P. v. Petrossian

Filed 1/29/08 P. v. Petrossian CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

APPEAL from the judgment of the Superior Court of Los Angeles County, Shari K. Silver, Judge. Affirmed.

Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Dana M. Ali, Deputy Attorney General for Plaintiff and Respondent.

Albert Petrossians sole argument on appeal is that, in his criminal trial, the court should have instructed the jury on self-defense. Because we find no evidence of self- defense, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On July 16, 2006, Jonathan Vitale was driving his half siblings James Heinemann and Emily Heinemann on the 210 Freeway in a red Ford Mustang. Emily was in the front passenger seat and James initially was sleeping in the back seat. Appellant was driving a blue Ford Explorer. Appellant drove into Jonathans lane, forcing him to swerve into another lane. James woke up. The two cars continued passing each other for approximately 10 to 15 minutes, and Jonathan called 911 and was cursing and yelling. Emily ducked when she saw appellant holding a slingshot. James saw appellant holding a slingshot or wrist rocket (a sling shot with an extra device that fits over ones wrist) and saw appellant shoot it and then heard a loud bang. The car Jonathan was driving was dented.

Jonathan and James complained the next day and Officer Daniel Oxley investigated. Appellant told Oxley that there was a truck in front of him and he wanted to change lanes. Because the Mustang did not get out of his way, he cut the vehicle off. Appellant explained that he then applied his brakes because he thought Jonathan was tailgating him. Appellant said he had a ball bearing, and out of frustration and anger at the way this driver of the red Ford Mustang was driving towards him, he threw the ball bearing at the Ford Mustang Appellant denied having a sling shot, but Officer Anthony Chacon testified that he found a slingshot in appellants car pursuant to a legal search on February 17, 2004.

Appellant was charged with throwing a substance at a vehicle (Veh. Code,  23110, subd. (b)), two counts of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)), and vandalism of over $400 in damage (Pen. Code, 594, subd. (a)). The parties agreed that there was no evidence of damage to the vehicle over $400 and the felony vandalism charge was reduced to a misdemeanor. No witness testified for the defense. A jury convicted appellant of the lesser offense of misdemeanor throwing a substance at a vehicle and two counts of assault with a deadly weapon and misdemeanor vandalism. The court sentenced him to four years in prison. Appellant timely appealed.

DISCUSSION

The sole issue on appeal is whether the trial court erred in refusing to instruct the jury on self-defense as requested by defense counsel.[1] Requested instructions on a defense must be given if they are supported by substantial evidence, rather than minimal and insubstantial evidence. [Citation.] Evidence is substantial if a reasonable jury could find the existence of the particular facts underlying the instruction. If the evidence is substantial, the trial court is not permitted to determine the credibility of witnesses, which is a task for the jury. [Citations.] (People v. Lee (2005) 131 Cal.App.4th 1413, 1426.) For a killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. . . To constitute perfect self- defense, i.e., to exonerate the person completely, the belief must also be objectively reasonable. [Citations.] The defendants fear must be of imminent danger of life or great bodily injury. [Citations.] (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.)

Viewed in the light most favorable to appellant, the evidence showed that Jonathan cursed and yelled at defendant and that Jonathan and defendant chased each other in their cars. There was no evidence that appellant reasonably believed he was in danger of suffering bodily injury. There was no evidence that Jonathans cursing or driving placed appellant in any danger. The record does not show that appellant heard anything Jonathan said, was afraid by anything Jonathan said, or reasonably could have feared anything Jonathan said. Appellant did not testify and the evidence of his state of mind at the time through Officer Oxleys testimony was that out of frustration and anger at the way this driver of the red Ford mustang was driving appellant threw the ball bearing at the Mustang. Acting out of anger, does not show that appellant believed he was in danger or used no more force than necessary to defend against such danger. No other witness testified appellant acted out of fear. There was neither evidence that appellant believed the immediate use of force was necessary to defend against a danger nor evidence that appellant used no more force than necessary to defend against that danger.

Appellant argued a theory of self-defense to the jury. Specifically, he argued appellant was harassed by three teenagers in a Ford Mustang. He was scared and he used as little force as possible to extricate himself from that situation. If a person is in a situation where he is afraid for his safety, well, that fear is a very compelling motivator. Counsel argued the jury could infer that appellant was afraid from the screaming, the cursing, the gesturing

The problem is that none of counsels above quoted argument was based on evidence presented at trial. The evidence viewed in the light most favorable to appellant simply does not support any of the statements made regarding self-defense in his closing argument. The trial court admonished appellants counsel that he was arguing about evidence not put in the record. Because no substantial evidence supports appellants theory of self-defense the trial court correctly denied the instruction. (People v. Hill (2005) 131 Cal.App.4th 1089, 1102.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P.J.

We concur:

RUBIN, J.

FLIER, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line Lawyers.

[1] Appellant requested the following instruction from CALCRIM 3470: 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.