P. v. Leplat
Filed 2/7/13 P. v. Leplat CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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 SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
LOUIS DANIEL LEPLAT,
Defendant and
Appellant.
2d Crim. No.
B234938
(Super. Ct.
No. SICRF-09-48642)
(Ventura
County)
Louis Daniel Leplat
appeals the judgment following his conviction for
he personally used a deadly and dangerous weapon in the murder. (§ 12022, subd. (b)(1).) Leplat was sentenced to 15 years to life for
the murder and a consecutive one-year term for the weapon enhancement. Leplat contends the trial court erred by
failing to provide the jury with a written copy of the instruction for
imperfect self-defense. He also claims the prosecutor
improperly commented on his failure to testify at trial. We affirm.
FACTS
During the afternoon of June 20, 2009, victim James Rambeau
and several other friends and neighbors were socializing and drinking beer at
Rambeau's residence and a residence next door.
Another neighbor, Kenneth Kilgore, was having a family reunion at his
residence. Leplat was present. At some point, Leplat and his girlfriend were
sitting in his car in Rambeau's driveway.
After being told that Leplat was annoying a family member, Kilgore came
out of his house and got into a verbal argument with Leplat. Rambeau came out of his house and joined in
the argument.
Shortly thereafter,
Felis Landa came up to Leplat and told Leplat to stop disrespecting his
friends. Landa then punched Leplat and
knocked him to the ground. When
challenged to fight, Leplat remained down, getting up only to flee to his car
and drive away.
Later in the evening,
Leplat came back to Rambeau's house yelling for Landa to come out. Rambeau was sitting in his living room with
his wife Tonya and others but Landa was not there. One of the guests in Rambeau's house went to
the door, told Leplat to leave, and closed the door in Leplat's face. She saw something "pointee" in
Leplat's hand and Leplat was making stabbing motions. Leplat continued to pound on the door and
shattered the glass in a window pane.
When the glass broke,
Rambeau went outside onto his porch where Leplat was waiting. The two men fought and Leplat stabbed Rambeau
with a knife several times. A witness
saw Leplat run from the house after the stabbing. Rambeau was helped back into the house,
bleeding from wounds in his chest area.
Someone called 911 and Rambeau was taken to the hospital. On arrival at the hospital, Rambeau had no
pulse and was pronounced dead. It was
determined on autopsy that death resulted from hemorrhaging due to multiple
stab wounds to the chest. The autopsy
also disclosed Rambeau had defensive wounds on his leg and arm.
While in jail following
his arrest, Leplat talked about the stabbing to another jail inmate, Dan
Casteel. Casteel informed the
authorities that Leplat had admitted killing Rambeau. Leplat also described the knife and where he
had discarded it and the clothing he was wearing at the time of the
attack. Police later located a knife and
blood-stained clothing. Rambeau's DNA
was on the knife, and Leplat's DNA was found on the clothing. Casteel later testified at trial regarding
Leplat's admissions to him.
DISCUSSION
Leplat contends that his
due process rights were violated because the jury was not
provided a written copy of the jury
failure to instruct on the defense, and prejudicial error. We disagree.
Section
1093, subdivision (f) states in pertinent part:
"Upon the jury retiring for deliberation, the court shall advise
the jury of the availability of a written copy of the jury instructions. The court may, at its discretion, provide the
jury with a copy of the written instructions given. However, if the jury requests the court to
supply a copy of the written instructions, the court shall supply the jury with
a copy." If the court does not
advise the jury of the availability of written instructions at the jury's
request, or does not provide them with a complete set of instructions after the
jury has requested them, the court has erred.
(People v. Seaton (2001) 26 Cal.4th 598, 673; People v. Ochoa
(2001) 26 Cal.4th 398, 446-447, abrogated on other grounds as stated in
263, fn. 14 [omission of two instructions from written packet sent into jury
room was not error].)
A criminal defendant,
however, has no state or federal constitutional right to be provided with a
written copy of the jury instructions. (People
v. Ochoa, supra, 26 Cal.4th at p. 447; People v. Samayoa (1997) 15
Cal.4th 795, 845.) "Nor does the
statutory requirement underlie or embody a fundamental notion of due process or
some other constitutional value. It is a
purely statutory requirement." (People
v. Blakley (1992) 6 Cal.App.4th 1019, 1023.)
Here, the trial court orally
instructed the jury on imperfect self-defense as well as on first and second
degree murder, manslaughter, provocation, and complete self-defense. It is undisputed that the trial court advised
the jury of the availability of written jury instructions and stated
affirmatively that it would provide a copy of the instructions for use in the
jury room. The trial court gave the jury
a packet of written instructions which appears to have omitted the instruction
on imperfect self-defense. The jury
never requested a written version of that instruction but did request 11 copies
of certain other instructions. Those
included instructions on the degrees of murder, heat of passion manslaughter,
complete self-defense, provocation, the right to eject a trespasser, and
voluntary intoxication.
Because there was no express
request by the jury for a written copy of the imperfect self-defense
instruction, there was no error under section 1093, subdivision (f). Even if there was error, an appellate court
may not reverse the conviction unless the defendant demonstrates a reasonable
probability the jury would have reached a result more favorable to the
defendant absent the error. (See, e.g., People
v. Seaton, supra, 26 Cal.4th at p. 673 [failure to provide jury
written set of instructions harmless error]; People v. Cooley (1993) 14
Cal.App.4th 1394, 1399 [same].) We
conclude that any error in this case was harmless in light of the oral
instructions, counsel's closing argument, and the evidence presented.
The evidence showed that
Leplat assaulted Rambeau with a knife after attempting to break into Rambeau's
house. The record shows that the jury
indicated that the jurors were deadlocked on the first degree murder charge but
reached a second degree murder verdict approximately 20 minutes after the trial
court directed the jury to consider whether they could agree on a lesser
charge.
Also, the trial court orally
instructed the jury on imperfect self-defense and the prosecutor and defense
counsel mentioned self-defense and imperfect self-defense during final
argument. The record contains no
questions from the jury regarding imperfect self-defense. "It is axiomatic that '[j]urors are
presumed able to understand and correlate instructions and are further presumed
to have followed the court's instructions.
[Citation.]'" (People v.
Hernandez (2010) 181 Cal.App.4th 1494, 1502.) Leplat speculates that the jury may have
forgotten the instruction on imperfect self-defense, but nothing in the record
supports such speculation.
No
Griffin Error
Leplat contends that argument by the prosecutor
included improper comments on Leplat's
his constitutional privilege against self-incrimination. We disagree.
It is error for a prosecutor
to comment, directly or indirectly, on the failure of the defendant to
testify. (Griffin
v. California (1965) 380
U.S. 609, 614-615; People v. Hughes (2002) 27 Cal.4th 287, 371–372.)
A prosecutor may comment "'. . . on the state of the evidence or on
the failure of the defense to introduce material evidence or to call logical
witnesses. . . .'" (People v.
Hovey (1988) 44 Cal.3d 543, 572.)
But a prosecutor may not refer to the absence of evidence that only the
defendant's testimony could provide. (
occurs when there is a reasonable likelihood that jurors could have understood
the prosecutor's comments to refer to defendant's failure
to testify. (People
v. Clair (1992) 2 Cal.4th 629, 663.)
Nevertheless, "'brief and mild references to a defendant's
suggestion that an inference of guilt be drawn therefrom, are uniformly held to
constitute harmless error.'" (People
v. Turner (2004) 34 Cal.4th 406, 419–420.)
As respondent argues,
Leplat forfeited his Griffin claim by
not objecting to the prosecutor's remarks in the trial court. (People v. Lancaster (2007) 41 Cal.4th 50, 84 [
failure to object].)
failure to object at trial waives the claim on appeal because it deprives the
trial court of the opportunity to cure any harm by giving an appropriate
instruction. (People v. Valdez
(2004) 32 Cal.4th 73, 127.) Here, the
record shows that any impropriety in the prosecutor's comments could have been
cured by an appropriate admonition. (People
v. Brasure (2008) 42 Cal.4th 1037, 1060.)
Assuming that the claim has
been preserved for appeal, we conclude that it has no merit. In responding
to the defense argument that Leplat acted in self-defense, the prosecutor
stated: "Where's the evidence of that? Where is the evidence that the defendant
believed that? That the defendant only
used force that was necessary." The
prosecutor then stated that the defendant must actually believe he is in danger
of death or great bodily injury.
"Where's the evidence of that?
Nobody testified to that. Not one
person." Similarly, the prosecutor
asked "[w]here's the evidence of that" when discussing a claim that
Leplat did not pull his knife out of its sheath until Rambeau was assaulting
him and a claim that Mrs. Rambeau urged her husband to "hit him [Leplat]
with a bottle."
These comments were proper
comments on the state of the evidence and not inappropriate comments on
Leplat's failure to testify. (See, e.g., People v. Sanders (1995)
11 Cal.4th 475, 527–528 [no Griffin error where
the prosecutor commented in closing argument that the defense offered "no
explanation" for "certain damning aspects" of the case]; People
v. Medina (1995) 11 Cal.4th 694, 755–756 [prosecutor's argument that
defense counsel offered no rational explanation for evidence defendant had a
gun was not Griffin error].)
Contrary to Leplat's
assertion, evidence of these matters could have come from witnesses other than
Leplat's own testimony. There were
multiple witnesses to events leading up to the killing who could have testified
to any threats or violence by Rambeau against Leplat which might have supported
a claim of imminent bodily injury. Also, evidence of defensive wounds on
Leplat's body indicating resistance rather than aggression could have been
presented through medical records and other testimony. Where, as here, witnesses other than the
defendant could have provided contrary evidence, there is no Griffin error. (People v. Bradford (1997) 15 Cal.4th
1229, 1339-1340.)
No
Cumulative Error
Leplat also argues that trial court errors
were cumulatively prejudicial. Because
we conclude there was no error, there could not be cumulative error.
The judgment is affirmed.
NOT
TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT,
P. J.
YEGAN,
J.
Charles W. Campbell, Jr., Judge
Superior Court County of Ventura
______________________________
California Appellate Project, Jonathan B.
Steiner, Executive Director, Richard B. Lennon, Staff Attorney, and Raymond L.
Girard, 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, Senior Assistant
Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Tannaz
Kouhpainezhad, Deputy Attorney General, for Plaintiff and Respondent.
name="_ftn1" title="">[1]
All statutory
references are to the Penal Code unless otherwise stated.
pursuant to art. VI, § 6 of the Cal. Const.)
