Opinion
A149770
10-12-2018
THE PEOPLE, Plaintiff and Respondent, v. DOMEENIC HARRIS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 City & County Super. Ct. No. 225082)
I. INTRODUCTION
Appellant, Domeenic Harris, was convicted of furnishing a firearm to another for the purposes of aiding and abetting the commission of a felony offense and other related crimes. Harris argues the trial court committed structural federal constitutional error when it refused to allow argument from his counsel in closing remarks to the jury about the meaning of beyond a reasonable doubt. He also argues the court's self-defense instruction, CALCRIM No. 3474, was prejudicially erroneous because it suggested withdrawal alone could negate the right to use force, even if the attacker continued to pose a danger. We reject both arguments and thus affirm the judgment.
II. PROCEDURAL BACKGROUND
Harris and a codefendant, Khiri Roberson, were charged with assault with a semiautomatic firearm in violation of Penal Code section 245, subdivision (b), negligent discharge of a firearm in violation of section 246.3, subdivision (a), and a misdemeanor, carrying a loaded firearm in public in violation of section 25850, subdivision (a). Harris was charged with an additional misdemeanor offense of carrying a concealed firearm on his person in violation of section 25400, subdivision (a)(2). The information alleged that Roberson personally used a firearm in the commission of the two felony offenses in violation of section 12022.5, subdivision (a) and that Harris furnished a firearm to another for the purpose of aiding and abetting the commission of those offenses. The information also alleged that Harris committed the offense while released on his own recognizance in another felony case, in violation of section 12022.1, subdivision (b), and that Harris had a prior conviction for robbery which qualified as a strike prior and a serious felony prior.
All subsequent statutory references are to the Penal Code.
The judge granted Harris's motion to bifurcate trial as to the alleged prior convictions and section 12022.1, subdivision (b) allegations. The jury found Harris guilty on all counts but was unable to reach a verdict as to Roberson on any of the charges (with the exception of count IV, the crime of contempt of a court order, in violation of § 166, subd. (a)(4)). The court then declared a mistrial as to Roberson and sentenced Harris to a total term of 16 years in state prison. Execution of sentence was suspended on the condition that Harris complete five years' probation, including a two-year residential treatment program.
This timely appeal followed.
III. FACTUAL BACKGROUND
In November 2015, two San Francisco police officers heard gunshots nearby while on patrol in the Tenderloin neighborhood of San Francisco around 9:00 p.m. and drove toward the location of the gunfire, the area of McAllister and Jones Street. When they arrived there, they saw several individuals running away. The officers could not retrieve much evidence of the shooting but subsequently went to the nearby Islamic Center that had videotape footage of the shooting. The videotape was introduced into evidence at trial and shown to the jury but is not in the record on appeal. According to the record, the videotape showed two men, later identified as Roberson and Carvellous Davis, engaged in a fistfight. The fight then broke up, and Roberson ran toward a man later identified as Harris. Harris handed Roberson a gun, and Roberson stepped back into the street and fired toward Davis as Davis was walking away. Roberson then returned the gun to Harris. A few moments later, Davis obtained a gun and returned fire. After watching the videotape, the officers went to the area shown in the videotape to look for Harris. They found a nine-millimeter FC Luger bullet cartridge on the street. Still on patrol, they saw a group of men standing on the street, including Harris; as the officers stopped their vehicle, one man in the group started walking away. One officer detained Harris while another officer followed the individual who walked away. This individual was detained and in the bag he was carrying was a nine-millimeter semiautomatic pistol, the same caliber as an unfired bullet near the scene of the shooting.
At the beginning of trial, the prosecutor moved to prohibit the defense from " 'restating' the law by substituting words that are different from those used in the instructions." The prosecution specifically requested that defense counsel not be permitted to argue, in the context of the reasonable doubt instruction, that an " 'abiding conviction' " means " 'a conviction that lasts for the rest of your life' or anything similar." The trial court granted the motion. Despite the trial court's ruling on the motion in limine, defense counsel proceeded to define the reasonable doubt standard during closing argument.
[Defense counsel]: What is reasonable doubt? There's a jury instruction that defines reasonable doubt as an abiding conviction.
That's abiding, enduring, everlasting, however you want to call it, proof beyond a reasonable doubt is proof that makes you not think about or second-guess your decision tomorrow, a week from now, a month from now, a year.
[Prosecutor]: Objection, Your Honor. It's misstating the burden of proof.
[The Court]: Sustained; that's not what the jury instruction said. It's an abiding conviction.
[Defense counsel]: Sure. Abiding, everlasting. I think you get the point.
[The Court]: Also misstates. It's stricken. The jury will disregard it.
IV. DISCUSSION
A Parties' Contentions
Harris contends that by striking defense counsel's comment that attempted to further define the reasonable doubt standard, the court suggested the standard does not require a conviction of a "lasting, permanent nature," language used by the California Supreme Court in People v. Brigham (1979) 25 Cal.3d 283, 290. He argues that the court's actions and comments (set out above) lessened the standard of proof required in criminal cases and precluded him from presenting closing argument and that these are structural errors requiring reversal.
Harris also attacks as erroneous the trial court's self-defense instruction, CALCRIM No. 3474, which was read to the jury as follows: "The right to use force in self-defense or defense of another continues only as long as the danger exists or reasonably appears to exist. When the attacker withdraws or no longer appears capable of inflicting any injury, then the right to use force ends." Harris contends this instruction misstated the law because it suggested withdrawal alone could negate the right to use force, even if the attacker continued to pose a danger; in other words, the "or" in the instruction, according to Harris, should have been an "and." Harris further contends that CALCRIM No. 3474 should have been modified based on the unique facts of this case. In his view, this "erroneous instruction requires reversal since under the facts in this case it unfairly lowered the prosecution's burden of proving beyond a reasonable doubt there was no right to self-defense."
The Attorney General counters that in striking counsel's statement in closing argument, the trial judge did not abuse her discretion in preventing counsel from mischaracterizing the reasonable doubt standard because judges have broad discretionary power to impose reasonable limits on argument to ensure that counsel does not "stray unduly from the mark." (Herring v. New York (1975) 422 U.S. 853, 862 (Herring).) In the event this ruling was error, the Attorney General contends it was harmless. With respect to the self-defense instruction, CALCRIM No. 3474, the Attorney General asserts that (1) this instruction was correct, (2) Harris's claim is forfeited because he made no request for modification in the trial court, and (3) the trial court was not required to modify the instruction.
For the reasons discussed below, we conclude that the Attorney General has the better of the argument on both points. B. The Trial Court's Striking of Counsel's Definition of Beyond a Reasonable Doubt was Not Error
1. Sixth Amendment and Limitations
The Sixth Amendment right to counsel includes the "right to have counsel present closing argument to the trier of fact." (People v. Marshall (1996) 13 Cal.4th 799, 854; see also Herring, supra, 422 U.S. at p. 862 ["[F]or the defense, closing argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant's guilt"].)
This right is subject to limitations. Trial judges have broad discretion to limit closing arguments. (Herring, supra, 422 U.S. at p. 862; see also People v. Nails (1963) 214 Cal.App.2d 689, 693, citing Pen. Code, § 1044 ["A trial judge has discretionary power to restrict argument within reasonable limits"].) A judge can control and restrain closing arguments in a criminal case. (Herring, at p. 862.) "The presiding judge must be and is given great latitude in controlling the duration and limiting the scope of closing summations. He [or she] may limit counsel to a reasonable time and may terminate argument when continuation would be repetitive or redundant. He [or she] may ensure that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial." (Ibid.)
2. Beyond a Reasonable Doubt and the Court's Obligation
Few concepts in the law are as well settled—and as familiar to most citizens—as the standard of proof in criminal cases. As the California Supreme Court has explained, "The prosecution's burden of proof in a criminal case is controlled by section 1096 of the Penal Code, the substance of which has, in turn, been incorporated into the standard reasonable doubt instructions, CALJIC No. 2.90 and CALCRIM No. 220." (People v. Aranda (2012) 55 Cal.4th 342, 353.) Specifically, CALCRIM No. 220 defines proof beyond a reasonable doubt as "proof that leaves you with an abiding conviction that the charge is true." The Aranda court held that a court has met its statutory obligation to instruct the jury on the reasonable doubt standard when either CALJIC No. 2.90 or CALCRIM No. 220 is read. (People v. Aranda, supra, 55 Cal.4th at pp. 352-353; see also People v. Pierce (2009) 172 Cal.App.4th 567, 573 ["The phrase 'abiding conviction' does not require definition"].) Here, CALCRIM No. 220 was read to the jury, so the court fulfilled its obligation to instruct on the reasonable doubt standard.
But the fact that proof beyond a reasonable doubt is a familiar concept does not mean it is understood by most jurors with accuracy and that, if either side in a criminal case takes liberties in argument with what it means, potential problems are somehow self-correcting. Here, we think that counsel did misstate the burden of proof. A conviction that abides is one that "would not change, through the end of the trial when the jury rendered its verdict in open court." (People v. Pierce, supra, 172 Cal.App.4th at p. 573.) This does not mean, however, a particular juror has to remain convinced long after the trial is over. (See ibid. ["The possibility that after the conclusion of the case one or more jurors might change their minds after learning something new is irrelevant"].) In light of the court's broad discretion to limit and redirect closing argument (Herring, supra, 422 U.S. at p. 862), both the in limine ruling and the judge's first interjection (correcting counsel's use of the "a month from now, a year" language) were within her discretion because counsel's language was misleading. The judge's second interjection (correcting counsel's use of "everlasting" and using the word "misstates") was also within her discretion, especially within the context of counsel's and the court's earlier remarks. Indeed, we would go further: given the fundamental importance of the concept of proof beyond a reasonable doubt to a criminal trial, it would have been error not to correct counsel's misstatements of law. C. Self-Defense Jury Instruction, CALCRIM No. 3474
Counsel said in closing argument, "enduring, everlasting . . . proof beyond a reasonable doubt is proof that makes you not think about or second-guess your decision tomorrow, a week from now, a month from now, a year."
A trial court must instruct the jury on all general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) More specifically, "the right of self-defense is based upon the appearance of imminent peril to the person attacked. When the danger has passed and the attacker has withdrawn, there can be no justification for the use of further force." (People v. Perez (1970) 12 Cal.App.3d 232, 236 (Perez).) The Perez court stated, "The right to have a jury instructed on self-defense must be based upon more than imagined facts or inferences [citation], and it is not error in any event to refuse to instruct on a defense theory not supported by the evidence. [Citation.]" (Ibid.; see also People v. Smith (1981) 122 Cal.App.3d 581, 590 (Smith).)
Harris cites People v. Ramirez (2015) 233 Cal.App.4th 940, 943 for the proposition that in some cases, a self-defense jury instruction that otherwise states the proper law can constitute prejudicial error as applied in that particular case. In Ramirez, defendant, a member of the street gang known as La Sierra Brown Knights, was convicted of first degree murder. (Id. at pp. 943-944.) For some time, defendant had been harassed by members of another gang, Tiny Winos (TW). (Id. at p. 944.) To end the harassment, defendant and two companions planned to confront the TW members and merely engage in a fight. (Ibid.) Defendant did not intend to shoot anyone. (Ibid.) Upon arriving at the apartment complex where they hoped to find a certain TW member, defendant and his companions found six or seven TW members, and a fistfight broke out immediately. (Ibid.) Defendant stepped back from the fighting, and one of the TW members followed him. (Id. at p. 945.) Defendant testified that it looked like the gang member had a gun in his hand and that the gang member raised his hand toward defendant as he approached. (Ibid.) Defendant then pulled his gun from his sweatshirt pocket and fatally shot the gang member. (Ibid.) At trial, the court's self-defense instruction, CALCRIM No. 3472, read, "[a] person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use force."
On appeal, the appellate panel held this instruction was erroneous and thus constituted reversible error because the instruction made no distinction as to the type of force and made no inquiry as to whether the adversary suddenly escalated with deadly violence. (People v. Ramirez, supra, 233 Cal.App.4th at p. 945.) The panel stated that this jury instruction was a misstatement of the law because, in effect, it stated if a person plans or provokes a fistfight, he or she cannot use deadly force to defend himself or herself when the opponent suddenly uses a gun or knife. (Id. at p. 947.) The panel explained that a person who plans to start a fistfight or provoke a nondeadly quarrel does not forfeit his right to live. (Id. at p. 943.) And because the jury instruction misstated the law, the panel could not definitively say beyond a reasonable doubt that the jury would have reached the same conclusion had they been told the proper law; thus the court reversed the judgment. (Id. at p. 953.)
Ramirez is distinguishable. There, the jury could have misunderstood the instruction to mean an aggressor never has the right to self-defense. The defendant there shot the TW gang member only after he approached him and pointed a gun at defendant. (People v. Ramirez, supra, 233 Cal.App.4th at p. 945.) Here, however, the timeline of events is completely different, and it seems that any misunderstanding by the jury did not harm Harris. Even if a defendant retains the right to act in self-defense when the victim flees but then returns with a gun (as Davis did here), that is not when Roberson actually fired at Davis. Roberson fired when Davis was walking away. It cannot be said that a defendant has the right to shoot at a fleeing victim just because there is a possibility the victim could return later. If this were the rule, there would be no significance in the "withdrawal" aspect of self-defense jurisprudence, as it is always possible a person withdrawing from a fight could return later.
Harris contends that the jury instruction should have been conjunctive rather than disjunctive (i.e., it should have been modified to read, "When the attacker withdraws and no longer appears capable of inflicting any injury, then the right to use force ends"). Harris cites three cases in support of this proposition, People v. Keys (1944) 62 Cal.App.2d 903 (Keys), Perez, supra, 12 Cal.App.3d 232, and Smith, supra, 122 Cal.App.3d 581. These cases do not assist Harris. While he is correct that all three of the cases cite the rule conjunctively (i.e., using "and" and not "or"), all three cases involved the defendant attacking or shooting the victim from behind (see Smith, at p. 585 [victim attacked from behind with a club]; see also Perez, supra, at p. 234 [defendant attacked police officer from behind, hitting him on the head with a stool]; see also Keys, at p. 908 [defendant shot victim from behind as victim was running away]), and all three courts affirmed the convictions. (Smith, at p. 593; Perez, at p. 236; Keys, at p. 917.)
The language in Keys, supra, 62 Cal.App.2d at p. 916 reads, "When that [imminent] danger has passed and when the attacker has withdrawn from the combat, the defendant is not justified in pursuing him further and killing him, because the danger is not then imminent, and there is no apparent necessity to kill to prevent the death of or serious bodily injury to the defendant." Perez, supra, 12 Cal.App.3d at p. 236 and Smith, supra, 122 Cal.App.3d at p. 590 both read, "When that danger has passed and the attacker has withdrawn, there can be no justification for the use of further force."
Of the three cases upon which Harris relies, Keys is worth elaborating upon because the facts presented there were fairly close to what we have here. In Keys, defendant and the victim were adjoining property owners who became embroiled in a land use dispute, the impetus for their quickly destroyed relationship. (Keys, supra, 62 Cal.App.2d at pp. 906-907.) Defendant admitted shooting the victim three times. He claimed that he acted in self-defense after the victim shot at him in an open field. The third, fatal shot was fired while the victim was running away from defendant. (Id. at p. 908.) Defendant argued that the instructions constituted prejudicial and reversible error. (Id. at pp. 905, 910.) In affirming the conviction, the Court of Appeal held that there was no miscarriage of justice in giving the instructions, and that while it was error to give some of the instructions, it was not prejudicial error because the danger to defendant was not imminent. (Id. at p. 917.)
The Keys court saw the following as determinative: (1) the victim was running away when the fatal shot was fired, (2) the victim was shot in the back, (3) the markings on the ground around the victim's body (i.e., physical evidence) indicated that he was running away from defendant when the fatal shot was fired, (4) defendant himself admitted that the victim was retreating when he fired the fatal shot, and (5) sufficient time elapsed between each of the shots so that defendant could observe the effect of each and could see that the victim was running away from him when the second and third shots were fired. (Keys, supra, 62 Cal.App.2d at pp. 908, 916.) The court stated that with all this evidence, "we fail to understand how any intelligent jury could have found the defendant not guilty. Certainly, this establishes that [the victim] had abandoned the conflict and was running away when defendant killed him. Thus, danger to defendant was not imminent and under the law of self-defense he had no right to take the life of [the victim]." (Id. at pp. 916-917.)
If the facts of Keys, supra, 62 Cal.App.2d 903 were not enough to persuade the Court of Appeal to find prejudicial error there, we are even more inclined to affirm here. Keys suggests that the "danger has passed" when the victim is fleeing, notwithstanding the victim's possession of a gun. (Id. at p. 916.) The victim in Keys had a gun (and presumably, the officer in Perez, supra, 12 Cal.App.3d 232 did, too). (Keys, at p. 907.) In fact, the victim in Keys fired the first shot, which one would think would have strengthened defendant's case, yet his conviction was nonetheless affirmed. (Ibid.) Therefore, here, even less credence can be given to Harris's claim that the danger was still imminent because Davis (eventually) had a gun and "was therefore 'capable of inflicting any injury.' " Davis was shirtless and unarmed, he did not shoot first, he was proceeding to walk away when Roberson fired at him, and it was only after Roberson's shot that Davis obtained a gun to return fire. Davis's back was to Harris and Roberson just like all three of the victims in the aforementioned cases. Davis's retreat establishes that he "abandoned the conflict and was running [or walking] away." (Keys, at p. 916.) Finally, just as the Keys court emphasized that sufficient time elapsed between the shots so that defendant could observe the effect of each and could see that the victim was running away, similarly, here, we find the fact that Roberson had time to run toward Harris, obtain a gun from him, and then return to the street to fire at Davis was sufficient time for Roberson to observe the effect of his actions and also see that Davis was retreating. Consequently, the danger to Harris and Roberson was not imminent, and under the law of self-defense Roberson had no right to fire at Davis.
Because we reject Harris's claim of instructional error on the merits, we do not address whether he forfeited this contention.
V. DISPOSITION
The judgment is affirmed.
/s/_________
Streeter, Acting P.J. We concur: /s/_________
Reardon, J. /s/_________
Schulman, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------