P. v.
Plascencia
Filed 8/26/13 P. v. Plascencia 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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)
----
THE
PEOPLE,
Plaintiff and
Respondent,
v.
JOSE
PLASCENCIA,
Defendant and
Appellant.
C068979
(Super. Ct. No. 09F06199)
Defendant Jose Plascencia, an inmate
at New Folsom Prison, physically fought with Officer Wallace, Lieutenant
Ventimiglia and Sergeant Quinn. He
claimed he acted in self-defense in response to Wallace’s “sudden aggressionâ€
and ensuing actions by other officers.
The jury found defendant guilty of one count of battery by a prisoner of
a non-confined person (Ventimiglia) and two counts of obstructing an
officer in the performance of his duties (Ventimiglia and Quinn). It acquitted him of battery and obstruction
of Wallace.
Defendant appeals his conviction,
contending the trial court failed to adequately instruct the jury on
and the failure to do so resulted in prejudicial error. As we explain, we disagree and shall
affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
Charges
The People charged defendant with
two counts of battery by a prisoner on a non-confined person (Pen. Code,
both Wallace (count one) and Ventimiglia (count two) and three counts of
obstructing an officer in the performance of his duties as against Wallace
(count four), Ventimiglia (count three) and Quinn (count five). (§ 69)
They also alleged defendant had sustained three prior serious felony
convictions. (§§ 1192.7, subd. (c), 667,
subds. (b)-(i), 1170.12.)
People’s
Case at Trial
Defendant was an inmate in the
general population of New Folsom prison.
In April 2009, defendant was in an interview room; Wallace and
Ventimiglia were also in the room, while Quinn remained outside.
The interview was going well;
defendant was cooperative, no angry or harsh words were exchanged, and
defendant was not handcuffed. At the end
of the interview, defendant stood up, turned his back toward Wallace, and
placed his hands behind his back to be handcuffed. He then suddenly spun toward Wallace, said
“don’t take this personal†and punched Wallace in the face. Wallace stumbled backwards. Defendant moved toward him and threw another
punch. Wallace grabbed defendant’s wrist
and the men struggled as Ventimiglia came to assist Wallace. Ventimiglia grabbed defendant’s shoulder and
defendant hit him in the eye. Defendant
continued to struggle with Ventimiglia and Wallace, punching at them and
thrashing around to avoid being handcuffed.
Quinn saw the men struggling and defendant swinging his closed fist at
Wallace. He forced the door open and
defendant, Wallace and Ventimiglia fell to the ground. Quinn tried to restrain defendant in a bear
hug and by grabbing his right hand and holding defendant against the wall. Defendant continued to resist, thrashing and
swinging his arms. With the assistance
of additional staff, defendant was ultimately subdued.
Defendant’s
Case at Trial
Defendant admitted he struggled with
the officers, but claimed he acted in self-defense. He testified that as Wallace was placing him
in handcuffs, Wallace asked if defendant had any information on misconduct by
other inmates, to which defendant responded, “Fuck no.†Wallace then aggressively grabbed defendant’s
wrists, yanked his collar and hit the back of his head. Defendant then turned and hit Wallace. As Wallace was coming back at defendant,
defendant tried to hit Wallace again and missed. Ventimiglia then came running toward
defendant with his fist raised, looking as though he was going to hit
defendant. Defendant was afraid he was
going to be hurt by Ventimiglia, so defendant hit him. He thought the officers were going to beat
him because he refused to provide information on other inmates. During the struggle, the officers “hit him
all over.†Defendant denied ever saying
it was not “personal.â€
People’s
Rebuttal Case
Wallace denied aggressively gabbing
defendant’s hands, the back of his collar or hitting him the head. He also denied asking defendant to inform on
other inmates. Ventimiglia denied that
either he or Wallace asked defendant to inform on other inmates and denied
punching defendant in the face or hitting him in the head.
Instructions
and Verdicts
The trial court instructed the jury
that as an element of both battery and assault, the prosecution had to
establish defendant did not act in self-defense. It also instructed that an officer is not
lawfully performing his duties if using unreasonable or excessive force. The trial court further instructed the jury
that a defendant is not guilty of resisting an officer who is lawfully
performing his duties if the officer is using unreasonable or excessive
force. It described and defined the
lawful performance of a custodial officer’s duties and a police officer’s
duties, each of which includes the provision that an officer is not lawfully
performing his duties if using unreasonable or excessive force. Those instructions also specify that if an
officer uses unreasonable or excessive force, a person may lawfully use
reasonable force to defend himself. The
trial court instructed the jury that a person’s use of force to defend himself
is reasonable if (1) it is the amount of force he actually believes is
reasonably necessary to protect himself and (2) is no more force than a
reasonable person in the same situation would believe is necessary. It did not read 3470, regarding the general
right to self-defense; neither party requested that instruction.
The jury found defendant guilty of
one count of battering Ventimiglia and obstructing Ventimiglia and Quinn. It acquitted him on all counts related to
Wallace.
In
bifurcated proceedings, the jury found the prior conviction allegations
true. The trial court struck one of the
prior convictions and sentenced defendant to 25 years to life in prison.
DISCUSSION
I
Overview
Defendant contends the trial court
prejudicially erred in failing to sua sponte instruct the jury on self-defense
as set forth in 3470. As relevant to
defendant’s claims, 3470 provides that:
“The defendant acted in lawful
self-defense . . . if:
“1.
The defendant reasonably believed that he 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.
“[¶] . . . [¶]
“When deciding whether the
defendant's 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 defendant's beliefs were reasonable, the danger does not need to have
actually existed.
“[¶] . . . [¶]
“[If you find that the defendant
received a threat from someone else that [he] reasonably associated with [the
victim], you may consider that threat in deciding whether the defendant was
justified in acting in self-defense.]
“[¶] . . . [¶]
“The People have the burden of
proving beyond a reasonable doubt that the defendant did not act in lawful
self-defense. If the People have not met this burden, you must find the
defendant not guilty of
“It is well-settled that even in the
absence of a request, the trial court must instruct the jury on the general
principles of law relevant to the issues raised by the evidence (
142, 154) and on defendant's theory of defense where ‘“. . . it appears that
the defendant is relying on such a defense, or if there is substantial evidence
supportive of such a defense . . . .â€â€™
[Citations.]†(
39, 46.)
In this case, defendant was relying
on a theory of self-defense and the failure to act in self-defense is an
element of the offense that the People must establish. Thus, some instruction on self defense was
necessary. This does not mean, however,
that the trial court erred in failing to include the language from the
instructions that defendant now argues was required. As we explain post, there was no error.
“Review of the adequacy of
instructions is based on whether the trial court ‘fully and fairly instructed
on the applicable law.’
[Citation.]†(
1082, 1088.) In examining the record for
error in jury instructions, we consider the instructions as a whole and assume
jurors are intelligent persons, capable of understanding and correlating all
jury instructions which are given. (
“‘Instructions should be interpreted, if possible, so as to support the
judgment rather than defeat it if they are reasonably susceptible to such
interpretation.’ [Citation.]†(Ibid.)
II
Specific
Contentions
Defendant complains that “the lack
of a [3470] instruction meant the jury was not directed to consider all the
elements in the case which might be expected to operate on the mind of a person
in [defendant’s] circumstances, with respect to self-defense.†He adds that because 3470 was not given, the
jury was not informed that: (1) if
defendant’s beliefs about the need to act in self-defense were reasonable, the
perceived danger need not have actually existed; (2) the People had the burden
of dispelling any reasonable doubts as to the existence of self-defense; and
(3) a threat by one person, Wallace, could be interpreted to require
self-defense against another person, such as Quinn and Ventimiglia. He observes that the absence of language on
the need to avoid “imminent harmful or offensive†conduct contained in 3470
appeared to limit self-defense to a situation where the battery had already
occurred. We address defendant’s various
contentions in the order we find most efficient.
A.
Burden of Proof
Defendant first complains that by
failing to give 3470, the trial court did not adequately inform the jury that
the People bore the burden to dispel any reasonable doubt as to whether
defendant’s actions amounted to self-defense.
We are not persuaded.
The trial court described and defined the beyond
a reasonable doubt standard (CALCRIM No. 220); it instructed the jury that each
fact essential to establish guilt must be proven beyond a reasonable doubt
(CALCRIM No. 220); and it told the jury that the fact that defendant did not
act in self-defense was a fact the People were required to prove as to battery
by a prisoner on a non-prisoner, and the lesser included offenses of simple
battery and simple assault. (§§ 4501.5,
242, 243, subd. (a); CALCRIM Nos. 2723, 960, 915.) Thus, the jury was properly advised that the
People bore the burden to dispel any reasonable doubts about whether defendant
acted in self-defense.
B.
Appropriateness of Unchallenged
Instructions
Defendant next argues by failing to
instruct with 3470, the trial court did not adequately advise the jury to
consider “all the elements in the case which might be expected to operate on
the mind of a person in [defendant’s] circumstances.†Defendant does not complain that the
instructions given were incorrect.
Rather, he claims that they were incomplete in that they did not
incorporate those portions of 3470 that instruct: (1) if defendant’s beliefs about the need to
act in self-defense were reasonable, the perceived danger need not have
actually existed; (2) self-defense can apply when facing an imminent
prospective application of force; and, (3) a threat by one person could be
interpreted by defendant to require self-defense against another.
“‘Generally, a party may not
complain on appeal that an instruction correct in law and responsive to the
evidence was too general or incomplete unless the party has requested
appropriate clarifying or amplifying language.’
[Citation.]†(
1011-1012.) Defendant made no such
request here. Accordingly, his claims of
instructional error are forfeited.
In any event, the claims lack
merit. The reasonableness of a
defendant’s beliefs and conduct are judged from the viewpoint of a reasonable
person in the same position as defendant.
(People v. McGee (1947) 31
Cal.2d 229, 238.) “To do this, [the
jury] must consider all the ‘“‘facts and circumstances . . . in determining
whether the defendant acted in a manner in which a reasonable man would act in protecting his own life or bodily
safety.’â€â€™ [Citation.]†(
Cal.App.4th 508, 518, original italics.)
Here, the trial court appropriately instructed the jury that defendant
was entitled to defend himself from unreasonable or excessive force by using the
degree of force he actually believed was reasonably necessary to protect
himself and use no more force than “a
reasonable person in the same situation would believe is necessary for his
or her protection.†(CALCRIM Nos. 2670,
2671, emphasis added.) The phrase “in
the same situation†includes considering “all the elements which might be
expected to operate on the mind of a person in defendant’s circumstances.â€
The trial court also clarified that
the jury must decide all the facts based on the evidence admitted at
trial. The failure to expressly
reference specific evidence cannot reasonably be construed as a direction to
the jury to exclude that evidence from its consideration. (People
v. Spencer (1996) 51 Cal.App.4th 1208, 1220-1221.) Similarly, the court instructed the jury that
it must follow the law as the court explained it and to follow the instructions
to the facts as it found them. The court
informed the jury that defendant had to actually and reasonably believe the use
of force was reasonably necessary to protect himself. It is not reasonable to presume the jury
added the nonexistent requirement that defendant be correct in his assessment
of the danger he believed he faced.
Thus, taken as a whole, the instructions adequately advised the jury to
consider all the relevant circumstances in which defendant found himself. (Ibid.)
While we agree that the instructions
as given did not include an explanation that the person claiming self-defense
must reasonably believe he is in imminent danger of being touched unlawfully or
suffering bodily injury, this explanation does not apply to defendant’s
case. An inmate has a limited right of
self-defense against an officer. (
Cal.App.4th 561, 569.) A correctional
officer may lawfully use force on an inmate to restrain a person, to overcome
resistance, to prevent escape, or in self-defense, but the use of force must be
reasonably calculated to further the lawful purpose. (Pen. Code, § 835a; CALCRIM No. 2671; cf.,
Cal. Code Regs., tit. 15, § 3268, subd. (a)(1).) The applicable statutes were fashioned to
protect officers “against violent interference with the performance of [their]
duties†(People v. Buice (1964) 230
Cal.App.2d 324, 336; see also People v.
Martin (2005) 133 Cal.App.4th 776, 782.)
Thus, an inmate’s right to self-defense against an officer applies only
when the inmate is faced with an improper
use of force by the officer, because that is what renders the officer’s
conduct unlawful. (See
1016, 1023.) Thus, in this context,
defendant did not have a right to use
force to resist an officer unless
that officer was actually using unreasonable or excessive force. Prospective force by an officer does not
trigger an inmate’s right to defend himself as does actual use of improper
force.
Defendant further claims that the
trial court was required to tell the jury that if it found defendant had
received a threat from Wallace that he reasonably associated with Quinn and
Ventimiglia, it could consider that fact in assessing the reasonableness of
defendant’s actions. Instructions need
only be given on issues supported by substantial evidence. (People
v. Shelmire (2005) 130 Cal.App.4th 1044, 1055.) “Substantial evidence is ‘evidence which is
reasonable, credible, and of solid value[.]’ [Citations.] On review, we determine independently whether
substantial evidence to support a defense existed.†(Id.
at pp. 1055-1056.) Thus, to meet that
standard in this case, there would have to be substantial evidence that
defendant received a threat from Wallace and that he reasonably associated that threat with Quinn and Ventimiglia. There is not substantial evidence for either
claim.
There was no evidence that Wallace
ever threatened defendant; rather, defendant’s claim was that in response to
defendant’s refusal to inform on other inmates, Wallace assaulted him. Thus there was no evidence defendant
“received a threat from someone†such that this portion of the instruction
would be merited. (CALCRIM No. 3470;
(Compare with People v. Minifie
(1996) 13 Cal.4th 1055, 1061-1062, 1065-1066 (Minifie); People v. Pena (1984)
151 Cal.App.3d 462, 469-472.)
Further, even were we to construe
Wallace’s hitting defendant as a threat
received by defendant from Wallace, there is no evidence defendant
Quinn and Ventimiglia.
perspective of the defendant--threats from a family and its friends, a clan, a
gang or another group “united against [defendant]†may reasonably affect
defendant’s state of mind, particularly when the group has a reputation for
violence known to defendant. (
1066.) Here, there is no evidence that
Wallace, Quinn and Ventimiglia were members of a group united against
defendant. Other than their status as
officers, there was no evidence of any particular relationship or history
between the officers or involvement in any
group. There is no evidence of any
pre-existing animosity between defendant and the officers, no evidence of a
history of unified activity by the officers, and no evidence of a record of
concerted violence committed by the officers.
Nor is there any evidence the officers had a reputation for any such
conduct. This leaves only their status
as fellow officers to support the inference they would act in concert to beat
defendant because of his refusal to inform on other inmates. Their status as officers alone cannot
reasonably support such an inference. To
the contrary, when there is a physical altercation between an officer and an
inmate, the other officers are obligated to intervene and break up, or end, the
fight. (Cal. Code Regs., tit. 15, §
3271, 3286, 3300; see also Furtado v.
State Personnel Board (2013) 212 Cal.App.4th 729, 746-747.) This is true whether defendant or Wallace
were the aggressor; it is true even if Wallace were using excessive force. (See O'Neill
v. Krzeminski (2d Cir.1988) 839 F.2d 9, 11 [“A law enforcement officer has
an affirmative duty to intercede on the behalf of a citizen whose
constitutional rights are being violated in his presence by other officersâ€].)
An inference is not reasonable if it
is based only on speculation. (
365.) On this record, the reasonable
inference to be drawn from the evidence of Quinn and Ventimiglia joining in the
fight between defendant and Wallace is that they were joining
words, doing their duty. “The right of
the accused to have the jury instructed upon every theory of his innocence of
the crime charged does not extend to a claim of self-defense based upon purely
imagined facts or upon inference that could not be drawn by rational
minds.†(People v. Hudgins (1967) 252 Cal.App.2d 174, 179.) Since there was not substantial evidence to
support this theory of defense, the court was not obligated to instruct on
it. (People
v. Joiner (2000) 84 Cal.App.4th 946, 972; see also People v. Breverman (1998) 19 Cal.4th 142, 162.)
DISPOSITION
The judgment is affirmed.
DUARTE , J.
We concur:
BLEASE , Acting P. J.
MAURO , J.
name="_ftn1" title="">[1] Further undesignated statutory references are
to the Penal Code.
name="_ftn2" title="">[2] To the extent defendant argues his acquittal of
counts related to Wallace weakens his conviction of counts related to Quinn and
Ventimiglia, we note only that it is well-settled that an
change the strength of the evidence on another, which might have been due to
lenity or other reasons. (See People v. Lewis (2001) 25 Cal.4th 610,
655–656; People v. Brown (1985) 174 Cal.App.3d 762, 769; People v.
Pahl (1991) 226 Cal.App.3d 1651, 1656–1657.)
