Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA083805, Gary E. Daigh, Judge.
Robert M. Sweet, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel Jr. and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
Jesus N. Martinez timely appealed his conviction for one count of assault with a deadly weapon and one count of attempted manslaughter. Appellant was sentenced to six years in state prison plus an additional three years for an infliction of great bodily injury enhancement. Martinez maintains that the trial court erred in refusing to give his requested series of jury instructions concerning the protection of one’s home. Specifically, appellant contends that there was substantial evidence which warranted giving the instructions and that such instructions would have granted him a presumption of acting in self defense. Respondent asserts that the trial court’s denial of the instructions was proper based on a lack of substantial evidence. Further, respondent contends that any error on the part of the trial court in not giving the instruction was harmless. As we shall explain, respondent is correct in asserting that there was a lack of substantial evidence to support giving the instructions. Consequently, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Prosecution’s case
Appellant disapproved of the marriage between his daughter Belky Martinez (Belky) and Javier Orozco (Javier). Appellant did not want Javier to marry his daughter because Javier was not of the Christian faith and because Javier was Mexican. Appellant, who is from El Salvador, stated that he “didn’t like a Mexican for his daughter.”
Both Javier and Belky had children from previous relationships. Javier had a son, Kevin, and Belky had a daughter, Ivy. On January 22, 2006, at approximately 6:30 p.m., Javier and Belky went to appellant’s home to pick up Ivy, who had spent the day with appellant. Because of the tense relationship between appellant and Javier, and because Javier wanted to avoid a confrontation with appellant, he stayed in the car while Belky went inside to get Ivy. After a short time, Javier heard Belky screaming and crying and wanted to determine what was happening in the apartment. Javier walked onto appellant’s property and, through a window, observed appellant pushing Belky and telling her, “‘You have to leave. You’re not taking Ivy.’”
Javier opened the door to appellant’s apartment, reached inside, grabbed Belky’s hand and said, “‘Let’s go Belky. . . . ‘We can call the cops.’” As Javier and Belky began to leave appellant’s apartment, Javier saw appellant run into another room and grab something from under a bed. Appellant then confronted Javier outside the apartment, and the two engaged in a verbal argument for a few seconds. Throughout this verbal argument, appellant retreated into his apartment three times.
During appellant’s last retreat into the apartment, Javier attempted to call 9-1-1 on his cellular telephone. While he was waiting for the call to go through, Javier heard Belky yell, “‘Watch out, Javier.’” Javier, who had his back facing appellant, turned around, at which time appellant quickly stabbed him in the chest and the stomach with a long kitchen knife. After being stabbed once, Javier attempted to defend himself by punching appellant once.
Appellant yelled out to his brother, who was nearby and had also armed himself with a knife, “‘Come over, come over. He stabbed me.’” Javier responded “‘Wait a minute. You stabbed me.’” At this point, Javier stood up, and began running down the block, attempting to get help from neighbors, until he collapsed on the street. The paramedics responded to a 9-1-1 call by a neighbor and arrived at the scene, finding that Javier had a collapsed lung. Javier informed the paramedics that he had been stabbed by appellant and that he was having trouble breathing. Javier was taken to the hospital and treated for his life-threatening injuries.
Defense’s case
Pedro Gonzalez, neighbor and landlord of appellant, testified on appellant’s behalf. Gonzalez testified that on the evening of the incident, January 22, 2006, he heard Javier shouting obscenities and saw Javier barge into appellant’s apartment. Gonzalez further testified that he heard appellant tell Javier to leave and that “he didn’t want any trouble.”
Jose Santana Martinez (Jose), appellant’s brother, was also present on the night of the incident and testified on appellant’s behalf. Jose testified that Javier entered appellant’s apartment with the intention of starting a fight. Appellant, however, told Javier to calm down and that he did not want to fight, to which Javier replied, “‘Well, if it’s not gonna be me, it’s gonna be you.’” Jose denied arming himself with a knife and stated that he never saw appellant with a knife.
Appellant testified on his own behalf and initially stated that he did not remember the incident clearly because he was diabetic and often “forgets things.” Then appellant testified that on the evening of January 22, he was lying in his bed when Javier entered the house yelling and trying to initiate a fight. At this point appellant attempted to call the police because on a previous occasion Javier had “sentenced [him] through the telephone that [Javier] was going to kill [him].” Appellant, however, was unable to call the police because he was assaulted by Javier. Appellant testified that though he told Javier he did not want to fight, this comment was ignored, and Javier punched appellant. The fight moved outside, and appellant attempted to defend himself. As the fight progressed a voice that appellant did not recognize yelled, “‘Javier will kill you.’” Appellant further testified that Javier took something out of his back pocket, but he was unable to see anything specifically in Javier’s hands because it was dark outside. Javier left the area, and appellant fell to the ground, contemplating why he had been hurt, and then returned to his house. Appellant testified that during the fight he never armed himself with a knife.
DISCUSSION
On appeal, appellant maintains that the trial court erred in denying his request for the series of jury instructions which correspond with the Penal Code’s “Home Protection Bill of Rights.” (Pen. Code §198.5.) Appellant argues there was substantial evidence presented at trial which justified the instructions, and the failure to give the instructions resulted in prejudice. Further, appellant contends the court’s refusal to give the requested jury instruction decreased the prosecution’s burden of proof, thereby depriving him of due process.
All statutory references are to the Penal Code.
“A defendant in a criminal matter has a constitutional right to have the jury decide every material factual matter presented by the evidence.” (People v. Strozier (1993) 20 Cal.App.4th 55, 62.) This right, however, only extends to a defendant if there is substantial evidence to support his proposed instructions or defense theory. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) The test “as to when an instruction must be given is whether there was substantial evidence presented which would warrant the giving of the instruction.” (People v. Strozier, supra, 20 Cal.App.4th at p. 63.) In this context, substantial evidence is evidence sufficient to “deserve consideration by the jury,” specifically “evidence that a reasonable jury could find persuasive.” (People v. Lewis (2001) 25 Cal.4th 610, 645.) The existence of “any evidence” alone will not justify an instruction. (People v Breverman (1998) 19 Cal.4th 142, 162.) On appeal, the reviewing court considers the correctness of a jury instruction in the context of the overall charge, not from a part of an instruction or a particular instruction. (People v. Burgener (1986) 41 Cal.3d 505, 538, disapproved of on other grounds in People v. Reyes (1998) 19 Cal.4th 743.)
Appellant sets forth two main arguments for why the trial court’s denial of his proposed jury instructions constituted prejudicial error. Before addressing each of his arguments, we first look at the Penal Code section under which appellant claims the instructions should have been given.
While appellant claims that the court erred by denying CALJIC Nos. 5.40 and 5.42, he does not set forth any specific arguments as to why this is the case. Rather, appellant focuses on the applicability of CALJIC No. 5.44 and section 198.5 In fact, in his brief appellant states the “key question is whether there was substantial evidence to justify the giving of the section 198.5 instruction.” As such, we focus our inquiry on the applicability of the section 198.5 instruction.
California law justifies using deadly force in reasonable defense of one’s home. (§ 197; People v. Gleghorn (1987) 193 Cal.App.3d 196, 200.) Section 198.5 creates a rebuttable presumption that anyone who employs deadly force against an intruder within his residence has done so based on reasonable fear of imminent peril of death or great bodily injury. The section was enacted to enable residential occupants to defend themselves from intruders without fear of legal repercussions and to give benefit of the doubt in such cases to residents. (See People v. Owen (1991) 226 Cal.App.3d 996.)
Section 198.5 provides: “Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who . . . has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.
A defendant only enjoys the benefits of this presumption, however, if four qualifying requirements are met. (§ 198.5.) The four requirements are: (1) there must be an unlawful and forcible entry into a residence; (2) the entry must have been made by someone who is not a member of the family or the household; (3) the residential occupant must have used deadly force against the victim within the residence; and (4) the residential occupant must have had knowledge of the unlawful and forcible entry. (People v. Hardin (2000) 85 Cal.App.4th 625, 633.) If a defendant fails to meet even one of these requirements the presumption does not apply and the instruction is not given.
Appellant argues that the trial court erred when it found that there was insubstantial evidence that the second and third requirements of section 198.5 had been met. Appellant however fails to produce convincing argument that this is the case.
First, appellant contends that the trial court erroneously found Javier to be a member of appellant’s family, and, therefore, determined that appellant did not meet the second requirement of the Penal Code. To support his argument, appellant states that including son-in-law in the definition of family member would not serve the purpose of section 198.5 and that instead, the term should be narrowly construed to mean “immediate family.” Appellant, however, fails to introduce a compelling argument as to why this should be the case and proffers only the Black’s Law Dictionary definition of “family” as support for his position. However, Black’s Law Dictionary defines “family” as follows: “1. A group of persons connected by blood, by affinity, or by law, esp. within two or three generations. 2. A group consisting of parents and their children. 3. A group of persons who live together and have a shared commitment to a domestic relationship.” (Black’s Law Dictionary (8th ed. 2004) p. 637, col. 2.) Thus, a son-in-law would be included.
In addition, ample case law suggests that “family” includes a son-in-law. For example, many courts have implied a son-in-law to be a family member. (See, e.g., People v. Clarke (1926) 78 Cal.App. 302, 303 [“The evidence is that on September 26, 1925, the defendant drove his automobile at a high rate of speed to the home of Elmer Davis in the city of Oakland at about 1 o’clock P.M. while the Davis family, including Jack Elliott, a son-in-law of Elmer Davis, were at their luncheon.” (Emphasis added.)]; People v. Swan (1986) 187 Cal.App.3d 1010, 1019 [“When Mrs. Swan, her daughter, her son-in-law and her grandchildren entered the residence, it was not unreasonable for the police to fear the family might engage in an attempt to destroy or conceal any unfamiliar valuables or other evidence of wrongdoing they could locate in defendant’s room.” (Emphasis added.)]; Stoner v. Laidley (1953) 118 Cal.App.2d 50, 55 [finding that the defendant “relied and acted upon the advice of other members of her family, including her son-in-law who was a lawyer.” (Emphasis added.)].) Given this case law, we conclude that son-in-law is included in the term “family” for the purpose of this statute.
Even assuming arguendo that son-in-law is not included in the term “family,” appellant fails to meet the third requirement under section 198.5, that the use of deadly force occur within the residence. Under every scenario presented by both parties, the use of deadly force by the appellant occurred outside the residence. Accordingly, the trial court denied giving the requested instruction. Appellant, however, argues that the trial court erred in finding that the “within the residence” requirement was not met. Appellant contends that the presumption created in section 198.5 should apply when there is continuous course of conduct which leads to the use of deadly force outside appellant’s home. The plain meaning of the statute, however, demands otherwise.
Both the statute and corresponding jury instruction require that deadly force be used “within [the defendant’s] residence” in order for the presumption of self-defense to arise. (§ 198.5.) The plain meaning of a statute controls the court’s interpretation of a statute unless there is some ambiguity. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386.) Where there is no ambiguity a court need not and should not veer from the “pure expression of legislative intent.” (Kobzoff v. Los Angeles County Harbor/UCLA Medical Center (1998) 19 Cal.4th 851, 861.) Because the words of section 198.5 are clear in that they require the use of force to occur within the defendant’s residence, this court cannot agree with appellant’s broad interpretation of the statute.
Further, evidence in the record supports the trial court’s finding. The victim testified that he briefly entered appellant’s home to retrieve his wife, and almost immediately retreated outside the apartment. The victim stated that after this entry he was pursued by appellant, and was stabbed well outside the apartment. Moreover, under both appellant’s and the victim’s recollection of the night in question, the stabbing occurred outside appellant’s home. In fact, appellant himself admitted that the stabbing occurred 25 feet outside his apartment.
Both the record and statutory rules of construction support the trial court’s holding that a reasonable jury would not be able to find that appellant was within his residence at the time force was used. Consequently, we agree with the trial court’s decision to deny appellant’s requested instruction on the basis that he was unable to meet the third requirement of the statute.
As we have found two independent reasons for determining that the trial court properly denied appellant’s request for the jury instructions corresponding with section 198.5, we need not address appellant’s third argument regarding whether the court improperly thought that section applies only to situations where a defendant is intending to protect his property.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P.J., ZELON, J.
“As used in this section, great bodily injury means a significant or substantial physical injury.”