Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. BAF003652. Robert George Spitzer, Judge.
Marianne H. Cox-Harguindeguy, 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, Senior Assistant Attorney General, Maxine Cutler, Deputy Attorney General, and Marvin E. Mizell, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKinster, Acting P.J.
Defendant and appellant Leon Harrison Barnett appeals after he was convicted of the attempted murder of Paul Ceballos. He raises issues of instructional error. We affirm.
FACTS AND PROCEDURAL HISTORY
In August 2004, two women were renting a house in Banning, California. Some of the women’s friends and the son of one of the women lived in the house, and several other people would come and stay for short periods. There was “quite a bit” of drug usage going on in the house, mostly methamphetamine.
Paul Ceballos, the victim, was staying in a motor home on the property. He had an electrical hookup, but there was no water, shower or heat in the motor home. The occupants of the house allowed Ceballos to use the kitchen and bathroom facilities in the house.
Ceballos arose on the morning of August 31, 2004. He used some methamphetamine at about 7:30 a.m. About 9:30 or 10:00 a.m., he went into the house to take a shower. Several people were waiting their turns to use the shower. Ceballos ceded his place in line to a woman because she said she was in a hurry. While he continued waiting, Ceballos ate breakfast in the kitchen. Defendant paced nearby, staring at Ceballos and flicking a knife. Ceballos said, “good morning,” to defendant, but defendant did not respond. Instead, defendant said, “‘You’re going to be out of here soon. Nobody wants you here.’” Defendant was speaking as if to himself; Ceballos “didn’t have enough nerve to ask, ‘Are you talking to me?’”
The woman whom Ceballos had allowed to shower ahead of him came out of the bathroom. Ceballos gathered together his shower items and went toward the bathroom. Defendant blocked his path. Defendant said, “‘I’m taking a shower. It’s my turn.’” Ceballos responded that defendant well knew that Ceballos had been waiting first, and accused defendant of “messing with me.”
With one hand, defendant reached toward the pocket where he had put his knife. With the other, he shoved Ceballos in the chest, forcing him back a step or two. Ceballos head-butted defendant in the nose, knocking defendant down. Defendant’s girlfriend entered the fray, pulling Ceballos’s hair from behind. Ceballos elbowed the girlfriend in the face. Defendant got up and vowed, “‘I’m going to kill you. You’re done now.’”
Ceballos and defendant engaged in a mutual combat, both men landing punches. The struggle went down the hallway toward the bedrooms. Ceballos landed a punch that knocked defendant to the floor inside one of the bedrooms. Defendant fell between the bed and a dresser. Ceballos saw defendant, on the floor, taking a knife from his pocket. When defendant opened the four-inch blade, Ceballos retreated, running down the hall toward the back door. Two people were standing in the kitchen by the back doorway. Ceballos called to them to get out of his way. As Ceballos tried to get by, he felt defendant “tap” him in the back twice.
Ceballos swiveled to see that defendant was stabbing him with the knife. He grabbed for defendant’s knife hand and sustained a cut on his left hand. A woman present started screaming that Ceballos was bleeding. Ceballos realized that he had also been cut in the neck. He ran out of the house. Ceballos secured the lock on his motor home, went to the front yard and sat down on the curb. He prevailed on some neighbors to call for help. He was lying on the ground when police and medical teams arrived.
Ceballos sustained a three-inch wound on the side of his head, a puncture wound on the right side of his neck, a puncture wound to the back near the kidney area, a slash on his left wrist, and some gashes on his left arm. Defendant had sustained a bloody nose in the fight.
In questioning at the scene, Ceballos identified defendant as the person who attacked him with the knife. Defendant admitted fighting Ceballos, but denied that he had used a knife.
Police found evidence of blood throughout the house. The largest amounts of blood were found in the kitchen and the hallway. Police searching the bedroom found a knife hidden inside a tear in the lower mattress.
Defendant was interviewed at the police station. He waived his rights and agreed to talk to police. Defendant said that he had taken some methamphetamine at 5:00 or 6:00 p.m. the previous day. Defendant described how he and Ceballos had argued, and Ceballos had head-butted him. Defendant and Ceballos then engaged in a fistfight. Defendant declared the fight evenly matched, and denied that he had had a knife. When the interrogating officer suggested that defendant may have used a knife to get Ceballos off of him, because defendant was losing the fight, defendant vehemently rejected the notion: “Dude was already getting out of the house. Why would I want to get him off me? Why would I want to stab him?”
Defendant presented no affirmative evidence in his own defense, but relied on matters brought out in the People’s case.
On cross-examination of Ceballos, for example, defense counsel pointed out Ceballos’s drug use, and suggested that using methamphetamine had made Ceballos feel “amped up” and aggressive. Ceballos indicated that he is hyperactive, and using methamphetamine “works as Ritalin for me.” Ceballos denied feeling “amped up” at the time of the incident with defendant.
Defense counsel also pointed out that Ceballos had failed to tell police at the scene about having seen defendant flicking his knife before the confrontation took place. Ceballos said, however, that he was “more worried about being able to get to the hospital and living.” Ceballos’s wounds required 12 staples and 14 stitches.
Ceballos testified that he knocked defendant to the hallway floor. He saw defendant reaching for his pocket, but no knife appeared at that point. Ceballos denied continuing to hit defendant while defendant was down, and he denied holding defendant in any way. Defendant regained his feet and continued the fight, but Ceballos then became aware of someone attacking him from behind. Ceballos elbowed the woman behind him, but continued to focus primarily on defendant. Ceballos knocked defendant down a second time, and defendant rolled into one of the bedrooms. Ceballos stepped into the bedroom to see what defendant was doing, but Ceballos denied continuing to assault defendant. When he was asked whether he had “jump[ed] on [defendant] and continue[d] to strike blows on [defendant] at that time,” Ceballos stated that he could not recall. Counsel asked, “Did you put your hands on him and try to hold him down and try to choke him at that time?” Ceballos began to reply, “I really don’t remember too much because--” Counsel interrupted, “You don’t remember that, then?” to which Ceballos responded, “Um, no. I mean, I don’t--I don’t recall.”
The prosecutor followed up these lines of cross-examination, asking Ceballos, “Do you remember choking [defendant]? Did you ever choke him?” Ceballos answered, “No.” When Ceballos would state, “I don’t recall,” he meant, “It never happened.”
A police officer authenticated the tape recording of defendant’s interview. In the course of that interview, defendant claimed that, after Ceballos knocked him down in the bedroom, Ceballos tried to overturn the dresser on him. Defendant denied stabbing Ceballos or knowing who did.
At the close of the evidence, the court proposed to give an instruction on attempted murder reduced to attempted voluntary manslaughter, but indicated it would refuse an instruction reducing attempted murder to attempted voluntary manslaughter based on imperfect self-defense. The court opined that insufficient evidence supported that theory. The court was preliminarily disinclined to instruct on a perfect self-defense theory as well, though it stated it would await closing arguments to determine what had been presented to the jury. Ultimately, the court denied any self-defense instructions: “The defense of self-defense and the application of what we call imperfect self-defense to reduce the seriousness of a crime both focus on the state of mind of the defendant with respect to a perceived danger. In the Court’s opinion, the evidence presented in this case is insufficient, almost to the point of being nonexistent, as to the defendant’s state of mind about a perceived danger.”
The prosecutor argued to the jury that self-defense did not apply. Self-defense would only apply if defendant reasonably believed he was in imminent danger of suffering great bodily injury, “and you don’t have that here. It’s not self-defense because the defendant provoked the fight.” Defendant was not seriously injured, and he maintained in his police interview that he was not losing the fight. In addition, Ceballos was already leaving the scene when he was stabbed, in the back.
Defense counsel emphasized that the fight arose unplanned from a sudden quarrel, a theory of attempted voluntary manslaughter on which the court did instruct the jury. Defense counsel argued that Ceballos’s testimony was unreliable in denying that he had choked defendant: at first Ceballos said he did not remember, and then he stated that he never held down defendant or choked him. Defense counsel did not argue any theory of self-defense in closing argument.
The jury returned a verdict convicting defendant of attempted murder, but found the crime was not willful, deliberate and premeditated. The jury found true the allegation that defendant had inflicted great bodily injury on the victim. Defendant had previously admitted allegations that he suffered a prior serious felony conviction, that he had served a prior prison term, and that his prior conviction also constituted a strike prior. The court sentenced defendant to the middle term of seven years, doubled to 14 years as a second strike, plus a consecutive three years for the great bodily injury enhancement, plus five years for a prior serious felony conviction, for a total sentence of 22 years. The court imposed and stayed a one-year term for the prior prison term enhancement.
ANALYSIS
I. The Court Properly Refused Requested Instructions on Imperfect Self-defense
As noted, the trial court refused defendant’s requested instruction (Judicial Council of Cal. Crim. Jury Instns., CALCRIM No. 604) on imperfect self-defense; defendant now urges that the court was required, sua sponte, to instruct on this lesser included offense (i.e., attempted voluntary manslaughter based on imperfect self-defense).
The court has a sua sponte duty to give the instruction when the evidence is “substantial enough to merit consideration” by the jury. (See People v. Breverman (1998) 19 Cal.4th 142, 153-163.) The court refused the instruction on the ground that the evidence was insufficient to support it. To warrant giving the instruction, there must be evidence that 1) the defendant took at least one direct but ineffective step toward killing a person; 2) the defendant intended to kill; 3) the defendant believed that he or she, or another person, was in imminent danger of being killed or suffering great bodily injury, and 4) the defendant believed that the immediate use of deadly force was necessary to defend against the danger; but 5) the defendant’s beliefs were unreasonable. Here, defendant’s belief, reasonable or otherwise, that he or someone else was in danger of death or serious injury, and evidence of his belief that deadly force was necessary, are the crucial matters.
Defendant did not testify. The only evidence from him as to his mental state was his statements during his police interview. Defendant adamantly denied that Ceballos was getting the better of him in the fight; he insisted that the fight was evenly matched. Defendant had suffered a bloody nose and injury to his mouth, but otherwise was not hurt. Ceballos had elbowed defendant’s girlfriend in the face, but all she had suffered was a mark or bruise. Significantly, defendant never told police that Ceballos had choked him. All he said was that Ceballos had tried to “throw” the dresser at him when defendant fell into the bedroom. On these facts, defendant had no belief that he was in mortal danger or even that he (or his girlfriend) risked serious injury. Defendant stoutly maintained that he had never stabbed Ceballos, and denied that he had even had a knife. Defendant’s own words, therefore, demonstrated no belief that defendant needed to defend himself or anyone else with deadly force. In fact, defendant denied going after Ceballos: “Dude was already getting out of the house. Why would I want to get him off me? Why would I want to stab him?”
As to Ceballos’s evidence, he had testified that he knocked defendant to the floor in the bedroom, and saw defendant reaching to take the knife out of his pocket. Ceballos then left. He was not stabbed until he had gone as far as the kitchen, and felt two “taps” on his back. Nothing in that scenario supported a belief that deadly force was needed to repel Ceballos; Ceballos was already in full flight.
Defense counsel made much of Ceballos’s answer, on cross-examination, that he “did not recall” choking defendant or putting his hands on defendant’s neck, but Ceballos explained that he meant that that had “never happened.” Ceballos’s statements to police were consistent; he never indicated that he had choked defendant or done anything other than hit defendant with his fists. The sole mention of “choking” was defense counsel’s question, but the jury was properly instructed that the questions of counsel are not evidence. There was utterly no evidence to support the idea that defendant actually entertained any belief, reasonable or otherwise, that deadly force was necessary to defend himself or another person from serious bodily injury or death.
In the absence of any evidence to support a theory of imperfect self-defense, the court properly refused the requested instructions on a lesser included offense based on that theory, and was not required to instruct sua sponte. (See People v. Cole (2004) 33 Cal.4th 1158, 1218-1219.)
II. The Court Properly Refused “Perfect” Self-defense Instructions
Defendant also urges that the court erred in refusing requested instructions on self-defense. Inasmuch as there was no evidence that defendant actually held even an unreasonable belief in the need to use deadly force to defend himself or others, there was also no evidence that he actually and reasonably harbored any such belief. In the first place, there was no imminent threat of great bodily injury or death. In the second place, Ceballos was already fleeing before defendant stabbed him. In the third place, defendant was the initial aggressor in the fight, and was not entitled to claim self-defense when Ceballos defended himself. (See In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.)
For the same reason that defendant was not entitled to instructions on imperfect self-defense, he also was not entitled to instructions on “perfect” self-defense: there was no evidence to support the theory that defendant entertained any belief, reasonable or otherwise, that deadly force was necessary to respond to an imminent threat of great bodily injury or death to himself or another.
DISPOSITION
The judgment is affirmed.
We concur: Richli, J., King, J.