Opinion
B227123
10-11-2011
THE PEOPLE, Plaintiff and Respondent, v. KENNETH CALLEROS, Defendant and Appellant.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Yun K. Lee and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. VA102406)
APPEAL from a judgment of the Superior Court of Los Angeles County. Dewey L. Falcone, Judge. Affirmed.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Yun K. Lee and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
By information filed December 31, 2008, appellant Kenneth Calleros was charged with assault with a firearm (Pen. Code, § 245, subd. (a)(2), counts 1 and 2), willful, deliberate, and premeditated attempted murder of a peace officer (§§ 187, subd. (a) & 664, counts 3 and 4), and assault with a firearm upon a peace officer (§ 245, subd. (d)(1), counts 5 and 6). Firearm enhancements (§§ 12022.5 subd. (a), and 12022.53, subds. (b)-(d)), and great bodily injury enhancements (§§ 12022.7 and 1203.075, subd. (a)) were also alleged. Appellant pled not guilty and denied the special allegations.
All further statutory references are to the Penal Code unless otherwise indicated.
Following a jury trial, appellant was convicted on counts 1 and 2. On counts 3 and 4, he was convicted of the lesser included offense of attempted voluntary manslaughter (§§ 192, subd. (a) & 664), and of assault with a firearm (§ 245, subd. (a)(2)) on counts 5 and 6. The jury also found the firearm and great bodily injury enhancements to be true. He was sentenced to a total term of 24 years and 2 months in prison.
Appellant contends that the trial court erred in refusing to instruct the jury regarding a homeowner's right to use deadly force against an intruder (§ 198.5, CALJIC No. 5.44 (Jan. 2005 ed.)). Appellant also seeks review of the trial court's in camera hearing pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
All references in this opinion to CALJIC are to the January 2005 edition of California Jury Instructions, Criminal.
We find no error in refusing the requested jury instruction. Nor do we find any abuse of discretion with respect to the in camera hearing. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Case
A. The August 12, 2007, Incident (Counts 1 and 2)
Charles "Chuckie" Espinoza met appellant around August 2006, and had been to appellant's home numerous times where he had observed a shotgun and a semiautomatic handgun. On the evening of August 11, 2007, Espinoza, his son, Isaac Hernandez, and appellant were drinking beer and playing darts at the Hernandez residence in Pico Rivera. An altercation arose between appellant and Espinoza over a girl named Brenda, and appellant was angry. When Jose Omar Padilla arrived at the Hernandez residence around 11:30 p.m. appellant had left. Espinoza and his son left the Hernandez residence at approximately 3:30 a.m. the next morning.
Around 7:00 a.m. on August 12, 2007, while Padilla and Hernandez were playing darts, Hernandez observed a red or maroon car drive past his home, then back up and park. Hernandez opened his front door and appellant shoved him out of the way and entered the residence asking "Where's Chuckie?" Appellant asked Hernandez "Where's your fucking little friend?" When Padilla said something, appellant replied "I ain't fooling around," drew a long-barreled revolver from his jacket and shot Padilla. The weapon appeared to be either a .38 or .357 caliber handgun. Appellant then pointed the gun at Hernandez and said, "I'm not going to kill you. I'm just going to shoot you." Appellant was "pissed off" because Espinoza had taken appellant's girlfriend from him. He told Hernandez to get an ambulance for Padilla and then ran away.
B. The August 22, 2007, Incident (Counts 3 through 6)
Los Angeles County Sheriff's Detective John Clark conducted a number of interviews while investigating the Padilla shooting. Espinoza told Detective Clark that he and appellant had had an altercation the night before the shooting, that he had seen firearms at appellant's home, and that appellant drove a red car. Espinoza referred to appellant as "Ken" or "Kenneth." Hernandez told Detective Clark that he recognized appellant as the shooter and referred to him as a white guy that was brought to his house by Charles Espinoza. Hernandez identified a photo of appellant as the gunman from a six-pack of mug shots shown to him. A search warrant was issued for appellant's residence in Montebello.
Los Angeles County Sheriff's Sergeant Anthony Baudino, and Deputies Robert Erickson, Clipper Hackett, and K-9 Officer Jason Phillippi, were among the team of law enforcement officers assigned to execute the search warrant at appellant's home on August 22, 2007. The team met at a staging area about half a mile from appellant's house and went over the tactical plan for execution of the warrant. They drove to appellant's house using two large armored vehicles that made a significant amount of noise, several marked patrol cars, a paramedic vehicle, and a K-9 unit. The armored vehicles were marked with Sheriff's insignia, and the deputies were dressed in a green khaki-type SWAT uniform, with ballistic vests and helmets, and armed with submachine guns.
Appellant's front door which consisted of a steel security door in front of a wooden door was in a six to 10 foot alcove that was approximately 40 inches wide. This type of entryway is referred to as a "fatal funnel" because there is no place for the deputies to take cover as they attempt to enter the residence. Deputies affixed metal hooks on the end of ropes leading from the Sheriff's armored vehicle, to the steel security door. Sergeant Baudino shouted that the police were there to serve a warrant. When there was no response to the announcements, the armored vehicle to which the hooks were attached pulled away and the metal door was removed. Deputy Phillippi played prerecorded and looped announcements through a public address system on his black-and-white police vehicle that was parked in front of appellant's driveway, facing the house. The announcements stated that law enforcement were serving a search warrant. Flash-bang diversionary devices were deployed around the house while Deputy Hackett applied a battering ram to the front door. As the door flew open, appellant was standing inside the entryway holding a shotgun. He pointed and fired at Deputy Hackett and Deputy Erickson, who was behind Hackett. The front door slammed against the interior wall and immediately swung back shut. Deputy Hackett rushed back from the door and saw that Deputy Erickson had fallen onto a planter. Deputy Erickson felt stinging on his arm, hips, and face, tasted blood in his mouth, and realized he had been shot. Diversionary devices were used to keep appellant's attention from the front door and to keep him from firing while deputies rescued injured Deputy Erickson. Another male exited the back door of the residence, laid down on the ground and was taken into custody.
When appellant again appeared at the front door he was given commands and directions from the deputies to show his hands, go to his hands and knees, get down on the ground, and then crawl towards the deputies. Appellant complied at first, but when he rose up and refused to lay flat, K-9 handler Deputy Phillippi released his dog. The dog bit appellant on the arm and held him down until the deputies took him into custody.
During a search of the residence, deputies recovered the shotgun used to shoot Deputy Erickson, a shot-shell belt containing live rounds, and a box containing 34 .357 live rounds. None of the deputies remembered hearing any noise from appliances in appellant's bedroom, and Sergeant Baudino observed one of the Sheriff's armored vehicles parked outside, when looking from appellant's bedroom window.
Defense Case
Julian Villa, a handyman, testified that he visited appellant's home in July 2007, approximately one month before the search warrant was served, to repair some damage to the front door. Appellant told Villa that somebody was after him and had tried to get into his house.
Arthur Ramirez testified that he and appellant were smoking methamphetamine and doing Internet research on the computer in appellant's bedroom on August 22, 2007. Ramirez heard the rumbling of a loud vehicle followed by pounding on the front metal security door, and told appellant that someone was at the door. The loud banging on the door continued nonstop for approximately 40 seconds. Appellant retrieved his shotgun from under the bed and told Ramirez to stay in the bedroom. Ramirez heard some loud explosions but never heard any announcements that it was the police outside. From appellant's bedroom window, Ramirez saw appellant comply with the deputies' commands to surrender, and saw deputies kick and stomp on appellant when the K-9 handler pulled the dog away.
Ernest Gonzales testified that he was visiting his grandmother down the street from appellant's residence, and saw the armored sheriff's vehicles and heard loud explosion-type noises. A number of appellant's neighbors testified as to what they saw and heard that day: Amelia Ochoa testified that she saw the deputies arrive at appellant's home, and heard explosions but no police announcements; Pete Razo lived three houses from appellant and heard explosions but no police announcements; Christopher Kataoka lived across the street from appellant and heard explosions and deputies ordering appellant out of the house but no public address system announcements; Richard Caster lived four houses from appellant and heard explosions but no police announcements; and Bertha Precelia who was outside washing her car saw the Sheriff's vehicles arrive and heard a gunshot and other explosions.
Dr. Ronald Markman, a forensic psychiatrist, testified that methamphetamine users in stressful situations can misinterpret what is taking place and react impulsively. Pitchess Motion
Appellant brought a Pitchess motion for discovery of false reports and other evidence of misconduct contained in the personnel files and other confidential records of Sergeant Baudino, and Deputies Erickson and Hackett. The trial court granted the motion, held an in camera hearing on June 2, 2009 with the custodian of records present, and found no discoverable matters.
DISCUSSSION
I. CALJIC No. 5.44.
Appellant contends he was denied due process and a fair trial when the trial court refused to instruct the jury on the Home Protection Bill of Rights (§ 198.5) pursuant to CALJIC No. 5.44. According to appellant, the evidence shows that because his use of deadly force was within his residence, he was entitled to the presumption set out in section 198.5 that he was in reasonable fear of imminent peril of death or great bodily injury; and that the trial court's failure to give this instruction was reversible constitutional error.
Appellant's theory of the case was defense of self and property, and he requested a number of instructions pertaining to that defense. During the jury instruction settlement conference, the court indicated that it would permit instructions on self defense against assault (CALJIC No. 5.30), defense of property (CALJIC No. 5.40), resisting an intruder upon one's property (CALJIC No. 5.42), and use of force in defense of property (CALJIC No. 5.43), but stated "I'm not going to give 5.44 though." Appellant's counsel stated that he thought it was applicable, but the court replied, "The court will decline to give 5.44."
Section 198.5, enacted in 1984 and entitled the Home Protection Bill of Rights, provides as follows: "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. [¶] As used in this section, great bodily injury means a significant or substantial physical injury." (§ 198.5, added by Stats. 1984, ch. 1666, § 1, italics added.)
This statute was enacted "to permit residential occupants to defend themselves from intruders without fear of legal repercussions, to give 'the benefit of the doubt in such cases to the resident, establishing a presumption that the very act of forcible entry entails a threat to the life and limb of the homeowner.'" (People v. Owen (1991) 226 Cal.App.3d 996, 1005.)
CALJIC No. 5.44, "Presumption of Fear of Death/Great Bodily Injury," outlines the elements of section 198.5 for the jury.
CALJIC No. 5.44, reads as follows: "If the evidence shows that: 1. A [defendant] [perpetrator] used force intended or likely to cause death or great bodily injury, within his or her residence; [¶] 2. The force was used against another person who was not a member of the [defendant's] [perpetrator's] family or household; [¶] 3. The person against whom the force was used, unlawfully and forcibly either was entering or had entered the residence; and [¶] 4. The [defendant] [perpetrator] knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred; then: [¶] You must presume that the [defendant] [perpetrator] at the time the force was used held a reasonable fear of imminent peril of death or great bodily injury to [himself] [herself] [or] [a member of [his] [her] family or household]. [¶] This presumption means that you must find the [defendant] [perpetrator] held a reasonable fear of imminent peril of death or great bodily injury to (himself, etc.) unless you are satisfied beyond a reasonable doubt from all of the evidence that an unlawful [killing] [injury] occurred. [¶] 'Great bodily injury' means a significant or substantial physical injury."
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The trial court is required to instruct the jury on a defense relied upon by the defendant only if the defense is supported by substantial evidence. (People v. Watson (2000) 22 Cal.4th 220, 222.) Substantial evidence is that which is reasonable, credible and of solid value. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Speculation and surmise do not constitute substantial evidence. (People v. Memro (1985) 38 Cal.3d 658, 695.)
For the rebuttable presumption of section 198.5 to apply in a given case, four evidentiary elements must be present: "There must be an unlawful and forcible entry into a residence; the entry must be by someone who is not a member of the family or the household; the residential occupant must have used 'deadly' force . . . against the victim within the residence; and finally, the residential occupant must have had knowledge of the unlawful and forcible entry." (People v. Brown (1992) 6 Cal.App.4th 1489, 14941495.) If all of these elements are present, the rebuttable presumption applies that appellant had a reasonable fear of imminent peril or death or great bodily injury at the time he used deadly force. (People v. Curtis (1994) 30 Cal.App.4th 1337, 1361-1362.) By the same token, unless each of these elements is present, the presumption does not apply. (Brown, supra, at pp. 1494-1499.)
"When construing a statute, a court seeks to determine and give effect to the intent of the enacting legislative body." (People v. Braxton (2004) 34 Cal.4th 798, 810.) "'We first examine the words themselves because the statutory language is generally the most reliable indicator of legislative intent. [Citation.] The words of the statute should be given their ordinary and usual meaning and should be construed in their statutory context.' [Citation.] If the plain, commonsense meaning of a statute's words is unambiguous, the plain meaning controls. [Citation.]" (Fitch v. Select Products Co. (2005) 36 Cal.4th 812, 818.)
Appellant argues that all the elements of the defense are found here and "[o]n its face, the statute applies to appellant." But, applying the well established basic rules of statutory construction we find the presumption did not apply here because there was no unlawful entry into the residence. The evidence shows that the Sheriff's deputies were executing a lawful search warrant issued following an investigation into the August 12, 2007 incident in Pico Rivera, when an eyewitness identified appellant as the shooter, a vehicle similar to one owned by appellant was used by the shooter, and appellant was known to possess in his residence a firearm similar to the one used in the shooting. The entry was forcible, but the statute also requires that the entry be "unlawful," which was not established here.
Appellant nevertheless argues that a jury could find appellant had reason to believe that the forcible entry was unlawful because he did not hear the police officers announce their presence. But the testimony showed that appellant chose to ignore and not avail himself of many opportunities to ascertain the true nature of the status of the entrants prior to his use of deadly force. The arrival and presence of law enforcement personnel outside appellant's residence was loud and visible. Armored vehicles with Sheriff's insignia, accompanied by marked patrol cars, a K-9 unit and a paramedic unit, were heard "rumbling" down the street by Arthur Ramirez from appellant's bedroom. Both Ramirez and Sergeant Baudino could observe the police presence from appellant's bedroom window. Appellant was told by Ramirez that someone was at the door because there had been continuous banging on the door. When the door was opened, appellant could see that Deputies Hackett and Erickson were dressed in a green khaki-type uniform, with ballistic vests and helmets, signifying members of a SWAT unit.
Appellant's reliance on People v. Owen, supra, 226 Cal.App.3d 996 is misplaced because that case is factually distinguishable. In Owen, the victim forcibly entered the defendant's home to take property that belonged to a third party who had not given permission to the defendant to give the property to the victim. (Id. at p. 1000.) The victim's physical attack on the defendant, who fought back with his fists before shooting the victim, could not be characterized as "lawful." (Id. at p. 1001.) Although the court in Owen recognized that a defendant had the right to an instruction embodying section 198.5's presumption, there was no reversible error as the jury was fully instructed on all the principles of law for its understanding of the case. (People v. Owen, supra, at pp. 1006-1007.)
Here, in contrast, law enforcement personnel were lawfully serving a search warrant. Appellant cites no cases, and our research discloses none, where a court interpreted the standard imposed by section 198.5 to be whether the defendant reasonably believed a forcible entry to be unlawful. The burden appellant had but failed to carry was to show that the entry was unlawful and that he had knowledge that it was unlawful. In short, "[t]he plain language of section 198.5 shows that the statute was intended to give residential occupants additional protection in situations where they are confronted in their own homes by unlawful intruders such as burglars." (People v. Brown, supra, 6 Cal.App.4th at p. 1495.) The trial court properly refused to instruct the jury with CALJIC No. 5.44. II. The Pitchess Motion
Appellant also requests that we independently review the sealed transcript of the in camera proceedings on his Pitchess motion, which we have done. The trial court's findings during that review, as reflected in the sealed transcript, were sufficient to permit appellate review of its ruling. (People v. Mooc (2001) 26 Cal.4th 1216, 1229, 1232.) We find no error in the trial court's ruling at the in camera hearing.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
DOI TODD , J.
We concur:
BOREN, P. J.
ASHMANN-GERST, J.