P. v. Halford
Filed 1/23/13 P. v. Halford CA3
Opinion following rehearing
NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
J. DOUGLAS HALFORD et
al.,
Defendants and Appellants.
C062401
(Super. Ct. No. 08F03567)
OPINION AFTER REHEARING
A jury
convicted defendants J. Douglas Halford and Mark Hernandez of the
Michael Wentworth, and the attempted murder of the decedent’s homeless friend,
Randy Terrell. Terrell taunted and
threatened defendants for harassing Danny “Old Man Dan†Rasmussen, his
62-year-old homeless neighbor, and defendants, believing Terrell was another
man who had beaten their 56-year-old diabetic friend and mentor, Danny Hughes,
pursued Terrell and a fight ensued. The
jury rejected defendants’ claims of self-defense. On appeal, both defendants assert
instructional error. We affirm.
FACTS
Setting. Many homeless people
live in close proximity to Loaves and Fishes, an organization that provides
coffee and pastries at 7:00 a.m., a
place to shower, and lunch for up to 900 people beginning at 11:30 a.m. every weekday. All of the homeless who were either victims
or witnesses in this case gather at Loaves and Fishes. They live under trees and shrubs along the
river, up on the levee, and in an open clearing they call “the snake pit.†They eat together, sleep together, drink
together, share drugs, and take care of one another. Without facilities, they use what they call
“the shitter,†but some of the homeless also urinate on their neighbors’
properties.
Something
of a Renaissance man, Danny Hughes owns a home very near the homeless
encampments by the river. He had been a
professional musician as well as an operating engineer, and he earned six
first-place medals at the California State Fair for his cookies. He treasured the guitar he had owned for
40 years like a child. But he was
in poor health after using methamphetamine for 40 years, and as a diabetic, he
needed to adhere to a strict diet and insulin regimen. Although he installed a fence with a locked
gate to secure the perimeter of his property, Hughes displayed a tolerant
approach to his homeless neighbors. His
more immediate and pressing problem was his old friend, Tommy Duke.
Two Dans. Danny Hughes had been
a friend of Tommy Duke for many years.
But Duke became very violent when he drank, which he did with some
regularity. On one occasion, Duke used
Hughes’s treasured guitar to smash Hughes’s drum set. Duke then attacked Hughes, and Hughes
believed Duke was trying to kill him.
Duke returned many times, leading Hughes to repeatedly call 911. Eventually, defendant Mark Hernandez moved in
with Hughes to protect him and to help him monitor his diet and insulin. Sixty-five-year-old J. Douglas Halford,
another friend of Hughes, was a houseguest staying with Hernandez and Hughes at
the time of the events leading up to the alleged crimes.
In late
April 2008 Tommy Duke tore down Hughes’s fence, entered his house, and
threatened to kill him. Hughes called
Hernandez and Halford for assistance.
They escorted Duke out the front gate and instructed him not to
return. En route, Halford grabbed Duke
by the collar, pointed a big knife at his eye, and said, “ ‘The only reason
your fucking eye is not disappearing and your life is [sic] disappearing is because of that daughter that you have.’ â€
On the
morning of April 30, 2008,
Halford’s routine morning trip to Starbucks was frustrated by his encounter
with Danny Rasmussen, who had relocated some of his belongings from under a
mulberry tree and placed them in a shopping cart in front of Hughes’s
gate. Rasmussen angered Halford. He threatened Rasmussen with a knife. Hernandez was more conciliatory. Fearful of the knife, Rasmussen grabbed what
belongings he could and ran away. He
testified someone kicked him and someone shouted, “ ‘If you ever come back,
I’ll fuck you up.’ â€
Frazzled
from his encounter with defendants, Rasmussen, that morning over coffee, told
several of his friends and acquaintances what had happened. Incensed, Randy Terrell, a 200 pound,
physically imposing, 31-year-old homeless man, was determined to avenge
Rasmussen. Tragically, Randy Terrell
looked like Tommy Duke.
to the Stabbings. The
prosecution’s witnesses provide a vivid composite of human suffering. The percipient witnesses’ afflictions are
many: physical and mental disabilities,
addiction, poverty, joblessness, and homelessness. Defendants argued vociferously that the
witnesses either could not see, could not remember what they saw, and could not
be trusted. From defendants’ view, the
witnesses made miserable historians.
So, for
example, both victims tested positive for methamphetamine in their systems, a
drug that makes the user feel empowered, oblivious to pain, and easily agitated. Randy Terrell testified he drinks as many
Hurricane High Gravity 40-ounce beers as he can earn by turning in recyclables
for money every day. The alcohol
intensifies his anger. On the day of the
stabbings, he was pretty drunk, and at trial his memory of what transpired was
“very blurry.†He also uses
methamphetamine and smokes marijuana.
Robert Otis
had been homeless for 14 years at the time of the trial. Called “Bug Eye†because his left eye was
disfigured and he could not see out of it, Otis’s remaining vision was very
blurry.
Patrick
Hill completed a rehabilitation program a few months before the stabbing. Michael Wentworth, the decedent, was known as
“Gremlin,†jumped around a lot, and, at 114 pounds, he too drank and used
drugs. He had been released from the
Sacramento County Jail that very morning.
Wentworth’s good friend and benefactor, Patrick Hill, went to the river
to look for him, and brought a case of beer to share with Wentworth and a group
of people he knew would be there. Hill
drank two or three beers, Wentworth drank some, and they shared the rest with
their friends.
Thus, the
jury was well-acquainted with the witnesses’ shortcomings. Flawed or not, the percipient witnesses
testified to what they saw and heard, and it was the jury’s prerogative, not
ours, to assess their credibility and their ability to perceive, recall, and
recount what happened on the evening of April 30. We provide a brief synopsis of the key
witnesses’ accounts of what happened.
According
to Hughes, someone who initially appeared to be Tommy Duke but who was actually
Randy Terrell rode a bicycle in circles in front of Hughes’s house around noon,
walked his back-fence line about 3:00 in the afternoon, and again circled in
front of the house on a bicycle around 6:00 p.m. He had a knife in his hand and shouted,
“Where’s the mother fucker that beat up my old man homeboy? I got a knife. I’m going to stick him.†Hughes testified the knife looked like a
cheap facsimile of a Buck knife with a rubber handle. Hughes heard Halford respond, “I’ll deal with
the motherfucker,†and he saw both defendants go out the front gate and follow
Terrell up a hill to the levee.
Terrell
candidly admitted he was extremely angry about how Rasmussen had been
treated. He had nursed his anger with
his Hurricane High Gravities, was “pretty buzzed,†and returned to Hughes’s
house around 6:00 p.m. to start a fight.
He taunted the occupants with threats like, “You guys have a problem
picking on old men, come out here and pick on me.†According to Terrell, Hernandez came out of
the house, instructed Terrell to “[w]ait a minute,†and then went back in the
house. Fearing Hernandez was getting a
weapon, Terrell left.
Terrell
joined his friends Otis and “Bandanna†in the snake pit. After a minute or two he walked over to Hill
and Wentworth and had a short conversation before returning to Otis and
Bandanna. A few seconds after that,
defendants came up over the hill and approached him. Otis handed Terrell a knife. As he told the jury, he was angry and
confronted defendants, asking, “Why you guys got to mess with an old man?†He noticed that Halford was carrying a Buck
knife at his side.
Terrell’s
friends Hill and Wentworth immediately came to his aid. Wentworth was hopping around like a
“leprechaun†or “a Mexican jumping bean,†trying to diffuse the situation. As Hernandez, Wentworth, and Hill went off in
one direction, Halford and Terrell started swinging knives at each other. Terrell testified that Halford stabbed him in
his left upper arm. He did not see what
happened to Wentworth.
Patrick
Hill was urinating in the “shitter†and talking on his cell phone when
Wentworth summoned him to come and help defend Terrell. He was still trying to zip up his pants as
Wentworth ran up the hill. Hill saw
Halford carrying a stick over his shoulder.
As they met, Halford said to Terrell, “You jumped our friend and we’re
gonna kill you.†According to Hill,
Terrell did not have a knife.
Halford,
according to Hill, started swinging the stick.
Hill, still on the phone and continuing to zip up his pants, told
Wentworth, “[W]e’re not gonna let them jump him. We can’t let that happen.†Wentworth jumped in front of Terrell and
knocked Halford to the ground. Hernandez
pulled out two knives and gave one to Halford.
Hill backed Hernandez up to the bike trail. He removed a beer he had stored in his back
pocket and threw it at Hernandez but missed.
Turning,
Hill saw Halford and Wentworth swinging at each other. As he started to run, he saw that Wentworth
was in trouble. Terrell entered the
fray. Halford stabbed Wentworth in the
arm, and as Wentworth stumbled backwards, Hernandez stabbed him in the back. Halford stabbed him in the chest. Halford and Hernandez then walked away.
Otis had
been living in the same tree with Terrell at the time of the stabbings. He saw Terrell come up over the hill,
followed shortly by both Halford and Hernandez.
Otis, like Terrell and Hill, testified that Halford was carrying a big
stick. He, too, heard Halford say, “I’m
going to kill you.†He confirmed he gave
Terrell a knife and a scuffle ensued.
Halford swung at Terrell, Wentworth jumped in, and then he fell. After he got up, he began fighting with
Hernandez. Otis saw Hernandez make a
thrusting or stabbing motion toward Wentworth’s back. Halford and Hernandez then walked away.
Others gave
similar accounts, although some of the specific details differed. Shawn Medlock and his fiancée, Elizabeth Chrisman, were
also homeless. They both saw Hernandez
with a stick and a knife. Medlock saw
Hill talking on his cell phone, Terrell walking toward Hernandez, and Hernandez
and Halford both holding knives. He saw
Halford stabbing Wentworth and stating, “You mother fucker, I’m gonna kick your
ass. You mother fucker, fucker,
fucker.†Terrell, who himself had been
stabbed, asked Medlock and Chrisman for a knife. Wentworth was trying to get away, but he
collapsed. They tried to administer
first aid, but Wentworth died of a stab wound to his chest.
Terrell,
Hill, Hill’s girlfriend, and Hughes all called 911 to report the stabbing. Hill followed defendants down the hill. Hernandez had a wound on his arm and said
someone had thrown a beer at him. Police
officers arrived at Hughes’s house.
Halford told the officers, “These homeless guys are the ones that should
be in handcuffs. I’ve been getting into
it with those guys. They come down to
the yard at 1629 Basler and piss on the yard.
Today I went up to the levee to talk with them and ask them to
stop. As soon as I got up there, these
guys just started coming at me. They had
knives and bottles and I thought they were gonna hurt me. I had a knife with me. I might have nicked one with the knife.†When asked if he had any weapons, Halford
produced a small folding knife from his right front pocket. The blade was too short to have inflicted the
fatal wound to Wentworth’s chest, but it could have caused a second wound in
his right upper back.
Hernandez
told a neighbor who visited him in jail that he thought the person they were
following up on the levee was Tommy Duke.
Halford had injuries to his left and right middle fingers, and Hernandez
had injuries to both
knees and his left middle finger.
DISCUSSION
I
Defendants
both challenge two standardized instructions the court gave the jury explaining
various nuances of self-defense. The court instructed the jury that: “A person does not have the right to
self-defense if he provokes a fight or quarrel with the intent to create an
excuse to use force.†(CALCRIM No.
3472.)
The court
also instructed the jury: “A person who
engages in mutual combat or who is the initial aggressor has a
“1. He actually and in good faith tries to stop
fighting;
“2. He indicates, by word or by conduct, to his
opponent, in a way that a reasonable person would understand, that he wants to
stop fighting and that he has stopped fighting;
“And
“3. He gives his opponent a chance to stop
fighting.
“If a
person meets these requirements, he then has a right to self-defense if the
opponent continues to fight.
“A fight is
mutual combat when it began or
continued by mutual consent or agreement.
That agreement may be expressly stated or implied and must occur before
the claim to self defense arose.
“If you
decide that the defendant started the fight using non-deadly force and the
opponent responded with such sudden and deadly force that the defendant could
not withdraw from the fight, then the defendant had the right to defend himself
with deadly force and was not required to try to stop fighting.†(CALCRIM No. 3471.)
Defendants,
presenting their version of the facts, argue there was not substantial evidence
to warrant the instructions. The
question is not, however, whether there is substantial evidence to support
defendants’ version of the facts that justified their use of deadly force, but
whether there is substantial evidence of the alternative narratives presented
by the prosecution and embodied in the challenged instructions that they either
provoked the fight or engaged in mutual combat.
As to the
propriety of delivering CALCRIM No. 3472, defendants rely on a case decided in
the late 19th century. In
a road that ran across his leased land.
Defendant, armed with a rifle, tore down the fence and traveled the road
to the post office. On his return, he
encountered the victim. (
or the victim was the initial aggressor.
The defendant admitted shooting the decedent but claimed self-defense. (Id.
at pp. 620-621.)
It is true
the jury instruction given in Conkling
suggested that the defendant might have forfeited his right to defend himself
by his conduct preceding the killing.
Reversing on this ground, among others, the Supreme Court explained: “[The instruction] says in effect that, if
the necessity for the killing arose by the fault of defendant, then the killing
was not done in self-defense; and, again, it says if the danger which
surrounded defendant was one brought upon himself by his own misconduct he
cannot defend himself against it. Aside
from any question as to the immediate cause which at the time of the killing
precipitated the affray, this language of the instruction is broad enough to
justify the jury in believing that it was such a fault or misconduct upon the
part of the defendant, in attempting to travel this road under existing
circumstances, as to deprive him of the right of self-defense if attacked by
deceased at the point where the road was obstructed. Such, certainly, is not the law, and neither
court nor counsel for the people would so contend.†(Conkling,
supra, 111 Cal. at pp. 625-626.)
Defendants
insist that they, like Conkling, retained the right to defend themselves when
they left the safety of Hughes’s house and pursued Terrell up on the
levee. The Attorney General does not
suggest otherwise. Defendants contend
there were no facts to support the instruction, and the error was exacerbated
by the prosecutor’s liberal references to the instruction during his closing
argument. Indeed, defendants accuse the
prosecutor of using the concept embodied by the instruction to divert the
jury’s attention from the real issue of deciding whether self-defense was
reasonable and necessary during the altercation on the levee.
But to
accept defendants’ argument is to ignore half the case. The jury was certainly free to view
defendants’ conduct as a reasonable attempt to peacefully settle a
long-simmering dispute with Tommy Duke and thus to reject the prosecution’s
theory that when defendants armed themselves with a stick and knives and
pursued Terrell, whom they believed to be Duke, up the levee and announced
their intent to kill him, they had provoked the fight to create an excuse to
use force. But the prosecution’s
evidence of defendants’ conduct preceding and during the fight was more than
ample to justify the instruction and to give the jury the guidance it required
to apply the many aspects of the right to self-defense. If, as the prosecution’s evidence suggested,
defendants were the first assailants, never withdrew from the affray, and, as
the aggressors, were responsible for the fight, then the jury could find, as
the instruction directed, that defendants were not entitled to the benefit of
self-defense. CALCRIM No. 3472 embodies
those principles and the court properly delivered it to the jury.
Nevertheless,
defendants insist CALCRIM No. 3472 should not have been given to the jury in
this case because there was insufficient evidence of a specific intent to
contrive a pretext for self-defense.
They insist there must be evidence their actions in arming themselves
and threatening the victims must have been a “premeditated†and “consciousâ€
design to create the justification for the use of self-defense. They exaggerate the law and minimize the
facts.
CALCRIM No.
3472 does not require premeditation. The
cases have applied a broad meaning to the language “with the intent to create
an excuse to use force.†(CALCRIM No.
3472.) “ ‘It is well established that
the ordinary self-defense doctrine—applicable when a defendant
endangered—may not be invoked by a defendant who, through his own wrongful
conduct (e.g., the initiation of a physical assault or the commission of a
felony), has created circumstances under which his adversary’s attack or
pursuit is legally justified. . . .’
[Citation.]†(
Cal.App.4th 266, 273.) Thus, it is a
defendant’s provocation to create the excuse to use force or, as the court
described it in Olguin, the
defendant’s “wrongful conduct†that evidences his intent and deprives him of
the right to use self-defense.
Granted, CALCRIM No. 3472 must be
read in conjunction with all the other instructions on self-defense, as the
jury was instructed in this
case. The jury was also admonished to
apply only those instructions that
pertained to the facts as they determined
them. So, for example, defendants did
not forfeit their right to
self-defense simply because they initiated the
fight, if the jury found that their nonlethal provocation was met with a lethal response. Certainly, as CALCRIM No. 3472 explicitly
states, defendants must have intended to create an excuse to use force, but there is no need for the type of premeditation and calculation defendants
suggest as a way to “manageably
confine[]†the concept of contrivance.
Moreover, the evidence was
sufficient to give the instruction.
Defendants left the safety of their residence to pursue Terrell. Although
Halford was to later explain they were just
going up to the levee to talk to a few homeless people about “piss[ing]†on the yard, they armed themselves with knives and a stick. Halford announced that he was planning to
“deal with the motherfucker†as he
left the house well armed, although
he later would claim that he and Hernandez were greeted at the levee by men threatening them with knives and
bottles. When the police recovered a knife in his pocket, he explained that he “might
have nicked†one of the men on the levee even though the evidence established the victim had in fact been stabbed in the chest to a depth of five and onehalf
inches by a knife that would have
been much larger than the one recovered from
his pocket.
It was the jury’s prerogative to
determine whether defendants’ conduct in leaving the house, arming themselves, announcing their intention, pursuing
Terrell up onto the levee, and, in
Halford’s case, offering excuses and explanations constituted wrongful conduct and established an intent to create an excuse to use force. But there is ample evidence to support the judge’s decision to give the
instruction based on the inferences
the jury could reasonably draw that they intended to set up a pretext for a need to use self-defense.
While there
may be more conceptual landmines in CALCRIM No. 3471 around the notion of
“mutual combat,†the evidentiary basis for the instruction is far stronger than
the meager showing defendants highlight in People
v. Ross (2007) 155 Cal.App.4th 1033 (Ross). In
to examine what mutual combat means, particularly because the court refused the
jury’s request for a definition of the phrase.
We agree with the court that “[l]ike many legal phrases, ‘mutual combat’
has a dangerously vivid quality. The
danger lies in the power of vivid language to mask ambiguity and even
inaccuracy. [Fn. omitted.] Here the jury was told that participation in
‘mutual combat’ conditionally bars the participants from pleading self-defense
if either is prosecuted for assaulting the other. [Fn. omitted.] The ‘combat’ element of this rule is clear
enough, at least for present purposes.
It suggests two (or more) persons fighting, whether by fencing with
swords, having a go at fisticuffs, slashing at one another with switchblades,
or facing off with six-guns on the dusty streets of fabled Dodge City. The trouble arises from ‘mutual.’ When, for these purposes, is combat
‘mutual’? What distinguishes ‘mutual’ combat
from combat in which one of the participants retains an unconditional right of
self-defense?†(Ross, supra, 155 Cal.App.4th
at pp. 1043-1044.)
Culled from
a distinguished line of cases, the court held that “ ‘mutual combat’ means not
merely a reciprocal exchange of blows but one pursuant to mutual intention, consent, or agreement preceding the
initiation of hostilities.†(
must attempt to withdraw from it before he is justified in killing an adversary
to save himself. “Mutual combat,†as it
relates to self-defense, is a fight “ ‘begun
or continued by mutual consent or agreement, express or implied. [Citations.]’ †(Ibid.)
Defendants
contend there was no agreement to fight, and therefore the instruction should
not have been given. In
his friend to move into a trailer already occupied by the friend, his
girlfriend, her four young children, and her mother. (Ross,
supra, 155 Cal.App.4th at pp.
1036-1037.) The girlfriend was unhappy
with the arrangement. (
match with the defendant and told him, “ ‘ “Fuck you.†’ †(Ibid.) The defendant told her to watch her language
around the children, and a heated exchange ensued, which lasted for several
minutes. (Id. at pp. 1037-1038.) Ultimately,
the defendant told the victim, “ ‘ “You sound like an old whore†’ †or “ ‘a
fucking whore.’ †(Id. at p. 1038.) She slapped
him and then hit him again. He struck
back, although the witnesses gave different accounts of how hard and how many times
the defendant struck the victim. (
On these
facts, the court concluded, “We do not believe any reasonable juror faced with
this evidence could conclude beyond a reasonable doubt that defendant and [the
victim] at any time mutually agreed, consented, arranged, or intended to fight
one another. Instead the evidence
strongly suggests that the parties exchanged contemptuous remarks until [the
victim] lost her temper and slapped defendant, whereupon he punched her
back. [Fn. omitted.] This is not ‘mutual combat’ as that term has
been explicated in California precedents.
This does not mean that defendant was legally entitled to punch [the
victim]. That was and remains a
legitimate question for the jury. But
the answer must hinge on whether defendant responded with reasonable force to
avert a threat of violence against his person.
There is no adequate basis here for a finding that defendant was at any
time engaged in mutual combat with [the victim].†(Ross,
supra, 155 Cal.App.4th at p.
1054.)
Defendants
urge us to apply the same logic here.
While the evidence of mutual combat may not be overwhelming, and, as we
noted above, the phrase itself is plagued by a “dangerously vivid qualityâ€
masking ambiguity and inaccuracy, the course of events leading up to
defendants’ fight on the levee is of an entirely different nature than the
spontaneous eruption of violence in Ross. There, a woman lost her temper and slapped
the defendant, who had been crude and argumentative during their verbal
sparring. There is no indication that
there was any advance warning a physical confrontation would erupt. In short, there was no evidence of an express
or implied agreement to engage in a mutual fight.
Certainly
we must agree that defendants did not expressly agree to a fight with Terrell
or anyone else on the levee. But
defendants ignore the evidence of an implied agreement. Terrell appeared at Hughes’s house throughout
the day, riding in circles and taunting the occupants. By 6:00 p.m., he was drunk; brandishing a
knife, according to Hughes; and shouting, “Where’s the mother fucker that beat
up my old man homeboy? I got a
knife. I’m going to stick him.†A reasonable juror could construe his remarks
as an invitation to fight.
And
defendants’ responses suggest an acceptance of the offer. Hernandez yelled out, “Wait a minute,†then
went inside, possibly to arm himself.
Halford told Terrell, “I’m right here†or “Here I am.†Terrell fled, but defendants decided to
pursue him. Halford informed Hughes,
“I’ll deal with the mother fucker†as he went out the front gate and followed
Terrell up the hill.
Thus, there
was not, as in Ross, a sudden
explosion of violence. This was a
confrontation that had been building for hours, even days, in that defendants
believed Terrell was Duke and Duke had been an ongoing problem for some
time. There was sufficient evidence they
agreed to the pending fight, albeit with someone other than their intended
opponent.
Moreover,
there was also evidence that Terrell agreed to fight. No one disputes that he antagonized
defendants by circling in front of Hughes’s house and threatening the
occupants. But once he left, the jury
was confronted with the question of who became the aggressor and who had the
right to exert lethal force. Both sides
offered their versions of what actually transpired on the hill. It was up to the jury to decide questions of
credibility and determine the thorny issues involving self-defense under the
circumstances. But given the fact that
Terrell had taunted defendants, and defendants had taken their time to arm
themselves and Halford expressed his intention to take care of that “mother
fucker,†there was sufficient evidence of the kind of mutuality
by one person against another, here the defendants and their victim, Terrell,
provoked and engaged in the violent confrontation that followed.
Finally, defendants argue that
because CALCRIM No. 3471 fails
to define “initial aggressor†it relieved the prosecution of the burden of proving each element of
the charged offense, thereby
violating the Sixth Amendment right to a jury trial and their right to
due process. (Sullivan v. Louisiana (1993) 508
U.S. 275 [124 L.Ed.2d 182].) Even
if there is an abstract possibility,
regardless of how remote, that the failure to
further define, refine,
or explain the meaning
of “initial aggressor†might confuse the jury and allow it to deny a defendant the right to self-defense, this
is not the case. Based on all the
evidence we have recited multiple times above,
any instructional error was harmless beyond a reasonable doubt and did not contribute to the
verdict. (Chapman v. California (1967)
386 U.S. 18, 24 [17 L.Ed.2d 705].)
Defendants insist that verbal
threats are not enough
to make them the initial
aggressors. Nor, in their view, was arming themselves with knives and
sticks. But they would have us ignore context and presume the truth of
their version of the facts. The jury
heard compelling evidence that Terrell had left their neighborhood before they initiated their campaign. Although they were then in the safety of
Hughes’s home, Halford announced that he would deal
with that “motherfucker,†and he and Hernandez grabbed knives and a stick as they pursued Terrell
up onto the levee. The prosecutor argued, based on this
evidence, that the jury could consider them the initial aggressors.
Once they arrived at the levee and confronted Terrell, Halford, in Hernandez’s presence, again made his intention perfectly clear, stating that
either “I†or “we†are “going to kill you.â€
Alternatively, the prosecutor suggested that defendants then became the
initial aggressors. In either case, the prosecutor’s burden of proof was not
diluted, and there is no likelihood the
jury misinterpreted the instruction to apply
in a way that violated defendants’ constitutional rights to due process
or a jury trial.
When read together, the self-defense instructions make clear that the right to self-defense ebbs and flows
depending on who does what
when. CALCRIM No. 3471 focuses on two circumstances
-- mutual combat and initial aggressors -- when an accused loses the right to self-defense unless he stops fighting and notifies the victim of his intent to
withdraw. Here there was compelling evidence that defendants
achieved the role as “initial
aggressors†and no reason to suspect the jurors were confused or misinformed about what these terms meant. While defendants hypothesize the jury rejected their
theories of self-defense based solely on their verbal
threats or their well-justified decision to arm themselves, we conclude that
the evidence, when considered in light of all the circumstances and the chronology of what defendants did and said to whom, and when they made those threats and used their
weapons, inspires our confidence that any possible
error in failing
to define initial aggressor was harmless beyond
a reasonable doubt.
CALCRIM No. 3471 was properly given under these circumstances.
II
In
unhinged the liability of an aider and abettor from that of a perpetrator in a
sea change opinion that now allows a jury to find an aider and abettor guilty
of a greater offense than the perpetrator.
Yet juries are routinely instructed that a person is equally guilty of
the crime whether he or she committed it personally or aided and abetted the
perpetrator who committed it. (CALCRIM
No. 400.) In the aftermath of
Cal.App.4th 1148, 1163 (Samaniego)
and People v. Nero (2010)
181 Cal.App.4th 504, 514 (Nero)
found the phrase “equally guilty†misleading.
Moreover, in Nero the court
held that an aider and abettor can be found guilty of a crime lesser than the
crime committed by the perpetrator. (
Because,
according to Nero, Hernandez may have
been guilty of a lesser crime than the perpetrator Halford, he contends the
court misled the jurors by instructing them in the language of CALCRIM No. 400
that if the jury found he was an aider and abettor, then he was “equally
guilty†of the crimes Halford committed.
He reiterates the many ways in which the jury could have found him much
less culpable than Halford, including his solicitous attitude toward Rasmussen
in front of Hughes’s house, the consistent testimony that he played a secondary
role and did not shout threats or profanities before or during the altercation,
and the inconsistent testimony as to whether he actually stabbed anyone at all. Hernandez’s contention, in light of the
evolving trend to allow an aider and abettor’s mens rea to “float free†of the
perpetrator’s, requires a scrupulous analysis of the charges, the evidence, and
the jury’s findings to determine whether on this record the court committed
reversible error.
Hernandez
and Halford were jointly charged with Wentworth’s murder and the attempted
murder of Terrell. And both were charged
with the personal use of a deadly weapon within the meaning of Penal Code
section 12022, subdivision (b)(1) in connection with the murder. But the information alleged that only Halford
personally used a deadly weapon in connection with the attempted murder. The jury found Hernandez and Halford guilty
of second degree murder and attempted murder, and the personal use allegations
to be true.
The
Attorney General argues that Hernandez, like his counterpart in
challenge the instruction on appeal by failing to request appropriate
clarifying or amplifying language. The
court wrote, “CALCRIM No. 400 is generally an accurate statement of law, though
misleading in this case. Samaniego was
therefore obligated to request modification or clarification and, having failed
to have done so, forfeited this contention.â€
(Samaniego,
Hernandez
insists that CALCRIM No. 400 is not generally correct because it subsumes the
mens rea of a crime into the criminal act.
But CALCRIM No. 400 should not be read alone. While it provides an introduction to the
general principles of aiding and abetting, it is CALCRIM No. 401 that sets
forth the elements for aiding and abetting and focuses on the defendant’s
personal mens rea. Thus, CALCRIM No. 401
provides: “To prove that the defendant
is guilty of a crime based on aiding and abetting that crime, the People must
prove that: [¶] 1. The
perpetrator committed the crime;
[¶] 2. The defendant knew that the perpetrator
intended to commit the crime; [¶] 3. Before or during the commission
of the crime, the defendant intended to aid and abet the perpetrator in
committing the crime; [¶] and
[¶] 4. The defendant’s words or conduct did in fact
aid and abet the perpetrator’s commission of the crime. [¶]
Someone aids and abets a crime
if he or she knows of the perpetrator’s unlawful purpose and he or she
specifically intends to, and does in fact, aid, facilitate, promote, encourage,
or instigate the perpetrator’s commission of that crime.â€
To the
extent, as in Samaniego and
in this case, Hernandez should have asked for a clarification or
modification. His failure to do so
constitutes a forfeiture of his claim on appeal. Nevertheless, we conclude that on the record
before us, if there was error in using the misleading phrase “equally guilty,â€
and if Hernandez had not forfeited the right to challenge the misleading
instruction, the error was harmless beyond a reasonable doubt. (Samaniego,
supra, 172 Cal.App.4th at
p. 1165.)
The
evidence of Hernandez’s participation in the murder and attempted murder are in
sharp contrast to the evidence of the aider and abettor’s involvement in
beyond a reasonable doubt that the aider and abettor would have been found guilty
of second degree murder in the absence of the instructional error. The aider and abettor, Lisa Brown, was the
perpetrator’s older sister and had been his legal guardian since their mother
died when he was 13 years old. When Nero
and Brown came out of a market, the victim was riding a bicycle in the parking
lot. (Id. at pp. 507-508.) The
victim had ingested cocaine and ethyl alcohol within hours of his death. According to Nero, the victim called his
sister, who is a lesbian, a “bull dyke†and “bitch†and challenged him to a
fight. (Ibid.) The victim grabbed a
knife from his bicycle and stabbed Nero’s arm.
(Ibid.) Nero testified that when the victim dropped
the knife, he picked it up and stabbed him in self-defense. His sister kept trying to stop the
fight. (Id. at pp. 508-509.)
According to the prosecutor, however, Brown handed her brother a
knife. (Id. at p. 510.)
Thus, in
abettor or not at all. The jury
specifically asked the court whether an aider and abettor could bear less
responsibility than the perpetrator. (
principal is “equally guilty.†(
suggest that Brown’s mental state was not tied to Nero’s, the jury still asked
if they could find Brown, as an aider and abettor, guilty of a greater or
lesser offense than Nero. This suggests
to us that the aider and abettor instructions—namely, CALJIC No. 3.00—are
confusing and should be modified.[
name="_ftnref1" title="">[1]] And where, as here, the jury asks the
specific question whether an aider and abettor may be guilty of a lesser
offense, the proper answer is ‘yes,’ she can be. The trial court, however, by twice rereading
CALJIC No. 3.00 in response to the jury’s question, misinstructed the
jury.†(Nero, at p. 518.)
Here there
is no evidence that CALCRIM No. 400 confused the jury. The record in Nero was crystal clear: the
jurors struggled to understand the meaning of “equally guilty†when there was
such a blatant disparity between the mens rea of the brother and that of his
sister. But unlike the jurors in
clarification of the meaning of the instruction.
Moreover,
the facts before us bear little, if any, resemblance to the facts presented in
In Nero, the fight was
spontaneous; Nero did not even know the victim who initiated the confrontation,
insulted his sister, and threatened him.
There was evidence Brown tried repeatedly to stop the fight. Nero had not, as Halford had done here,
announced an intention to harm or endanger the victim before getting involved
in the altercation. Even if the jury
accepted the prosecution’s theory that Brown handed her brother a knife in the
heat of the moment, her participation hardly can be compared to Hernandez’s
robust involvement in the fight on the levee with Wentworth and Terrell.
Thus, the
jury heard the compelling evidence that Hernandez knew before he left Hughes’s
house and accompanied Halford to the levee that Halford was hell bent on
“deal[ing] with the mother fucker.â€
Hernandez armed himself with two knives and a long stick. He had observed Halford’s violent threat to
Tommy Duke when Halford held a knife to Duke’s eye but benevolently refrained
from stabbing him then because he had a young daughter. On the levee, Hernandez was in Halford’s
presence when Halford announced his intention to kill Terrell. Finally, and most importantly, Hernandez
personally provided Halford one of the knives and proceeded to use the other
one himself.
That is not
to say that Hernandez’s mens rea did not float free of Halford’s. As McCoy
and its progeny have now made abundantly clear, there is a critical distinction
between a perpetrator’s criminal act, for which the aider and abettor may be
equally responsible, and his mens rea, which the jury must assess
independently. But on this record, we
have no reason to suspect that the jury did not follow its charge to determine
whether Hernandez had knowledge of Halford’s purpose and entertained the
specific intent to aid and facilitate the murder of Wentworth and the attempted
murder of Terrell. Furthermore, the jury
was properly instructed to “separately consider the evidence as it applies to
each defendant†and “decide each charge for each defendant separately.â€
In this
case, unlike Nero, there is
overwhelming evidence that Hernandez was an active participant from start to
finish. Indeed, the jury found that he
personally used a knife in connection with the murder. Unlike Nero,
we have no concern that the jury was confused by the phrase in CALCRIM
No. 400 that an aider and abettor may be equally guilty with the
perpetrator, expressing as it does that the act of one legally may be the act
of all. And the jury was otherwise
properly instructed to carefully evaluate Hernandez’s mental state, separate
and apart from Halford. As a result, we
can conclude, as the court in Nero
was unable to do, that any instructional error in CALCRIM No. 400 was harmless
beyond a reasonable doubt.
III
Hernandez
also asserts it was error to give the jury an adoptive admission instruction
when, as here, there is no evidence of any accusation in Hernandez’s presence
calling for a denial. Specifically, he contends
that testimony that Halford stated “I’m going to kill you†in Hernandez’s
presence is not an adoptive admission under the hearsay exception set forth in
Evidence Code section 1221, and that accordingly, it was error to instruct on
adoptive admissions. We agree.
Evidence
Code section 1221 states: “Evidence of a
statement offered against a party is not made inadmissible by the hearsay rule
if the statement is one of which the party, with knowledge of the content
thereof, has by words or other conduct manifested his adoption or his belief in
its truth.â€
“ ‘If a
person is accused of having committed a crime, under circumstances which fairly
afford him an opportunity to hear, understand, and to reply, and which do not
lend themselves to an inference that he was relying on the right of silence
guaranteed by the Fifth Amendment to the United States Constitution, and he
fails to speak, or he makes an evasive or equivocal reply, both the accusatory
statement and the fact of silence or equivocation may be offered as an implied
or adoptive admission of guilt.’
[Citations.]†(
1189.) The trial court must make a
threshold determination whether the evidence is sufficient for a reasonable
trier of fact to find a defendant adopted an admission by his silence. (People
v. Davis (2005) 36 Cal.4th 510, 535.)
We conclude
there was not sufficient evidence to support a finding that Hernandez adopted
Halford’s incriminating statement by remaining silent. Halford’s statement, “I’m going to kill youâ€
was not “an accusation†that Hernandez would be expected to respond to or to
deny. Rather, the statement merely
reflected Halford’s subjective intent at the time. Thus, there was no evidentiary basis to
support the instruction and it was error to do so.
Nevertheless,
the error was harmless. The jury found
that Hernandez personally used a knife in killing Wentworth. Given the overwhelming evidence that he was
armed with two knives, carried a stick, and engaged in the fight, the fact that
he stood mute in the face of his codefendant’s threat would have had minimal,
if any, impact on the jury. Nor was his
claim of self-defense derailed by the possibility that the jury came to the
erroneous conclusion, pursuant to this instruction, that he admitted guilt by
failing to deny Halford’s statement of intent.
Based on the record before us, we conclude the adoptive admission
instruction did not result in a miscarriage of justice because we can say,
beyond a reasonable doubt, that Hernandez would have been found guilty of the
charged offenses in the absence of the error.
DISPOSITION
The
judgments are affirmed.
RAYE , P. J.
We concur:
NICHOLSON , J.
BUTZ , J.
name="_ftn1" title="">[1] CALJIC No. 3.00 is now CALCRIM No. 400.
