Opinion
A156318
09-25-2019
THE PEOPLE, Plaintiff and Respondent, v. LAVONNDRE HARPER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. Nos. SCN229793; SCN230115) MEMORANDUM OPINION
We resolve this case by memorandum opinion pursuant to the California Standards of Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.)
Defendant Lavonndre Harper (appellant) appeals from a judgment sentencing him to prison for an aggregate term of eight years after the jury convicted him of multiple counts that arose from two separate incidents in which he cut the victim with a knife or machete. He contends that one battery count arising from the first incident must be reversed because the court did not instruct on self-defense. We affirm.
I. BACKGROUND
In the early morning hours of February 14, 2018, L.E. was socializing with friends at a single room occupancy hotel in which residents shared bathrooms. She had consumed a few drinks along with some cocaine. L.E. was living as a female but had been born a male and was six foot one and weighed about 190 pounds.
L.E. went into the hallway of the hotel with one of her friends to find the bathroom, and saw a group of men that included appellant in the hallway. She believed her purse hit appellant's back; after reviewing a surveillance tape of the incident at trial, she could see that she had actually tripped and fallen into appellant's back. Appellant said, "This fag touched my ass" or "this faggot touched my ass." Appellant hit L.E. in the face. He then walked into a hotel room and returned with a knife or machete that was 10 to 18 inches long. He held it to L.E.'s jaw and sliced her chin with it. L.E. was jumped by the other men standing with appellant and was robbed (not by appellant). After the attack, she returned to her own apartment and eventually went to the hospital for treatment after realizing the cut was worse than she had thought. She received several sutures to her face.
On August 28, 2018, Andre Johnson came into a liquor store on Eddy Street bleeding from a cut on his neck. Johnson asked for napkins, which the clerk provided, and called the police on his cell phone. Appellant came into the store carrying a knife and told Johnson to come outside. Appellant was apprehended after officers reviewed surveillance camera footage from the store. During his interrogation he told police that Johnson had owed him $700 for a pair of boots and that when he saw him outside a liquor store, he had picked up a stick and "flinched" it at him. Johnson then ran inside.
As to the incident involving L.E., appellant was convicted of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), battery with serious bodily injury (§ 243, subd. (d)), battery (§ 242), and hate crime allegations (§§ 422.7, subd. (a); 422.75, subd. (a)) were found true as to all three counts. As to the incident involving Johnson, appellant was convicted of assault with a deadly weapon (§ 245, subd. (a)(1)), assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4)), battery as a lesser included offense of battery with serious bodily injury (§ 242) and false imprisonment (§ 236) with a knife use allegation (§ 12022, subd. (b)(1)). The court imposed the four-year upper term for the assault with a deadly weapon count involving L.E., plus a consecutive three years for the hate crime allegation attached to that count, and a consecutive term of one year (one-third the middle term) for the assault with a deadly weapon count involving Johnson. Sentence on the remainder of the counts—including the battery count against L.E. at issue in this appeal—was stayed under section 654.
Further statutory references are to the Penal Code.
The true finding on the hate crime allegation elevated the charged battery from a misdemeanor to a wobbler that could be treated as a felony. (§ 422.7, subd. (a); Bench Notes to CALCRIM No. 1355.)
II. DISCUSSION
The counts involving the attack on L.E. include assault with a deadly weapon and battery with serious bodily injury (counts 1 and 2) based on appellant's attack of L.E. with a knife or machete, as well as simple battery (count 3) based on his punching L.E. in the face before he retrieved the weapon. Appellant requested that the court give CALCRIM No. 3470, the standard self-defense instruction, as to the counts involving L.E. On appeal, he abandons any claim that a self-defense instruction was required as to counts 1 and 2, but argues the court prejudicially erred in omitting such an instruction as to count 3. We disagree.
A court must instruct on self-defense when there is substantial evidence to support the defense. (People v. Villanueva (2008) 169 Cal.App.4th 41, 49.) Appellant notes that under the law of self-defense, "an offensive touching, although it inflicts no bodily harm, may nonetheless constitute a battery, which the victim is privileged to resist with such force as is reasonable under the circumstances." (People v. Myers (1998) 61 Cal.App.4th 328, 335.) Appellant argues that even if his use of a knife or machete was an unreasonable response to L.E. falling into him, the jury might have believed that he thought the initial touching was intentional on L.E.'s part and that he punched her to avoid a further offensive touching.
Even if we were to agree that this parsing of the events supported a self-defense instruction as to the simple battery count, the jury rejected this theory of the case when it found true the hate crime allegation attached to that count: "[T]hat the said defendant did commit and attempt to commit the above described felony for the purpose of intimidating and interfering with the victim[']s free exercise and enjoyment of a right secured by the constitution and the laws of the United States and the State of California because of [L.E.]'s sexual orientation and gender identity. . . ." Having found that appellant committed the battery charged in count 3 because he was motivated by L.E.'s sexual orientation and gender identity, the jury necessarily determined he was not acting in self-defense, and any error in failing to give a self-defense instruction on that count was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; see People v. Koontz (2002) 27 Cal.4th 1041, 1086-1087 [failure to instruct on unreasonable self-defense harmless because jury's true finding on robbery-murder special circumstance shows they necessarily rejected that theory]; People v. Clark (2011) 201 Cal.App.4th 235, 251 [since jury's verdict under instructions showed it necessarily rejected claim of self-defense, failure to instruct on that theory was harmless under any standard of review].)
The California Supreme Court has not yet determined the test of prejudice for failure to instruct on an affirmative defense. (People v. Salas (2006) 37 Cal.4th 967, 984.) Published opinions have concluded that the less stringent test of People v. Watson (1956) 46 Cal.2d 818, 836 (reversal only where it is reasonably probable defendant would have received a more favorable result) applies to a failure to instruct on self-defense, rather than the harmless-beyond-a-reasonable-doubt test for federal constitutional error that appellant advocates. (Villanueva, supra, 169 Cal.App.4th at pp. 52-53; People v. Elize (1999) 71 Cal.App.4th 605, 616.) Under either the Chapman or Watson test, reversal is not required.
III. DISPOSITION
The judgment is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
SIMONS, Acting P. J. /s/_________
BURNS, J.