P. v. Ware

Filed 8/14/08 P. v. Ware 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, John D. Lord, Judge. Affirmed.

John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, and Robert S. Henry, Deputy Attorney General, for Plaintiff and Respondent.

______________________________________

Defendant Leo Norvell Ware appeals from the judgment entered following a jury trial in which he was convicted of shooting at an inhabited dwelling, in violation of Penal Code section 246 (count 1); discharging a firearm in a grossly negligent manner, in violation of section 246.3 (count 2); and possession of two firearms by a felon, in violation of section 12021, subdivision (a)(1) (counts 3 and 4).^[1] In a bifurcated court trial, defendant was found to have suffered four prior convictions under sections 1170.12 (the Three Strikes law) and 667, subdivision (a)(1). Defendant was sentenced to 70 years to life.

Defendant challenges the convictions of counts 1 and 2 only, contending that the trial court erred in failing to instruct, sua sponte, on self-defense, and alternatively that trial counsel rendered ineffective assistance in failing to request such instructions. We affirm because defendant did not rely on self-defense, and such a defense was inconsistent with his theory of the case.

BACKGROUND

The Evidence

Approximately 1:00 a.m. on January 12, 2005, officers responded to the area of 53rd and Elm Street in Long Beach following a call that shots had been fired. The officers encountered defendant, shirtless and out of breath.^[2] Defendant told the officers he was being shot at, but gave no description of the shooters beyond making reference to dark shadows. The officers took defendant to his apartment, which was about four blocks away, after they figured out there was nobody chasing [defendant] nor following him and because defendant stated that the shooting occurred back at his apartment.

While inside defendants apartment, officers were unable to locate any broken glass on the floor or other signs of forced entry. But officers did find a .357 revolver, a 9‑millimeter handgun, shell casings, and a butane torch, which is commonly used to smoke crack cocaine. There were three to five bullet holes in the furniture and walls.

Defendant told the officers that he had just got done smoking some rock cocaine in the bathroom. He heard noises in the living room now, and so he got out of the tub, put on some pants, and looked out. Defendant saw a shadow in the living room, at which time he dove to the floor, grabbing both guns and continued to engage with the shadow. The 9 millimeter that he had did not work, it just clicked, so he continued to engage with the .357 revolver. Defendants behavior while speaking with the officers was described as being consistent with someone who had been using a stimulant.

A gunshot residue test on defendants hands showed two highly specific particles and several consistent particles of gunshot residue. The expert who conducted the test further testified that a person who has gunshot residue on one or both hands could have either fired a gun or been in close proximity with someone else who had fired a gun. A criminalist was not able to lift any fingerprints from the weapons or casings found in defendants apartment.

Further investigation led police to defendants neighbors. Albert Hinton, a resident of apartment 6 in the same apartment complex, was awakened from his sleep by a loud sound he heard between the hours of 12:30 a.m. and 1:00 a.m. While searching Hintons apartment, police found a bullet in the track of his sons closet door approximately five or six feet from his bed. Hinton and defendant shared a common wall.

Ray Williams testified for the defense that he resided immediately above defendants apartment. At the time of the incident he heard muffled sounds as if there was some conversation and then all of a sudden there was  you know, I thought I had heard a pop. . . . Then out of nowhere, boom, bat. He further described what he heard as two distinct shots followed by some running. When initially contacted by the police, Williams told them he heard more than one person running and more than one voice. Williams also stated that a van had been parked in the rear of the apartment complex for quite a while. Sometime after the incident, Williams saw footprints on the rear bumper of the van. Williams thought it would be possible for someone to stand on the top of the van to gain access into defendants apartment if the person were tall enough.

Jury Instructions

In a jury instruction conference following the close of evidence, defense counsel asked, And the court is not giving the self-defense, correct? The prosecutor answered, Right. Later in the conference, the prosecutor stated, [F]rom what I understand, the defense theory is that he never fired the gun, there were other people shooting at him; it wasnt that he grabbed guns and shot in self-defense. Thats my understanding. The court responded, Thats my understanding based on the evidence also. Defense counsel did not respond but instead continued to discuss instructions relating to possession of firearms. When the court concluded its instructions to the jury, it advised counsel that this was the final opportunity for objections, corrections, or additions. Defense counsel responded, No.

Jury Argument

The prosecutors closing argument emphasized police testimony regarding defendants admission that he shot a gun and that he had smoked cocaine. The prosecutor also urged that defendants version of the events was physically impossible.

In defense counsels closing argument, he never argued that defendant shot a gun in self-defense. Instead, counsel urged that defendant was fleeing his apartment and wanted to get out because somebody was shooting at him. Counsel attempted to convince the jury that defendant may not have been the one who fired a weapon by pointing out that defendants fingerprints were not found on either weapon and a gunshot residue test can show signs of residue on ones hands even if he were not the person who fired the gun. In addition, footprints were seen on the bumper of the van parked outside defendants window, from which it was possible to gain access to defendants apartment, and Williams testified that more than one person was involved in the incident. Counsel also argued that there was no evidence defendant was under the influence of drugs or hallucinating when he saw shadows. Thus, it was defendants theory of the case that he was not hallucinating and that intruders, not defendant, were the ones who fired weapons at an inhabited dwelling.

DISCUSSION

1. Trial Court Did Not Have a Sua Sponte Duty to Instruct on Self-defense

A trial courts sua sponte duty to instruct the jury on defenses is much more limited than its duty to instruct on lesser included offenses. (People v. Sedeno (1974) 10 Cal.3d 703, 717, overruled in part on other grounds in People v. Breverman (1998) 19 Cal.4th 142, 149, and disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.) When the charged offense is one that is divided into degrees or encompasses lesser offenses, and there is evidence from which the jury could conclude that the lesser offense had been committed, the court must instruct on the alternate theory even if it is inconsistent with the defense elected by the defendant . . . . (People v. Sedeno, supra, 10 Cal.3d at p. 717, fn. 7.) But the duty of the trial court to instruct on defenses is limited not only because it would be unduly burdensome to require more of trial judges, but also because of the potential prejudice to defendants if instructions were given on defenses inconsistent with the theory relied upon. (Id. at p. 716.)

Thus, the trial court has a sua sponte duty to instruct on self-defense 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 defendants theory of the case. [Citation.] (People v. Breverman, supra, 19 Cal.4th at p. 157.)

Here, defendant did not rely on self-defense. Defense counsels theory was that intruders, not defendant, fired weapons. Counsel attacked the evidence that suggested otherwise, and never once claimed that defendant fired in self-defense. For the same reason, an instruction on self-defense would have been inconsistent with defendants theory of the case. Accordingly, the contention of sua sponte instructional duty must be rejected.

We further note that when the trial court believes there is substantial evidence that would support a defense inconsistent with that advanced by a defendant, the court should ascertain from the defendant whether he wishes instructions on the alternative theory. [Citation.] (People v. Breverman, supra, 19 Cal.4th at p. 157.) As shown by the colloquy regarding jury instructions and the courts advisement about the final opportunity for objections, both quoted above, the trial court fulfilled its obligation in this regard.

Defendants associated claim that the court should have instructed on the home invasion presumption of section 198.5 fails because, as we have concluded, self-defense was inconsistent with defendants theory of the case.^[3]

2. Counsel Did Not Provide Ineffective Assistance by Failing to Request a Self-defense Instruction

Defendant contends that his counsel rendered ineffective assistance. We disagree.

To show ineffective assistance of counsel, defendant has the burden of proving that counsels representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsels unprofessional errors, the result would have been different. (People v. Kelly (1992) 1 Cal.4th 495, 519520, citing Strickland v. Washington (1984) 466 U.S. 668, 688 [104 S.Ct. 2052].) As to whether the representation was deficient, a reasonable attorney may have tactical reasons for not requesting an instruction where the risk is outweighed by the benefits it might provide. (People v. Maury (2003) 30 Cal.4th 342, 394.)

Here, defense counsel was relying on the theory that defendant did not discharge a firearm and therefore could not be guilty of shooting at an inhabited dwelling or doing so in a negligent manner (counts 1 and 2). On this record, we cannot say that counsels omission of a self-defense instruction was not a reasonable tactical decision.

DISPOSTION

The judgment is affirmed.

NOT TO BE PUBLISHED.

MALLANO, P. J.

We concur:

ROTHSCHILD, J.

NEIDORF, J.^*

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1]All further statutory references are to the Penal Code.

^[2]A semiautomatic firearm was later found about 30 feet away from this location.

^[3]Section 198.5 provides: Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.

^*Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.