Opinion
C083435
07-03-2018
THE PEOPLE, Plaintiff and Respondent, v. SOM CHANTHACHEM, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE003773)
A jury convicted defendant Som Chanthachem of assault with a deadly weapon on a peace officer (Officer Jason Gonzales) (Pen. Code, § 245, subd. (c); unless otherwise set forth, statutory section references that follow are to the Penal Code; count 1) and battery on a peace officer (Officer Michael Courtnier), a misdemeanor (§ 243, subd. (b)), as a lesser included offense to that charged in count 3 (battery on a peace officer causing injury (§ 243, subd. (c)(1)). The jury was unable to reach a verdict on the remaining counts (count 2--willfully and unlawfully attempting by means of threats and violence to prevent a peace officer from performing his duties (§ 69); count 4--assault with a deadly weapon (§ 245, subd. (a)(1); and counts 5 and 6--exhibiting a deadly weapon, a misdemeanor (§ 417, subd. (a)(1)). Counts 2, and 4 to 6 were later dismissed.
The court sentenced defendant to state prison for the low term of three years on count 1. The court also imposed a concurrent 270-day jail term on count 3.
Defendant appeals. He contends the trial court prejudicially erred in failing to instruct the jury on self-defense in connection with count 1. We affirm the judgment.
FACTS
About 12:45 p.m. on February 19, 2016, California Highway Patrol Officers Jason Gonzales and Eric Trujillo, both in uniform and in their patrol vehicle, were called to a homeless encampment along Highway 99 near Martin Luther King Jr. Boulevard to provide security for employees from the California Department of Transportation (Caltrans) and its contractor who were cleaning up debris and the encampments. Officers Gonzales and Trujillo were told that someone with a knife was chasing people at an encampment.
Upon their arrival, the officers saw defendant waving a knife in their direction while pulling a shopping cart. Both officers who were armed with handguns ordered defendant several times to drop the knife. Defendant ignored the officers. Officer Gonzales holstered his gun and pulled out his Taser. Defendant made a sudden movement with the knife and started to act aggressively toward the officers. Defendant put the blade of the knife in his right hand and raised his arm in a position to throw it. Officer Gonzales shot defendant with his Taser, which did not have any effect. Defendant threw his knife at Officer Gonzales, hitting him in the leg. Officer Trujillo fired his gun at defendant as defendant was throwing the knife and the bullet struck the ground near defendant's foot.
Defendant abandoned his cart and started walking away toward an apartment complex with the officers in pursuit, commanding defendant to stop. Defendant ignored the officers and picked up a brake disc motor drum. Using his Taser, Officer Gonzales shot at but missed defendant.
California Highway Patrol Officer Michael Courtnier arrived and tried to subdue defendant. Using one of his hands, defendant attempted to hit Officer Courtnier in the face. A scuffle ensued and defendant scratched Officer Courtnier's face and neck before the officers were able to handcuff defendant.
When interviewed by police with an interpreter, defendant admitted that he understood Officers Gonzales and Trujillo when they ordered him to drop the knife and stop. Defendant did not testify at trial.
The only defense witness was Kenneth Buelow, one of the eight employees on the clean-up crew. Buelow testified that his coworkers encountered defendant who was sleeping on a piece of cardboard under a blanket. Buelow's coworkers started laughing at defendant who tried to get them away from him. The employees were ordered by their boss to get back in the van. From the van, Buelow observed the arrival of the officers who aimed their guns at defendant. Defendant made a jerking motion toward the officers and walked off, pushing his cart. The officers were telling him to stop. Defendant made a throwing motion toward the officers but Buelow did not see what was thrown but also said "nothing" struck the officers. Buelow saw one officer fire his gun but did not see any other weapon used by the officers. Buelow had a 1999 felony conviction for first degree burglary.
On cross-examination, Buelow added that defendant jumped up with a knife and chased his coworkers or took a protective stance. Buelow did not see an officer use his Taser on defendant before the gun was fired. Buelow admitted that he wears glasses but did not have them on so his vision was not the best. Although Buelow admitted he did not know what defendant felt, Buelow said defendant looked scared and shocked.
DISCUSSION
Defendant contends there was credible evidence to support the defense theory that defendant threw the knife only after deadly force was used against him; thus, the trial court prejudicially erred in failing to instruct, in connection with count 1, that the prosecution was required to prove beyond a reasonable doubt that defendant did not act in self-defense. Defendant argues, "[T]he jury could have rationally found that Officer Gonzales was lawfully performing his duties when he used non-lethal force to subdue [defendant] by deploying his Taser, but that [defendant] reasonably believed in light of his own background and personal circumstances that the use of the Taser constituted an imminent threat to his own life to which he responded with a reasonable quantum of force to protect the same." Defendant also argues that the jury could have concluded defendant was the initial aggressor with respect to the Caltrans workers but when he came into contact with the officers, defendant's conduct was simply a trespass because he was retreating from the scene and "did not display his knife in a menacing manner." He claims his self-defense argument was rendered meaningless as to count 1 because the trial court failed to instruct on self-defense, which would have informed the jury that defendant was absolved of liability if he reasonably believed that he had to throw the knife to defend against a perceived danger.
The trial court did not err in refusing instructions on self-defense in connection with count 1. We conclude that insufficient evidence warranted such instructions.
"A trial court must instruct the jury on every theory that is supported by substantial evidence, that is, evidence that would allow a reasonable jury to make a determination in accordance with the theory presented under the proper standard of proof. [Citation.] We review the trial court's decision de novo." (People v. Cole (2004) 33 Cal.4th 1158, 1206.) "A trial court's duty to instruct, sua sponte, on particular defenses ' "arises only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case." ' " (People v. Maury (2003) 30 Cal.4th 342, 424.) "Evidence is substantial if a reasonable jury could find the existence of the particular facts underlying the instruction." (People v. Lee (2005) 131 Cal.App.4th 1413, 1426.)
"To justify an act of self-defense. . . , the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him. [Citation.]" (People v. Goins (1991) 228 Cal.App.3d 511, 516, italics omitted.)
In connection with count 1, assault with a deadly weapon on a peace officer (Officer Gonzales), the trial court instructed the jury with the language of CALCRIM No. 860. CALCRIM No. 860 defines the elements of assault on a peace officer with a deadly weapon in violation of section 245, subdivision (c). To prove this offense, bracketed element 7 of the instruction requires the prosecution to prove: "The defendant did not act in self-defense." The Bench Notes to CALCRIM No. 860 state: "If there is sufficient evidence of self-defense. . . , the court has a sua sponte duty to instruct on the defense. Give bracketed element 7 and any appropriate defense instructions. . . . [¶] In addition, the court has a sua sponte duty to instruct on defendant's reliance on self-defense as it relates to the use of excessive force. [Citation.] If excessive force is an issue, the court has a sua sponte duty to instruct the jury that the defendant is not guilty of the offense charged. . . in which lawful performance is an element, if the defendant used reasonable force in response to excessive force. [Citation.] On request, the court must instruct that the prosecution has the burden of proving the lawfulness of the arrest beyond a reasonable doubt. [Citation.] If lawful performance is an issue, give the appropriate portions of CALCRIM No. 2670, Lawful Performance: Peace Officer. . . ."
Over defense objection, the trial court deliberately omitted from CALCRIM No. 860 bracketed element 7 on self-defense. The court found the language was not applicable because "a person is not entitled to use just general self-defense toward an officer who is acting in his or her lawful performance of duties" but when "there has been improper behavior on the part of the officers such as excessive force" . . . "then there is the ability of a person then to take action in defense."
Over the prosecutor's objection, the court instructed the jury with the language of CALCRIM No. 2670, which informed the jury that the prosecution had the burden of proving beyond a reasonable doubt that Officer Gonzales was lawfully performing his duty as a peace officer. The instruction also explained that Officer Gonzales was not lawfully performing his duty if he used "unreasonable or excessive force when making or attempting to make an otherwise lawful arrest or detention." CALCRIM No. 2670 further provides: "If a person knows, or reasonably should know, that a peace officer is arresting or detaining him or her, the person must not use force or any weapon to resist an officer's use of reasonable force. . . . [¶] If a peace officer uses unreasonable or excessive force while attempting to detain a person, that person may lawfully use reasonable force to defend himself or herself. [¶] A person being arrested or detained uses reasonable force when he or she: (1) uses that degree of force that he or she actually believes is reasonably necessary to protect himself or herself from the officer's use of unreasonable or excessive force; and (2) uses no more force than a reasonable person in the same situation would believe is necessary for his or her protection."
The trial court did not err.
Here, there is no evidence that defendant acted in response to what he reasonably believed to be imminent injury, rather than using force to escape from being arrested by the officers for threatening Caltrans workers with the knife. The evidence reflects officers were notified that defendant had a knife and was chasing the workers at the encampment. Upon the officers' arrival, defendant displayed the knife, waving it in the officers' direction, while pushing a cart. Defendant ignored the officers' commands to drop the knife. Both officers were armed with firearms but Officer Gonzales holstered his firearm and pulled out his Taser. Defendant started to act aggressively, and made a sudden movement with the knife. He transferred the blade of the knife to his right hand and raised his arm to throw the knife. Officer Gonzales then shot at defendant with his Taser, which had no effect and defendant threw his knife, hitting Officer Gonzales in the leg. Defendant did not testify. When interviewed after his arrest, defendant admitted that he understood the officers when they told him to drop the knife and to stop. The defense evidence offered by a clean-up crew member did not support the conclusion that defendant only used force against Officer Gonzales to avoid imminent injury.
The jury was instructed in part that: "A person being arrested or detained uses reasonable force when he or she: (1) uses that degree of force that he or she actually believes is reasonably necessary to protect himself or herself from the officer's use of unreasonable or excessive force; and (2) uses no more force than a reasonable person in the same situation would believe is necessary for his or her protection."
Thus, the jury was instructed that, if defendant believed that it was reasonably necessary to protect himself from an officer's use of unreasonable or excessive force, he would have been justified in using the force necessary to protect himself. That instruction met the defendant's claims regarding use of force in this circumstance. There being no evidence of defendant's need for self-defense, there was no error by the trial court in refusing to require the prosecution to prove beyond a reasonable doubt that defendant did not act in self-defense.
DISPOSITION
The judgment is affirmed.
HULL, J. We concur: BLEASE, Acting P. J. DUARTE, J.