Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CR910445
Ruvolo, P.J.
I. INTRODUCTION
Kristopher Daniel Coulombe (appellant) appeals from his conviction of battery against his spouse in violation of Penal Code section 243, subdivision (e)(1). He argues that the trial court erred in failing, sua sponte, to instruct the jury on a possible theory of self-defense and that such failure is reversible error. We conclude that under the circumstances of this case, the trial court had no duty to instruct the jury on self-defense, and the judgment of conviction is affirmed.
II. PROCEDURAL BACKGROUND
Appellant was charged with felony battery of his spouse resulting in a traumatic condition (Pen. Code, § 273.5, subd. (a)) and two other counts. The prosecution presented hospital records and just four witnesses, none of whom were the appellant or his wife despite the fact that she was present at trial. The defense presented no affirmative evidence. The jury acquitted appellant of the charges but found him guilty of a lesser included offense, misdemeanor battery not resulting in a traumatic condition (Pen. Code, § 243, subd. (e)(1)). The court sentenced appellant to 60 days in county jail, restitution and domestic violence fees, 20 hours of work service and enrollment in a batterer’s treatment program. This timely appeal followed.
III. FACTUAL BACKGROUND
On August 12, 2006, appellant and his wife, Danielle Coulombe, went bowling. Ms. Coulombe was pregnant at the time. Along with them was J.B., the 13-year-old daughter of a good friend of appellant.
J.B. testified that while she was playing videogames in the bowling alley, appellant and his wife were arguing heatedly, which eventually resulted in their being asked to leave. The argument continued in the parking lot, where appellant hit Ms. Coulombe in the face, and continued further in their car.
J.B. testified that when the three first got into their car, she sat behind the driver, Ms. Coulombe sat in the back seat on the passenger side, and appellant sat in the driver’s seat. When the three left in the car, appellant repeatedly hit Ms. Coulombe while he was driving by reaching into the back seat while keeping one hand on the steering wheel. At one point Ms. Coulombe attempted to escape the car while it was moving, but then moved into the front seat closer to appellant.
Sergeant Gary Basor of the Lake County Sheriff’s Department testified that he interviewed and took a formal statement from J.B. at approximately 4:00 a.m. on August 13, 2006. Although J.B. did not recall the statement during trial, Sergeant Basor testified that J.B. told him she heard appellant tell Ms. Coulombe sometime during their fight that he would find a dark alley to beat her in.
Ms. Coulombe’s friend, Johnie Lynn Gaylor, testified that she called Ms. Coulombe during the altercation. She first attempted unsuccessfully to call Ms. Coulombe on her cell phone, and then called appellant’s cell phone. Appellant’s cell phone connected, although no one spoke directly to Gaylor; Gaylor at first could only hear both Ms. Coulombe and appellant yelling at each other. Gaylor also heard Ms. Coulombe ask appellant to “stop hitting her.” Gaylor testified that she next heard appellant demand Ms. Coulombe hang up the phone and call her an epithet. Before Ms. Coulombe hung up the phone, she told Gaylor that she needed help in what Gaylor described as a scared, but loud tone. Gaylor therefore proceeded to the Coulombes’ home.
J.B. testified that at some point, appellant “got hit” with “something,” but that she did not know exactly what happened. She first noticed appellant was badly bleeding from a cut near his eye when the three arrived home. Gaylor testified that she had also arrived at the Coulombes’ home by this time, and confirmed that when appellant emerged from the car he had blood running down his face.
Ms. Coulombe then related to Gaylor that appellant had pushed her into the car and punched her in the stomach. Gaylor observed bruises on Ms. Coulombe’s arm and that her stomach was red, and the two proceeded to a local hospital.
Lake County Sheriff’s Deputy David Fidjeland testified that when he first saw Ms. Coulombe at the hospital at 2:30 a.m. on August 13, 2006, she was “shaking, she had been crying, [and] she told me she hurt.” He observed a bruise and an abrasion on Ms. Coulombe’s arm. Ms. Coulombe’s hospital records indicate that she and her baby needed no medical treatment. When appellant also came to the hospital, Deputy Fidjeland met him outside the hospital room and observed a laceration on his cheek still bleeding.
In closing argument, defense counsel argued that reaching Ms. Coulombe from the driver’s seat would have been extremely difficult for appellant since a congenital condition caused his legs to be unusually short; counsel referred to evidence that when appellant drives, his seat must be pushed as far forward as possible. Defense counsel also attacked the testimony of J.B. by arguing it was not plausible that Ms. Coulombe would move closer to appellant if he had been hitting her. He also noted that Ms. Coulombe, compared to the “very short” appellant, was five feet nine inches tall and weighed 224 pounds, though he did not explicitly draw the inference that Ms. Coulombe would have intimidated appellant, or that she was attempting to intimidate him.
IV. DISCUSSION
Appellant argues that the trial court erred in not instructing the jury on a complete defense to the crime of which he was ultimately convicted. Specifically, he claims that the court had a sua sponte duty to instruct the jury on self-defense and should not have omitted the bracketed portion of CALCRIM No. 841. As given to the jury, that instruction read: “To prove that [appellant] is guilty of this [lesser included offense of battery], the People must prove that: [¶] One, [appellant] willfully touched Danielle Lynn Coulombe in a harmful or offensive manner; [¶] And two, Danielle Lynn Coulombe is [appellant]’s spouse.” The trial court continued with the instruction’s key term definitions, omitting the instruction’s bracketed third requirement that the jury must determine whether the prosecution proved that “[appellant] did not act in self-defense or in defense of someone else.” CALCRIM No. 841’s bench notes direct that “[i]f there is sufficient evidence of self-defense or defense of another, the court has a sua sponte duty to instruct on the defense” and should include the bracketed third requirement. There is no record of any discussion among counsel or the court regarding how the jury would be instructed, except that the parties agreed to the court’s suggested CALCRIM instructions.
Generally, even without the request of either the prosecution or defense, a criminal trial court has a duty to instruct a jury on those principles of law relevant to the jury’s determination and its understanding of the case. (People v. Hood (1969) 1 Cal.3d 444, 449; People v. St. Martin (1970) 1 Cal.3d 524, 531.) This duty arises both to protect a defendant’s right under the California Constitution to have his or her case decided by a jury fully informed on the law, and from the public policy of ensuring that the “ ‘strategy, ignorance, or mistakes’ ” of either the prosecution or defense do not preclude the jury’s factfinding function thereby diminishing the “ ‘overall administration of justice.’ ” (People v. Breverman (1998) 19 Cal.4th 142, 155.)
Even with these important policy goals, the trial court’s duty to instruct sua sponte on affirmative defenses is more limited than, for example, its broad duty to instruct a jury on lesser included offenses of the crimes charged. (People v. Breverman, supra, 19 Cal.4th at p. 157; People v. Barton (1995) 12 Cal.4th 186, 195.) The trial court’s limited duty to sua sponte instruct the jury on affirmative defenses does not obligate it to “ferret out all defenses that might possibly be shown by the evidence” since such a rule would “ ‘put trial judges under pressure to glean legal theories and winnow the evidence for remotely tenable and sophistical instructions.’ [Citation.]” (People v. Breverman, supra, at p. 158; People v. Sedeno (1974) 10 Cal.3d 703, 716-717.) Rather, the duty, in part, safeguards against the possibility that defense counsel has mistakenly overlooked an obvious defense theory. (People v. Sedeno, supra, at p. 717, fn. 7.)
Thus, a court’s duty to sua sponte deliver jury instructions regarding a defense arises only “if there is substantial evidence of the defense and if it is not inconsistent with the defendant’s theory of the case. [Citation.]” (People v. Wilson (2005) 36 Cal.4th 309, 331.) Evidence of a defense is sufficiently substantial to trigger a trial court’s duty to sua sponte instruct the jury if it is “evidence that a reasonable jury could find persuasive.” (People v. Barton, supra, 12 Cal.4th at p. 201, fn. 8.) It has also been defined as “evidence sufficient for a reasonable jury to find in favor of the defendant . . . .” (People v. Salas (2006) 37 Cal.4th 967, 982.) Appellant argues that at trial “there was substantial evidence that [he] was assaulted by [Mrs. Coulombe].” We disagree.
A determination of whether substantial evidence existed to warrant the trial court’s instructing the jury on self-defense necessarily includes an examination of the definition of the defense. Had the jury been instructed on self-defense, the trial court would have also delivered the instruction on the definition of self-defense, CALCRIM No. 3470, which provides in part, as applicable to this discussion, that a defendant has acted in self-defense if he “reasonably believed that [he] was in imminent danger of suffering bodily injury [. . .,] reasonably believed that the immediate use of force was necessary to defend against that danger [. . ., and] used no more force than was reasonably necessary . . . .”
In support of his argument, appellant places great weight on evidence that he suffered an injury during the argument with his wife. While it is not unreasonable to infer from J.B.’s testimony that Ms. Coulombe caused an injury to appellant, the simple fact of injury alone is insufficient to support an inference that appellant’s conduct was in self-defense, nor could it support a finding that he used no more force than reasonably necessary to remove himself from danger. On these points, there is not only insufficient evidence, but there is no evidence at all. Even in the situation of a lesser included offense, “the existence of ‘any evidence, no matter how weak’ will not justify instructions . . . .” (People v. Breverman, supra, 19 Cal.4th at p. 162, italics omitted.)
Appellant, both in his appellate briefs and during trial, mentioned that he is generally confined to a wheelchair. Even taking this fact together with the nature of the injury he received during the altercation, we decline to conclude this was substantial evidence supporting a self-defense affirmative defense.
Appellant also argues that exactly who began the argument is unclear from the evidence, and that therefore it is just as plausible that his contact with Ms. Coulombe was in self-defense as it was that he committed a battery. Yet, as we have already noted even if the theory of self-defense was plausible, a merely plausible argument does not give rise to a trial court’s duty to sua sponte instruct a jury. The trial court has no duty to sua sponte suggest jury instructions based on conjecture or speculation. (People v. Young (2005) 34 Cal.4th 1149, 1200.)
Appellant argues, however, that an extremely low threshold of “substantial evidence” should apply since “[t]he burden in any case where the defendant might have been acting in self[-]defense is on the prosecution to disprove that element by evidence sufficient to remove reasonable doubt of it.” (Original italics.) He cites People v. Salas, supra,37 Cal.4th at page 982, which states that “substantial evidence” giving rise to a trial court’s duty to sua sponte instruct the jury on a defense is any “ ‘evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.’ ”
It is true that at trial the burden of persuasion is on the prosecution to negate self-defense since it speaks directly to a defendant’s criminal culpability for the crime. (People v. Adrian (1982) 135 Cal.App.3d 335, 340-341.) This rule necessarily implies, though, that the defense must have been “raised,” either explicitly by counsel or by the evidence presented. If our holding required the prosecution to disprove self-defense as part of its burden of proof, even where the defense has not been raised, we would in effect be imposing duty on prosecutors to disprove every possible affirmative defense in every case, and imposing a concomitant obligation on trial courts, in turn, to instruct the jury on every possible defense. This is not what People v. Salas, supra, 37 Cal.4th 967 instructs.
A trial court’s limited duty to sua sponte instruct a jury on the defense, to the end of safeguarding against the possibility that defense counsel has mistakenly overlooked an obvious defense theory (People v. Sedeno, supra, 10 Cal.3d at p. 717, fn. 7), arises only “if . . . substantial evidence [was submitted] that, if believed by the jury, would raise a reasonable doubt” as to a defendant’s criminal culpability. (People v. Salas, supra, 37 Cal.4th at pp. 982-983, italics added.) Appellant never raised any evidence supporting a self-defense theory, and the prosecution’s evidence showed only that appellant and Ms. Coulombe were fighting mutually and that appellant at some point was hit. Such evidence was likely insufficient to cause a juror to reasonably doubt appellant’s guilt, but certainly insufficient to raise the issue of self-defense implicitly through evidence, thereby triggering the trial court’s sua sponte duty to instruct on that defense. Again, the trial court was not obligated to “ferret out all defenses that might possibly be shown by the evidence,” but rather only to recognize those that were supported by substantial evidence. (People v. Sedeno, supra, 10 Cal.3d at pp. 716-717; People v. Breverman, supra, 19 Cal.4th at p. 158.)
Because the evidence in the record of a self-defense theory cannot be considered “substantial,” it did not give rise to the trial court’s narrow sua sponte duty to instruct the jury on self-defense.
V. DISPOSITION
The judgment is affirmed.
We concur: Sepulveda, J., Rivera, J.