P. v. Hammond

Filed 5/21/08 P. v. Hammond 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury acquitted defendant Daniel David Hammond of criminal threats, a felony (Pen. Code, 422; undesignated section references are to this code) but convicted him of battery against a cohabitant, a misdemeanor ( 243, subd. (e)(1)).

Granted probation, defendant appeals, contending the trial court committed prejudicial error in failing to instruct on self-defense. We disagree and affirm the judgment.

FACTS

The victim described several acts by defendant, her former boyfriend, during an argument over the car keys. Defendant threw the victim off the bed, causing her to crash into the closet doors, breaking them. He straddled her on the floor and pounded her chest. When she was able to stand up, he threw her on the bed and grabbed her face, threatening to break her neck. Shortly thereafter, in the kitchen, defendant threw her into a cupboard, causing the back of her neck to hit the handle. Later that same evening, defendant pushed her into the wall while she held their two-year-old child. When the victim hit the wall, the childs head hit the victims head.

The victim recounted a prior act. Defendant was angry because she had taken so long to return from a trip to the Bay Area. When she later tried to leave, he threw her to the ground several times. He later apologized in a card for pushing her.

Defendant also apologized in a card for the current offense, stating, I was way wrong. Im so sorry. Cant, dont ever raise your hand to a woman ever. Not even a push. Look where its gone. Way out of reason. Im so sorry.

Defendant testified and denied committing any of the current acts but admitted they had an argument about the neighbor wrecking the car. When the victim carrying the child headed towards the door to go outside to have a cigarette, he attempted to step away from the door to let her pass but he did not act quickly enough. She ran into him and he reacted by pushing her away. The victim denied walking into defendant. With respect to the prior act, defendant claimed he opened the car door which pushed the victim causing her to slip and fall. He pushed her down when she confronted him.

In discussing jury instructions, defense counsel requested a self-defense instruction, Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 3470 (CALCRIM).^[1]

The trial court refused to give the requested instruction, concluding that defendant did not testify that the victims act of running into him was done in a rude or threatening manner.

During jury deliberations, the jury asked for a further definition of harmful or offensive as used in the battery instruction.^[2] Defense counsel argued the jury had focused on defendants testimony and that a self-defense instruction was necessary. The prosecutor opposed the requested instruction, arguing defense counsel was speculating, that a self-defense instruction would require a whole array of instructions and that closing arguments would have to be reopened. The court responded that there was no special definition of harmful or offensive, referred to CALCRIM No. 841, and planned to instruct on unanimity. The trial court refused to instruct on self-defense.

DISCUSSION

On appeal, defendant renews his arguments. We conclude that the trial court properly found no evidence supported the instruction.

The trial court is required to instruct on request only where there is substantial evidence which supports the defense theory. (In re Christian S. (1994) 7 Cal.4th 768, 783; People v. Moore (2002) 96 Cal.App.4th 1105, 1115-1116.)

Here, the evidence did not support a self-defense theory. Defendant denied committing the acts described by the victim. He admitted they argued but denied they ever got physical. He claimed that the only time he touched her was when she barreled through him on her way out the door for a smoke at which time he pushed away from her. Defendants testimony showed that it was just a reaction of trying to get out of the victims way as she went out the door. The victim denied that she walked into defendant near the door. The jury would not have convicted defendant of battery if it accepted defendants testimony. Battery requires that defendant willfully touched the victim in a harmful or offensive manner and that the slightest touching was enough if done in a rude or angry way. The trial court did not err in refusing the instruction.

As for the renewed request when the jury had a question about the definition of harmful or offensive, defendant speculates as to the reason for the jurys request. The trial court properly refused to instruct as requested by the defense.

DISPOSITION

The judgment is affirmed.

NICHOLSON , J.

We concur:

DAVIS, Acting P.J.

HULL, J.

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^[1] CALCRIM No. 3470 provides: The defendant is not guilty of _____ if (he/she) used force against the other person in lawful (self-defense/[or] defense of another). The defendant acted in lawful (self-defense/[or] defense of another) if:

1 The defendant reasonably believed that (he/she/[or] someone else/[or] _____) was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully];

2 The defendant reasonably believed that the immediate use of force was necessary to defend against that danger;

AND

3 The defendant used no more force than was reasonably necessary to defend against that danger.

Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of violence to (himself/herself/[or] someone else). Defendants belief must have been reasonable and (he/she) must have acted because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful (self-defense/[or] defense of another).

When deciding whether the defendants beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendants beliefs were reasonable, the danger does not need to have actually existed.

[The defendants belief that (he/she/[or] someone else) was threatened may be reasonable even if (he/she) relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true.]

[If you find that ______ threatened or harmed the defendant [or others] in the past, you may consider that information in deciding whether the defendants conduct and beliefs were reasonable.]

[If you find that the defendant knew that ______ had threatened or harmed others in the past, you may consider that information in deciding whether the defendants conduct and beliefs were reasonable.]

[Someone who has been threatened or harmed by a person in the past is justified in acting more quickly or taking greater self-defense measures against that person.]

[If you find that the defendant received a threat from someone else that (he/she) reasonably associated with _____, you may consider that threat in deciding whether the defendant was justified in acting in (self-defense/[or] defense of another).]

[A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of (death/bodily injury/________) has passed. This is so even if safety could have been achieved by retreating.]

The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful (self-defense/[or] defense of another). If the People have not met this burden, you must find the defendant not guilty of ______.

^[2] CALCRIM No. 841, as given, provided: The defendant is charged in Count 2 with battery against his former cohabitant. [] To prove that the defendant is guilty of this crime, the People must prove that: [] 1. The defendant willfully touched [victim] in a harmful or offensive manner; [] AND [] 2. [victim] is the defendants former cohabitant. [] Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. [] The slightest touching can be enough to commit a battery if it is done in a rude or angry way. Making contact with another person, including through her clothing, is enough. The touching does not have to cause pain or injury of any kind. [] The touching can be done indirectly by causing an object to touch the other person. [] The term cohabitants mean two unrelated adults living together for a substantial period of time, resulting in some permanency of the relationship. Factors that may determine whether people are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same residence, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) the parties holding themselves out as husband and wife, (5) the continuity of the relationship, and (6) the length of the relationship.