P. v. Veillette

Filed 8/23/07 P. v. Veillette CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tuolumne County. Eleanor Provost, Judge.

Barbara Michel, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leslie W. Westmoreland and Lewis Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Robert Rudolph Veillette was convicted by jury of second degree murder with personal use of a deadly weapon (Pen. Code,^[1] 187, subd. (a);  12022, subd. (b)(1)). Defendant was sentenced to a total prison term of 16 years to life. On appeal, defendant contends: (1) the trial court erred in using CALCRIM No. 506 to instruct the jury on justifiable homicide in defending against harm to a person within a home; (2) the trial court erred in using CALCRIM No. 220 to instruct the jury on reasonable doubt; and (3) the trial court erred in using CACRIM No. 224 to instruct the jury on circumstantial evidence. We find no error and affirm the judgment.

FACTS

On the evening of December 23, 2005, defendant stabbed and killed Ronald Hicks. The afternoon of the killing, defendants roommate, Isaac Leal, returned home from work and found defendant sitting on the couch, watching television and drinking alcohol. A couple hours later, Leal went to the market and bought some orange juice at defendants request. While at the market, Leal ran into Hicks. Hicks appeared to be very intoxicated.

When Leal returned home, he found Hicks already in the apartment, sitting on the other couch, watching television with defendant. Hickss dog was lying on the floor next to him. Leal went in the kitchen to make a telephone call. While he was there, Hicks came in and used a knife to cut a lime, which he squeezed into a glass of vodka.

Leal heard Hicks ask defendant if he could have some orange juice. Defendant told him to get his own, commenting that Hicks had just been to the store. When Leal got off the telephone, Hicks picked it up and started to make a call. Defendant got up and told Hicks it was not a public telephone, and said next time to use the telephone outside or at the store. Hicks appeared to get mad, stood up, and mumbled, Im going to beat your ass.

Hicks went to the bathroom. When he returned, he said, Im getting the hell out of here. Hicks put on his coat and jacket and walked to the door. He stood at the door for a moment and said, Army man gives Marine raft, but Marine doesnt give Army man orange juice.

As Hicks was opening the door to the apartment, defendant told him to take his dog. Hicks turned around and told defendant he was not going anywhere but was just going to stand outside. Defendant yelled several more times for Hicks to take his dog, but Hicks ignored him and closed the apartment door without shutting it completely.

Hicks started talking to defendants neighbor, John Fresquez, in the breezeway between their apartments. Hicks shook Fresquezs hand and wished him a merry Christmas. Around this time, defendant grabbed Hickss dog, threw the dog out of the apartment, and closed the door. Both Fresquez and Leal heard the dog yelp or squeal. According to Fresquez, the dog hit Hicks in the back, knocking him forward. Hicks then spun around and hit the door to defendants apartment with some force.

Leal testified that the door burst open, throwing defendant back. Leal saw Hicks on [defendant]. Leal described the men as being about six to eight inches apart and having their hands up. When it looked like they were starting to fall down, Leal, who had been talking on the telephone, hung up the telephone and said, Goddammit, You guys are going to get us in trouble.

Leal went to pull the men apart and break up the fight. He saw Hicks standing with one hand on the couch and his other hand on his stomach. Hicks took a few steps back and said, You stabbed me or You stuck me. At first, Leal thought he was joking around. But then Hicks fell back, hit the wall, and slid down. Leal went up to look at Hicks. Hicks lifted up his jacket and Leal saw there was a lot of blood seeping out. Leal shouted at the neighbor across the way to call 911.

Defendant was holding a kitchen knife and just standing there. He appeared to be in a state of shock. Leal confirmed that defendant looked at Hicks and said something like, I told you Id do it. I told you Id stab you. Leal later told one of the sheriff deputies that defendant made this statement.

Leal called 911, handed the phone to defendant, and said, Its your mess, you clean it up. Leal then went to look for rags to stop Hickss bleeding, and ended up using a number of plastic bags and Hickss gloves and jacket to put pressure on the wound until the paramedics arrived.

Hicks died as a result of a single stab wound from the knife which penetrated his heart. The wound was five inches deep and located three-quarters of an inch below his left nipple. The forensic pathologist who performed Hickss autopsy opined that it was highly unlikely that the wound resulted from Hicks falling on the knife.

Defendant did not present any evidence in his defense, but the jury learned of defendants claims of self-defense, made after the incident, through the testimony of law enforcement agents and a recording of defendants statements during the 911 call initiated by Leal. During the 911 call, defendant told the operator that Hicks had crashed through his door and hit defendant with a bottle, and that defendant grabbed a kitchen knife to defend himself and stuck Hicks with it. Defendant said he was sorry he had to do it, and repeated several times that he was a disabled person and had to defend himself. When the operator asked if Hicks had been demanding anything when he broke into the apartment, defendant replied, Yeah, he was demanding orange juice.

Defendant made similar statements about acting in self-defense in the presence of a sheriff deputy who responded to the scene. One of defendants statements was: I told him he wasnt welcome in the complex. Im a defenseless person. He charged me, so I stabbed him. Defendant also said, He forced his way into the apartment and I stabbed him.

Investigator Thomas Memmer of the Tuolumne County Sheriffs Department testified regarding his interview with defendant after the stabbing, and described the inconsistent details and changing versions of events defendant presented to him. At the beginning of the interview, defendant indicated he did not know Hicks well and kept referring to him as that guy. But later in the interview, defendant referred to Hicks as Ron and talked about Rons dog which defendant described as a good dog.

During the interview, defendant gave different accounts of Hicks following him home from a store and coming into his apartment. Sometimes defendant suggested that he had invited Hicks in but then asked him to leave. Other times, he suggested that Hicks came in on his own with his dog, or followed Leal into the apartment. At one point, defendant described arming himself with a knife after he had shoved Hicks and the dog out of the apartment. At another point, he described arming himself with a knife from the kitchen because he heard banging on the door and loud noise outside. Defendant described two knives a kitchen knife, and a leather-handled knife he kept under the coffee table in the living room and expressed uncertainty as to which one he had used during the stabbing.

With regards to the stabbing, defendant variously conjectured that Hicks might have fallen on the knife or maybe even stabbed himself. Defendant also suggested he might have stabbed Hicks when he was trying to push him away because he had the knife in his hand, or that he stabbed Hicks as a reflex or subconscious[ly]. Defendant also repeated the claim that Hicks had hit him with a bottle, but when Investigator Memmer told him no bottle had been found, defendant said it was probably the door that hit him.

Evidence was presented that both defendant and Hicks drank regularly at a local establishment called the Keyhole. On one occasion, defendant brandished a knife at his friend Jason Gurney but then put it away, explaining I thought you were Ron. I was gonna stab your ass. When Gurney asked defendant why he was mad at Hicks, defendant said Hicks had been at his house the previous night screaming for beer and told Gurney, using expletives, to tell Hicks to stay away from his house.

DISCUSSION

I. CALCRIM No. 506

Over defense objection to part of the instruction, the trial court instructed the jury pursuant to CALCRIM No. 506, in relevant part, as follows:

The defendant is not guilty of murder or manslaughter if he killed to defend himself in the defendants home. Such a killing is justified, and therefore not unlawful, if:

1. The defendant reasonably believed that he was defending a home against Ron Hicks, who violently, or riotously, or tumultuously tried to enter that home intending to commit an act of violence against someone inside;

2. The defendant reasonably believed that the danger was imminent;

3. The defendant reasonably believed that the use of deadly force was necessary to defendant against the danger;

AND

4. The defendant used no more force than was reasonably necessary to defend against the danger.

Defendant contends, as he did below, that the fourth element of the instruction should have been deleted because it misstates the law of self-defense, which, according to defendant, places no limits on the amount of force a defendant may use in responding to a swift and imminent peril.^[2] (Citing People v. Mercer (1962) 210 Cal.App.2d 153, 161 [Where the peril is swift and imminent and the necessity for action immediate, the law does not weigh in too nice scales the conduct of the assailed and say he shall not be justified in killing because he might have resorted to other means to secure his safety. [Citations.]]) To further support his argument, defendant notes that section 197, concerning justifiable homicide, contains no reference to the amount or degree of force used.^[3] Thus, defendant argues that CALCRIM No. 506, as given to the jury, erroneously intruded an extraneous element into the law of self-defense.

Defendants legal argument is simply incorrect.[N]umerous decisions [establish] that a justifiable homicideconnotes only the use of force which is necessary, or which reasonably appears to be necessary, to resist the other partys misconduct; that use of excessive force destroys the justification, but the question of whether there was such an excess is ordinarily one of fact for the jury to determine. [Citation.] (People v. Harris (1971) 20 Cal.App.3d 534, 537; italics added.) The law of self-defense is based on the reasonable appearance of imminent peril of death or serious bodily injury [Citation]. It is also clearly the law that the use of excessive force destroys the justification for the use of force [citation]. (People v. Beyea (1974) 38 Cal.App.3d 176, 190.)

More recently, the court in People v. Hardin (2000) 85 Cal.App.4th 625 aptly summarized the applicable legal principles as follows:

For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. [Citation.] If the belief subjectively exists but is objectively unreasonable, there is imperfect self-defense, i.e., the defendant is deemed to have acted without malice and cannot be convicted of murder, but can be convicted of manslaughter. [Citation.] To constitute perfect self-defense, i.e., to exonerate the person completely, the belief must also be objectively reasonable. [F]or either perfect or imperfect self-defense, the fear must be of imminent harm. Fear of future harm no matter how great the fear and no matter how great the likelihood of the harm will not suffice. The defendants fear must be of imminent danger to life or great bodily injury. [Citation.] [Citation.]

The principles of self-defense are founded in the doctrine of necessity. This foundation gives rise to two closely related rules . First, only that force which is necessary to repel an attack may be used in self-defense; force which exceeds the necessity is not justified. [Citation.] Second, deadly force or force likely to cause great bodily injury may be used only to repel an attack which is in itself deadly or likely to cause great bodily injury . Under these two principles a person may be found guilty of unlawful homicide even where the evidence establishes the right of self-defense if the jury finds that the nature of the attack did not justify the resort to deadly force or that the force used exceeded that which was reasonably necessary to repel the attack. [Citations.] [Citation.] (People v. Hardin, supra, 85 Cal.App.4th 625, 629-630, original italics in first paragraph, italics added in second paragraph.)

The forgoing authorities make clear that the language of CALCRIM No. 506 correctly states the law, and none of the authorities defendant cites compels a contrary conclusion. Accordingly, the trial court did not err in denying defendants request to delete the fourth element of the instruction.

II. CALCRIM No. 220

Defendant contends that the trial courts use of CALCRIM No. 220, concerning the standard of proof in criminal cases, violated his right to due process because the instructions precluded the jury from considering whether a lack of evidence raised a reasonable doubt.

CALCRIM No. 220, as given to the jury, stated:

The fact that a criminal charge has been filed against the defendants is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. [] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime and special allegation beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise. [] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.

We recently rejected an identical challenge to CALCRIM 220 in People v. Flores (July 30, 2007, F050958) __ Cal.App.4th __ [2007 D.A.R. 11562, 11567-11568] (Flores):

[T]he plain language of the instruction given tells the jury that [u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty. (CALCRIM No. 220.) Identical language was given in a similar instruction, CALCRIM No. 103, at the beginning of trial. The only reasonable understanding of this language is that a lack of evidence could lead to reasonable doubt. In addition, the trial court instructed the jury with CALCRIM No. 355, which specifically stated that a defendant may rely on [the] state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. [] Nothing about the instructions given implies to the jury that the defendant must adduce evidence that promotes reasonable doubt or that the defendant must persuade the jury of his or her innocence by evidence presented at trial. [Citation] [] We see no violation of appellants federal constitutional rights in the language of CALCRIM No. 220. (Flores, supra, __ 4 Cal.App.4th at p. __ [2007 D.A.R. at p. 11568].)

Based on our reasoning in Flores, we reject defendants constitutional challenge to CALCRIM No. 220 in the present case. (See also People v. Westbrooks (2007) 151 Cal.App.4th 1500 [trial court did not violate defendants right to have guilt determined beyond a reasonable doubt by instructing jury with CALCRIM No. 220].)

III. CALCRIM No. 224

Finally, defendant contends the trial court lowered the prosecutions burden of proof when it instructed the jury on the sufficiency of circumstantial evidence pursuant to CALCRIM No. 224.

CALCRIM No. 224, as given to the jury, stated:

Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.

Defendant contends that the references to guilt and innocence in the instruction lowered the prosecutions standard of proof by allowing the jury to find guilt if they believed the defendant was not innocent. This contention was recently rejected in People v. Anderson (2007) 152 Cal.App.4th 919 (Anderson). The courtexplained:

Defendants argument stems from People v. Han (2000) 78 Cal.App.4th 797 (Han). In Han, the defendant raised this same argument in connection with the trial courts rejection of a proposed modification of CALJIC No. 2.01 to substitute[] a lack of finding of guilt for one of innocence. (Han, supra, at p. 809.) The Court of Appeal agreed the modification would have made the instruction more accurate, explaining: We recognize the semantic difference and appreciate the defense argument. We might even speculate that the instruction will be cleaned up eventually by the CALJIC committee to cure this minor anomaly, for we agree that the language is inapt and potentially misleading in this respect standing alone. (Id. at p. 809.) However, the court went on to conclude the defendant was not harmed because other instructions, primarily the reasonable doubt instruction, prevented any confusion. (Ibid.)

We cannot agree with the Han courts criticism of CALJIC No. 2.01. For a defendant to be found not guilty, it is not necessary that the evidence as a whole prove his innocence, only that the evidence as a whole fails to prove his guilt beyond a reasonable doubt. In other words, a not guilty verdict is based on the insufficiency of the evidence of guilt.

However, when considering isolated items of evidence, the issue is different. A particular item of evidence may fall into one of three categories: it may tend to prove guilt; it may tend to prove innocence; or it may have no bearing on guilt or innocence. If the evidence falls into the latter category, it does not support either a guilty or a not guilty verdict. In effect, the evidence is not relevant to the case and should be excluded.

Thus, if a particular item of evidence, circumstantial or otherwise, is relevant to the jurys ultimate determination, it is relevant only because it tends to prove either guilt or innocence.

CALCRIM No. 224 simply recognizes this distinction when the jury is considering the circumstantial evidence as a whole. (Anderson, supra, 152 Cal.App.4th at pp. 932-933.)

We agree with the courts analysis in Anderson and adopt it here to reject defendants challenge to CALCRIM No. 224.

DISPOSITION

The judgment is affirmed.

_____________________

HILL, J.

WE CONCUR:

_____________________

WISEMAN, Acting P.J.

_____________________

CORNELL, J.

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^[1] Further statutory references are to the Penal Code unless otherwise specified.

^[2] Although defendants argument on appeal focuses on CALCRIM No. 506, defendant also asserts that CALCRIM No. 505, the instruction on justifiable homicide in self-defense was similarly flawed because it also told the jury that for the defense to apply, the jury had to find [t]he defendant used no more force than was reasonably necessary to defend against that danger. In addition to the complained-of element, both instructions contain the following, related language: 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, then the killing was not justified.

^[3] Section 197 provides, in part: Homicide is also justifiable when committed by any person in any of the following cases: [] 1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or, [] 2. When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein .