P. v. Niblett





















Filed 1/29/13 P. v. Niblett CA2/1









>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

>



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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND
APPELLATE DISTRICT



DIVISION
ONE




>

THE PEOPLE, Plaintiff and Respondent, v. DWIGHT NIBLETT, Defendant and Appellant.

B236863 (Los Angeles County Super. Ct. No. BA381125)

APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County. Monica Bachner,
Judge. Affirmed.

______

Laura G.
Schaefer, 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, Assistant Attorney General, Steven R. Mercer and Alene M.
Games, Deputy Attorneys General, for Plaintiff and Respondent.

______



>

Dwight
Niblett appeals from his conviction for voluntary
manslaughter, asserting two claims of instructional error. We affirm.

BACKGROUND

The
information charged Niblett with one count of href="http://www.mcmillanlaw.com/">murder in violation of Penal Code
section 187 (count 1) and one count of possession of a firearm by a felon in
violation of subdivision (a)(1) of Penal Code section 12021 (count 2).href="#_ftn1" name="_ftnref1" title="">[1] As to count 1, the information further
alleged that Niblett personally used a firearm, personally and intentionally
discharged a firearm, and personally and intentionally discharged a firearm
causing great bodily injury and death, within the meaning of section 12022.53,
subdivisions (b), (c), and (d). As to
both counts, the information alleged both that Niblett had served five prior
prison terms within the meaning of section 667.5, subdivision (b), and that he
had suffered one prior conviction of a serious or violent felony within the
meaning of section 1170.12, subdivisions (a) through (d), and section 667,
subdivisions (b) through (i).

Niblett
initially pleaded not guilty to both of the charges and denied all of the
allegations. Later, he withdrew his not
guilty plea as to count 2 and pleaded guilty to that count, and he
admitted the truth of the prior conviction allegations. Count 1 was tried to a jury, which acquitted
Niblett of murder but convicted him of the lesser included offense of voluntary
manslaughter. The jury also found true
the allegation that he personally used a handgun within the meaning of section
12022.5.

The trial
court denied Niblett’s motion to dismiss the prior serious or violent felony
conviction under People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, but the court on its own motion (unopposed
by the prosecution) struck the prior prison term allegations. The court sentenced Niblett to 32 years in
prison, calculated as follows: the upper
term of 11 years as to count 1, doubled because of the serious or violent
felony conviction, plus 10 years for the firearm allegation, plus a concurrent
term of six years as to count 2 (the upper term of three years, doubled because
of the serious or violent felony conviction).
The court also imposed various statutory fines and fees, including a
$10,000 restitution fine, and credited Niblett with 1,129 days of presentence
custody (982 days actual time and 147 days good time/work time). Niblett timely appealed.

The
evidence introduced at trial showed the following facts: At approximately 2:15 p.m. on July
24, 2008, the clerk at a 98 Cent Store in Los
Angeles saw Niblett “struggling” or “wrestling” with
another man, later identified as Dominick Anderson. Anderson
entered the store and tried to shut the door to keep Niblett out, but
Niblett entered, holding a handgun at his side.
Inside the store, Anderson and Niblett exchanged words, Anderson
took a swing at Niblett and then attempted to flee, and Niblett shot Anderson
once in the head, killing him. The
store’s surveillance cameras recorded the confrontation inside the store,
including the shooting. Relevant
portions of video recordings from three different cameras were played for the
jury.

Niblett
testified that before the shooting he had gone to a nearby clothing store to
buy a t-shirt. The store did not have
what he was looking for, so he left.
When he came out of the store, someone attacked him—the assailant “came
from nowhere” and started “beating me in my face.” Niblett “was dazed,” “saw stars,” and
“couldn’t tell who it was.” The assailant
then stopped punching Niblett and “started going for my pocket.” Niblett eventually realized that the
assailant was Anderson, whom he knew.
Niblett believes Anderson
attacked him because Anderson knew
that Niblett carried a lot of cash.

Niblett
“was trying to get away from” Anderson,
and when Niblett got closer to the 98 Cent Store, he (Niblett) drew his
gun. Niblett normally carries a gun,
because he had been shot in the head and attacked on previous occasions near
this same location. Asked what he was
planning to do when he pulled out the gun, Niblett testified, “I just wanted
him to leave me alone.”

According
to Niblett, Anderson was not
deterred, however, and continued to come toward Niblett and swing at him,
saying “‘You pulling that gun? What you
going to do with it?’” Anderson
added, “‘You know you dead. I’m going to
call the homeys. They’re going to
kill you. You pull out a gun? This is my ’hood.’” Niblett knew Anderson
to be a member of the Hoover Crips, a “ruthless” neighborhood gang. The testimony of other witnesses confirmed
that Anderson was a gang
member, a violent bully, and a user of illegal drugs; the coroner’s report
showed that Anderson’s blood and
urine tested positive for PCP, and his blood tested positive for cocaine.

Niblett testified that he feared
for his life but was also angry at Anderson’s
attempt to rob him. Anderson
eventually retreated into the 98 Cent Store.
Niblett testified that he pursued Anderson into the store because he
“was scared [Anderson] was going to come and kill me” and “his homeys are
around there . . . that’s the gang-banger block right there.” Once inside the store, Niblett angrily told
Anderson, “Leave me alone. Leave me the
fuck alone. Why are you messing with
me?” Anderson came toward him and swung
at him again, and Niblett feared that Anderson was “going to take the gun,”
which Niblett was holding at his side, pointing straight down. (The surveillance video confirms that
Anderson swung at Niblett, who was holding the gun as described.) Niblett then raised the gun “[j]ust to get
him off, to scare him off of me.” Niblett
fired once, killing Anderson, and then left the store and sat on the curb,
saying “What did I do? What did I
do?” He was still “scared” because he
knew he “did something wrong.” Someone
came up to him and said “‘You better get out of here or they’re going to kill
you,’” referring to Anderson’s fellow gang members. Niblett went to his car and drove away.

DISCUSSION

I. Apprehension
of a Fleeing Felon

On appeal,
Niblett argues that the trial court prejudicially erred by failing to instruct
the jury that homicide is justifiable “[w]hen necessarily committed in
attempting, by lawful ways and means, to apprehend any person for any
felony committed, or in lawfully suppressing any riot, or in lawfully keeping
and preserving the peace.” (§ 197,
subd. (4).) We disagree.

If a
homicide is justifiable, then it is not unlawful. (§ 199 [“The homicide appearing to be
justifiable or excusable, the person indicted must, upon his trial, be
fully acquitted and discharged”].)
The justifiable homicide instruction at issue is therefore not an
instruction on a lesser included offense, but rather on a defense. (See CALCRIM No. 508.)

“[A] trial
court’s duty to instruct, sua sponte,
or on its own initiative, on particular defenses is more limited [than the duty
to instruct on lesser included offenses], arising ‘only if it appears that the
defendant is relying on such a defense, or if there is substantial evidence
supportive of such a defense and the defense is not inconsistent with the
defendant’s theory of the case.’
[Citations.]” (>People v. Barton (1995) 12 Cal.4th
186, 195.)

Niblett
concedes that at trial he did not request an instruction on the defense of
apprehension of a fleeing felon.
Moreover, the evidence is inconsistent with Niblett’s theory of the
case, and there is no evidence to support it.
There is no evidence that Niblett was attempting to apprehend
Anderson. Niblett himself testified in
detail about his confrontation with Anderson, and about his own thoughts and
intentions during that confrontation.
When asked what he was planning on doing when he drew the gun, he
testified, “I just wanted him to leave me alone.” When asked why he pointed the gun at
Anderson, he testified, “Just to get him off me, to scare him off of me.” In light of Niblett’s testimony, a jury could
not reasonable infer that Niblett was attempting to apprehend Anderson. The trial court therefore did not err by
failing to instruct sua sponte on justifiable homicide in attempting to apprehend
a fleeing felon.

II. Self-Defense

Niblett
argues that the trial court committed prejudicial error by instructing the
jury, at the prosecution’s request, that an assault with fists does not justify
the use of a deadly weapon in self-defense unless the defendant reasonably
believed that the assault was likely to produce great bodily injury. Niblett cites People v. Hunter (2011) 202 Cal.App.4th 261 (>Hunter) in support of his argument that
the instruction “is argumentative and improperly pinpointed evidence in the
case in the prosecutor’s favor, supporting the prosecution argument that ‘a
punch in the face’ is not ‘worth a shot in the head.’” We are not persuaded.

In >Hunter, the defendant contended at trial
that the prosecution failed to prove beyond a reasonable doubt that he used “a
real gun” in committing the charged robberies and burglary. (Hunter,
supra, 202 Cal.App.4th at p.
264.) At the prosecution’s request, and
over defense objection, the trial court gave the jury a pinpoint instruction
that began as follows: “‘When a
defendant commits a robbery by displaying an object that looks like a gun, the
object’s appearance and the defendant’s conduct and words in using it may
constitute sufficient circumstantial evidence to support a finding that it was
a firearm. The victim’s inability to say conclusively that the gun was real and
not a toy does not create a reasonable doubt as a matter of law that the gun
was a firearm.’” (Id. at p. 267.)

The Court
of Appeal found the instruction problematic for two reasons. First, its initial sentence was “unduly
argumentative,” because it told the jury that “‘the object’s appearance and the
defendant’s conduct and words in using it may constitute sufficient
circumstantial evidence to support a finding that it was a firearm,’” but “the
jury could just as accurately have been told the opposite, that when a
defendant displays an object that looks like a gun, the object’s appearance and
the defendant’s conduct may constitute sufficient circumstantial evidence
to support a finding that it was not a
firearm.” (Id. at pp. 275-276.) Second,
although “the challenged instruction did not direct the jury that it >could not find a reasonable doubt
whether the gun was real based on the victims’ inability to ‘say conclusively
that the gun was real and not a toy,’” it “did highlight this one aspect of the
evidence as not necessarily creating a reasonable doubt, thereby permitting the
jurors to interpret the instruction as a caution against finding a reasonable
doubt on this basis.” (>Id. at p. 276.) Consequently, it “impermissibly lighten[ed]
the prosecution’s burden to prove the use allegation beyond a reasonable
doubt.” (Id. at p. 264.)

The
challenged instruction in this case suffers from neither of the defects
identified in Hunter. Niblett argues that the instruction was
unduly argumentative because it told the jury that “‘an assault with fists does
not justify the person being assaulted in using a deadly weapon in
self-defense’ unless the person reasonably believes the assault will inflict
great bodily injury,” but “the opposite is also true: An assault with fists justifies the use of a
deadly weapon in self-defense if the accused reasonably believes the assault
will inflict great bodily injury.” We
disagree; the instruction in this case is not relevantly similar to the
instruction in Hunter. In Hunter,
the instruction expressly licensed one inference (i.e., that the object was a
gun) but omitted the opposite but equally permissible inference that could be
drawn from the same evidence (i.e., that the object was not a gun). Here, the challenged instruction made no
similar omission—it informed the jury that an assault with fists does not
justify use of a deadly weapon unless the
defendant reasonably believed the assault was likely to inflict great bodily
injury. For similar reasons, the
instruction did not impermissibly lighten the prosecution’s burden—it in no way
cautioned against a finding of self-defense on the basis of Anderson’s assault,
as long as the jury found that Niblett reasonably believed that the assault was
likely to inflict great bodily injury.

For the
foregoing reasons, we reject Niblett’s argument that the trial court erred by
giving the challenged instruction.

DISPOSITION

The
judgment is affirmed.

NOT TO
BE PUBLISHED.







ROTHSCHILD,
J.

We concur:







MALLANO,
P. J. JOHNSON,
J.