Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC624283
RUSHING, P.J.
Defendant Tony Rogelio Garcia appeals a judgment entered following his conviction after jury trial of second degree murder (Pen. Code, § 187). On appeal, defendant asserts the trial court erred in failing to instruct the jury on defense of others, imperfect defense of others, and that in acting in self defense, defendant had no duty to retreat.
All further statutory references are to the Penal Code.
In this case, both defendant, as well as his sister, Dolores, testified at trial and provided substantial evidence to support jury instructions on defense of others, and imperfect defense of others, yet the trial court refused to so instruct. It is well settled that the trial court cannot remove from the jury a determination of fact, but in refusing to instruct on defense of others and imperfect defense of others in this case the trial court did just that. We reverse.
Statement of the Facts and Case
Though unmarried, defendant’s sister, Dolores, and Anaya had three children together. Defendant lived with Dolores and Anaya from 1998 until 2004, and then again during a period of time in 2006. While he lived with them, defendant got along with both of them. Defendant also witnessed arguments between Anaya and Dolores, and saw Anaya physically abuse Dolores on many occasions.
On the date of the killing, March 19, 2006, Dolores and Anaya had been smoking methamphetamine. Dolores testified at trial that whenever Anaya smoked methamphetamine, he became aggressive and violent. On that day, Dolores and Anaya had been arguing all day.
Dolores testified that at one point during the day, after she told him she was leaving and taking the children with her, Anaya said, “the only way [Dolores] was leaving was in a body bag.” Dolores asked Anaya why he would say that and Anaya responded that “he wasn’t playing, ” and that he was serious. Dolores testified that she knew Anaya kept knives all over the house, including in the garage.
On the date of the killing, Dolores had called defendant’s girlfriend, Samaro and asked her to come over to the house to bring some diapers for the baby. Defendant and Samara arrived at the house after dark. When they got there, Dolores was on the porch and was upset and crying from fighting with Anaya all day. As the three were standing on the porch, Anaya came out of the house and seemed angry. He walked to the side of the house and broke the bedroom window. Anaya and Dolores began to yell obscenities at each other. They both eventually ended up in the bedroom and continued to yell and argue. Defendant knocked on the bedroom door to check to see if everything was alright, and Dolores responded that it was.
Dolores testified that she and Anaya then left the bedroom and continued to argue in the kitchen. Anaya then went into the garage, Dolores followed, and the argument continued. Dolores then left the garage and went into the house to put her daughter to bed. Dolores then heard yelling and what sounded like someone falling against the garage door. Dolores then saw Anaya fall through the garage doorway into the kitchen and defendant came through the doorway holding a knife. Dolores tried to restrain defendant, but she could not, and saw defendant stab Anaya two times on his upper back while Anaya was on the floor. Samara and Dolores both tried to restrain defendant, at which point, Anaya got up and ran out of the house through the front door.
Defendant testified that on the date of the killing, Dolores had called his girlfriend, Samaro a few times. Dolores was upset and told Samaro that she and Anaya had been fighting, and asked that Samaro come and pick her up. Samaro told defendant about this, and he believed Dolores and Anaya were having a “[d]omestic problem.”
When Samaro and defendant arrived at Dolores’s house, they found her sitting on the porch, crying. Defendant found Anaya in the garage sharpening his knife. He saw that Anaya seemed to be high on methamphetamine, and was very shaky and angry. Defendant tried to calm Anaya down.
After trying to calm Anaya, defendant left the garage and told Dolores to “get the kids and let’s go.” Anaya then came out of the garage, walked over to the bedroom window of the house, and broke the window. Anaya and Dolores then went inside the house and began to argue loudly. Defendant heard Anaya tell Dolores, “you ain’t fucking leaving, the only way you are leaving is in a body bag.” Defendant then heard Anaya and Dolores arguing in the garage, and heard “a big bang and then something hit the door.” Defendant saw Dolores holding her face and he believed Anaya had hit Dolores.
Defendant went into the garage and asked Anaya what happened. Defendant said, “[D]id you hit my sister?” Anaya was holding a knife in his hand and said, “[W]hat if I fucking did?” Defendant testified that at this point he was “mad and scared for [his] sister.” Defendant looked around for a weapon and grabbed a knife that was on top of the refrigerator. Anaya, holding his own knife, charged defendant. Anaya and defendant fell onto a couch. Defendant testified that he might have stabbed Anaya while the two were struggling on the couch, but Anaya did not appear to be hurt. The two got up off the couch and began to circle each other. Anaya then rushed toward defendant, causing them both to fall through the door to the kitchen. Defendant began to swing his knife at Anaya to protect himself. After a scuffle, Samaro and Dolores managed to pull defendant away from Anaya.
After having defendant pulled from him, Anaya ran out of the house, yelling that he had been stabbed, and collapsed in the front yard of a house next door. Defendant and Samaro got into their car and left the house.
Anaya was taken to the hospital, where he subsequently died. Anaya had six stab wounds to the abdomen, two on the back and one on the lip. The cause of death was multiple stab wounds to the torso.
In March 2007, an information was filed charging defendant with murder. (§ 187.) The information also alleged defendant personally used a deadly or dangerous weapon in the commission of the murder (§ 12022, subd. (b)(1)). Defendant pleaded not guilty to the charges and the matter proceeded to trial.
Following trial, the jury found defendant guilty of second degree murder, and found the personal use allegation true. Defendant was sentenced to 15 years to life for the murder and a consecutive one year term for the personal use enhancement, for a total of 16 years to life. Defendant filed a timely notice of appeal.
Discussion
Defendant asserts on appeal the trial court erred in failing to instruct on defense of others, imperfect defense of others, and defendant’s duty to retreat.
Standard of Review
“The proper test for judging the adequacy of instructions is to decide whether the trial court ‘fully and fairly instructed on the applicable law.... ‘[Citation.] ‘ “In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole... [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]” ’ [Citation.] ‘Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.’ [Citation.]” (People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112.)
“A trial court must instruct the jury ‘on the law applicable to each particular case.’ [Citations.] ‘[E]ven in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence.’ [Citation.] Therefore, a claim that a court failed to properly instruct on the applicable principles of law is reviewed de novo. [Citations.] In conducting this review, we first ascertain the relevant law and then ‘determine the meaning of the instructions in this regard.’ [Citation.] (People v. Martin, supra, 78 Cal.App.4th at p. 1111.)
Defense of Others Instructions
Defendant contends the court erred in failing to instruct the jury on the concepts of defense of others, and imperfect defense of others.
As background, the concepts of self-defense and defense of others are codified in the Penal Code’s definition of justifiable homicide as a killing committed by a person “[w]hen resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person;” or “in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished.” (§ 197.)
Both self-defense and defense of others render a killing justifiable and not unlawful; therefore, they are complete affirmative defenses to a murder charge. (§§ 187, 197, 198.) However, when a defendant believes in the need to defend others from imminent harm, but that belief is unreasonable, the defendant is not entirely exculpated by the belief in the need to defend. Instead, the unreasonable belief in the need to defend negates the element of malice required for a murder and makes the resulting homicide a voluntary manslaughter. (People v. Blakeley (2000) 23 Cal.4th 82, 88 [“A person who intentionally kills in unreasonable self-defense lacks malice and is guilty only of voluntary manslaughter, not murder.”].) As types of voluntary manslaughter, unreasonable self-defense and unreasonable defense of others are considered not affirmative defenses, but lesser included offenses of murder. (People v. Barton (1995) 12 Cal.4th 186, 200-201.)
Here, defendant requested the court instruct the jury on defense of others and imperfect defense of others. The court declined the request, stating: “[T]here is nothing in the offer of proof that you have provided that would give rise to a legitimate defense of defense of others. There is no imminence of any threat to Dolores, and it’s irrelevant in this case in any event, because it is very clear from the offer of proof that has been made that the actual defense here, if there is any, based on the facts, is self-defense. And so threats made against Dolores unaccompanied by acts of physical violence are not relevant to the circumstances in the defendant’s state of mind with respect to his fear for his own safety at the time he was allegedly attacked by the victim with a knife.”
The judge’s statement above was made before the evidence was even adduced, and shows a pre-judgment thereof entirely inconsistent with the court’s duty to listen to the evidence and instruct thereon. The state of the record at the conclusion of the evidence shows that there was a threat of imminent harm to Dolores. This is supported by the testimony of witnesses who were actually present-Dolores and defendant. Whether these witnesses were telling the truth is entirely for the jury to decide.
It was also plainly error for the judge to adjudicate the factual element of imminence. The events leading to Anaya’s death occurred in a very brief time, beginning with the arguments in the bedroom and the garage, Anaya’s knife sharpening in the garage, defendant arming himself, and the fight ensuing. Dolores was present at all of these points, and the threat to her, as far as the record shows, was continuous.
The trial court erred when it did not instruct the jury on the affirmative defense of reasonable defense of others as requested. The trial court is required to instruct the jury on an affirmative defense requested by a defendant if there is substantial evidence to support the instruction. (People v. Stevenson (1978) 79 Cal.App.3d 976, 985 [“When such an instruction is requested by the defendant, the trial judge’s task is quite different from that required for sua sponte instructions. By the defendant requesting the instruction, the court knows that the defendant is relying on that defense. Its inquiry then focuses on the sufficiency of such evidence.”]; People v. Elize (1999) 71 Cal.App.4th 605, 614 [“when evidence supports a defense and the defendant ‘relies’ on that defense and requests an instruction on it, the instruction should be given”].)
In addition, the court should have instructed the jury on the lesser included offense of voluntary manslaughter in defense of another. A trial court has a sua sponte duty to instruct the jury on lesser included offenses such as the unreasonable belief in the need to defend others, “whether or not instructions are requested by counsel, whenever there is evidence substantial enough to merit consideration by the jury that under this doctrine the defendant is guilty of voluntary manslaughter.” (People v. Michaels (2002) 28 Cal.4th 486, 529 (Michaels).) Moreover, our Supreme Court has stated, “[o]ne who kills in imperfect self-defense of others-in the actual but unreasonable belief he must defend another from imminent death or great bodily injury-is guilty of manslaughter, not murder, because he lacks the malice required for murder. [Citations.]” (People v. Randle (2005) 35 Cal.4th 987, 996-997.)
Although the court’s instructional obligations vary by whether an instruction was requested and whether it concerns a lesser included offense or affirmative defense, one common principle underlies these duties-a court need only give jury instructions that are supported by substantial evidence. (In re Christian S. (1994) 7 Cal.4th 768, 783 [“ ‘[a] trial court need give a requested instruction concerning a defense only if there is substantial evidence to support the defense’ ”]; People v. Breverman (1998) 19 Cal.4th 142, 162 [“the existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury”].)
The belief in the need to defend another person, whether reasonable or unreasonable, requires that the defendant believe that the other person is in imminent danger of serious bodily injury and that lethal force is necessary to prevent death or great bodily injury. (Michaels, supra, 28 Cal.4th at p. 530.) “Fear of future harm-no matter how great the fear and no matter how great the likelihood of the harm-will not suffice. The defendant’s fear must be of imminent danger to life or great bodily injury. ‘ “[T]he peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with. “... [¶] This definition of imminence reflects the great value our society places on human life.” (In re Christian S., supra, 7 Cal.4th at p. 783.)
Here, there was substantial evidence that the defendant actually believed both Anaya intended to commit a violent act against Dolores, and that there was imminent danger of the crime being accomplished at the time he killed Anaya. Accordingly, the evidence supported instructions on defense of others, and imperfect defense of others.
The evidence at trial showed that on the date of the killing, both Anaya and Dolores were under the influence of methamphetamine, and had been arguing most of the day. Defendant testified that he lived with Anaya and Dolores in the past, and saw that when the two used methamphetamine, Anaya was physically abusive toward Dolores, often holding her down on the bed and choking her, and pushing her. In addition, defendant knew Anaya had a history of domestic violence, including convictions involving crimes against Anaya’s former wife.
Defendant testified that on the date of the killing, he went to Anaya and Dolores’s house and found her crying and upset from having argued with Anaya all day. Defendant testified that he understood this to mean that there was a domestic problem at the house and that Dolores needed his help.
The evidence showed that Anaya and Dolores had been arguing most of the day of the killing, and that Anaya was under the influence of methamphetamine, and was behaving in an aggressive and irrational way. Defendant testified that while Anaya and Dolores were arguing, defendant heard Anaya threaten Dolores by stating that “the only way [she] was leaving was in a body bag.”
Defendant entered the garage immediately after he heard Anaya threaten Dolores that she would only leave in a “body bag, ” and found Anaya sharpening a knife. Anaya kept many knives around the house, including in the garage. When defendant entered the garage, he was scared for his sister, and took action to prevent Anaya from harming her.
There was substantial evidence at trial showing that defendant believed Anaya presented a risk of death or great bodily injury to Dolores. (People v. Uriarte (1990) 223 Cal.App.3d 192, 197 (Uriarte) [“defendant must honestly (if unreasonably) believe that serious injury is imminent and that lethal force is necessary”].) Accordingly, a defense of others jury instruction was warranted in this case.
The facts of the present case can be readily distinguished from cases in which the defense of others instruction was not warranted. For example, in Uriarte, the court determined that an unreasonable defense of others instruction was not warranted where the delusional defendant shot his neighbors in the belief that they were holding his hospitalized wife hostage because there was no evidence that he believed she was in imminent danger or that it was necessary to shoot the victims to save her. (Uriarte, surpa, 223 Cal.App.3d at pp. 197-198.) Similarly, in Michaels, the court found that an instruction on defense of others was not appropriate because at the time of the killing, the person allegedly in danger of harm was detained and the decedent was asleep at home. (Michaels, supra, 28 Cal.4th at pp. 530-531.)
Here, unlike the Uriarte and Micheals cases discussed above, the evidence at trial showed that defendant believed there was a real and imminent threat of harm to Dolores that Anaya was capable of carrying out at that time. Defendant heard Anaya specifically threaten Dolores that she was only leaving him in a “body bag, ” and when defendant immediately responded to that threat by approaching Anaya, defendant found him sharpening a knife. These facts coupled with defendant’s knowledge of Anaya’s history of domestic violence convictions with other victims, and past violence against Dolores, as well as Anaya’s methamphetamine intoxication and erratic and aggressive behavior on the date of the killing caused defendant to believe Anaya posed an imminent threat to Dolores, and that lethal force was necessary to prevent it.
Based on the evidence produced at trial, we conclude the court erred in refusing to instruct the jury on defense of others and imperfect defense of others.
Prejudice
While defendant asserts we should evaluate prejudice from the court’s error in this case under the “harmless beyond a reasonable doubt” standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), we note that error in failing to instruct on a defense such as defense of others is subject to the harmless error test set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (See e.g., People v. Randle, supra, 35 Cal.4th 987, 1003 [imperfect defense of others]; People v. Blakeley, supra, 23 Cal.4th 82, 93 [unreasonable self defense].) In cases involving the court’s sua sponte duty to instruct regarding lesser included offenses, the California Supreme Court has concluded “that in a noncapital case, error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under” the Watson standard. (Breverman, supra, 19 Cal.4th at p. 178.) Articulating that standard, the court explained that a “conviction of the charged offense may be reversed in consequence of this form of error only if, ‘after an examination of the entire cause, including the evidence’ (Cal. Const., art. VI, § 13), it appears ‘reasonably probable’ the defendant would have obtained a more favorable outcome had the error not occurred [citation].” (Ibid., fn. omitted.)
Applying the Watson standard, which is less rigorous than the “harmless beyond a reasonable doubt, ” we conclude that the error in failing to instruct with defense of others and imperfect defense of others was prejudicial in this case. Appellate review under Watson “focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.” (Breverman, supra, 19 Cal.4th at p. 177.) “There is a reasonable probability of a more favorable result within the meaning of Watson when there exists ‘at least such an equal balance of reasonable probabilities as to leave the court in serious doubt as to whether the error affected the result.’ ” (People v. Mower (2002) 28 Cal.4th 457, 484, citing Watson, supra, 46 Cal.2d at p. 837.)
In considering the evidence presented at trial, we cannot conclude that that there is no reasonable probability the court’s failure to instruct on defense of others and imperfect defense of others “affected the result.” (Breverman, supra, 19 Cal.4th at p. 177.) Specifically, the evidence supporting the existing conviction for second degree murder is not “so relatively strong” such that there is not a reasonable probability that had the jury been instructed with the concepts of defense of others and imperfect defense of others it would have reached a different result. Simply put, we find the evidence at trial created “at least such an equal balance of reasonable probabilities” that we are in serious doubt as to whether the court’s failure to instruct in this case affected the result. (Watson, supra, 46 Cal.2d at p. 837.)
No Duty to Retreat
The trial court omitted the language in the self-defense instruction regarding the duty to retreat when acting in self-defense. Specifically, the self-defense instruction as given in this case omitted the following language: “A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself and, if reasonably necessary, to pursue an assailant until the danger of (death/great bodily injury...) has passed. This is so even if safety could have been achieved by retreating.” (CALCRIM No. 505.)
Why the court failed to include the “no duty to retreat” language in the self-defense instruction is inexplicable. The record shows the prosecutor asked the defendant twice on cross-examination why he, in the garage, did not walk away when Anaya menaced him with a knife. When the knife fight moved from the garage to the kitchen, two of Anaya’s wounds were in the back. The jury not being told that defendant had a lawful right to pursue, could have concluded that he should have withdrawn, a point the prosecutor stressed in his cross-examination of the defendant.
CALCRIM No. 505 as submitted to the court by the district attorney omitted the “no duty to retreat” paragraph. Whether this was intentional or merely an oversight cannot be discerned from the record. No matter which, the court had a clear duty to give it notwithstanding its absence from the submitted instruction. No pertinent argument for not including the “no duty to retreat” language in the self-defense instruction can be seen in this record, and the court’s failure to include it was clear error.
Prejudice
In applying the Watson standard of prejudice as stated above to the facts of this case, we can easily see there is a reasonable probability defendant would have received a different, more favorable result had the “no duty to retreat” language been included in the instruction. The record presents us with “‘at least such an equal balance of reasonable probabilities as to leave [us] in serious doubt as to whether the error affected the result.’ ” (People v. Mower, supra, (2002) 28 Cal.4th 457, 484, citing Watson, supra, 46 Cal.2d at p. 837.)
Disposition
The judgment is reversed.
I CONCUR
ELIA, J.
I CONCUR IN THE JUDGMENT ONLY
BAMATTRE-MANOUKIAN, J.