Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC507199
OPINION
McAdams, J.
Defendant Jeffrey Hobbs was convicted by jury of one count of felony assault with a deadly weapon against Billy Cardoso (Pen. Code, § 245, subd. (a)(1)) and one count of misdemeanor battery (§§ 242/243, subd. (a)) against Cindy Rosengarten. In a bifurcated proceeding, the court found true enhancement allegations that defendant had suffered two prior convictions under the Three Strikes law (§§ 667. subds. (b)-(i); 1170.12), two prior serious felony convictions (§ 667, subd. (a)), and one prior prison term (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise stated.
At sentencing, the court granted defendant’s motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike his strike priors. The court imposed the three-year midterm on the assault with a deadly weapon count, plus 10 years for the two prior serious felony convictions and one year for the prison prior, for a total term of 14 years in state prison. The court sentenced defendant to 90 days in jail on the misdemeanor battery count and held that defendant had already satisfied that sentence.
On appeal, defendant contends the trial court erred when it refused his request to instruct the jury regarding self-defense. We conclude there was insufficient evidence to support giving a self-defense instruction and affirm the judgment.
Facts
Prosecution
Around 7:00 p.m. on September 4, 2005, Tanya Rollins heard a woman screaming “Help” from across the street. Rollins stepped outside and saw defendant and Cindy Rosengarten, his live-in caregiver, fighting over an object that looked like a stick. They were standing in front of defendant’s pick-up truck, which was parked in the driveway of his home.
Rollins’ husband, Patrick Rollins (Patrick), heard Rosengarten screaming “Leave me alone,” and “Help.” He walked outside to find out what was happening and heard Rosengarten scream, “Let me go.” He saw defendant holding onto Rosengarten with one arm around her waist and his hand raised. Defendant was up against the driver’s side door of the pick-up truck; Rosengarten was in front of him with her back to him. Defendant was leaning on her back with his weight on top of her. Patrick could not recall whether defendant had an object in his hand.
For ease of reference, we shall hereafter refer to the Rollinses by their first names.
Patrick told his wife to go inside the house. As Tanya went inside, she yelled that she was going to call the police. Patrick followed her inside, got the phone, dialed 911, and walked back outside. When he returned, defendant was still holding onto Rosengarten and she was struggling to get free.
Sixteen-year-old Billy Cardoso lived next door to the Rollinses. He was outside washing his mother’s car when he heard Rosengarten screaming, “Help. This guy is crazy.” He looked up and saw defendant poking Rosengarten with his cane, “pushing it at her hard.” According to Cardoso, Rosengarten was on the ground and defendant was standing.
Cardoso ran inside his house and told his mother to call 911. He ran into his room, got a baseball bat, and went back outside. He grabbed the bat to protect himself because defendant had a cane and was already hitting someone with it. Cardoso had also heard about a prior incident when defendant hit someone with a candle with “glass on it.” Cardoso ran across the street toward defendant’s house. He said something to the effect of, “Leave her alone you fucking asshole.”
As Cardoso approached defendant’s driveway, he saw defendant get into his Ford F-150 pick-up truck. Defendant started the truck, put it into reverse and “started burning out” of the driveway. According to Cardoso, the tires were spinning and screeching and could not get traction. Cardoso saw smoke come off the tires and defendant left a 20- to 25-foot long skid mark in the driveway. When the truck started backing up, Cardoso was standing on the curb between some shrubs that were in the planting strip in front of defendant’s house. As the truck backed out, Cardoso stepped into the street, closer to the corner, about two feet from the curb. He was holding the bat in his right hand, with it pointed toward the ground. He looked at the truck and made eye contact with defendant. Cardoso was yelling at defendant in a loud, angry voice. He thinks he told defendant to “get out of the fucking truck.”
Defendant put the truck in drive and headed right at Cardoso at a high rate of speed. Cardoso estimated the truck was eight feet in front of him when it started moving forward. Defendant turned right at the corner, without stopping at the stop sign. Cardoso had to jump onto the curb to avoid being run over by the truck. If he had not moved, the truck would have hit him. Patrick corroborated Cardoso’s testimony that he had to jump onto the curb to avoid being hit by defendant and testified that defendant drove through the spot where Cardoso had been standing. On cross-examination, Cardoso testified that on a prior occasion he had accidentally shot defendant’s truck with a paint ball gun and that he believed defendant knew about it.
Campbell Police Officer David Livingston arrived after defendant had left. Rosengarten was crying, visibly shaking, and very upset. As he spoke to Rosengarten, her cell phone rang. It was defendant. Defendant told the officer, “If I would have caught the guy with the bat, I’ll tear [sic] his fucking head off.” Defendant sounded very upset and agitated and alternated between crying and anger. The officer asked defendant to return so he could speak with him. Defendant responded, “Fuck you. I’m not coming back. You’re going to have to find me.”
Defense Case
Bret Erickson, co-owner of the paving company where defendant worked, testified that defendant has open wounds and blisters on his right leg and gets around the office in a wheelchair or with a cane. Defendant does not have mobility in his ankle and uses his entire leg when he drives to operate the accelerator or apply the brakes. Consequently, his acceleration when driving the truck is abrupt and heavy-footed. Defendant did not testify.
In closing, defendant argued that as he was trying to get into the truck, he fell over and had to put his weight on Rosengarten. He decided to get into his truck and leave to avoid further confrontation with her. Defendant argued that when Cardoso was standing on the curb with a bat, yelling obscenities at defendant, defendant did the “reasonable” thing and left.
Discussion
Defendant contends the trial court erred prejudicially when it refused his request to instruct the jury on self-defense. The Attorney General argues that the court did not err because there was no factual support for the instruction and that even if there was error, it was harmless.
The trial court must instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request. This obligation requires instructions on defenses, with reservations not applicable here, when they are supported by substantial evidence. (People v. Oropeza (2007) 151 Cal.App.4th 73, 78 (Oropeza) citing People v. Barton (1995) 12 Cal.4th 186, 195.)
In this context, substantial evidence means evidence that is sufficient to deserve consideration by the jury and from which a jury composed of reasonable persons could conclude that the particular facts supporting the instruction existed. The trial court is not required to instruct on defense theories the jury could not reasonably find to exist. (Oropeza, supra, 151 Cal.App.4th at p. 78, citing People v. Wickersham (1982) 32 Cal.3d 307, 324, disapproved of on other grounds in People v. Barton, supra, 12 Cal.4th at pp. 200-201.) “Although a trial court should not measure the substantiality of the evidence by undertaking to weigh the credibility of the witnesses, the court need not give the requested instruction where the supporting evidence is minimal and insubstantial. Doubts as to the sufficiency of the evidence should be resolved in the accused’s favor.” (People v. Barnett (1998) 17 Cal.4th 1044, 1145, fn. omitted.)
On appeal, we review the question whether the trial court erred in failing to instruct on the defendant’s defenses de novo. (Oropeza, supra, 151 Cal.App.4th at p. 78, citing People v. Waidla (2000) 22 Cal.4th 690, 739.)
At trial, defense counsel asked the court to instruct the jury on self-defense. Defense counsel requested the “one basic one,” which the parties agree referred to the Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 3470. The court asked defense counsel what the evidence was that entitled defendant to a self-defense instruction. Defense counsel argued that because of defendant’s disabled leg, he would have been subjecting himself to potential harm if he had gotten out of the truck and not driven away. He argued that Cardoso was holding a bat and yelling profanities at defendant in an angry way.
CALCRIM No. 3470 provides in relevant part: “Self-defense is a defense to [assault with a deadly weapon]. The defendant is not guilty of [that crime] if [he] used force against the other person in lawful self-defense . . . . The defendant acted in lawful self-defense if: [¶] 1. The defendant reasonably believed that he . . . was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully]; [¶] 2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of violence to [himself]. Defendant’s belief must have been reasonable and [he] must have acted because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful self-defense . . . . [¶] When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed. [¶] The defendant’s belief that [he] was threatened may be reasonable even if [he] relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true. [¶] If you find that [Cardoso] threatened or harmed the defendant [or others] in the past, you may consider that information in deciding whether the defendant’s conduct and beliefs were reasonable. [¶] If you find that the defendant knew that [Cardoso] had threatened or harmed others in the past, you may consider that information in deciding whether the defendant’s conduct and beliefs were reasonable. [¶] [ Someone who has been threatened or harmed by a person in the past is justified in acting more quickly or taking greater self-defense measures against that person.] [¶] [A defendant is not required to retreat. He . . . is entitled to stand his . . . ground and defend himself . . . and, if reasonably necessary, to pursue an assailant until the danger of [bodily injury] has passed. This is so even if safety could have been achieved by retreating. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense . . . . If the People have not met this burden, you must find the defendant not guilty of [assault with a deadly weapon].”
The prosecutor argued there was no evidence that defendant thought he was in immediate peril. No one had testified that defendant felt threatened and defendant had not testified that he thought he was in danger. The prosecutor also argued that one cannot fire a bat and defendant could have driven the other way. The court asked, “[H]ow is he defending himself?” and observed that Cardoso was outside the truck and defendant was inside the truck and had the ability to drive wherever he wanted. The court stated, “I’m not aware of any instruction that says that if there is a confrontation, you then avoid the confrontation by driving off and that’s self-defense.” Defense counsel stated there was a case on point and asked for an opportunity to brief the case. The court gave counsel an opportunity to brief the case.
When the court took up the issue the following morning, there was no mention of the case or any argument on the issue. The only reference to self-defense instructions came when the court struck the self-defense language in CALCRIM Nos. 875 (Assault With a Deadly Weapon) and 915 (Simple Assault) and removed CALCRIM Nos. 3470 (Right to Self-Defense) and 3472 (Right to Self-Defense: May Not Be Contrived) from the packet of jury instructions.
When the court instructed the jury, it did not read the self-defense language in CALCRIM No. 960 (Simple Battery), the instruction on the battery count against Rosengarten. However, the court neglected to strike the self-defense language from the written instruction that was given to the jury. The court’s oversight is of no consequence, since defendant does not challenge the instructions on the battery count and the reference to self-defense in CALCRIM No. 960 is limited.
Defendant argues there was ample evidence that supported giving a self-defense instruction and that he was denied his constitutional right to present a defense. We begin by reviewing the elements of self-defense.
“ ‘To justify an act of self-defense for [an assault charge under … section 245], the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him.’ ” (People v. Minifie (1996) 13 Cal.4th 1055, 1064.) The subjective elements of self-defense require that the defendant must actually believe in the need to defend himself against imminent peril to life or great bodily injury. To require instruction on the theory of self-defense, there must be evidence from which the jury could find that appellant actually had such a belief. (Oropeza, supra, 151 Cal.App.4th at p. 82, citing People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262.)
The threat of bodily injury must be imminent and any right of self-defense is limited to the use of such force as is reasonable under the circumstances. (People v. Minifie, supra, 13 Cal.4th at p. 1064.) The right of self defense does not extend beyond the time of real or apparent danger. (People v. Pinholster (1992) 1 Cal.4th 865, 966.)
We first examine the evidence regarding the subjective element of the defense, whether there was evidence from which the jury could find that appellant actually believed in the need to defend himself against imminent peril to life or great bodily injury. (Oropeza, supra, 151 Cal.App.4th at p. 82.) Defendant argues that a jury could have found that he “reasonably believed he was in danger from the advancing . . . Cardoso.” Defendant asserts he saw Cardoso shouting profanities at him while running across the street with a bat. Defendant argues that he immediately got into his truck and that after he started the truck, Cardoso stood in his path yelling and cursing and waving the bat. There was evidence that Cardoso had previously vandalized defendant’s truck by shooting a paintball at it. Defendant argues that the jury could have inferred that this act of vandalism caused defendant to fear Cardoso. Defendant also argues that the jury could have concluded that defendant reasonably believed he was in danger since his mobility was impaired due to his disability.
We begin by noting that defendant did not testify and made no out-of-court statements that were in evidence that indicated he believed it was necessary to use his Ford F-150 pick-up truck as a weapon to defend his life or avoid great bodily injury. No witnesses testified that defendant appeared fearful behind the wheel or that he drove his truck the way he did out of fear. When defendant spoke with Officer Livingston, he did not say he was afraid of Cardoso. Instead, he said, “If I would have caught the guy with the bat, I’ll tear [sic] his fucking head off.” He also refused to cooperate with the police and told the officer the police would have to find him. These were hardly the responses of someone who was afraid. Officer Livingston testified that defendant was crying and agitated on the phone but did not say defendant was afraid. Cardoso testified that he made eye contact with defendant as defendant started driving forward toward Cardoso. However, Cardoso did not say defendant appeared to be afraid. When defendant started backing his truck out of the driveway, Cardoso was standing in a small gap between the juniper shrubs on the sidewalk in front of his house. He was not advancing on the truck and hardly presented a threat to defendant at that point. The aggressive manner in which defendant backed his truck out of the driveway and drove it in Cardoso’s direction, as well as his comments to Officer Livingston suggest that defendant directed the truck at Cardoso as an act of aggression, not out of fear. (See Oropeza, supra, 151 Cal.App.4th at p. 82.)
Defendant argues that he used no more force than was necessary to defend against the danger that Cardoso presented. Cardoso held the bat downward, “facing the ground.” Defendant was already safely inside the truck and had a number of escape routes available to him when he drove the truck at Cardoso. There was no reason to drive directly where Cardoso was standing. He could have turned right without getting so close to Cardoso that Cardoso was required to jump up onto the curb to avoid being hit.
On this record, we conclude there was no substantial evidence that defendant actually believed in the need to defend himself against imminent peril to life or great bodily injury that supported a claim of self-defense. We therefore conclude the trial court did not err when it refused defendant’s request for a self-defense instruction.
Disposition
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.