P. v. Turzai
Filed 1/24/13
P. v. Turzai CA5
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opinion has not been certified for publication or ordered published for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
THE PEOPLE,
Plaintiff and
Respondent,
v.
JASON RODNEY TURZAI,
Defendant and
Appellant.
F063605
(Super.
Ct. No. CRF32908)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
Barbara
Coffman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and
Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury found appellant, Jason
Rodney Turzai, guilty of petty theft with prior convictions for
methamphetamine (Health & Saf. Code, § 11379, subd., (a); count II),
and misdemeanor battery (§ 242; count III.) Appellant admitted he served four prior
prison terms (667.5, subd. (b)). The
trial court sentenced appellant to prison for a total term of 10 years. On appeal, appellant contends: (1) the trial court erred when it failed to
instruct the jury sua sponte on self-defense with respect to the battery count;
and (2) he received ineffective assistance of counsel. We conclude no prejudicial error occurred and
affirm the judgment.
On
July 9, 2010, Rite Aid loss prevention agent, Michael Boyer, observed
appellant pick up three items from the first aid aisle and place them in his
front shorts pocket. Appellant first
removed one of the items from its package, and then placed the empty package
back on the shelf. Boyer retrieved the
empty package and followed appellant.
Appellant left the store without attempting to pay for the three
items.
Outside the
store, Boyer approached appellant, identified himself as store security, and
requested that appellant return the items he had taken. Appellant initially denied taking anything. But after Boyer confronted him with the empty
package, appellant produced the item he had removed from the package (Psoriasin
Gel) and gave it to Boyer.
Appellant
then tried to walk around Boyer, but Boyer stepped in front of him and told him
he needed to return the other two items.
Appellant replied that he did not have anything else and that he was
leaving. Appellant started walking
towards his car, which was parked about 15 feet away. Boyer stood between appellant and his
car. Appellant pushed Boyer three or
four times, backing Boyer towards appellant’s car until Boyer’s back was almost
against the back of the car.
Once they
got to appellant’s car, Boyer tried to stand in front of the driver’s
door. Appellant pushed Boyer aside,
opened the door, and got into the car.
Boyer grabbed the keys out of appellant’s hands and told him the police
were coming. Appellant kept repeating
that he did not do anything and that he wanted to leave. When Boyer saw appellant reach for another
set of keys in the backseat of his car, he directed another Rite Aid employee
to retrieve the keys.
Shortly thereafter, Boyer heard
sirens and repeated that the police were coming. Appellant got out of his car and sat down on
the sidewalk. Once the police arrived,
Boyer spoke to one of the officers about what had happened. The officer then retrieved two items from
appellant (Campho-Phenique and tree oil) and gave them to Boyer.
Tuolumne
County Sheriff’s Deputy Christopher Hurtado booked appellant into jail. During a routine patdown search, Hurtado
recovered a plastic bag from one of appellant’s pockets. The bag contained a white powdery substance,
which the parties stipulated was a usable amount of methamphetamine. Appellant did not seem surprised when Hurtado
found the bag nor did he deny that it was his.
Appellant
testified in his own behalf. According
to appellant’s testimony, he left Rite Aid after he did not see anything he
wanted to buy. He did not put anything
from the store in his pocket. He already
had a tube of psoriasis cream in his pocket, which he had purchased in a
different town.
After
appellant left the Rite Aid, he walked to his car. Somebody got his attention from behind. He turned around and saw Boyer. Boyer said he wanted the things appellant
stole out of the store. Appellant
responded that he did not know what Boyer was talking about. Appellant did not know whether or not Boyer
identified himself as security.
Appellant emptied out his pockets to prove to Boyer that he did not
steal anything.
Appellant
was either on his way to the car or sitting down in his car, when Boyer
“assaulted†him. Appellant
testified: “He put me in a—tried to put
me in a headlock and tried to move me around, but I really don’t move that
easily. I was really panicking at that
point, because I thought I was getting robbed.â€
After struggling with Boyer for a minute or two, appellant realized he
was not being robbed when Boyer said, “you are assaulting a police
officer.†Appellant testified: “At this point, I wasn’t really
resisting. I mean, he was doing … all
the work. I mean, I was just sitting
there really. I wasn’t letting him drag
me out either. I was trying to start my
car and it wouldn’t start. The keys were
in the ignition and it was turning over.â€
As appellant was trying to start
his car, somebody ran out of Rite Aid, reached in the passenger window, and
pulled the keys out of the ignition.
Appellant and Boyer reached a “mutual understanding†that they would
stop struggling and that appellant would get out of the car and sit on the
bench in front of the Rite Aid and wait for the police to arrive. In the meantime, appellant allowed Boyer to
search him “completely.†Boyer went into
one of his pockets and took out the tube of psoriasis cream.
Appellant testified he never pushed
Boyer. However, he added, “if I did, it
was to get him out of my car because I was trying to leave. I was trying to start my car to get the hell
out of there.â€
Appellant
further testified that he did not have a packet of methamphetamine in his
pocket. He was surprised when the
officer found it and told the officer it was not his.
Appellant contends the trial
court committed reversible error when
it failed to instruct the jury sua sponte on the general
No. 3470). We disagree.
A. Background
At trial, defense counsel requested
an instruction on self-defense. The
prosecutor responded that, if defense counsel wanted a self-defense
instruction, the prosecution would seek a special instruction regarding a
merchant’s statutory right to use a reasonable amount of nondeadly force to
detain a suspected shoplifter.
(§ 490.5, subd. (f)(2).) The
trial court impliedly agreed to give both instructions and directed the parties
to prepare the instructions. It appears
that a self-defense instruction was not included in the instructions counsel
later provided to the court and no further request was made for such
instruction.
Thereafter, the trial court
instructed the jury on the elements of battery, pursuant to CALCRIM
No. 960, as follows:
“The defendant is charged in
Count III with battery in violation of Penal Code Section 242.
“To prove the defendant is
guilty of this crime, the People must prove that:
“1. The defendant willfully and unlawfully
touched Michael Boyer in a harmful or offensive manner; and
“2. The defendant did not act in self-defense.
“Someone commits an act
willfully when he does it willingly or on purpose. It’s not required that he intend to break the
law, hurt someone or gain any advantage.
“The slightest touching can be
enough to commit a battery if it’s done in a rude or angry way. Making contact with another person, including
through his clothing, is enough. The
touching does not have to cause pain or injury of any kind.
“The touching can be done
indirectly by causing an object or someone else to touch the other person.
“It’s no defense to this crime
that the defendant was responding to a provocative … act that was not a threat
or an attempt to inflict physical injury.
Words alone, no matter how offensive or exasperating, are not an excuse
for this crime.â€
The trial
court further instructed the jury in the language of section 490.5, subdivision
(f), as follows:
“A
merchant may detain a person for a reasonable time for the purpose of
conducting an investigation in a reasonable manner whenever the merchant has
probable cause to believe the person to be detained is attempting to unlawfully
take, or has unlawfully taken, merchandise from the merchant’s premises.
“In
making the detention, a merchant may use a reasonable amount of non-deadly
force necessary to protect himself or himself and to prevent the escape of the
person detained or the loss of property.â€
B. Applicable Legal
Principles
“A trial court must instruct the
jury, even without a request, on all general principles of law that are
‘“closely and openly connected to the facts and that are necessary for the
jury’s understanding of the case.
[Citation.] In addition, a
defendant has a right to an instruction that pinpoints the theory of the
defense ….â€â€™ [Citation.] The court may, however, ‘properly refuse an
instruction offered by the defendant if it incorrectly states the law, is
argumentative, duplicative, or potentially confusing [citation], or if it is
not supported by substantial evidence [citation].’ [Citation.]â€
(People v. Burney (2009) 47
Cal.4th 203, 246.)
To justify an act of self-defense
for an assault or a battery, the defendant must have an actual, honest, and
reasonable belief that bodily injury is about to be inflicted on him. (People
v. Minifie (1996) 13 Cal.4th 1055, 1064.)
The threat of bodily injury must be imminent, and the right of
self-defense is limited to the use of reasonable force. (Id.
at pp. 1064-1065.)
Section 490.5, subdivision (f),
which codifies a merchant’s right to detain an individual suspected of
shoplifting, provides, in pertinent part that “(2) In making the detention a
merchant … may use a reasonable amount of nondeadly force necessary to protect
himself or herself and to prevent escape of the person detained or the loss of
tangible or intangible property.â€
A person making a citizen’s arrest
also may use reasonable force to effect the arrest, and “‘the arrestee is
obliged not to resist, and has no right of self-defense against such
force.’†(People v. Adams (2009) 176 Cal.App.4th 946, 952.) However, a defendant may use self-defense to
resist the use of excessive force and to protect himself if he reasonably
believes he is “‘in imminent danger of suffering bodily injury.’†(Id.
at p. 953; CALCRIM No. 3470.)
C. Analysis
Appellant
contends his testimony describing a struggle with Boyer inside his car entitled
him to an instruction on self-defense and that the trial court had a sua sponte
duty to supply the instruction when the instructions it received did not
contain CALCRIM No. 3470.
name="_ftnref3" title="">[2] Appellant acknowledges a merchant’s right
pursuant to section 490.5, subdivision (f), to detain a suspected shoplifter,
and the other legal principles set forth above.
Thus, in addition to claiming the court erred in failing to give CALCRIM
No. 3470, he asserts, within the body of his argument, that the court
should have further instructed the jury that “Even in situations involving a
merchant’s attempt to detain a suspect, the defendant retains the right to
resist the use of excessive force and may defend himself against such force or
if he reasonably believed he was in imminent danger of suffering bodily
injury.†Assuming these issues have been
properly preserved for appellate review, we conclude there is no substantial
evidence to support such a theory of self-defense and, therefore, the trial
court was not required to give the self-defense instructions appellant claims
were erroneously omitted.
Under the forgoing authorities,
appellant had the right to use self-defense to resist Boyer’s attempts to
detain him only if
that bodily injury was about to be inflicted on him. There was evidence of neither here. The only suggestion of force that could
possibly be considered excessive was appellant’s testimony that Boyer tried to
put him in a headlock and move him around.
However, under the circumstances, where it is clear that appellant was
attempting to drive away, and there is no evidence of any injury or threats to
appellant, placing appellant in a headlock to prevent his escape is not
substantial evidence that Boyer used or threatened to use excessive force.
actually believed Boyer was about to inflict bodily injury on him. Although appellant claimed he thought he was
being robbed, he never testified to a fear or belief that Boyer was going to
injure him. Rather, appellant’s
testimony indicated that his aim in resisting Boyer was to drive away. As seen above, appellant testified that he
never pushed Boyer but if he did, it
was because he was trying to get Boyer out of his car so he could leave. Because there is insufficient evidence to
support appellant’s self-defense claim, the trial court did not err by failing
to give the instructions appellant claims were erroneously omitted.
However, even if error were found,
it would not require reversal because appellant cannot show prejudice. When instructions are erroneous, “[r]eversal
is required only if ‘the court, “after an examination of the entire cause,
including the evidence,†is of the “opinion†that it is reasonably probable
that a result more favorable to [defendant] would have been reached in the
absence of the error.’†(People v.
Wharton (1991) 53 Cal.3d 522, 571, citing People v. Watson (1956) 46 Cal.2d 818, 836.)
Despite
appellant’s testimony that he did not know whether Boyer identified himself as
security, it was abundantly clear from the circumstances that appellant was
detained under suspicion of shoplifting from Rite Aid by an individual who was
acting under the authority of Rite Aid.
It is undisputed that Boyer confronted appellant outside the store and
asked him to return items he had stolen.
Appellant testified that he emptied his pockets to prove to Boyer that
he did not steal anything. In light of
these circumstances, appellant’s subsequent testimony that he thought he was being
robbed strains credulity. No reasonable
jury would have believed that appellant was unaware of Boyer’s identity to the
point where he was simply defending himself against what he reasonably
perceived to be an attempted robbery. In
any event, as already discussed, appellant never claimed he defended himself
because he believed physical injury was imminent. Rather, the thrust of his testimony was that
he resisted Boyer’s attempts to detain him because he wanted to leave. Thus, even if self-defense instructions were
given it is not reasonably probable that the jury would have reached a result
more favorable to appellant.
Appellant
contends his trial counsel rendered ineffective assistance of counsel in connection
with the self-defense issue discussed above.
We need not determine whether counsel’s performance in this regard was
deficient because no prejudice appears.
To prevail on a claim of ineffective assistance of counsel, appellant
must show “counsel’s representation fell below an objective standard of
reasonableness,†and “the deficient performance prejudiced the defense.†(Strickland
v. Washington (1984) 466 U.S. 668, 687-688.) Further, “a court need not determine whether
counsel’s performance was deficient before examining the prejudice suffered by
the defendant as a result of the alleged deficiencies.†(Id.
at p. 697.) “Prejudice is shown
when there is a ‘reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ [Citations.]â€
(People v. Sanchez (1995) 12
Cal.4th 1, 41, overruled on a different ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
First, appellant claims trial
counsel was deficient in failing “to request an instruction explaining
self-defense and a pinpoint instruction explaining the circumstances under
which self-defense is available even in cases where a merchant has detained a
person pursuant to … section 490.5, subdivision (f).†We reject this claim based on our conclusion
that it is not reasonably probable a result more favorable to appellant would
have been reached had such instructions been given.
For a similar reason, we reject appellant’s claim that his trial
counsel was deficient for failing to object to the prosecutor’s comments in
closing argument that “[y]ou don’t get self-defense when somebody has the right
to detain you†and “Michael Boyer had a right to detain him and to even use
force in detaining him to prevent the loss of the property. So you don’t get to then claim self-defense.â€
Appellant argues the prosecutor’s comments misstated the law, presumably
because they failed to mention that appellant retained the right to use
self-defense to resist the use of excessive force or to protect himself if he
reasonably believed he was in imminent danger of suffering bodily injury. However, as we concluded above, even if fully
apprised of this particular theory of self-defense, no reasonable jury would
have found appellant was entitled to use self-defense against Boyer under the
circumstances of this case. Accordingly,
appellant cannot show he was prejudiced by counsel’s failure to object to the
prosecutor’s comments.
Finally, appellant contends trial counsel was deficient for failing to
request a continuance or to introduce the preliminary hearing testimony of the
investigating police officer, Chad Ellis, who was unavailable to testify at the
time of trial due to an accident. At the
preliminary hearing, Officer Ellis testified that Boyer reported to him that,
after appellant returned one of the items to him and proceeded to try to leave
the area, Boyer grabbed appellant’s arm and told him he was not free to leave,
and that he wanted him to return the two remaining items on his person. Appellant then started pushing Boyer
backwards in an effort to get away from him.
After reviewing this and the other testimony Officer Ellis gave at the
preliminary hearing, we see no grounds for concluding that there is a
reasonable likelihood that the introduction of such testimony would have made a
difference to the outcome of the trial.
Except for the detail of grabbing appellant’s arm, Officer Ellis’s
testimony was consistent with Boyer’s account of events at trial. We disagree with appellant’s suggestion that
introduction of evidence that Boyer touched appellant first by grabbing his arm
would have had a devastating impact on Boyer’s credibility.
Moreover, Boyer would have been acting well within his rights, under
section 490.5, subdivision (f)(2), to grab appellant’s arm to try to prevent
him from escaping with stolen property.
No reasonable jury would have viewed arm-grabbing as an excessive use of
force entitling appellant to use self-defense to resist Boyer’s rightful
attempt to detain him. Appellant’s
ineffective assistance of counsel claim fails.
The
judgment is affirmed.
name="_ftn1" title="">* Before Hill, P. J., Gomes, J. and
Kane, J.
name="_ftn2" title="">[1] Further
statutory references are to the Penal Code unless otherwise specified.
