Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR238887
Richman, J.
Defendant, Chad Lodel, was originally charged with murder of Sean Terwilliger with a firearm (Pen. Code, §§ 187, 12022.53, subds. (b), (c) & (d)), as well as attempted murder by firearm (§§ 664, 187, 12022.53, subds. (b) & (c)) and firearm assault on Terwilliger’s companion, Amanda Kindblad, with a personal use enhancement (§§ 245, subd. (a)(2), 12022.5, subd. (a)). He was acquitted of all of those charges and all lesser included offenses on the basis of self-defense and defense of others, standing convicted only of being a felon in possession of a firearm. (§ 12021, subd. (a).) He was sentenced to the aggravated term of three years on that count (§ 18), with a one-year enhancement for a prior prison term (§ 667.5, subd. (b)).
All undesignated statutory references are to the Penal Code.
The only issue on appeal is whether the jury should have been instructed on the doctrine of self-defense as it applies to a felon-in-possession charge. We hold defendant was not entitled to such instruction and affirm the conviction.
FACTS
In light of his acquittal on the most serious charges and his claim that the evidence supported an additional jury instruction, we recite the facts most favorably to defendant, relying primarily on his own testimony. On December 31, 2006, defendant was awakened by pounding on the door of his trailer. His fiancée, Ashlee Barr, looked out the window and told defendant her ex-boyfriend, Sean Terwilliger, was at the door. Terwilliger was the father of Barr’s three-year old son, who was also in the trailer. In addition, defendant’s brother and his girlfriend were in the trailer at the time.
Barr went outside to tell Terwilliger to leave, and an argument ensued. Defendant could see through the window that Terwilliger had hold of Barr’s arm and was pointing a small knife at her face and yelling at her. Defendant, who had heard of prior threats by Terwilliger to kill him, ran to the kitchen and grabbed a.44 magnum revolver from the top of a cupboard. Defendant alone knew the gun was there.
Defendant went outside to tell Terwilliger to leave, but Terwilliger threatened to kill him, along with everyone else in the trailer. Defendant held the gun where Terwilliger could see it, hoping to scare him off, but Terwilliger was not afraid of the gun and lunged at defendant. Barr then pushed Terwilliger, and Terwilliger punched her rapidly several times in the head. Defendant feared Terwilliger was going to grab Barr by the hair and slit her throat. Defendant immediately fired four rounds into Terwilliger’s head, neck, torso and leg. Terwilliger died at the scene.
Defendant then heard someone call out from a car, which had been parked in front of the trailer with the engine running, “You’re a dead mother!” The car took off, then stopped suddenly. Defendant ran out the front gate and fired two shots at the car, fearing that Terwilliger’s companions might try to shoot into his trailer. The car then sped off. Although the back window of her car was damaged, Amanda Kindblad, the driver of the car, was apparently uninjured.
Because the windows of the car were tinted, defendant could not see who was in the car, but he knew Terwilliger was a gang member and ran with a dangerous crowd.
After the shooting, defendant fled and consulted an attorney. Two days after the shooting, he threw the gun into the Sacramento River, and a day or two after that turned himself in to the police.
As noted above, defendant was acquitted of the charges relating to both shooting incidents. The sole issue on appeal relates to the felon-in-possession conviction.
DISCUSSION
Defendant claims the court erred in neglecting to instruct the jury sua sponte on the principles of self-defense as they relate specifically to possession of a firearm by an ex-felon. We reject this argument because the length of time that defendant admittedly possessed the gun made a self-defense theory unavailable as a matter of law.
The Supreme Court first recognized self-defense in this context in People v. King (1978) 22 Cal.3d 12 (King). In that case, the defendant was at a birthday party when a fight broke out between an uninvited guest and the guest of honor. (Id. at p. 16.) As the two men fought outside the apartment, several friends of the uninvited guest swarmed in front of the apartment, fighting, shouting, and trying to break into the apartment. (Id. at pp. 16-17.) Defendant was injured when one of the party crashers threw a hibachi grill through the window. (Id. at p. 18.) Inside the apartment with the defendant were a handful of other guests, mostly women, and a disabled man. (Id. at p. 17.) Those inside the apartment were “near hysteria” and had called the police, but the police had not yet arrived. (Id. at p. 26; see also id. at pp.17-18.)
As defendant went outside to confront the party crashers, a woman pulled a handgun from her purse and handed it to him. (King, supra, 22 Cal.3d at p. 18.) He took it with him and fired several shots into the air to disperse the crowd. (Ibid.) Although they initially retreated, the uninvited guests then regrouped and again surged toward the apartment door. (Ibid.) The defendant again fired over their heads, but one of the crowd was hit and suffered a minor gunshot wound. The defendant was charged with two counts of assault with a deadly weapon, as well as being a felon in possession of a concealable weapon. (Id. at pp. 18-19.)
At that time, section 12021 prohibited possession only of concealable firearms. (Stats 1974, ch. 1197, § 1, p. 2588.) It was amended in 1989 to prohibit felons from possessing “any firearm.” (Stats. 1989, ch. 254, § 1, pp. 1297-1298; id., ch. 1044, § 3, p. 3633.)
The jury was instructed on self-defense, defense of others, and defense of habitation with respect to the assault charges, and he was acquitted on those counts. (King, supra, 22 Cal.3d at p. 19.) However, his request for instructions on self-defense with respect to the felon-in-possession charge was denied. (Ibid.) After reviewing the history of section 12021, the Court held this was reversible error:
The first requested instruction was: “If you find that William Harris King acted in self-defense, or in defense of another, then in order to find him guilty of a violation of Section 12021 of the Penal Code (possession of a concealable firearm by a felon) you must find that he had possession, custody or control of such firearm prior to the transaction or occurrence in which he acted in self-defense.”
“[T]he prohibition of section 12021 was not intended to affect a felon’s right to use a concealable firearm in self-defense, but was intended only to prohibit members of the affected classes from arming themselves with concealable firearms or having such weapons in their custody or control in circumstances other than those in which the right to use deadly force in self-defense exists or reasonably appears to exist. Thus, when a member of one of the affected classes is in imminent peril of great bodily harm or reasonably believes himself or others to be in such danger, and without preconceived design on his part a firearm is made available to him, his temporary possession of that weapon for a period no longer than that in which the necessity or apparent necessity to use it in self-defense continues, does not violate section 12021.” (King, supra, 22 Cal.3d at p. 24.)
The holding was expressly limited to circumstances where “possession of the weapon in question was solely for the purpose of self-defense, and was not preplanned, and did not continue beyond the existence of the circumstances giving rise to the right to self-defense....” (King, supra, 22 Cal.3d at p. 26.) The defense was available to King because he “did not come into possession of the pistol he used prior to the exigency which made its use reasonably appear to be necessary.” (Id. at p. 26.) In such circumstances, “brief use of a concealable firearm, without predesign or prior possession of the weapon, in the exercise of the right to self-defense, defense of others, or defense of habitation would not constitute the possession, custody, or control of the firearm which the Legislature has prohibited in section 12021.” (Id. at pp. 26-27, italics added.)
Defendant claims that he was equally entitled to a self-defense instruction here. The additional cases he cites, however, also incorporate King’s condition that the possession be only momentary in order for the defense to apply.
Although he does not provide language of an instruction he would deem appropriate, CALJIC No.12.50 and CALCRIM No. 2514 were designed to address this situation.
For instance, in People v. Saavedra (2007) 156 Cal.App.4th 561 (Saavedra), a prison inmate was searched after a fight on the yard, in which he had been attacked by two other inmates. (Id. at p. 565.) Inside his shoe authorities found an inmate-made weapon consisting of a razor blade attached to a shaving handle. (Ibid.) The inmate testified that he had picked up the weapon from the ground where it had fallen from the hand or pocket of one of his assailants. (Id. at p. 566.) He said he stashed it in his shoe, rather than using it to defend himself, because he did not want to see “any more blood shed.” (Ibid.) He was convicted of possession of a weapon by an inmate, in violation of section 4502. The trial court gave a jury instruction on necessity as a defense, but not a self-defense instruction. (Saavedra, supra, 156 Cal.App.4th at pp. 565-566.)
The Court of Appeal, applying the rationale of King, held that inmates, too, have a right of self-defense which can defeat a charge of illegal possession of a weapon under section 4502. (Saavedra, supra, at pp. 568-569.) However, Saavedra characterized the rule as allowing a claim of self-defense if the inmate was “ ‘under imminent mortal attack, had no opportunity to seek protection of the authorities, and temporarily seized a prohibited weapon in order to save his life.’ [Citation.]” (Id. at p. 568, italics added.) In so holding, Saavedra acknowledged it was “well established that a prison inmate... cannot raise the defense of self-defense based on a claim that a weapon was possessed for protection from an anticipated, future attack. [Citations.] However, the courts have recognized in dicta that it may be permissible for an inmate to raise a narrow claim of self-defense when the inmate was ‘confronted with an emergency that … justified his seizing one of the prohibited weapons in order to protect himself.’ [Citations.]” (Ibid.) Saavedra held that a claim of self-defense is available when an inmate “temporarily seizes a weapon as a protective measure in response to an emergency.” (Ibid., italics added.)
Saavedra was entitled to an instruction on self-defense because there was substantial evidence that he “temporarily seized the weapon because of a fear of immediate harm.” (Saavedra, supra, 156 Cal.App.4th at p. 569.) The court held the error was harmless, however, because the jury had rejected a similar defense of necessity. (Id. at pp. 569-570.)
Similarly, in People v. Mizchele (1983) 142 Cal.App.3d 686, the court concluded it was reversible error not to give self-defense instructions with respect to a felon in possession charge, where the defendant was convicted of second degree murder of his wife after a prolonged argument between them. (Id. at pp. 688, 692.) The defendant knew his wife carried a gun in her jacket pocket, which was on the floor at the time. (Id. at p. 689.) He picked up the jacket and removed the gun so that she could not use it against him, as he was aware of prior acts of violence by his wife. (Id. at pp. 689 690.) He claimed the gun went off accidentally, and he had no intent to shoot his wife. (Id. at p. 689.)
The chief reason for reversal was that the court would not allow him to introduce evidence of his wife’s prior violent acts. (Mizchele, supra, 142 Cal.App.3d at pp. 689 691.) However, the court of appeal also stated in dictum that Mizchele was entitled to self-defense instructions on the charge under section 12021, in accordance with King. (Mizchele, supra, at p. 692.) Again, however, the facts differed from the present case in that Mizchele picked up the weapon during an argument and had not possessed it prior to that time. (Id. at p. 689.)
Thus, in each of the foregoing cases the evidence showed that the defendant acquired the weapon in the course of the confrontation in which it was ultimately used. None of them involved prior possession of the weapon.
The case closest to ours with respect to prior possession is People v. McClindon (1980) 114 Cal.App.3d 336, where the defendant had fired a pistol out of his bedroom window after he and his wife were awakened by noises outside their home just after dark. (Id. at p. 339.) The noise was caused by two young boys climbing over a fence to retrieve a lost ball. (Ibid.) The defendant was charged with two counts of assault with a deadly weapon, which resulted in a mistrial, but he was convicted of being a felon in possession. (Id. at p. 338.) The Second District affirmed, holding the trial court did not err in refusing to give a requested instruction on self-defense to the charge under section 12101 because the defendant had possessed the weapon long before the shooting incident. (Id. at p. 340 & fn. 2.)
The trial judge was Ronald M. George, currently Chief Justice of the California Supreme Court. (McClindon, supra, at p. 336.)
McClindon distinguished King as follows: “Key points [of King] are that possession of a concealable firearm be brief and without predesign or prior possession. King clearly is not applicable here. Appellant’s possession of the pistol was admittedly not brief and further it was not without design or prior possession. Appellant admitted that he had possession of the firearm for approximately five months and that he kept it by his bed for protection because he did not want to shoot anybody with his rifle.” (McClindon, supra, 114 Cal.App.3d at p. 340.)
This case is similar. By his own testimony, defendant was not entitled to the defense spelled out in King. Defendant admitted he had two prior non-violent felony convictions. He also testified that he had acquired the gun “a month or two” before the shooting from a neighbor in the trailer park, Rick Fifer, who asked him to hold it for him while Fifer went to the hospital for surgery. Defendant knew he was prohibited from possessing a firearm based on his prior convictions. Fifer had not returned from the hospital, so defendant had kept the gun stored in his kitchen cupboard. Although he apparently had no predesign for using the gun, he clearly had possessed it long before the shooting incident.
We conclude that the trial court was not required to instruct on self-defense sua sponte because defendant admitted he had possessed the weapon for “a month or two” before he used it in self-defense. He knew he was in violation of the law when he acquired the gun. That violation did not abate simply because he later found a lawful use for the weapon in self-defense.
Although the jury found his use of the weapon lawful, his possession of it was not. The gun may have been “seized” from the cupboard solely for the purpose of self-defense and defense of others, but his possession of it was not fleeting, and it was not possessed solely for immediate use in self-defense for the entire duration he held it. In addition to the pre-shooting possession, he also continued to possess it for two days after the shooting. He testified that he kept the gun with him “the whole time” from the shooting until he threw it into the river. This also makes the defense unavailable, as King specified that the possession must not “continue beyond the existence of the circumstances giving rise to the right to self-defense....” (King, supra, 22 Cal.3d at p. 26.)
Defendant correctly notes that “even in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case.” (People v. Montoya (1994) 7 Cal.4th 1027, 1047; accord, People v. Breverman (1998) 19 Cal.4th 142, 154.) However, the duty of sua sponte instruction on a defense applies “ ‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ [Citations.]” (People v. Barton (1995) 12 Cal.4th 186, 195; see also, People v. Breverman, supra, 19 Cal.4th at p. 157; People v. Villanueva (2008) 169 Cal.App.4th 41, 49 [self-defense]; People v. Elize (1999) 71 Cal.App.4th 605, 615 [same].) There was not, as discussed above, an evidentiary foundation for instruction on the “narrow claim of self-defense” allowed in the foregoing cases. (Saavedra, supra, 156 Cal.App.4th at p. 568.)
Defendant points out that the prosecutor focused solely on his possession of the weapon during the confrontation with Terwilliger in summation to the jury, and that the information charged him with possession of the weapon “on or about” the date of the shooting. He calls this an “election” by the district attorney to prosecute him only for his possession during the Terwilliger shooting. We cannot agree. Had the issue been raised at trial by an appropriate request for instruction, the prosecutor no doubt would have broadened the scope of his argument to the jury.
Regardless of the prosecutor’s summation, the jury would have been required to find defendant guilty of violating section 12021 under the instructions properly given based on his pre-shooting and post-shooting possession of the gun. The prosecutor also told the jury that possession could be either actual or constructive, describing the latter as follows: “it’s sitting someplace where you can have a right to control it. You can go get it.” This clearly would have applied to the period in which the gun remained in the kitchen cupboard. Although the prosecutor claimed in this case defendant “had it in his hand,” it appears he intended to stress the strength of the evidence of possession, not to eliminate any other theory of possession. By defendant’s own admission, he had possessed the weapon in his kitchen long before the incident with Terwilliger and for two days thereafter. Defendant points to no other evidence that explained his possession of the weapon as having been more transitory. Therefore, a King instruction was not required in this case.
Even if we were to hold that defendant was entitled to an instruction sua sponte, the error would have to be deemed harmless under either a state or federal standard of prejudice. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence simply was not consistent with any claim, belatedly raised on appeal, that defendant’s possession of the weapon was transitory and solely for defensive use.
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Lambden, J.
The second requested instruction was: “If a person, as a reasonable man, has grounds for believing and does believe that he is about to suffer bodily harms [sic], and he grabs a weapon to defend himself, and uses this weapon only as would appear necessary to a reasonable person to prevent the injury which appears to be imminent, then this person is not guilty of being a felon in possession of a concealed [sic] weapon as prohibited by Penal Code Section 12021.” (King, supra, 12 Cal.3d at p. 20, fns. 4 & 5.)