Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIF126653, Jeffrey Prevost, Judge.
Philip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Enrique Cota Angulo attempted to collect a $500 debt from Carlos Garibay. When Garibay refused to repay the debt, defendant fired his gun at or near Garibay.
OPINION
Gaut, J.
Defendant appeals from judgment entered following a jury conviction for assault with a firearm (Pen. Code, § 245, subd. (a)(2) ; count 2). The jury also found true the allegation that defendant personally used a firearm in committing the offense (§§ 1192.7, subd. (c)(8), 12022.5, subd. (a)). The jury found defendant not guilty of attempted premeditated murder (§§ 187, subd. (a), 664; count 1) and of making criminal threats (§ 422; count 3). The trial court sentenced defendant to seven years in prison.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends the court erred in giving an incomplete special instruction regarding self-defense and that his trial attorney provided ineffective assistance of counsel (IAC) by not requesting modification or clarification of the instruction. Defendant also contends the trial court erred in giving CALCRIM No. 361 regarding adverse testimony.
We reject defendant’s contentions and affirm the judgment.
1. Facts
At the time of the shooting incident, defendant and Garibay had been friends for several years. In September 2005, defendant lent Garibay $500. Garibay promised to pay back the money when he could or after he received his next paycheck.
On October 18, 2005, defendant asked Garibay to repay him and Garibay said he would after he got his next paycheck in about two weeks. Defendant returned to Garibay’s home two days later and again asked to be repaid. Garibay said he did not have the money but defendant could instead have his television and ATV (three-wheeled all terrain vehicle). Defendant agreed to take the items and said he would be back the next day to pick them up.
A couple of days later, at 5:00 a.m., defendant and two others went to Garibay’s house, knocked on the door, and asked Julio Bonilla, Garibay’s brother-in-law, to get Garibay. Julio told the men to leave. As they were leaving, defendant threatened to shoot Garibay.
Later that same day, around 1:30 p.m., defendant returned to Garibay’s house with an acquaintance, Mario Sotelo, to pick up the money Garibay owed. Adrian Alvidrez, who was living with Garibay, told Garibay defendant was there to see him. Garibay was watching football and did not want to be bothered. Garibay told Jose Bonilla, Julio’s brother, to find out what defendant wanted.
Jose opened the front door and noticed that defendant, who was standing at the door, had a gun tucked in his waistband but did not think this was unusual for defendant. Jose told Garibay defendant was there with another man and wanted to talk to Garibay. Garibay went outside and talked to defendant in the front yard. Defendant said he wanted his money. Garibay said that he thought defendant was going to take the television and ATV instead. Defendant said he changed his mind. Garibay said he did not have the money and told defendant to leave. Defendant refused and demanded Garibay give him the money.
Garibay walked away from defendant toward the front door. Defendant yelled profanity and demanded his money. Garibay threw his beer can to the ground and again told defendant to leave. Defendant refused to leave until he got his money and yelled more profanity. Garibay told defendant to get off his property. Garibay walked toward a chair in the front yard, which he planned to use to defend himself if defendant and Sotelo assaulted him.
Jose came outside and saw defendant pull a gun from his waistband and point it at Garibay. Jose told defendant to put the gun away. Defendant told Jose to shut up and that it was not his problem. Defendant fired a single shot. The bullet hit the chair. Garibay heard a loud bang and saw dust from the wall and wood chips falling from the chair. Garibay thought the bullet hit the chair, then the wall behind the chair, and then the side of the garage. Defendant was standing 15 to 20 feet from Garibay.
Right after firing the gun, defendant made a downward motion with the gun, indicating the gun had jammed and defendant was trying to unjam it. Sotelo believed defendant was trying to reload the gun and was preparing to fire it again. Sotelo pulled defendant away to the car. As defendant and Sotelo were leaving, defendant told Garibay, “I’m going to kill you.”
Sheriff’s Deputy Porrazzo spotted defendant’s car, pulled it over, and apprehended the two men. Sotelo told Deputy Guilford that after defendant and Garibay started arguing, Garibay walked toward a chair. As Garibay was reaching into the chair, defendant retrieved his gun from his waistband and fired one shot toward Garibay.
A criminalist testified that the cartridge case found at the crime scene had been fired by defendant’s gun. The criminalist also stated that the unspent rounds found in defendant’s pocket could be used in defendant’s gun.
Defense investigator David Vaca interviewed Sotelo in March and April, 2006. Vaca testified Sotelo told him defendant was aiming the gun at the ground, to the side of Garibay. Vaca acknowledged his report did not mention this and Sotelo did not tell Vaca defendant was aiming at the ground. Rather, his report stated Sotelo told him that defendant fired in the general direction of Garibay. Defendant said he thought the round hit the ground.
Sotelo denied at trial that he told Vaca defendant fired the shot in the general direction of Garibay. Sotelo testified defendant fired the gun away from Garibay, at the ground by a wall.
Defendant testified that the day before the shooting incident, defendant loaned his car to Leono Lopez while defendant was repairing Lopez’s car. After Lopez returned defendant’s car, defendant found Lopez’s handgun under the seat and was going to return it after he and Sotelo stopped at Garibay’s house to collect the money Garibay owed him. Defendant took Lopez’s gun with him in his pants waistband because he feared Garibay might harm him.
When Garibay came outside, defendant asked him for his money. Garibay said he was not going to pay it back, got angry and started yelling. He was five feet from defendant. Garibay told him to leave and said he was going to “beat the shit out of” defendant. Garibay threw his beer at defendant.
As defendant walked toward his car, Garibay said, “What’s more, I’m going to beat the shit out of you. So you don’t come back” and that he had sent people after defendant. Garibay grabbed a two-foot piece of wood or metal and was going to hit defendant with it. Defendant was eight feet from Garibay. Defendant took the gun from his waistband and fired it. Defendant thought Garibay might be armed with a gun because defendant had seen guns at Garibay’s house. Defendant acknowledged he and Garibay were close friends at the time and Garibay had never hit or threatened him before.
Defendant denied aiming the gun at Garibay.
2. Special Instruction III on Self-Defense
Defendant contends the trial court erred in giving the prosecution’s special jury instruction III. That instruction as given stated: “A trespasser cannot justify any act as being in self-defense if he can withdraw safely. A defendant who is an aggressor has no right to stand his ground but must retreat.” (Italics added.)
Special instruction III was given during instruction on self-defense with regard to count 1, attempted premeditated murder. When instructing on count 2, assault with a firearm, the trial court again instructed the jury on the elements of self-defense. The court did not repeat special instruction III, but made reference to it by stating that “A defendant is not required to retreat when presented with the imminent threat of death or great bodily injury. However, a person who is a trespasser is required to leave the premises according to the instructions which I have given to you already.” The court further instructed that “A defendant who is presented with the imminent threat of death or great bodily injury is entitled to stand his ground . . . and defend him- or herself . . . . This is so even if safety could have been achieved by retreating.”
Defendant asserts that the trial court erred in giving special instruction III because section 198.5 (use of deadly force by any person within his or her residence against an intruder) did not apply. Defendant further argues that under section 198.5 the court should have instructed the jury that defendant’s right of self-defense was extinguished only if defendant trespassed and entered Garibay’s property forcibly.
Defendant is correct that section 198.5 is inapplicable. This provision provides that there is a presumption that the act of forcible entry entails a threat to the homeowner’s life and safety. Under section 198.5 the defendant loses the right to stand his or her ground and not retreat if the defendant trespasses by making a forcible entry into the homeowner’s residence. In the instant case, defendant did not enter Garibay’s residence. Defendant assaulted Garibay while the two men were in the front yard. Since section 198.5 is inapplicable, standard self-defense principles apply.
Section 198.5 states: “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 unlawfully and forcibly enters or 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.”
The court in People v. Gleghorn (1987) 193 Cal.App.3d 196, 201-202 (Gleghorn), explained such principles as follows: “The right of self-defense is based upon the appearance of imminent peril to the person attacked. [Citation.] . . . [¶] Moreover, even though a person is mistaken in judgment as to the actual necessity for the use of extreme measures, if he was misled through no fault or carelessness on his part and defends himself correctly according to what he supposed the facts to be, his act is justifiable. [Citation.] These are usually questions of fact for the jury to resolve. [Citation.] It is beyond the province of this court to reweigh the evidence. [Citation.] We will not reverse a jury’s verdict simply because the evidence might support a contrary conclusion so long as the circumstances reasonably justify the findings. [Citations.]” (Gleghorn, supra, at pp. 201-202.)
The People cite People v. Quach (2004) 116 Cal.App.4th 294 (Quach) for the proposition that, “before engaging in self-defense, the trespasser must first retreat, unless the counter assault is so sudden and perilous that he cannot safely do so.” Defendant argues Quach supports his contention that special instruction III was improper because the instruction indicated that, as a trespasser, defendant did not have a right to self-defense and was required to retreat. Defendant misconstrues Quach. In Quach, supra, the defendant was involved in a shootout between rival gangs, in a bar parking lot. There was evidence that defendant pulled out a gun and fired it only after a rival gang member fired at him. Although no one was injured, defendant was convicted of attempted murder. (Quach, supra, at pp. 297-298.)
During the Quach trial, the court gave a former version of CALJIC No. 5.56 which stated the defendant was afforded the right of self-defense as a mutual combatant only if he had informed his opponent that he had stopped fighting and had given his opponent the opportunity to stop. The Quach court explained that CALJIC No. 5.56 was founded on section 197, subdivision (3), “which provides that self-defense is available to an assailant or mutual combatant if he first ‘really and in good faith [has] endeavored to decline any further struggle before the homicide was committed.’ Somehow, the instruction transmogrified the requirement of a good faith endeavor to decline further combat into a categorical denial of the defense to anyone who has not succeeded in clearly informing his opponent that he is no longer fighting and wishes to stop . . . and we cannot find such a rule in Penal Code section 197.” (Quach, supra, 116 Cal.App.4th at p. 301.)
Section 197, subdivision (3) provides: “Homicide is also justifiable when committed by any person in any of the following cases: [¶] . . . [¶] When committed in the lawful defense of such person, . . . when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, . . . if he was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed.”
The court in Quach indicated that the problem with the Quach instruction was that it did not state that the defendant was required to make a good faith attempt to decline further fighting before committing the homicide, unless the attack was so sudden and perilous that the defendant could not withdraw. The Quach instruction was deficient because it did not include such an exception. (Quach, supra, 116 Cal.App.4that p. 302; see also Gleghorn, supra, 193 Cal.App.3d at p. 201.) The Quach court suggested that the instruction be modified to follow the language in People v. Hecker (1895) 109 Cal. 451 (Hecker)or the more recent case of Gleghorn, supra, 193 Cal.App.3d 196.
As explained in Hecker, supra, 109 Cal. at page 464, “Where one is the first wrongdoer, but his unlawful act is not felonious, as a simple assault upon the person of another, or a mere trespass upon his property, even though forcible, and this unlawful act is met by a counter assault of a deadly character, the right of self-defense to the first wrongdoer is not lost. For, as his acts did not justify upon the part of the other the use of deadly means for their prevention, his killing by the other would be criminal, and one may always defend himself against a criminal attempt to take his life. But in contemplation of the weakness and passions of men, and of the provocation, which, though inadequate, was wrongfully put upon the other, it is the duty of the first wrongdoer, before he can avail himself of the plea to have retreated to the wall, to have declined the strife and withdrawn from the difficulty, and to have killed his adversary, under necessity, actual or apparent, only after so doing.”
The Quach court stated that the self-defense instruction approved in Gleghorn, an assault and battery case, was proper. That instruction on self-defense stated: “‘[W]here the counter assault is so sudden and perilous that no opportunity be given to decline further to fight and he cannot retreat with safety he is justified in slaying in self-defense.’” (Quach, supra, 116 Cal.App.4th at p. 303.)
According to Hecker and Quach, where the defendant has committed a wrong, such as trespass, he is required to attempt to retreat if he can do so safely, before using deadly force. (Hecker, supra, 109 Cal. at p. 464.) Otherwise the defendant cannot rely on self-defense and is precluded from complete exoneration based on the theory of self-defense.
We conclude that, while inartfully stated, special instruction III, in conjunction with the other instructions, provided a correct statement of the requirement that, as a trespasser, defendant was required to retreat, if safe to do so, before acting in self-defense. Unlike in Quach, here the trial court provided an instruction that qualified its statement that a trespasser could not rely on self-defense. Special instruction III indicated that if defendant could not withdraw safely, self-defense was permissible. We suggest, however, that in future cases involving similar circumstances, the trial court use the wording suggested Quach and Gleghorn rather than special instruction III.
We accordingly also reject defendant’s IAC contention, which is founded on his trial attorney not objecting to special instruction III.
3. CALCRIM No. 361 on Adverse Testimony
Defendant contends the trial court erred in giving jury instruction CALCRIM No. 361 on adverse testimony.
As given, CALCRIM No. 361 states, “If the defendant failed in his testimony to explain or deny evidence against him, and if he could reasonably be expected to have done so based on what he knew, you may consider his failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove each element of the crime beyond a reasonable doubt. [¶] If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure.” Over defendant’s objection, the court permitted the instruction on the ground there were unexplained gaps in defendant’s testimony.
Defendant argues that the instruction was improper because he explained all the evidence against him that was within his knowledge. Defendant claims that the fact that his testimony contradicted testimony by prosecution witnesses or was less believable is not a valid ground for giving CALCRIM No. 361.
The instruction is appropriate where “a defendant testifies but fails to deny or explain inculpatory evidence or gives a ‘bizarre or implausible’ explanation . . . .” (People v. Sanchez (1994) 24 Cal.App.4th 1012, 1029.) “The pertinence of CALJIC No. 2.62 [the equivalent of CALCRIM No. 361] depends upon the facts of the case. . . . [I]f the defendant tenders an explanation which, while superficially accounting for his [or her] activities, nevertheless seems bizarre or implausible, the inquiry whether he [or she] reasonably should have known about circumstances claimed to be outside his [or her] knowledge is a credibility question for resolution by the jury.” (People v. Mask (1986) 188 Cal.App.3d 450, 455.)
Here, there were several instances in which defendant’s testimony was implausible or simply did not explain inculpatory evidence that directly conflicted with his own testimony. This is not a case in which defendant would not have access to information or was not knowledgeable of circumstances which other witnesses described differently than he did. Defendant was present at the crime scene and observed the entire course of events. Without explanation, he simply gave a completely different account than that of the other witnesses.
For instance, defendant claimed Garibay approached him from eight feet away with a two-foot wood or metal stick and told defendant he was going to beat him up. All of the other witnesses, including defendant’s companion and friend, Sotelo, testified that as Garibay was walking away from defendant toward a chair, defendant fired at Garibay from 15 to 20 feet away. There was no evidence or testimony from any witnesses, other than defendant, that Garibay had a wood or metal stick and was threatening defendant.
Another instance of implausible or contradictory testimony by defendant was his statement that the chair had been moved from its original location before the police arrived. Deputy Guilford testified that it appeared that the bullet had passed through the chair from the front of the chair, and hit the wall behind the chair. Guilford stated that the evidence was consistent with defendant firing from the location where there was a spent shell casing and where witnesses said defendant had fired the shot. Defendant, on the other hand, claimed he fired the gun down at the concrete walkway as opposed to in the general area of defendant who was near the chair.
Defendant’s explanation as to the circumstances leading to defendant carrying a gun when he confronted Garibay is particularly implausible. Defendant, an auto mechanic, testified he had another person’s gun with him because one of his auto repair customers, Leono Lopez, had borrowed defendant’s car while defendant was repairing Lopez’s car. Defendant claimed Lopez called the next morning and told defendant he had left his gun in defendant’s car. On his way to returning it, defendant decided to stop by Garibay’s home to demand Garibay repay him.
Defendant’s testimony was highly suspect because defendant claimed Lopez had moved to an unknown location in Mexico; defendant was unable to describe what Lopez looked like; and defendant did not have any invoices or receipts for any such auto repair work. Defendant testified he could not remember Lopez’s former address and claimed he had lost Lopez’s telephone number.
Furthermore, defendant testified that when he retrieved the bag containing the gun from his car, he removed the gun and put it in his waistband, and put three bullets in his pocket before going to see Garibay. Defendant claimed he did this because he did not have time to put the gun and bullets back in the bag, but then defendant also testified that, after retrieving the gun, he finished breakfast. Also, defendant claimed he did not know the gun was loaded but then testified that when Garibay threatened him, he grabbed the gun and pulled the trigger, taking care to aim away from Garibay, indicating he knew the gun was loaded.
Since there were several instances in which defendant’s testimony was either implausible or failed to explain contradictory witness testimony, CALJIC No. 361 was proper.
Even if the instruction was improper, it was not prejudicial error. CALCRIM No. 361 does not implicate any constitutional rights. Thus, any error in giving CALCRIM No. 361 is only prejudicial if it is reasonably probable a more favorable verdict would have resulted if the instruction had not been given. (People v. Saddler (1979) 24 Cal.3d 671, 683-684 (Saddler); People v. Ballard (1991) 1 Cal.App.4th 752, 756-757 (Ballard); People v. Watson (1956) 46 Cal.2d 818, 836.)
Even in the absence of CALCRIM No. 361, the jury would have perceived the inherent incredibility of defendant’s testimony. Furthermore, the evidence against him was overwhelming. All the witnesses, other than defendant, testified that Garibay was walking away from defendant toward a chair when defendant fired at him. No one mentioned anything about Garibay threatening defendant with a wood or metal stick.
Furthermore, the trial court advised the jury, pursuant to CALJIC No. 200, that not all instructions would necessarily apply to the case and to follow only the instructions that applied to the facts the jury determined existed. Thus, if in fact there was no evidence supporting CALCRIM No. 361, as defendant contends, the jury would have ascertained that fact and disregarded the instruction. The Supreme Court and other courts have indicated that giving CALJIC No. 17.31, the equivalent of CALCRIM No. 200, may partially counteract any prejudice in erroneously giving CALCRIM No. 361. (Saddler, supra, 24 Cal.3d at p. 684.)
Moreover, although CALCRIM No. 361 focuses solely on testimony of the defendant, the instruction is not entirely adverse to the defendant. Rather, as the court in Ballard, supra, 1 Cal.App.4th at page 756 observed, the instruction in some respects favors the defense by suggesting when it would be unreasonable to draw an adverse inference and cautioning that failure to deny or explain evidence does not by itself warrant an inference of guilt or relieve the prosecution of proving guilt beyond a reasonable doubt. In addition, the court made it clear that discrepancies in any witness’s testimony, including defendant’s, could be the product of innocent misrecollection or honest differences in perception and did not necessarily indicate untruthfulness. (See CALCRIM No. 105.)
It is not reasonably probable that had CALCRIM No. 361 not been given, the jury would have reached a verdict more favorable to defendant or that the instruction affected the verdict. (People v. Watson, supra, 46 Cal.2d at p. 836; Ballard, supra, 1 Cal.App.4th at pp. 756-757.)
4. Disposition
The judgment is affirmed.
We concur: Hollenhorst, Acting P. J. Richli, J.