and moved his hands in his pockets or behind his back; he was also wearing blue. Semisi initially thought that it was defendant who wanted to fight a girl; if that was the case, Semisi would take defendant on.

Semisi said to defendant, where you from, Cuz? (Evidence indicated this was a Crip identification.) Defendant replied, from Oak Park Blood. More banter ensued, with Semisi accusing defendant of BS-ing him. Defendant appeared nervous, pacing side to side. When Semisi asked defendant how come he had never seen defendant in Oak Park, defendant said something like, this is why and pulled out a handgun and fired six shots. Five of the shots hit Semisi (the sixth, apparently a stray, hit a nearby innocent bystander in the foot). Semisi was hit in the chest, abdomen, groin and hand. Seconds passed between each shot.

Although Semisi at trial denied being a Crip, additional evidence showed otherwise. And at the time of trial, Semisi was in custody facing charges of home invasion robbery and assault with a deadly weapon.

Following his arrest for the shooting, defendant told police officers that he felt threatened by Semisi, a Crip, who had walked toward [him] . . . acting like he wanted to do something to [him]. Defendant also told officers that Semisi had shot at him during a prior altercation. But two other recorded statements from defendant about the incident (two in-custody statements from defendant to friends, including one to Brittany) did not raise or even allude to the issue of self-defense.

Discussion

Defendant contends the trial court violated his constitutional rights to due process and fair trial by responding improperly to a series of three jury inquiries during deliberations.

At the outset we reject the Peoples claim that, because the record does not show whether defendant objected to the trial courts responses, defendant has forfeited this contention on appeal. There is no record of the discussions between court and counsel regarding these inquiries and responses. And Penal Code section 1259 authorizes us to review any instruction . . . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.

The law that guides our review of the challenged trial court responses stems from Penal Code section 1138, which provides as relevant: After the jury have retired for deliberation, . . . if they desire to be informed on any point of law arising in the case, ... the information required must be given[.] As our state Supreme Court has explained: The [trial] court has a primary duty to help the jury understand the legal principles it is asked to apply. (People v. Thompkins (1987) 195 Cal.App.3d 244, 250-251.) This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jurys request for information. Indeed, comments diverging from the standard are often risky. . . . But a court . . . must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given. (People v. Beardslee (1991) 53 Cal.3d 68, 97 (Beardslee), italics in original.)

The three jury inquiries, the trial courts responses thereto, and our analysis of each, are as follows:

1. The first inquiry was made at 3:00 p.m., after the jury had deliberated about one day-

Jury Inquiry: Legal clarification on how much weight can be attached to the consideration of gang activity as it relates to the presence of a threat (the need for the defendant to defend himself because they were both gang members participating in a conversation that was escalating).

Trial Court Response: The jurors are respectfully referred to [CALJIC No.] 1403 at page 24. The jurors are reminded to read each instruction in light of all the others. [] As jurors you must decide what the facts are. It is up to you, exclusively, to decide what happened, based only on the evidence that has been presented to you in this trial. It is then up to you, as jurors, what weight, if any, to give that evidence in accordance with all of the other instructions I have given you.

(CALJIC No. 1403 stated, as pertinent, that the jury could consider evidence of gang activity only for the limited purpose of deciding whether: [] . . . []  The defendant actually believed in the need to defend himself[.])

Analysis: The trial court acted properly. The court referred the jury to the applicable legal point that the jury could consider evidence of gang activity in deciding whether defendant actually believed in the need to defend himself. The court then properly deferred to the jurys factfinding role in deciding what weight to give this evidence.

2. The second inquiry was made on the second day of actual deliberations at 11:40 a.m.-

Jury Inquiry: Do we have to follow the jury instructions in sequential order? Specifically, do we have to determine the defendants right to self defense (3471 page 42) before we consider the types of self defense?

Trial Court Response: The jury need not follow or consider jury instructions in sequential order. [] The jury may consider the jury instructions and findings of fact in whatever order it chooses.

(The reference to 3471 page 42 was to CALJIC No. 3471, which provided:

3471. Right to Self-Defense: Mutual Combat or Initial Aggressor

A person who engages in mutual combat or who is the first one to use physical force has a right to self-defense only if [he indicates he wants to stop fighting and does stop]. [] . . . []  If a person meets these requirements, he then has a right to self-defense if the opponent continues to fight.) (Bold in original.)

Analysis: Focusing reasonably on the jurys point about sequential order, the trial court properly told the jury that it did not have to proceed in sequential fashion.

3. The third inquiry was also made on the second day of actual deliberations, this time at 2:00 p.m.-

Jury Inquiry:

1. Does the law state that someone has to have the right to self-defense (page 42) before acting in self-defense[?]

2. Or, does acting in self-defense without the right[] constitute imperfect self-defense?

(The reference to page 42 again referred to CALJIC No. 3471: Right to Self-Defense: Mutual Combat or Initial Aggressor.) (Bold in original.)

Trial Court Response:

1. The jury may disregard the numerical, sequential order of the instructions. The jury may further disregard the title (bold) of any instruction and instead look to the content of the instruction. The jury is asked to review instruction number 200 (p. 9).

2. This is a question of fact for the jurors. The Court may not answer the question for the jury.

(The trial courts reference to instruction number 200 (p. 9) referred the jury to CALJIC No. 200. Duties of Judge and Jury, which stated as pertinent: . . . [] . . . []  Pay careful attention to all of these instructions and consider them together. . . . [] . . . []  Some of these instructions may not apply, depending on your findings about the facts of the case. . . . After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.)

Analysis:

Apparently following up from the jurys related second inquiry (i.e., the jury referred once again to instruction page 42, boldly entitled Right to Self-Defense . . .), the trial court emphasized that the jury could disregard the sequential order as well as the bold titles of the instructions, focusing instead on their content. The trial court then directed the jury to review CALJIC No. 200. CALJIC No. 200 told the jurors to pay careful attention to all of the instructions, to consider them together, and, after deciding what the facts were, to follow the instructions that apply to those facts. This direction from the court told the jurors to follow the instructions that applied to the facts in the case (here, the facts did not show mutual combat or initial physical aggressor on the subject of self-defense, but did raise other issues of self-defense). The trial court had originally provided full and complete instructions on self-defense (Justifiable Homicide: Self-Defense or Defense of Another, CALJIC No. 505) and imperfect self-defense (Attempted Voluntary Manslaughter: Imperfect Self-Defense . . . , CALJIC No. 604). (See Beardslee, supra, 53 Cal.3d at p. 97.) Where the original instructions are themselves full and complete, the court has discretion under [Penal Code] section 1138 to determine what additional explanations are sufficient to satisfy the jurys request for information. (Ibid.)

Arguably, it was in the context of the jury reviewing the original instructions and following those instructions that applied to the facts the jury had found, that the trial court referred to the jurys third inquiry as a question of fact. And the trial court may have been a bit gun-shy in its third response, not knowing what the jury meant by right to self-defense (i.e., actual and reasonable belief in need to defend-i.e., self-defense; or an actual but unreasonable belief in need to defend-i.e., imperfect self-defense; the trial court could have had the jury clarify this point). The trial court could have explicitly referred the jury to CALJIC No. 505 (self-defense) and to CALJIC No. 604 (imperfect self-defense). But as we have noted, the trial court did provide these two instructions, in complete fashion, and did, albeit indirectly, direct the jury to them.

Notwithstanding all of this, though, the jurys third inquiry certainly can be read as posing a question of law. Defendant argues that through this inquiry the jury made plain . . . their lack of understanding of the central importance of considering a defendants state of mind for purposes of evaluating a self-defense issue, i.e., whether the defendant actually believed he needed to use deadly force to defend himself. . . . [] The jury[] . . . felt they needed to somehow determine whether the right to self defense existed in the first place. But as we have seen, the trial court, in its response to the jurys related first inquiry, instructed the jurors that they could consider evidence of gang activity in deciding whether [t]he defendant actually believed in the need to defend himself[.] And in response to the third inquiry, the trial court implicitly directed the jurors to the full and complete self-defense and imperfect self-defense instructions it had originally given.

In the end, what the jury really was asking in its third inquiry was whether defendant had acted in imperfect self-defense by shooting Semisi before he had the right to self-defense. As the People note, [i]f the jury followed the judges instruction to reread all the jury instructions they would be able to see their error. Indeed, they did so.^[2]

In any event, assuming for the sake of argument that the trial court erred in its third response, there was no possible prejudice to defendant. (See Beardslee, supra, 53 Cal.3d at p. 97.) This is because, in light of what the jury really was asking in its third inquiry-i.e., had defendant acted in imperfect self-defense by shooting before having the right to self-defense-and the trial courts response that the inquiry was to be decided by the jury, the only likely prejudice would [have been] to the prosecution, not the defense (in the form of a lesser conviction for attempted voluntary manslaughter based on imperfect self-defense). (Id. at p. 98.)

Disposition

The judgment is affirmed.

DAVIS , J.

We concur:

SCOTLAND, P.J.

ROBIE , J.

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^[1] Although all of the actors involved in the incident were at least 18 years old, we will use their first names for simplicity, as each of the parties has done on appeal.

^[2] The jury claimed to be deadlocked after only one ballot, which was 10-2, telling the trial court, we tried to answer the questions we were debating and weve read and re-read your instructions . . . . The trial court had the jury deliberate further, and encouraged additional questions from the jury (the jury did not submit any additional questions before reaching its verdict).