Opinion
G055689
10-19-2018
THE PEOPLE, Plaintiff and Respondent, v. ERIK CHRISTIAN ANDERSEN, Defendant and Appellant.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Craig H. Russell and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17ZF0002) OPINION Appeal from a judgment of the Superior Court of Orange County, Glenn R. Salter, Judge. Affirmed. Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Craig H. Russell and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury's guilty verdict on charges of attempted arson (Pen. Code, § 455), simple assault (§ 240), carrying a dirk or dagger (§ 21310), and making criminal threats (§ 422, subd. (a)), with an enhancement for using a weapon while making such threats (§ 1192.7), the trial court sentenced defendant Erik Christian Andersen to a total of four years in state prison. Defendant contends the court erred in refusing to give a self-defense instruction because there was sufficient evidence to send the issue to the jury. We disagree and affirm the judgment.
All further statutory references are to the Penal Code.
FACTS
Andersen rented a room in a Santa Ana residence managed by Aleksander Mackovski, but eventually he stopped paying rent and seemingly disappeared. Sometime thereafter, Mackovski discovered Andersen was still living on the property outside the building. He told Andersen numerous times he could not live on the property.
Andersen drove to Mackovski's house, spotted him standing in the driveway, and tried to run him over, stopping approximately six inches away from him. He dared Mackovski to "'[s]tep out in front of the car, so [he could] hit and kill [him].'" Andersen repeatedly threatened to kill Mackovski, but at no point during the incident did Mackovski threaten to harm Andersen. A responding police officer searched Andersen and found a pocket knife that was in an open and locked position.
About one week later, Andersen returned to the Santa Ana residence to visit a friend, Amy Ruby, who rented a room there. Ruby came outside, saw Andersen on the porch with a red gasoline container next to him, and smelled gas. He told her he was going to light the house on fire and "[she] would get a brand-new pretty house." Andersen lit a match, but he left the property after the wind quickly blew it out. A police officer and a fire investigator responded and documented the incident.
Two months later, Mackovski stopped by the residence to speak with Ruby. He entered the house, proceeded to her room, and knocked on the door. Getting no response, Mackovski turned back to leave the house and when he entered the kitchen, he encountered Andersen. Mackovski once again told him he was not allowed on the property. Andersen grabbed a knife from the counter and told Mackovski, "Come here. I'll cut your balls off," and threatened to kill him.
When Andersen swung the knife toward Mackovski several times, Mackovski feared Andersen would stab him. Mackovski did not have a weapon, did not threaten Andersen, and tried to get Andersen to leave. Eventually Andersen left the house, leaving the knife behind, and Mackovski called 911.
An Orange County grand jury returned an indictment, charging Andersen with five separate counts: making criminal threats during the above described car incident (count 1), carrying a dirk or dagger on the same occasion (count 2), attempted arson (count 3), assault with a deadly weapon during the kitchen knife incident (count 4), and making criminal threats during the same confrontation (count 5).
At trial, Mackovski testified about the various above-described occurrences. He described Andersen's threatening statements, and also testified he never had a weapon, never touched Andersen and never threatened him, verbally or physically.
Jamie Sipus was visiting a friend at the house when she heard yelling coming from the kitchen area. After hearing one of the men say, "I'm going to chop your balls off," she walked into the kitchen to see what was happening. Mackovski appeared to be trying to "herd" Andersen out of the house as the two argued. Andersen held a knife and was walking backwards toward the door which exited the house. At one point, he swung the knife upward, waving it toward Mackovski. Although Mackovski was moving forward as Andersen walked backwards, Sipus testified she did not see Mackovski swing at Andersen, touch Andersen, or get very close to him. She also testified she never heard Mackovski threaten Andersen in any way.
Part way through the trial, Andersen requested the trial court give a jury instruction on self-defense. The court deferred its ruling until after the presentation of all the evidence. Andersen did not testify. Once both sides rested, the court declined the instruction.
The jury found Andersen not guilty of making criminal threats (count 1) and guilty of carrying a dirk or dagger (count 2), attempted arson (count 3), and making criminal threats (count 5). The jury acquitted Andersen on the assault with a deadly weapon charge, but found him guilty of the lesser included offense of simple assault. It also found true that Andersen used a deadly weapon in conjunction with the criminal threat made during the kitchen incident.
The court sentenced Andersen to a total of four years in state prison, consisting of three years on count 3 and one year for the deadly weapon enhancement. Running concurrent to the three-year term were two years in state prison on count 2, two years in state prison on count 5, and six months in county jail on count 4. Appellant timely appealed.
While this appeal was pending, the California Department of Corrections and Rehabilitation notified the trial court it erred when sentencing Andersen. The court resentenced Andersen by modifying the base term to a different count and linking the one year sentence enhancement to that count. There were no additional modifications and the total sentence remained the same. We agree with Andersen the resentencing has no impact on this appeal.
DISCUSSION
Andersen contends the trial court erred in denying his request for a self-defense instruction because there was sufficient evidence to send the issue to the jury. Our review of the record convinces us otherwise and, even assuming the alleged error, demonstrates that it was harmless under the circumstances.
"Requested instructions on a defense must be given if they are supported by substantial evidence, rather than 'minimal and insubstantial' evidence." (People v. Lee (2005) 131 Cal.App.4th 1413, 1426; see People v. Flannel (1979) 25 Cal.3d 668, 684, superseded on another ground as stated in In re Christian S. (1994) 7 Cal.4th 768, 777; see also People v. Elize (1999) 71 Cal.App.4th 605, 615.) When deciding whether an instruction is warranted, the court does not evaluate credibility. Rather, it only determines whether there is evidence which, if believed by the jury, would be sufficient to demonstrate the facts underlying the instruction. (People v. Salas (2006) 37 Cal.4th 967, 982.) "'"Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused."'" (People v. Petznick (2003) 114 Cal.App.4th 663, 677.) But the court need not instruct on a defense if the supporting evidence is "minimal and insubstantial." (People v. Barnett (1998) 17 Cal.4th 1044, 1145.)
To support a claim of self-defense, the defendant must honestly and reasonably believe he or she is under a threat of imminent bodily injury. (People v. Minifie (1996) 13 Cal.4th 1055, 1064.) When this occurs, the defendant may use such force as is reasonable under the circumstances, with the right continuing only as long as the danger exists or reasonably appears to exist. (Id. at p. 1065.) "[A]lthough the test is objective, reasonableness is determined from the point of view of a reasonable person in the defendant's position. The jury must consider all the facts and circumstances it might '"expect[] to operate on [defendant's] mind. . . ."'" (Ibid.)
Here, evidence of self-defense was minimal, at best. Although Sipus saw Andersen walking backwards as he swung the knife at Mackovski, testimony which Andersen highlights, we may not view those observations in a vacuum. Andersen was moving backwards toward the door which exited the house because Mackovski told him, as he had many times in the past, that he was not allowed on the property. Sipus testified Mackovski did not have a weapon, he did not swing at or make other aggressive movements toward Andersen, and he maintained a distance from Andersen throughout the incident. She also stated she never saw or heard him threaten Andersen in any manner. Mackovski's testimony was to the same effect and there was no evidence to the contrary.
Viewing the evidence as a whole, Andersen was in a place where Mackovski told him numerous times he was not permitted to be, and Mackovski told Andersen he needed to leave, without verbally or physically threatening him with bodily injury. In response, and consistent with his past aggressive behavior toward Mackovski, Andersen picked up a knife, waived it in the air, urged Mackovski to "come here" so he could ""cut [his] balls off[,]" and declared he wanted to kill him. As our Supreme Court observed, a defendant may not invoke the doctrine of self-defense if the defendant "'through his own wrongful conduct (e.g., the initiation of a physical attack or the commission of a felony), has created circumstances under which his adversary's attack or pursuit is legally justified.'" (People v. Valencia (2008) 43 Cal.4th 268, 288.) Thus, even if there was evidence Andersen believed Mackovski posed a threat to his safety, the self-defense doctrine would not apply because Andersen initiated the confrontation by picking up a kitchen knife and assaulting Mackovski. In any event, no evidence showed Andersen's reach for, and swinging of, the knife, or his threats were prompted by a fear for his safety.
Finally, any conceivable error in denying Andersen's request for a self-defense instruction was plainly harmless. The prosecution's evidence was strong and the purported self-defense evidence weak, bordering on nonexistence. On the record before us, we cannot say it is reasonably probable Andersen would have obtained a more favorable outcome had the alleged error not occurred. (People v. Watson (1956) 46 Cal.2d 818, 836; see People v. Breverman (1998) 19 Cal.4th 142, 177-178 [Watson standard applicable to determining whether failure to instruct on self-defense is harmless].) Accordingly, Andersen fails to demonstrate reversible error.
Andersen urges us to employ the more stringent harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18, 24, which applies to federal constitutional errors. While we do not believe that standard applies here, our conclusion would not differ were we to apply the Chapman standard. (See People v. Sakarias (2000) 22 Cal.4th 596, 621 [failure to instruct harmless under Watson and Chapman because evidence "was, at best, extremely weak compared to the [prosecution's] evidence"].) --------
DISPOSITION
The judgment is affirmed.
ARONSON, ACTING P. J. WE CONCUR: IKOLA, J. GOETHALS, J.