Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. YA074080, James R. Brandlin, Judge.
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 Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Jonathan Donis appeals from the judgment entered following his conviction by jury on one count of attempted willful, deliberate, and premeditated murder. (Pen. Code, §§ 664, 187, subd. (a).) Appellant contends that the trial court erred in refusing to instruct the jury on the defenses of duress and necessity. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
Prosecution Evidence
Around 11:45 p.m. on January 19, 2009, Brian Kay was loading things into his van, which was parked on Morley Avenue in the City of Westchester. Appellant pulled up in a white or grey 1990’s Nissan or Camry and said, “Where are you from?” Appellant spoke in a threatening tone, and Kay understood it to be a gang-related question. Kay ignored him because he did not think appellant was speaking to him. After appellant repeated the question, Kay replied, “Nowhere.”
Appellant got out of his car, walked up to Kay, and again asked him where he was from. Kay said, “Nowhere. I’m not into that.” Appellant then began to shout gang slogans, saying, “Fuck posers. This is Inglewood 13.... Posers killer....” Appellant began to simulate pulling a gun up and down from his waist, saying “Fuck posers, Inglewood trece, ” in a threatening tone. After Kay told appellant he was “not into that, ” appellant returned to the passenger seat of the car, and the car drove away. Kay reported the incident to the police.
A few minutes before midnight on the same evening, Ivan Avalos, Jose Garcia, and Carlos Aguilar were outside an apartment in the 500 block of Hyde Park in the City of Inglewood. A white 1990’s Nissan Sentra drove by very slowly. There were two male Hispanics in the car, and the passenger asked Avalos and his friends, “Where you guys from?” Avalos said, “Nowhere.” The occupants of the car kept driving, saying, “Fuck mayates, ” which was a derogatory term for African Americans.
The car returned a few minutes later, slowing down as it approached Avalos and his friends, causing them to be afraid of trouble. As the car drove by, an African American man, Arthur Minter, walked out of the apartment building and started walking to his car, which was parked in front of the building.
The men in the Nissan Sentra sped up to reach Minter, asked him where he was from, and started saying, “Fuck mayates.” There was a car blocking Avalos’s line of sight, but he heard the man say, “What, ” and then Avalos heard about seven gunshots.
Minter testified at trial that he was a police officer for the City of Inglewood. He was walking from the apartment building to his car when an older Nissan pulled up near him and the passenger asked where he was from. Minter identified appellant at trial as the passenger.
Minter heard gunshots and, when he turned around, he realized appellant was shooting at him. He saw a gun in appellant’s hand, so he got his off-duty weapon and returned fire. Minter was hospitalized 15 to 16 days, underwent several surgeries, and suffered damage to his back and lungs that persisted at the time of trial.
Detective Daniel Milchovich of the Inglewood Police Department gang intelligence unit testified that he was very familiar with the Inglewood 13 gang, a Hispanic gang in Inglewood with about 350 to 400 members. One of Inglewood 13’s main rivals was the Neighborhood Pirus, a primarily African American gang in Inglewood. Inglewood 13 members referred to the Neighborhood Pirus in derogatory racial terms.
In January 2009, the 500 block of Hyde Park was claimed through graffiti by both the Neighborhood Pirus and Inglewood 13. Detective Milchovich testified that acts of aggression against any African American in the area would advance the status of an Inglewood 13 gang member because it promoted fear of the gang.
On January 22, 2009, officers searching appellant’s bedroom saw gang graffiti on his closet door, such as “Inglewood 13” and graffiti indicating disrespect for the Neighborhood Pirus. There was other gang graffiti painted on the wall and blinds and written on the dresser, including gang monikers and references to cliques within Inglewood 13.
The People introduced into evidence a letter written by appellant on March 16, 2009, to Juan Francisco Gonzalez, a self-proclaimed Inglewood 13 member. The letter was addressed in a handwriting style used by Inglewood 13 and was similar to handwriting on a 2009 calendar found in appellant’s room. The letter started with a gang salutation and made many references to gang members and gang activity. Appellant wrote that he wanted to change his name to “Funny Boy” because someone snitched on him and told the police that his name was “Vamps.” Because the name “Vamps” was in the gang file, he wanted people to call him something different when he got out. Detective Milchovich explained that gang members had multiple monikers because the police often receive information identifying a moniker with a certain crime.
Appellant ended the letter with, “Tell all the homies that I love them, ” and signed his name. The 2009 calendar found in appellant’s room was filled with gang references, including the name Vamps, the names of various cliques of Inglewood 13, and the words “Nappy Killer.”
Detective Milchovich testified that a member of Inglewood 13 would drive around the neighborhood asking people where they are from in order to promote the gang. Saying the words, “Fuck mayates” or “Fuck naps” would be used as a challenge to a rival gang, and shooting an African American would prove the person’s dedication to the gang and promote the gang’s status, even if the victim was not a gang member.
Detective Milchovich thought appellant had been a member of Inglewood 13 since at least June 2008. Inglewood Unified School District Police Officer Herman Jones testified that on September 3, 2008, appellant admitted being a member of Inglewood 13 and told Officer Jones his moniker was Vamps.
Detective Milchovich testified about common levels of membership in gangs, such as wannabes, gang members, and shot-callers. He opined that someone in the gang would not need permission to shoot an African American in the neighborhood because Inglewood 13’s main rivals were black gangs, and that act would be part of fighting the gang’s rivals.
Detective Milchovich further testified that gang members were required to put in work for the gang, such as by committing crimes or fighting with rivals, and that there could be consequences if they failed to do so. The consequences included discipline, fights, and the requirement to complete a different act. A younger gang member who put in work gained respect in the gang and could choose his own job to do.
Detective Will Salmon of the Inglewood Police Department interviewed appellant on January 22, 2009, and a DVD of the interview was played for the jury. Appellant told Detective Salmon that he did not commit the shooting because he had never shot anyone before and was too scared to do it. He also said he did not want to be a snitch and wished to remain anonymous because he did not want to be killed.
Appellant stated that on the night of the shooting, around 7:00 p.m., he was with a group of people at someone’s house drinking, and everyone else left. He was the last person left at the house when a friend named Moreno said he wanted to shoot someone Black because it was Martin Luther King Day. Moreno drove them to Westchester because Moreno previously had been shot by a gang member from Westchester. Moreno then suggested driving to a Piru neighborhood. When appellant and Moreno saw Minter, Moreno kept trying to convince appellant to shoot him, but appellant was too scared. Moreno told appellant “you got to do it yourself, ” but he could not. Appellant told Detective Salmon that Moreno was the one who shot.
Defense Evidence
Kimi Lent worked as a gang intervention specialist for an organization that helped young people stay out of gangs. She worked in conjunction with law enforcement agencies, juvenile halls, and prison guards, and was familiar with the Inglewood 13 gang through her work with the Inglewood parole department.
Lent explained the hierarchy in Hispanic gangs and the roles of the different types of members. She described wannabes as members who want to belong to something but are not actively committing crimes. Above wannabes are those who socialize with the gang and commit smaller crimes, such as marijuana sales or graffiti. Members who are more active have different labels and commit robberies and burglaries. Lent testified that about 5 to 10 percent of gang members were “gunners” or “shooters” who committed most of the violent crimes.
According to Lent, gang members generally started with smaller crimes and worked their way up to violent crimes She stated that older gang members often took younger, less experienced members along to commit serious crimes because of the distinction between the adult and juvenile justice systems. She further testified that, if an older gang member suggested going to shoot someone and provided the car and gun, there would be pressure on a younger gang member to commit the crime. The younger gang member would face discipline and likely a beating if he refused to commit the crime.
Lent testified that Inglewood 13 had a general policy of not shooting civilians or children because they did not want “heat coming while they’re conducting their daily business.” Inglewood 13 mostly sold drugs and committed other crimes to make money, so they did not want law enforcement interrupting those activities.
Appellant decided not to testify.
Rebuttal Evidence
Detective Milchovich testified that he had seen people as young as 14 or 15 years old join the Inglewood 13 gang. He said that they are expected to put in work to join the gang and that this could include committing murder.
Procedural Summary
An information was filed in July 2009, charging appellant with one count of attempted willful, deliberate, premeditated murder. (Pen. Code, §§ 664, 187, subd. (a).) The information further alleged the following: a principal personally and intentionally discharged a firearm, causing great bodily injury (Pen. Code, § 12022.53, subds. (d) & (e)(1)); a principal personally and intentionally used and discharged a firearm (Pen. Code, § 12022.53, subds. (b), (c) & (e)(1)); the offense was a hate crime and appellant acted voluntarily and in concert with another (Pen. Code, § 422.75, subd. (b)); the offense was committed for the benefit of a gang with the intent to promote criminal conduct by gang members (Pen. Code, § 186.22, subd. (b)(4)); appellant should be sentenced in accordance with Penal Code section 186.22, subdivision (b)(5); appellant was a minor at least 16 years of age at the time of the offense (Welf. & Inst. Code, § 707, subd. (d)(1)); appellant was a minor at least 14 years of age at the time of the offense, and the offense was committed for the benefit of a gang and for the purpose of intimidating Arthur Minter (Welf. & Inst. Code, § 707, subd. (d)(2)(C)(ii)); appellant personally used a firearm (Pen. Code, §§ 1203.06, subd. (a)(1), 12022.5, subd. (a)).
After the defense rested, the court granted in part and denied in part the People’s request to call rebuttal witnesses and denied the defense request to instruct the jury on duress. The court reasoned that rebuttal testimony regarding whether appellant committed prior aggressive acts and was criminally sophisticated would be highly prejudicial and irrelevant in light of the court’s denial of the request for the duress instruction.
In denying the request to instruct the jury on duress, the court found that the defense had not set forth sufficient evidence to establish a substantial basis for the defense. The court explained that Penal Code section 26 requires the defendant to have the subjective belief that he is in immediate danger of great bodily injury or death and that there was no such showing in this case.
The court addressed the issue again after the People rested on rebuttal. The court explained that the duress defense was not applicable because it contained both a subjective and an objective requirement. That is, the defendant needed to actually believe that his life was in immediate danger, and a reasonable person with the same information would have had such a belief. The court also stated that the threat of harm needed to be immediate, not future, and that appellant’s statement to Detective Salmon that he did not want to be killed for snitching was not sufficient. The court pointed out that appellant did not tell Detective Salmon that he knew he would be killed if he did not shoot Minter. The court thus denied the request to give the jury CALCRIM No. 3402, the jury instruction on duress.
The court also denied the defense request to give CALCRIM No. 3403, the jury instruction on necessity. The court reasoned that the situation was not an emergency and was created by appellant. The court further stated that appellant had a legal alternative, which was not to shoot, and his acts actually created a greater danger than the one avoided. The court noted that there was no evidence to establish that appellant subjectively believed the shooting was necessary to prevent threatened harm. Finally, the court found that appellant substantially contributed to the emergency, stating: “Driving around at night, confronting people, banging on them, yelling out gang information, and the comments that were allegedly made by the defendant, created the situation that could have resulted in a volatile or violent response from a potential victim.”
The jury found appellant guilty and found all the allegations to be true. The court sentenced appellant to a term of life with the possibility of parole, plus a consecutive sentence of 25 years to life for discharging a firearm. (Pen. Code, § 12022.53, subd. (d).) The court stayed the other firearm enhancements pursuant to Penal Code section 654. As to the gang allegation, the court ordered that appellant’s minimum parole eligibility was 15 years. (Pen. Code, § 186.22, subd. (b)(1)(C).) The court imposed the high term of four years for the hate crime allegation. (Pen. Code, § 422.75, subd. (b).) The court imposed the requisite fines, fees, and conditions, and gave appellant credit for 463 days of actual custody and 69 days of good time/work time credit for a total of 532 days. Appellant filed a timely notice of appeal.
DISCUSSION
Appellant contends the trial court erred in denying his request to instruct the jury on duress and necessity. We disagree.
“A trial court must instruct the jury, upon request, on any theory of defense that is supported by substantial evidence. [Citation.] We independently review a trial court’s alleged failure to do so. [Citation.]” (People v. Sisuphan (2010) 181 Cal.App.4th 800, 806.) “‘Substantial evidence is evidence sufficient to “deserve consideration by the jury, ” that is, evidence that a reasonable jury could find persuasive.’ [Citation.]” (People v. Kanawyer (2003) 113 Cal.App.4th 1233, 1243.) “The threshold is not high; it does not include a predetermination by the court of the credibility of witnesses and what evidence it believes or disbelieves. [Citation.]” (People v. Cole (2007) 156 Cal.App.4th 452, 484.)
Defense of Duress
The duress instruction requested by appellant provided that “[t]he defendant is not guilty of attempted murder if he acted under duress. The defendant acted under duress if, because of threat or menace, he believed that his life would be in immediate danger if he refused a demand or request to commit the crime[s]. The demand or request may have been express or implied. [¶] The defendant’s belief that his life was in immediate danger must have been reasonable.... [¶] A threat of future harm is not sufficient; the danger to life must have been immediate.” (See CALCRIM No. 3402.)
“Penal Code section 26 declares duress to be a perfect defense against criminal charges when the person charged ‘committed the act or made the omission charged under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.’” (People v. Vieira (2005) 35 Cal.4th 264, 289-290.) “‘Duress is an effective defense only when the actor responds to an immediate and imminent danger.’ [Citation.] ‘Decisions upholding the duress defense have uniformly involved “‘a present and active aggressor threatening immediate danger.’” [Citation.] A “phantasmagoria of future harm” such as a threat of death to be carried out at some undefined time, will not diminish criminal culpability.’ [Citation.]” (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1460 (Hamlin).)
There was no evidence here of immediate danger to appellant if he did not shoot Minter. Appellant cites his interview with Detective Salmon as evidence of duress, but nothing in that interview indicated that he was in immediate danger if he did not carry out the shooting. Rather, appellant told Detective Salmon that he was afraid of being killed if he acted as a snitch. (Cf. Hamlin, supra, 170 Cal.App.4th at p. 1460 [finding no duress where the threat came from a person who was not in the room].) Although Lent, the gang intervention specialist, testified that younger gang members could face a beating if they refused to commit a crime, there was no evidence that appellant faced this situation and was in immediate danger.
“‘Because of the immediacy requirement, a person committing a crime under duress has only the choice of imminent death or executing the requested crime. The person being threatened has no time to formulate what is a reasonable and viable course of conduct nor to formulate criminal intent.’” (People v. Petznick (2003) 114 Cal.App.4th 663, 676.) Appellant presented no evidence that he did not have time to formulate a reasonable course of conduct before shooting Minter.
We acknowledge the principle that, “[i]n determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether ‘there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt....’ [Citations.]” (People v. Salas (2006) 37 Cal.4th 967, 982.) However, there was no such evidence presented here. The trial court does not err in failing to give a duress instruction if the defendant fails to present substantial evidence of the defense. (People v. Wilson (2005) 36 Cal.4th 309, 331 (Wilson).) “‘Substantial evidence is “evidence sufficient ‘to deserve consideration by the jury, ’ not ‘whenever any evidence is presented, no matter how weak.’”’ [Citation.]” (Ibid.) The trial court did not err in declining to give the duress instruction.
Defense of Necessity
Appellant’s second contention is that the trial court erred in declining to give CALCRIM No. 3403, the jury instruction on the defense of necessity. In order to establish that the defendant acted out of legal necessity, CALCRIM No. 3403 requires the defendant to prove that he acted in an emergency to prevent a significant bodily harm or evil to himself or someone else; he had no adequate legal alternative; his acts did not create a greater danger than the one avoided; he actually believed the act was necessary to prevent the threatened harm; a reasonable person would have believed the act was necessary; and he did not substantially contribute to the emergency.
As stated above, appellant was entitled to the instruction if he presented evidence sufficient to deserve consideration by the jury. (Wilson, supra, 36 Cal.4th at p. 331.) No evidence was presented to justify instructing the jury on necessity.
The defense of necessity does not require immediate danger, but it does require the defendant to prove that he acted in an emergency to prevent significant bodily harm to himself or someone else, and that he did not substantially contribute to the emergency. (CALCRIM No. 3403.) There is no evidence here to indicate that appellant acted in an emergency to prevent significant bodily harm to anyone when he shot Minter. Moreover, there is significant evidence in the record that appellant substantially contributed to the situation, such as his threatening conduct toward Kay, Avalos, Garcia, and Aguilar, before shooting Minter.
Although appellant repeatedly asserts that he would have been killed by Moreno if he did not shoot Minter, there is no evidence of such a threat in the record. Appellant told Detective Salmon that he was afraid to shoot Minter, but he never said he was afraid Moreno would harm him if he did not commit the shooting. Rather, he stated that he was afraid because he had never shot anyone before. His fear of being killed was based on his fear of being labeled a snitch for speaking to Detective Salmon.
There was no evidence of legal necessity sufficient to deserve consideration by the jury. The trial court accordingly did not err in declining appellant’s request to give CALCRIM No. 3403.
As we have concluded that the trial court did not err in refusing the instructions appellant requested, his claim of cumulative error necessarily fails.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., WILLHITE, J.