P. v. Ranger
Filed 10/9/13
P. v. Ranger CA2/2
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).
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for purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL
SHAUN RANGER,
Defendant and Appellant.
B242414
(Los Angeles County
Super. Ct. No. GA083271)
APPEAL from a judgment of the Superior Court of
County. Darrell Mavis,
Judge. Affirmed.
Law Firm of Helen Simkins Irza and Helen S. Irza, 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, James William
Bilderback II and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff
and Respondent.
Defendant and appellant Michael Shaun Ranger appeals from
his conviction of assault with a deadly weapon causing great bodily
failing to instruct the jury concerning the effect of the victim’s antecedent threats
on defendant’s right to self defense.
Defendant also contends he received ineffective assistance of counsel
due to his trial attorney’s failure to request two pinpoint instructions, one
regarding the effect of antecedent threats on the measures taken in
self-defense, and the other defining excessive force as “clearly
vindictive.†We find no error and
conclude that defendant has not established ineffective assistance of counsel. We affirm the judgment.
BACKGROUND
Procedural history
Defendant
was charged with assault with a deadly
weapon in violation of Penal Code section 245, subdivision (a)(1).
section 12022.7, subdivision (b) that defendant personally inflicted great
bodily injury upon the victim and that the injury caused the victim to become
comatose due to brain injury and to suffer paralysis. A jury convicted defendant as charged and
found true the special allegation. On
May 14, 2012, the trial court sentenced defendant to a prison term of eight
years, comprised of the middle term of three years, plus five years for the
great bodily injury. The court imposed
mandatory fines and fees and awarded defendant a total of 46 days of
presentence custody credits, consisting of 40 days actual custody credit and
six days local conduct credit. Defendant
filed a timely notice of appeal.
Prosecution evidence
Victim
Paul Chua (Paul) and his six siblings
distributing company and a retail store.
Paul was the president of the company from 2000 to early 2011, while his
younger brother William managed the retail store. Paul and William were neighbors. William lived in one unit of a duplex with
his wife Jessie and his close friend, defendant lived in the other unit. Paul lived just two doors away from the
duplex with his wife Wilhelmina and Kirby, the youngest of his three adult
daughters.
Paul’s
relationship with his siblings deteriorated in 2010 due to a business dispute
and when one of Paul’s three daughters started a competing business in
Washington, a great deal of hostility and ill will resulted in the family. Wilhelmina’s employment with the company was
terminated in 2010, and a majority of the siblings voted to remove Paul from
his position as president in February 2011, electing his sister Susie in his
place. Although Paul’s removal caused
his relationship with Susie, Virginia, and William to worsen, their
disagreements never escalated into a physical fight. Paul avoided his siblings and stopped going
into work, but Kirby and Kem (Paul’s oldest daughter) continued to work at the
company.
On March
28, 2011, William brought his mother to the office to visit. When Kirby did not give her grandmother a
greeting kiss, William scolded her and called her worthless and
disrespectful. This made Kirby cry and
she left work. When Paul heard about the
incident and could not reach Kirby, he went to the office to confront
William. William had left by the time
Paul arrived so he tried telephoning William who failed to answer the
calls. Paul became more upset and vented
his frustration by punching a wall at the business several times. Paul testified when he finally reached
William at 7:00 p.m., he told William that he could yell at Paul but should not
yell at Paul’s children in front of others.
Paul denied saying he would hurt William or anyone else.
That
evening, Paul went out to dinner with his sister Gene and others where he had
one and a half glasses of whiskey and water, about half what he normally drinks
with dinner. Paul arrived home around
10:00 p.m. and parked in his driveway.
He testified he felt blows on the back of his head but saw no one until
after he fell, looked up, and saw defendant tapping a long-handled flashlight
on his open palm, saying “Get up.†When
he got up, defendant hit Paul again on the top of his forehead near his left
eye. Paul fell again; defendant bent
down and hit Paul multiple times on the head and face with the flashlight. Paul thought he blacked out sometime during
the attack, and also remembered walking backward onto the lawn as defendant
advanced. Paul saw Kirby, asked her for
help, and heard defendant say “Bitch.â€
Paul had
known defendant for at least five years, during which time he had never had a
verbal or physical fight. Paul denied
feeling intoxicated when he drove home that night and that he went near or
broke a window in William’s house. Paul
claimed he was empty-handed and did not hit defendant.
When
Kirby and Wilhelmina heard screaming and saw Paul outside needing help,
Wilhelmina called 911 and Kirby went to her father’s side and held him to keep
him still. Kirby testified when she saw
defendant, she said, “What did you do?
Leave my dad aloneâ€; defendant angrily shouted, “Fuck you, bitch. I’ll fucken [sic] kill him.†Paul
appeared to Kirby to be scared, not angry, and although she had seen her father
upset before, she had never seen him in a rage.
Paul was
taken to the hospital where he underwent surgery the same night. He remained in the hospital for almost a
month. He was in a coma the first three
days, and for some time after leaving the hospital he suffered memory loss and
could not read, spell, or pronounce names.
After a month of rehabilitation Paul was able to walk with the help of a
walker, but at the time of trial he was still forgetful and complained of
frequent headaches and dizziness. The
parties stipulated that defendant personally inflicted significant and
substantial physical injury to Paul, and that defendant personally inflicted
great bodily injury that caused Paul to become comatose due to brain injury.
Defense evidence
Susie
testified she and her brother William were close but she was not on speaking
terms with Paul in March 2011. Susie had
known defendant, a very good friend of William’s, for about 10 years. On March 28, while she was at work, she heard
banging on the wall and saw Paul looking angry.
Susie did not see Paul hit the wall but later saw the holes. Susie and William went to the police station
together to request a restraining order, but were told to apply at the
courthouse the next day. William decided
against filing a complaint with the police after learning that it would result
in Paul’s arrest. Susie believed Paul
would respect a restraining order and did not want to have him arrested.
Susie
heard one of Paul’s telephone messages that evening. She heard Paul say he would protect his
family to the very end and was not afraid to be put in jail. Paul sounded upset and angry, so Susie
suggested to William that he not go home.
Sometime after March 28, defendant told Susie that he and Paul exchanged
words over a broken window, that Paul attacked him by hitting defendant on his
bad shoulder, resulting in a fight in which defendant used a flashlight. Defendant apologized for hurting her brother.
Glendale
Police Officer Richard Pesti, one of the officers who was called to the crime
scene, testified that he spoke to Paul and noticed an odor of alcohol about
him, but could not tell whether Paul was intoxicated. Without mentioning a broken window, Paul told
Officer Pesti that he had gone to his brother’s house and argued with a man who
then attacked him. Paul was bleeding
heavily and Officer Pesti saw lacerations on his head. Paul was staggering and swaying, his speech
was mildly slurred, and he was shaking; he was not making complete sense, but
was responsive to the officer’s questions.
As their 15- or 20-minute conversation progressed, Paul’s slurring got
worse, he was harder to understand, his head hurt, and he became dizzy. By the time the paramedics arrived, Paul was
incoherent, was drifting in and out of consciousness, could not focus or answer
any more questions, and suffered whole body tremors. Paul was unable to see defendant well enough
from a few feet away to identify him.
William
testified that he and Paul had disagreed about the business for a couple years
and had discussed its division. William
had known defendant for 12 or 13 years, and they were very close friends, like
brothers. William married Jessie in
2004, the same year that defendant came to live with him.
Regarding
his March 28 exchange with Kirby, William reported that he brought his mother
to the office to visit and Kirby failed to “do the blessing†by kissing her
grandmother. When Kirby did not respond
to William’s question, “Why?†he ordered her to do so and she complied, but
with “attitude†and a “long face.â€
William told Kirby several times not to be rude to her grandmother. Later, after he left, one of his sisters
called and told him about what Paul had done at the office. William returned, saw the holes in the wall,
and felt frightened. He and Susie then
went to the police station to request a restraining order. The police offered to arrest Paul, but
William declined because their mother had just been released from the hospital.
William
went out to dinner with Susie without going home first. Before they reached the restaurant, Paul
called William and yelled at him in Tagalog, which in English would be
something like, “You son of a bitch, I am going to get you.†William received two or three more calls from
Paul during the evening and let them go to voicemail. In Susie’s presence he played the
9:00 p.m. message in which Paul said, “You pig, you pig, you faggot, don’t
fight with my -- don’t fight with the girl, fight with me. Fight with me. You -- even you and Shaunâ€;
Frightened
by the calls, William telephoned Jessie and defendant several times, said that
Paul was upset, and told them not to open the door if someone banged on it, but
to call 911. William could not remember
whether he told defendant about the holes in the wall. He did remember telling defendant that Paul
was upset, had called William, made threats, and left an inappropriate
message. William and Susie then watched
an office video of William’s interaction with Kirby and of Paul punching the
wall, which made William so nervous he shook.
Jessie called and asked William to come home because his brother had
broken the window and the police were there.
When William arrived, defendant was detained and in handcuffs.
The
defense also called Glendale Police Detective Mike Wenz, who interviewed
defendant that night. Defendant told
Detective Wenz he had been sleeping when he heard a window shatter, ran
outside, slipped, fell, and hurt his arm.
Detective Wenz observed dirt on defendant’s T-shirt, and an abrasion on
his arm. No blood or glass was found on
defendant’s clothing or on Paul’s shoes and socks.
Defendant
testified he had known the Chua family for 13 years and he and William had been
very good friends for that length of time.
Defendant was aware of the hostility among the siblings with regard to
the business. He usually lived in a
separate unit of William’s duplex, although at that time he, William, and
Jessie were all living together in one unit while the other was being
remodeled. Defendant worked as a
handyman for William and took care of many things for the entire family. He attended family gatherings at William’s
invitation and had a good but casual relationship with Paul. Although defendant did not see much of Paul
in 2011 due to the family disagreement, they had never before had a
disagreement, verbal argument, or physical fight.
Defendant
testified that William telephoned him twice during the evening of March 28,
2011. The first call came in about 6:30
p.m. and the second call about 30 minutes later. William said that Paul was angry and might
bang on the door and if so, to ignore it, keep the door locked, and call
911. The call was brief, and William did
not go into any detail. William did not
say that Paul had called earlier in the day, that he had left a voicemail, or
that he had called William a pig and a faggot; nor did William say anything
about the incident with Kirby. William
did not seem frightened on the phone, his tone was calm and normal, and
defendant was not afraid. Defendant
explained, “I just took it as a -- as a warning that somebody might be coming,
beat on the front door, but I never took it as some sort of threat.â€
Two
hours later, defendant heard glass breaking and Jessie screaming. Still unafraid, defendant got out of bed, ran
to the front door, told Jessie to call 911, picked up the flashlight from where
it was always kept by the front door, and went outside. After he saw Paul walking quickly away while
ducking down behind the nearby bushes, defendant saw the broken window. Defendant did not see anything in Paul’s
hands. Disappointed and angry, defendant
stepped off his porch, fell, dislocated his shoulder, and suffered an abrasion
on his arm.
As Paul
was on the sidewalk in the neighbor’s driveway, walking upright toward his own
home in a calm manner, defendant called to Paul and asked Paul what he had
done. Defendant claimed he was upset
about the window but not afraid or angry when he confronted Paul on the
sidewalk. Defendant denied he struck
Paul from behind or on the back of the head at all. When the two men were about a foot apart,
Paul turned around, appeared to be in a drunken rage, and screamed at defendant
in Tagalog. Paul took a swing at
defendant, but defendant did not feel a blow land on him. Defendant nevertheless felt disabled by the
pain in his shoulder and instinctively reacted by hitting Paul twice with the
flashlight. Defendant testified that he
aimed two quick strikes at Paul’s forehead in a side to side motion, adding,
“Obviously I wasn’t aiming. I was just
swinging in reaction.†Defendant
explained that Paul was swinging wildly, and he used the flashlight to deflect
Paul’s fists, not really aiming at his head.
Defendant claimed he did not hit Paul hard with the first blow and did
not hit him more than twice. He denied
using a sweeping, over-the-head motion, and denied that Paul ever fell to the
ground.
Defendant
was not sure whether he actually struck Paul with his first swing of the
flashlight as he saw blood only after the second strike. Defendant claimed he stopped and went back to
his house to call 911 as soon as he saw that Paul was bleeding and was clearly
injured. He then saw Paul go toward his
porch, then turn toward defendant, taunting him by saying, “Come on, Shaun,
come on,†while Kirby tried to hold Paul back.
Defendant denied yelling at Kirby or saying “Fuck you, bitch, I’m going
to fucken kill him.†When Kirby said,
“Shaun, what have you done?†he did not respond because was embarrassed. When defendant entered his house, Jessie had
reached 911 and he took the telephone from her.
Defendant told the 911 operator to send paramedics because Paul was
bleeding.
The
prosecutor played a recording of the 911 call for the jury. There were no requests for paramedics in the
recording, although minor portions were unintelligible. Defendant admitted his was the only male
voice on the recording. He described
Paul to the 911 operator and said that Paul “came over here and busted in the
damn window,†that he was “standing right out here right now,†and that he had
been threatening his brother all day. Defendant
then yelled such things as: “Fuck you,
don’t come over here and attack usâ€; “The police are coming right now to take
your ass to jail Paulâ€; “Look what the fuck he didâ€; “Come over here and smash
the fucking windowâ€; and “Fucking moron.â€
Defendant
admitted he sounded extremely angry in 911 call, but explained that he was in
pain and the experience was traumatic.
He denied he was upset enough over the window to want to hurt Paul. Defendant claimed the pain in his shoulder
was excruciating, that he could not lift his arm for two days, and that he went
to doctor about it the next day.
When
defendant was interviewed by police that night, he admitted he initially did
not tell the officers he had used a flashlight because he was afraid to tell
them that he used something other than his fists. Defendant told about the flashlight only
after an officer looked at his hands and said they could not have inflicted
such wounds. Defendant also told the
officers he fell after he hit Paul once with the flashlight. Defendant admitted that none of his
Paul’s actions.
Rebuttal
Detective
Petros Kmbikyan, who assisted in processing the crime scene, testified that no
blood drops were found near William’s duplex.
Most of the blood observed was concentrated in Paul’s driveway next to
his car and the sidewalk in front of the house between Paul’s house and
William’s duplex.
Detective
Wenz, who questioned defendant in a recorded interview beginning about 12:30
a.m. that night, testified he noted the abrasion on defendant’s left arm but
saw no other injuries. Defendant
complained that his shoulder was hurting but he did not request medical
attention. The recording of the
interview was played for the jury. The
prosecutor stopped the recording occasionally for Detective Wenz to describe
defendant’s gestures, such as when defendant showed the detective how Paul came
toward him by raising both arms above his head.
Detective Wenz demonstrated in court by raising both arms outstretched
above his head, wiggling his fingers, and shaking his hands. Defendant did not complain of pain in his
shoulder and did not appear to have any difficulty raising his arms in the
interview. In addition, defendant claimed
he “tagged†Paul once with the flashlight by giving him just a “snap on the
side of the head.†Defendant
demonstrated by pointing to his left temple and moving his finger down to the
jaw line. Defendant also told Detective
Wenz he “tapped†Paul twice with the “butt end†of the flashlight, and he
pointed to the bulb end of the flashlight in a photograph to indicate the part
he held in his hand.
Defendant
told Detective Wenz that when the window was broken he came out of the house
screaming and cursing, and saw Paul running away from William’s house; but then
Paul turned and came back toward defendant.
Defendant said he felt threatened by Paul as he first came toward
defendant flailing his arms, and added “[N]ormally Paul is not a threatening
person, I shouldn’t have took it as threatening, but the fact that -- they had
been fighting and feuding so much and then he had been calling and threatening
already Willie and stuff . . . that when he turned around and came at me, I
just took it as green light, go, you know . . . and I just went into a
defensive posture.†(Original ellipses.)
Defendant
told the detectives that “everything started†when he fell and hurt his
shoulder, and Paul stood over him yelling as he was trying to get up. Defendant then said he had already struck
Paul once before he fell, and that Paul did not assault him while he was on the
ground. Defendant explained that he hit
Paul once, then slipped, “jumped into a defensive posture and . . . whacked him
again.†Defendant said Paul did not take
swings at him prior to the first flashlight blow, but instead came at him like
a drunk person, “like aah†with his arms in the air. It was then that defendant hit Paul with the
flashlight, slipped, and fell. Defendant
said he hit Paul because Paul was screaming and his behavior appeared
threatening. Defendant “anticipated that
he was about to throw in a punch.†Later
in the interview, defendant again claimed both he and Paul threw punches and
that he was injured as a result of their fight; but defendant then said he used
the flashlight instead of throwing punches because his shoulder was hurt; and
later he admitted he hurt his shoulder when he slipped and fell right after
coming out of his house.
Defendant
told the detectives that when William called to tell him not to open the door,
William said that Paul had been threatening him all day, but did not “go into
the actual language.†Defendant imagined
“they were probably very empty threats.â€
William also told defendant that Paul went into a tirade and beat on the
walls. Defendant said, “And everything
and so that kinda like scared me -- that’s kinda the reason why I was on my
guard with Paul . . . last night.â€
Defendant said he did not mean to use the flashlight as a weapon when he
picked it up and would have used his fists had he not been carrying it; “it was
a self-defense mechanism.†He told
Detective Wenz he was not trying to hurt Paul and was very sorry.
DISCUSSION
I. Self-defense instructions
Defendant contends the trial court erred in failing to
include the language of CALCRIM No. 3470 which relates to antecedent threats or
violence by the victim.
name="_ftnref4" title="">[4] During trial, defense counsel requested the
additional language by providing the court a copy of CALCRIM No. 3470 with the
victim’s name (as suggested in brackets), as follows:
“The defendant’s
belief that he was threatened may be reasonable even if he 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 the defendant knew that Paul
Chua had threatened or harmed others in the past, you may consider that
information in deciding whether the defend[an]t’s conduct and beliefs were
reasonable. [¶] If you find the defendant received a threat
from someone else that he reasonably associated with Paul Chua, you may
consider that threat in deciding whether the defendant was justified in acting
in self-defense.â€
When the trial court read CALCRIM No. 3470, the three
requested paragraphs were not included.
A trial
court is required to give an instruction when the defendant requests it, so
long as substantial evidence has been presented that the defendant knew about
antecedent threats or assaults and reasonably and honestly believed in the
danger posed by them, and his conduct was reasonably influenced by them. (People
v. Moore (1954) 43 Cal.2d 517, 530-531; People
v. Pena (1984) 151 Cal.App.3d 462, 475; People
v. Torres (1949) 94 Cal.App.2d 146, 151-153.)
Defense
counsel did not mention the omission, even though the trial court gave counsel
a second opportunity to propose any additions or modifications after it had
read the instructions to the jury.
Respondent contends that defendant has forfeited the issue by failing to
object or to press for a ruling. As
defendant points out, because the trial court was required to rule on the
written instruction request, the failure to do so must be deemed a refusal and
no further objection or exception was required to preserve the issue for
appeal. (See People v. Torres, supra,
94 Cal.App.2d at pp. 150-151; §§ 1127, 1176.)
We observe however, that defense counsel’s closing argument included no
suggestion that defendant was influenced by Paul’s threats or behavior earlier
in the day. Counsel mentioned Paul’s drinking,
wall punching, and threats only to support an argument that Paul was the
aggressor and that defendant struck Paul reflexively in reaction to Paul’s
drunken attack with his fists. It is
thus likely that defense counsel placed little significance on the special
instruction.
In any
event, if counsel had pressed for a ruling, the trial court would not have
erred in refusing to instruct the jury to consider antecedent threats in
determining the reasonableness of defendant’s belief in the necessity of self-defense. To justify the instruction, there must be
substantial evidence of prior assaults on the defendant or threats to cause the
defendant death or great bodily harm.
(See People v. Gonzales (1992)
8 Cal.App.4th 1658, 1663-1664.)
Defendant points to evidence that Paul made such threats to William
as: “I am going to get youâ€; “don’t
fight with the girl, fight with meâ€; and “I’m not afraid to get into
jail.†Substantial evidence is evidence
that would be sufficient, if believed, to enable a reasonable jury to find a
reasonable doubt as to the defendant’s guilt.
(People v. Salas (2006) 37
Cal.4th 967, 982-983.) Such vague
threats to “get†William and to risk going to jail do not amount to threats to
defendant of death or great bodily harm.
The only evidence of a prior assault against anyone was William’s
testimony that his brother hit him once in 1986.
Moreover
there was a little evidence that William communicated such statements. While William testified he told defendant
about the threats, he did not specify the threats. Nor did William share his interpretation of
the words; he merely told defendant that Paul “did some nasty word.†Defendant told detectives that William had
called to say that Paul had been threatening him all day, but did not give
specifics, and defendant surmised that “they were probably very empty
threats.†Although defendant was on his
guard and “kinda scared†by the wall punching, there was no evidence he
interpreted that behavior as a threat directed at him or William. At most, defendant was aware that Paul may
have threatened to beat on William’s door.
Defendant
also told detectives that he did not consider Paul a threatening person and did
not feel threatened until after he had approached Paul, when Paul turned and
flailed his arms. Defendant testified
when William called to warn him that Paul might beat on the door, defendant did
not interpret it as a threat. He was
angry, not afraid, when he walked toward Paul to ask about the broken
window. Defendant told detectives that
he took the flashlight outside for use as a weapon. Finally, defendant did not testify his
actions were influenced by any threats Paul may have made, rather he claimed
his blows with the flashlight were an instinctive reaction to Paul’s fists
coming at him.
Trial
courts should not give instructions that are unsupported by substantial
evidence. (People v. Marshall (1997) 15 Cal.4th 1, 39-40.) Thus, where defendant’s own uncontradicted
testimony and statements to detectives established that there had been no
threats of bodily harm against defendant, defendant knew of no such threats,
and the blows with the flashlight were not induced by any such threats, we
conclude that an instruction to consider whether defendant was influenced by
antecedent threats was properly refused.
Regardless,
if the court had erred in failing to give the requested instructions, the
omissions were harmless. First, we
reject defendant’s assertion that the influence of antecedent threats was the
“crux of his defense.†Defense counsel
argued that defendant heard that Paul had behaved aggressively and had made
threats, but did not argue that Paul had previously committed an assault or had
threatened to inflict great bodily injury on defendant. Nor did counsel argue that William’s telephone
calls gave defendant any reason to think that Paul would harm him. Counsel argued that Paul, a normally “decent,
quiet, nice man,†was so drunk and harbored such “incredible resentment for his
family†that he acted “like a crazy man†and “threw a punch†at defendant. Counsel’s conclusion and the “crux†of the
argument was that Paul, not defendant, was the initial aggressor, and that
defendant acted instinctively to protect himself against Paul’s attack.
Second,
any defense theory based on the influence of antecedent threats was refuted by
overwhelming evidence in the form of defendant’s own testimony and
statements. Defendant admitted he
angrily approached Paul to ask him about the window; and he admitted what he
felt about Paul’s “empty†threats and wall punching tirade was being “kindaâ€
scared and on his guard. Assuming the
jury believed that Paul had broken the window in a drunken rage, lied about it
and about being struck from behind in his own driveway, and that he attempted
to punch defendant, it remains that defendant approached Paul as Paul was
walking back, empty-handed toward his own home and no longer on William’s
property. After defendant had severely
injured Paul, defendant’s extreme anger over the broken window could still be
discerned in his 911 call, during which he warned Paul not to “come over and
attack us†but made no claim that Paul had attacked him.
Finally,
there was no evidence of antecedent assaults.
The vague threat to “get†William, Paul’s demand that William fight with
him not Kirby, and his statement that he was not afraid “to get into jail†were
not substantial evidence of a threat to inflict great bodily injury on
defendant. Indeed, defense counsel did
not argue that there was such evidence.
We conclude beyond a reasonable doubt that the asserted error did not
contribute to the verdict. (See
18, 24.)
II. Effective assistance of
counsel
Defendant contends that his trial counsel rendered
ineffective assistance by failing to request two pinpoint instructions
regarding the amount of force a defendant is entitled to use in
self-defense. The Sixth Amendment right to assistance of counsel
includes the right to the effective assistance of counsel. (Strickland
v. Washington (1984) 466 U.S. 668, 686-674; see also Cal. Const., art. I, §
15.) “Generally, a conviction will not
be reversed based on a claim of ineffective assistance of counsel unless the
defendant establishes both of the
following: (1) that counsel’s
representation fell below an objective standard of reasonableness;
probability that, but for counsel’s unprofessional errors, a determination more
favorable to defendant would have resulted.
[Citations.] If the defendant
makes an insufficient showing on either one of these components, the
ineffective assistance claim fails.†(
1060, 1126.)
First,
defendant contends his counsel should have requested the following optional
language in CALCRIM 3470: “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.†(Italics omitted.)
There
was no evidence that Paul had harmed defendant, or anyone, in the past. Defendant testified he had a good
relationship with Paul and that they had never before had a disagreement,
verbal argument, or physical fight.
Further, as we discussed in the previous section, Paul did not threaten
defendant with bodily harm prior to that night, and as far as defendant knew,
Paul’s threats to William consisted of several frustrated punches at the wall
and nasty words which defendant deemed “very empty threats.†The failure to request a factually and
legally unsupported instruction is not ineffective assistance of counsel. (People
v. Szadziewicz (2008) 161 Cal.App.4th 823, 836.) Further, the trial court would not have given
an instruction unsupported by substantial evidence. (See People
v. Marshall, supra, 15 Cal.4th at pp. 39-40.) Thus, any request for the instruction would
have been a futile one and not required by the Sixth Amendment. (See People
v. Price (1991) 1 Cal.4th 324, 386-387.)
Defendant also contends that counsel should have
requested an instruction such as the following, quoted from
1033, 1057 (Ross):
“‘[S]ince in the heat
of conflict or in the face of an impending peril a person cannot be expected to
measure accurately the exact amount of force necessary to repel an attack, that
person will not be deemed to have exceeded his or her rights unless the force
used was so excessive as to be clearly vindictive under the circumstances.’â€
Here,
the trial court instructed the jury that if defendant reasonably believed he
was in imminent danger and that the immediate use of force was necessary to
defend against that danger, he was entitled to use “no more force than was
reasonably necessary to defend against that danger.†The trial court also instructed the jury that
“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 a lawful self-defense.†These instructions correctly stated the
law. (See People v. Clark (2011) 201 Cal.App.4th 235, 250.)
There is
nothing in Ross requiring the
instruction suggested by defendant. The
self-defense, the force used must appear reasonably necessary under the
circumstances; but the court expressly declined to define reasonable or
unreasonable force, as the question before it was an erroneous instruction with
regard to mutual combat. (See
vindictive’†language was not made to suggest an appropriate jury instruction;
it was made to illustrate its criticism of the prosecutor’s argument. (Id.
at p. 1057.)
What
constitutes a reasonable amount of force is a question of fact for the jury to
determine. (People v. Young (1963) 214 Cal.App.2d 641, 646.) The Ross
quote would have taken that task away from the jury by defining all force used
in self-defense as reasonable so long as it was not so excessive as to be
clearly vindictive. We agree with
respondent that such an instruction would be argumentative, whereas the
instruction actually given was not. The
jury was instructed: “When deciding
whether the defendant’s beliefs were reasonable, consider all of 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.â€
(Italics added.)
Where
the instructions given are complete and adequate, the trial court properly
refuses language taken out of context from an appellate court opinion. (See
People v. Adams (1987) 196 Cal.App.3d 201, 204.) Counsel does not render ineffective
assistance by failing to request an instruction that most likely would have
been refused. (See People v. Price, supra,
1 Cal.4th at pp. 386-387; People v.
Szadziewicz, supra, 161 Cal.App.4th at p. 836.) Because the trial court would have properly
refused both instructions, defendant demonstrated neither error of counsel nor
prejudice; we thus conclude that defendant has not made a sufficient showing of
ineffective assistance of counsel. (See
U.S. at pp. 688, 694; People v. Rodrigues,
supra, 8
Cal.4th at p. 1126.)
III. Cumulative effect
Defendant
contends that the cumulative effect of all the asserted errors was to deny him
a fair trial. Because we have found no
error, we must reject defendant’s claim of prejudicial cumulative effect. (People v. Butler (2009) 46 Cal.4th 847, 885.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
____________________________,
J.
CHAVEZ
We concur:
____________________________, Acting P. J.
ASHMANN-GERST
____________________________, J.*
FERNS
________________________________________________________________________
* Judge of the Los Angeles Superior
Court, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
further statutory references are to the Penal Code, unless otherwise indicated.
testified that his six siblings, from oldest to youngest, were Gene, Virginia,
Rosalina, Susie, Gina, and William. We
refer to them by their first names to avoid confusion.
