P. v. Johnson
Filed 6/26/12 P. v. Johnson CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
WALTER JOHNSON,
Defendant and Appellant.
B229632
(Los Angeles County
Super. Ct. No. NA078491)
APPEAL from
a judgment of the Superior Court of
Count, Gary J. Ferrari and Tomson T. Ong, Judges. Affirmed.
Jean
Ballantine, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Blythe J. Leszkay and
Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
__________________
Defendant Walter Johnson appeals from a judgment of
conviction entered after a jury trial.
Defendant was convicted of second
degree murder (Pen. Code,
name="_ftnref1" title="">[1]
§ 187, subd. (a)). The jury
found true the allegation defendant personally and intentionally discharged a
firearm in the commission of the crime (§ 12022.53, subd. (d)).
total term of 40 years to life in state prison: 15 years to life for the second
degree murder conviction, plus a consecutive term of 25 years to life for the
firearm use enhancement.
On appeal,
defendant claims instructional error. We affirm.
FACTS
Prosecution
The instant
murder occurred, as all too often, after a group of people had gathered near an
apartment building, drinking and partying.
An altercation ensued and an individual, Jameion Benton (Benton), died
from a single gunshot wound. The
shooting took place at approximately 12:10 a.m. on May 18, 2008.
The
prosecution presented three percipient witnesses at trial: Kwanisha Copeland
(Copeland), the mother of defendant’s one-year-old son; Latrina Howard
(Howard); and Charles Warren (Warren).
Copeland had moved into the apartment building in Long Beach about two
or three months prior to the murder, and defendant either lived with her and
his son or stayed there on a regular basis.
Copeland
was “kicking it” a little bit with Benton without defendant’s knowledge. Benton was from Louisiana and had been in the
area for about three months, visiting his in-laws who lived in the building and
staying with his brother or godbrother, Damion Yeargin (Yeargin), who also
lived in the building.
Howard was
another tenant of the apartment building.
Warren lived in Los Angeles but knew many of the residents in the
building. Warren was also a caregiver to
one of the residents. He was 40 years
old at the time of the trial and had known defendant for about 10 years.
Defendant
was either an active or former member of a Long Beach street gang, the “Insane
Crips.” Benton was associated with
another gang, the “Bloods.” The Long
Beach Crips were rivals with any Blood gang.
On May 17,
2008, Warren had car problems and Benton gave him a ride to the apartment
building. During the afternoon and
evening, people were gathering at the building with Warren and Benton. They were socializing, drinking, and smoking
“weed.” Warren’s friend from Los Angeles
came by with several young men Warren did not know. The men were associated with a Los Angeles
gang and were claiming their gang and selling drugs in front of the
building. Copeland thought the men were
from the same gang that Warren was from, although Warren did not claim any gang
affiliation. Warren did not know that
his friend was associated with any gang, but he had heard that the other men
were from the 87th Street gang.
During the
evening, Copeland and Benton left for a while in Benton’s car. When they returned, Copeland saw “a lot of
guns” in Benton’s car, including a handgun under the front seat and another gun
in the trunk.
By late
evening, there were as many as 14 or 15 people gathered in front of the
apartment building, including defendant, Benton, Howard, Warren and the men
from Los Angeles who had come with Warren’s friend. Defendant told the men that they could not
sell drugs and claim their gang in front of the building; they had to go back
to their own hood to do that. The young
men started to argue with defendant, and defendant said that he had some
“little homies around the corner” if they wanted to fight. Defendant told the men to calm down, and he
was not going to argue with them.
Howard
testified that defendant was upset when he confronted the Los Angeles gang
members. The young men respected
defendant and told him they were “cool.”
They indicated that they knew people from defendant’s gang and had
family members in the gang. They then
went across the street.
At that
point, defendant walked away. Benton
left in Yeargin’s car. Yeargin came
outside wearing a wig and orange clothing.
He told Copeland that when Benton returned with his car, he was going to
go commit a robbery.
After some
time passed, Benton came back with Yeargin’s car, and the two went into the
apartment building. Copeland saw Benton
was carrying a violin case. She believed
there was a gun in the case because she had seen both Benton and Yeargin with
guns that evening.
At some
point, Warren asked Yeargin to take the young Los Angeles gang members to the
metro station so they could return to Los Angeles. Yeargin drove away with them in his car.
Copeland
had overheard a telephone conversation defendant had in their apartment after
he told the Los Angeles gang members to stop claiming their gang. She overheard defendant saying that he saw
Yeargin get into the car with a gun and that he was going to need a “burner,”
i.e., a gun, because “they [were] trying to get him.” Copeland initially testified that she did not
remember telling police that defendant asked someone to bring him a gun and did
not remember defendant doing so.
After
having her recollection refreshed, Copeland admitted telling detectives that
defendant had said that he needed a “biscuit,” i.e., a gun. Copeland initially said that this
conversation took place between defendant and one of his friends in a van out
in front of the building, in response to his friend saying that “they” had
guns. Again, having her recollection
refreshed, Copeland admitted that the conversation she overheard was a
telephone conversation inside her apartment, not outside near a van. Copeland also knew that defendant had a gun
which he kept in their apartment.
While
defendant was standing in front of the apartment building waiting for a ride,
Warren apologized to him for the behavior of the Los Angeles gang members. Benton, who was drunk, interrupted the
conversation and told defendant, “Where I come from we kill [people] like
you.” Benton and defendant started
arguing, telling each other “I ain’t no punk, you can catch my fade,” meaning
they were not afraid to fight. This went
on for five or ten minutes. They were
about 10 steps away from one another.
Benton came towards defendant, “like [he] was fixing to fight.” Defendant backed around to face him, and
Benton backed into the street.
Howard
testified that defendant pulled out a gun and shot Benton. She heard one or two shots. Benton did not have a gun. His vehicle was close by, diagonally across
the street, but Benton was not close to the vehicle. After the shooting, Howard ran into the
building with defendant running behind her, yelling “Don’t no nobody better not
tell.”
Copeland’s
recollection of the shooting differed from Howard’s. She testified that Howard was not even
outside during the evening or at the time of the murder. Copeland testified that the two men were arguing;
Benton moved to the curb and defendant stayed in the yard. While the two men were facing each other,
defendant pulled out a gun and told Benton that he was going to make him “Crip
walk.” This was “a dance that the Crips
do,” moving their feet to spell out “Crips.”
Benton did
not have a gun. Defendant shot at
Benton’s feet three or four times.
Copeland observed defendant shoot Benton. Benton turned and ran to his car. After he go to his car, he called out,
“Blood, I’m hit.” After the shooting, Copeland,
defendant, and their child went to Copeland’s grandmother’s house. Soon after, they went to Fresno for several
months, then to Desert Hot Springs, where defendant was arrested.
Warren gave
conflicting accounts of what he saw on the day of the shooting. He was interviewed by law enforcement on June
20, 2008, and the interview was played for the jury. During the interview, Warren stated he was
outside in the immediate vicinity of the incident when he heard approximately
three gunshots at about midnight. He did
not hear any argument or see either individual with a gun. At trial, Warren’s testimony changed. He stated that he was outside during the day,
but inside all night after the Los Angeles gang members left. He did not witness the shooting or hear any
gunshots. He was not a gang member and
did not hear any gang talk on the night of the murder.
The police
responded to the shooting at 12:10 a.m. on May 18, 2008. Benton and his car keys were on the ground
next to his car, which was parked across the street from the apartment
building. The doors, hood, and trunk
were closed. There was a loaded 12-gauge
shotgun in the trunk. Benton died from a
bullet that entered the back of his right hip and exited through his
abdomen. He was six feet and one inch
tall and weighed 225 pounds. Benton
tested positive for marijuana and had a 0.08 percent blood alcohol content
reading at the time of his death.
Defendant was five feet and eleven inches tall and 200 pounds at the
time of the shooting.
Copeland
was interviewed by law enforcement on May 18 and May 28, 2008. In the first interview she identified the
father of her first child, Joshua Crump, as the shooter. She said Yeargin had a gun with him the night
of the shooting. Yeargin said he was
going to go “shoot some shit up.” She
added that everyone knew that Yeargin and Benton had guns. During the second interview, she admitted it
was defendant who actually shot Benton.
Copeland
was in custody when she testified at trial.
After her first day of testimony, she refused to leave her cell to come
to court. When she testified several
days later, she indicated that she was in custody because she did not want to
come to court and testify. She said that
she was not truthful when she testified earlier that she did not recognize
anyone in court other than defendant.
She recognized defendant’s nephew and his friends. She was scared and nervous and “didn’t want
nothing to happen to [her].” She
testified that two years earlier, right after defendant went to jail,
defendant’s cousin told her to “change [her] story.” When she first talked to the police, she did
not want to tell them that she saw defendant shoot Benton. She tried to avoid going to court because she
did not want to tell the jury that she saw defendant shoot Benton.
Detective
Todd Johnson testified as the prosecution’s gang expert.
member of the Insane Crips. He
identified Yeargin as an Insane Crips affiliate. He identified Benton as Westside Piru, which
is a Compton/Los Angeles “Blood” gang.
The Insane Crips are rivals with any Blood gang. Long Beach is an “all-Crip” city. A Blood would not be welcome in north Long
Beach, but it was not uncommon for a Blood to be there, possibly to visit family
or friends. It would be disrespectful
for Los Angeles gang members to claim their gang in Long Beach.
Detective
Johnson opined that the apartment building where the murder occurred was in an
area claimed by the Insane Crips. During
the evening prior to the shooting, when defendant said “Cuz, what” to Benton,
it would be disrespectful. It was the
same as calling Benton a Crip, which was disrespectful since Benton was a
Blood. It was also an insult for Benton
to call defendant “Blood.” It was a
threat for a Blood to say to a Crip, “Where I come from we kill [people] like
you.” Detective Johnson also opined that
the shooting involved a “gang issue.”
Detective
Johnson also explained the term “Crip walk” differently than Copeland. When the Crips first became a gang, they
walked with canes, and someone labeled it, “There goes a Crip.” “Crip walk” is a type of dance that Crips
do. Telling someone “I’m going to make
you Crip walk” would mean either, “I’m going to shoot you and make you
crippled,” or “I’m going to shoot you walking away and do a dance like a Crip
walk.”
Defense
Defendant
testified in his own defense. He was 35
years old at the time of trial. He had
moved into the apartment building with Copeland and their son about three
months prior to the shooting. He
admitted that he had been convicted of possession of cocaine for sale in 1994
and again in 2000. He joined the Long
Beach Insane Crips when he was about 15 or 16 years old. He stopped associating with them when he went
to prison in 2000. He had to stay in the
area because his family lived there and he was collecting disability to support
himself and his children.
From the
time he moved into the building, he had repeatedly asked people at the building
not to sell drugs in front of their apartment doors but to take it
outside. He made the same request in
about March of 2008 to Benton, and Benton complied. After that, however, Benton would stare at
defendant “crazy like.”
On May 17,
2008, defendant took Copeland to work and had their son with him all day. After he picked Copeland up from work, they
returned home about 5:30 or 6:00 p.m.
Defendant then went to a friend’s house and returned to the apartment
building at about 9:30 or 10:00 p.m.
When he returned, a group of people, including Copeland, Benton, and
some young people defendant did not know, were hanging out in front of the
apartment building. The young people
were rapping, but there was no gang banging or discussion about gang banging.
Defendant
went inside to check on his son and then called a friend to get a ride to a
club. He went back outside to wait for
his ride. He did not say anything to the
young men about gang banging, and he did not hear them say anything about being
in a Los Angeles gang. He did not tell
them to go back to their own hood or that he had homies around the block who
could take care of them.
While
defendant was waiting for his ride, Warren, Benton, and some other men were in
a huddle, “mad-dogging” him. Warren
approached him and they talked, but not about the young men out in front. Benton was on his cell phone, talking about
selling some weed; he left and returned 15 to 20 minutes later. Defendant, while talking to Warren, saw
Benton walking up from the gate with a gun that was about two and a half feet
long. Benton was pointing the gun at
defendant and “mean mugging” (staring) at him.
As Benton walked by, he said to defendant “You know how we do,” or “This
is how we do it.” Defendant and Warren
did not respond. Benton went into
Yeargin’s apartment. Defendant’s ride
pulled up and he left.
Defendant
went to a club for about 45 minutes to an hour.
When he returned home, the crowd had left. Warren, his girlfriend, Benton and another
man and woman were outside. When
defendant approached the group, Benton looked at him and said to the other man,
“I murder [people] like him,” or “I murder [people] for money.” Defendant knew that Benton was referring to
him, and he felt threatened and afraid for his life.
Defendant
went to his apartment, put his .38 caliber revolver in the back of his
waistband and returned outside to talk to Benton and try and resolve whatever
problem Benton had with him. He took the
gun because Benton had one and had threatened him. He did not plan to shoot Benton or use the
gun. When he came down the walkway from
his apartment to the street, Benton said, “This [man] thinks I’m playing.” Defendant then continued down the walkway and
Benton left and was out of sight.
When
defendant got to the front of the building, he saw Benton across the street,
going toward the trunk of his car.
Defendant had heard that Benton kept his gun in the trunk and thought
Benton was going for his gun. Defendant
told him to back away from the car.
Benton had the keys in his hand, apparently trying to pop the trunk
open. Defendant again told Benton to
back away from the car, but Benton refused and continued trying to open the
trunk. Defendant pulled out his gun and aimed
across the street and down at the ground.
He was not aiming for Benton. He
fired two times, trying to scare Benton away from the trunk. Benton kept trying to get into his
trunk. His left side was facing toward
defendant. Defendant fired a third
shot. After this shot, Benton turned and
started to move away from the trunk.
Defendant started to run and fired a fourth shot. He was not aiming to hit Benton. After the fourth shot, Benton fell and said,
“I have been hit.”
Defendant
maintained that he was not trying to hit Benton but only shot at him because he
believed that if he did not do so, Benton would get his own gun and kill him
first. Defendant did not see Copeland or
Howard outside at the time of the shooting.
Their testimony that he shot at Benton when Benton was at or near the
curb or on the same side of the street with defendant was not correct.
Defendant
indicated that Copeland had told him that Benton had guns in the car, bragged
about having shot people in Louisiana, and about “what he do and what he will
do to somebody.” He had not heard that
Copeland and Benton were flirting or having an affair. In any event, he and Copeland did not have an
exclusive committed relationship, and he had another girlfriend.
After
Benton was shot, defendant panicked and ran.
He stayed for several days with a lady friend in Long Beach. He then went to the home of Copeland’s
grandmother. He did not go to Fresno
with Copeland or live with her there. He
was arrested in Desert Hot Spring when he went there to visit Copeland.
DISCUSSION
Trial Court’s Failure to Instruct on the Principles of Reasonable
(Perfect) Self-Defense and “No Retreat” Rule
Defendant
contends that the trial court erred in denying his request to instruct the jury
on reasonable (perfect) self-defense and the no retreat rule. We disagree.
In general,
the trial court has a duty to instruct the jury
relevant to the issues raised by the evidence.
(People v. Wims (1995) 10
Cal.4th 293, 303.) This duty includes
the duty to instruct on defenses where it appears the defendant is relying on
those defenses or there is substantial evidence supportive of the
defenses. (People v. Breverman (1998) 19 Cal.4th 142, 157.)
The trial
court is required to instruct the jury on a defense relied upon by the
defendant only if the defense is supported by substantial evidence. (People
v. Watson (2000) 22 Cal.4th 220, 222.)
Substantial evidence is that which is reasonable, credible and of solid
value. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Although all reasonable inferences must be
drawn in support of the defense, the court “may not ‘go beyond inference and
into the realm of speculation in order to find support for [the defense]. A finding . . . which is merely the product
of conjecture and surmise may not be affirmed.’
[Citations.]” (
695, overruled on another ground in People
v. Gaines (2009) 46 Cal.4th 172, 181, fn.2.)
The trial
court instructed the jury on unreasonable (imperfect) self-defense in the
instant case pursuant to CALJIC No. 5.17 and also instructed on any doubt as to
whether the crime was murder or manslaughter pursuant to CALJIC No. 8.72. Trial counsel also requested CALJIC No. 5.50
(Self-Defense—Assailed Person Need Not Retreat). CALJIC No. 5.50 provided: “A person threatened with an attack that
justifies the exercise of the right of self-defense need not retreat. In the exercise of [his][her] right of
self-defense a person may stand [his][her] ground and defend [himself][herself]
by the use of all force and means which would appear to be necessary to a
reasonable person in a similar situation and with similar knowledge; and a
person may pursue [his][her] assailant until [he][she] has secured
[himself][herself] from danger if that course likewise appears reasonably
necessary. This law applies even though
the assailed person might more easily have gained safety by flight or by
withdrawing from the scene.”
The trial
court refused to give the requested instruction, stating that it applied only
to self-defense rather than imperfect self-defense. Defense counsel argued that, “the jury might
decide this is perfect self-defense.”
The court again refused the instruction, stating, “I can make a finding
right now that there is no substantial evidence that the there is [
The jury
was given CALJIC No. 5.17, which provides:
“A person who kills another person in the actual but unreasonable belief
in the necessity to defend against imminent peril to life or great bodily
injury, kills unlawfully but does not harbor malice aforethought and is not
guilty of murder. This would be so even though a reasonable
person in the same situation seeing and knowing the same facts would not have
had the same belief. Such an actual but
unreasonable belief is not a defense to the crime of voluntary
manslaughter. [¶] As used in this instruction, an ‘imminent’
peril or danger means one that is apparent, present, immediate and must be
instantly dealt with, or must so appear at the time to the slayer. [¶]
However, this principle is not available, and malice aforethought is not
negated, if the defendant by his unlawful or wrongful conduct created the
circumstances which legally justified his adversary’s use of force, attack or
pursuit.”
The People
contend that defendant forfeited his claim for failure to instruct pursuant to
CALJIC No. 5.50 because he did not object that the failure to instruct would
have violated his federal constitutional
rights. (See People v. Hinton (2006) 37 Cal.4th 839, 896-897 [“the claim is
forfeited because [the] defendant did not articulate this ground below”].) In the trial court, defendant argued that
substantial evidence supported a “perfect self-defense” instruction. Defendant claims, however, that where an
explicit constitutional theory is advanced on appeal but was not specifically
raised below, it is not forfeited on appeal where it does not “invoke facts or
legal standards different from those the trial court itself was asked to apply,
but merely assert that the trial court’s act or omission, insofar as wrong for
the reasons actually presented to that court, had the additional legal
consequence of violating the Constitution.”
(People v. Boyer (2006) 38
Cal.4th 412, 441, fn. 17, emphasis omitted; People
v. Partida (2005) 37 Cal.4th 428, 433-439.)
We do not
believe that the federal constitutional errors raised by defendant on appeal
were forfeited. Regardless, the evidence
presented at trial did not warrant the requested instruction.
While it is
true that a defendant’s testimony alone may be sufficient to constitute
substantial evidence warranting a jury instruction on self-defense, the
evidence needs to be sufficient to support the instruction. (People
v. Lemus (1988) 203 Cal.App.3d 470, 477).
CALJIC No. 5.50 requires a person to be threatened with an attack. There must be substantial evidence that the
defendant believed in the need to defend against imminent danger of death or
bodily injury, and the belief must be reasonable. (People
v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083.) Imminent danger means danger that existed or
appeared to exist at the very moment that the defendant inflicted the assault. (Id.
at pp. 1094-1095.) On appeal, a
trial court’s failure to give self-defense instructions will be upheld where
the theory was not supported by substantial evidence. (People
v. Hill (2005) 131 Cal.App.4th 1089, 1101, disapproved on another ground in
People v. French (2008) 43 Cal.4th
36, 48, fn. 5; People v. Rodriguez
(1997) 53 Cal.App.4th 1250, 1269-1270).
Even
looking at the evidence in the light most favorable to defendant and not
considering the testimony of the percipient witnesses, there was no substantial
evidence warranting the instruction requested.
At the time of the murder, defendant was not threatened with an imminent
attack. He went to his apartment, not
being followed by the victim, and made a decision to arm himself with a firearm. He then went to seek out Benton, to resolve
whatever “problem” Benton had with him.
After
defendant armed himself with a weapon, he left his apartment about midnight and
went down the walkway from his apartment to the street. While there were words between defendant and
Benton, defendant pursued Benton. Then,
according to defendant, Benton was across the street allegedly going toward the
trunk of his car. Defendant could have
left, but continued to pursue Benton by telling him to back away from his
car. Defendant then fired two shots,
trying to “scare” Benton away from the trunk of his car. Benton was not hit at that point.
According
to defendant, he yelled at Benton to back away from his trunk, and defendant
fired again. Possibly because Benton
finally got the message that defendant was serious, Benton turned and started
to move away from the trunk. Certainly
at that point, even accepting defendant’s testimony as true, there was no
danger of imminent attack. Regardless,
defendant fired a fourth shot, which, tragically, turned out to be the shot
that killed Benton.
Defendant’s
reliance on People v. Humphrey,
the case is clearly distinguishable. In
woman, testified that the day before she shot her husband, he hit her
repeatedly, threatened to kill her, and shot at her. On the day of the shooting, the husband got
drunk, swore at the defendant, started hitting her again, and walked into the
kitchen. The defendant saw the gun in
the living room, picked it up, pointed it at her husband and said, “‘You’re not
going to hit me anymore,’” and, believing he “was about to pick something up to
hit her with, she shot him.” (
evidence here that [the] defendant reasonably feared imminent harm.” (Id.
at p. 1984, fn. 4.)
In the
instant case, the parties were not living together, and there was no history of
violence by the victim against defendant.
There had been no physical violence between defendant and Benton prior
to the shooting, just an exchange of words.
Defendant made a conscious choice to go to his apartment, arm himself,
and seek out Benton. Defendant shot at
Benton three times while Benton was apparently trying to obtain a weapon from
the trunk of his car. After three shots,
Benton, even according to defendant’s testimony, backed away from the car, and
there was no threat of immediate harm when defendant fired the fatal fourth
shot. The facts of this case are vastly
different from those in Humphrey,
where the victim had a history of violence against the defendant, the shooting
occurred after an assault, and the defendant was in imminent fear of the
assault continuing.
Moreover,
any error in failing to give CALJIC No. 5.50 was not prejudicial under either
18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] [prosecution must prove error harmless
beyond a reasonable doubt] or People v.
Watson (1956) 46 Cal.2d 818, 836 [defendant must show reasonable
probability the error affected the verdict].
Inasmuch as the jury rejected “imperfect” self-defense, it is not
conceivable that the jury could have found “perfect” self-defense. The jury’s determination of defendant’s guilt
on second degree murder necessarily included a rejection of any defense claim
of self-defense, perfect or imperfect.
Trial Court’s Instruction on
Imperfect Self-Defense
Defendant
contends that the trial court’s instructional errors on imperfect self-defense
violated his rights under State law and the federal Constitution. We disagree.
Defendant
contends that the “instructional errors are: (1) refusal to instruct the jury
on the no retreat rule on the issue of imperfect self-defense, (2) erroneously
instructing that imperfect self-defense is not available ‘if the defendant by
his unlawful or wrongful conduct created the circumstances which legally
justified his adversary’s use of force, attack or pursuit,’ [CALJIC No. 5.17]
and (3) refusal to give [defendant’s] requested pinpoint instruction to clarify
that an unintentional killing in
unreasonable self-defense is not murder.”
Under the
doctrine of imperfect self-defense, a defendant “can be convicted of no crime
greater than voluntary manslaughter” if the jury finds that he “killed another
person because the defendant actually but unreasonably believed he was in
imminent danger of death or great bodily injury.” (In re
Christian S. (1994) 7 Cal.4th 768, 771, italics omitted.) “It requires without exception that the
defendant must have had an actual belief in the need for self-defense.” (Id.
at 783, italics omitted.) In addition,
the fear must be imminent. (
Defendant’s
first claim is that the trial court’s instructions on imperfect self-defense
were incomplete because the court refused to instruct on the no retreat rule as
stated in CALJIC No. 5.50. Initially,
the People submit that the claim is forfeited on appeal because defendant did
not request an instruction on the no retreat rule as it relates to imperfect self-defense
in the trial court. Regardless, we find
no error.
As noted
previously, defendant initiated the confrontation. He went to his apartment to arm himself and
then made a conscious decision to confront the victim, firing three “warning”
shots at the victim before firing the fourth and fatal shot. The no retreat rule as set forth in CALJIC
No. 5.50 provides that “[a] person threatened with an attack that justifies the
exercise of the right of self-defense need not retreat.” Since defendant was not threatened with an
attack justifying the exercise of self-defense, the no retreat rule was
inapplicable.
Defendant
next contends that the trial court committed error in instructing the jury that
imperfect self-defense is not available if defendant created the circumstances
which legally justified his adversary’s use of force. He objects to the portion of CALJIC
No. 5.17 which instructed the jury, “However, this principle is not
available, and malice aforethought is not negated, if the defendant by his unlawful
or wrongful conduct created the circumstances which legally justified his
adversary’s use of force, attack or pursuit.”
1176, relied on by defendant, is inapposite.
In Vasquez, there was evidence
that the defendant confronted the victim with an accusation about a rape the
victim allegedly committed years earlier.
Reacting to the accusation, the victim lunged at the defendant and began
to choke him. In response, the defendant
pulled out a gun and repeatedly shot the victim, killing him. (Id.
at p. 1178.) The court held that
imperfect self-defense was available when the victim’s use of force against the
defendant was unlawful, even though the defendant set in motion the chain of
events that led the victim to attack the defendant. (Id.
at pp. 1179-1180.)
In the
instant case, defendant did more than just initiate the events that led to the
shooting. Defendant was the initial
aggressor. There is no evidence in the
instant case that the victim assaulted defendant or posed a threat at the time
of the shooting.
The law is
clear that for either perfect or imperfect self-defense, the fear must be of
imminent harm. Fear of future harm, no
matter how great or likely, will not suffice.
(People v. Hardin (2000) 85
Cal.App.4th 625, 629.) Benton posed no
threat of imminent harm to defendant prior to the shooting. Defendant went to his apartment, was not
followed there, and from the safety of his own apartment, made the ill-advised
decision to leave with a weapon and confront Benton.
Finally,
defendant contends that the trial court erred in refusing his pinpoint
instruction, which stated, “A person, acting with a conscious disregard for
life, who unintentionally kills a human being, but the killing occurs in unreasonable
self-defense, is not guilty of murder.”
The jury had already been instructed that any “killing,” i.e.,
intentional or unintentional, in unreasonable self-defense did not constitute
murder. CALJIC No. 5.17 states, “A
person who kills another person . . . .”
The instruction included both those who kill intentionally and
unintentionally. The instruction has
been repeatedly approved. (See
1297, 1306 [“We find no reasonable likelihood the jury found the instructions
self-contradictory or understood them, as defendants assert, to foreclose
application of the theory of imperfect self-defense.”].) The jury was properly instructed on imperfect
self-defense pursuant to CALJIC No. 5.17.
Defendant
relies on the case of People v. Blakely
(2000) 23 Cal.4th 82 at page 91, in which the court concluded “that when a
defendant, acting with a conscious disregard for life, unintentionally kills in
unreasonable self-defense, the killing is voluntary . . .
manslaughter.” He claims his requested
instruction was necessary to make this principle clear. We disagree.
CALJIC No. 5.17 was clear; the jury simply rejected defendant’s claim of
self-defense.
Defendant
contends that the cumulative effect of the errors in the instant case require a
reversal of the judgment. Having found
no error, this claim is meritless.
DISPOSITION
The
judgment is affirmed.
JACKSON,
J.
We concur:
WOODS,
Acting P. J.
ZELON,
J.
name="_ftn1" title="">
further statutory references are to the Penal Code.
name="_ftn2" title="">[2]
The
jury found not to be true the allegation that the crime was committed for the
benefit of a criminal street gang pursuant to section 186.22, subdivision
(b)(1)(C). The People elected not to
proceed on the prior convictions that were alleged in the information.
