Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 03F00505, 06F02553
CANTIL-SAKAUYE, J.
A jury found defendant Cory Juan Braden, Jr., guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(2)) and discharging a firearm in a grossly negligent manner (§ 246.3). The jury also found true allegations defendant personally used a firearm in the commission of the assault. (§ 12022.5, subd. (a)(1).)
Hereafter, undesignated statutory references are to the Penal Code.
Defendant was charged with assault with a deadly weapon, discharging a firearm in a grossly negligent manner, unlawfully possessing a firearm (§ 12021, subd. (c)(1)), and carrying a loaded firearm in a public place (§ 12021, subd. (a)(2)(f)). In November 2006, a jury convicted defendant of unlawfully possessing a firearm, acquitted him of carrying a loaded firearm in a public place, and deadlocked on the remaining counts. A mistrial was declared as to those counts, defendant was retried, and a jury found him guilty of assault with a deadly weapon and discharging a firearm in a grossly negligent manner. This appeal concerns defendant’s convictions on these two latter counts. Defendant’s appeal of his conviction for unlawfully possessing a firearm is pending before this court in case No. C055699.
Sentenced to six years in state prison, defendant appeals, contending the trial court prejudicially erred in failing to sua sponte instruct the jury on self-defense. Finding no error, we shall affirm the judgment.
Defendant’s original notice of appeal referenced Sacramento Superior Court case No. 03F00505. On October 12, 2007, we granted defendant’s application to amend the notice of appeal to include Sacramento Superior Court case No. 06F02553.
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 11:00 p.m., defendant met some coworkers, including Eddy Bustillos, at a bar in Citrus Heights. Bustillos had a black eye and told another coworker that her boyfriend Marcus Moreno accidentally caused it. Defendant and Bustillos left the bar at approximately 2:30 a.m. the following morning. Bustillos was intoxicated, and defendant drove her home.
After the incident and prior to trial, Bustillos married Moreno and changed her name to Eddy Moreno. For clarity, we refer to her by her maiden name.
Bustillos shared an apartment with Moreno, and Moreno was outside when she arrived home. Before Bustillos got out of the car, defendant asked her if she was going to be okay, and she said she would be fine. Defendant stayed in the car while Bustillos got out and approached Moreno. Moreno was upset defendant drove Bustillos home and accused her of cheating on him. When Bustillos attempted to walk past Moreno, he grabbed her by the arms but immediately let go.
At that point, defendant got out of his car and approached Moreno and Bustillos. Defendant told Moreno that Moreno should leave and that Bustillos did not want him there. Moreno told defendant he should mind his own business. When the situation “progressed,” Moreno entered a neighbor’s apartment. While he was inside, defendant “kept . . . calling him out” and telling him “to come back outside to fight . . . .”
Moreno came out a few minutes later, and it “seem[ed] like [Moreno] was just going to fight [defendant].” Defendant removed his jacket, Moreno rolled up his sleeves, and the two men “squared off.” Bustillos intervened and told defendant to leave. There was no physical contact between defendant and Moreno, and they remained approximately three feet apart.
Defendant then said, “check this out,” returned to his car, reached inside the glove box, and “popped” the trunk. As he did so, Moreno walked towards the car, closing the distance between him and defendant by half. Defendant removed a rifle from the trunk, approached Moreno, and pointed the rifle at Moreno’s chest. Moreno stood there with his hands by his side and said, “You’re man enough to get it, so you might as well shoot me.” Defendant lowered the rifle, fired one shot at the ground between Moreno’s legs, fired another four or five shots into the air or the gravel, and left. Defendant was between five and 10 feet from Moreno when he fired the shots. Moreno was unarmed during the entire incident. At trial, defendant presented no evidence.
DISCUSSION
Defendant contends “the trial court prejudicially erred and violated [his] rights under the United States and California Constitutions when it refused and/or failed to instruct the jury on the principles of self-defense.” He is mistaken.
The trial court must instruct the jury on self-defense only when there is substantial evidence of an honest and reasonable belief that bodily injury is about to be inflicted. (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065; People v. Barton (1995) 12 Cal.4th 186, 201; People v. Shelmire (2005) 130 Cal.App.4th 1044, 1046.) “The threat of bodily injury must be imminent [citation], and ‘ . . . any right of self-defense is limited to the use of such force as is reasonable under the circumstances. [Citation.]’ [Citations.]” (People v. Minifie, supra, 13 Cal.4th at pp. 1064-1065.) The court need not instruct on self-defense if the evidence is “‘minimal and insubstantial.’ [Citation.]” (People v. Barton, supra, at p. 201.)
Here, there is no evidence to support a finding that defendant, who by all accounts was the aggressor, had an honest and reasonable belief that bodily injury was about to be inflicted on him. While he and Moreno “squared off” and appeared ready to fight, defendant walked away and returned to his car. At that point, any imminent threat of harm evaporated. Defendant was free to leave, and his decision to return with a rifle was unjustified.
Defendant’s assertion that he had a “reasonable belief that [Moreno] was about to inflict bodily injury on him” because Moreno “followed” him to his car is not supported in the record. The evidence presented at trial was that Moreno walked towards defendant’s car, closing the distance between him and defendant by half. There was no indication Moreno was close enough to strike defendant or otherwise cause him harm. To the contrary, defendant was between five and 10 feet from defendant when he fired the shots. Moreover, Moreno was unarmed. Thus, defendant’s use of a firearm was not reasonable in any case. (See People v. Minifie, supra, 13 Cal.4th at pp. 1064-1065.) Defendant’s suggestion that Moreno could have retrieved a weapon when he was inside the neighbor’s apartment is pure speculation.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J. SIMS, J.