Opinion
G052567
05-18-2017
THE PEOPLE, Plaintiff and Respondent, v. RODRIGO GABRIEL GARCIA, Defendant and Appellant.
William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Alastair J. Agcaoili, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14HF3084) OPINION Appeal from a judgment of the Superior Court of Orange County, Steven D. Bromberg, Judge. Reversed. William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Alastair J. Agcaoili, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant Rodrigo Gabriel Garcia of attempted murder and found true allegations for personal use of a knife and infliction of great bodily injury. He contends the trial court erred by failing to give an instruction on imperfect self-defense. We agree, and reverse the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
According to the prosecution, in December 2014 Javier Ortiz was attacked by Garcia in an alley near a convenience store. The prosecution contended Garcia and his associates approached Ortiz in the alley. One associate punched Ortiz in the back, and Garcia lunged at Ortiz with a knife. During the incident, Garcia stabbed Ortiz several times in the torso, face, and chest.
Garcia testified in his own defense. He claimed he went with his associates to buy beer at the convenience store. He stated as they approached the alley near the store, one of Ortiz's friends instigated a fight with one of Garcia's associates. When Ortiz tried to join the fight, Garcia testified he told Ortiz to "let them take care of their business." Garcia contended Ortiz turned on him and began attacking him with a large cowboy style belt buckle, striking Garcia multiple times on the head after he fell to the ground. Garcia claimed he took out a pocket knife, showed it to Ortiz, and told him to back away. Ortiz continued to advance towards Garcia and hit him with the belt buckle. Garcia testified at that point he was scared and feared for his life. He blocked the belt blows with his left hand and jabbed the knife towards Ortiz. Garcia stated when he saw Ortiz fall backwards, he fled.
Gilberto Cruz, a friend of Ortiz, testified for the prosecution. Cruz went into the convenience store to buy beer, and when he returned outside he saw Ortiz and Garcia fighting. Cruz saw Ortiz standing with his belt raised above his head. Cruz thought Ortiz would be able to defend himself in a fight against Garcia, and he went to break up another fight between the groups. When Cruz turned back, Ortiz was on the ground and Garcia was on top of him, stabbing him. Cruz witnessed Garcia flee.
Ortiz was taken to the emergency room and was treated for a life-threatening chest wound. Garcia had no visible injuries when arrested, but testified he had bumps on the back of his head and body aches.
Garcia was charged with premeditated, attempted murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a)). The information also alleged Garcia personally inflicted great bodily injury (GBI) on another (§ 12022.7, subd. (a)) and personally used a knife in the commission of the offense (§ 12022, subd. (b)(1)).
All further statutory references are to the Penal Code.
At trial, the court instructed the jury on self-defense, but not on imperfect self-defense. A jury convicted Garcia of attempted murder without premeditation. The jury also found true the GBI and knife enhancements. The trial court sentenced Garcia to a total of 13 years in prison: nine years for attempted murder, three years consecutive for the GBI enhancement, and one-year consecutive for the knife enhancement.
II
DISCUSSION
At trial, the court gave a version of the standard CALCRIM No. 3470 instruction, defining the right to self-defense. Garcia argues the court's failure to instruct on imperfect self-defense was error, while the prosecution contends the instruction was unnecessary because the evidence only supported either a finding of attempted murder or self-defense. We conclude the court erred by failing to instruct on imperfect self-defense on these facts.
We review instructional error claims de novo. (People v. Booker (2011) 51 Cal.4th 141, 181.) A trial court is required to give sua sponte instructions on any lesser included offenses of the charged crimes that are supported by substantial evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162.) Substantial evidence is that from which a reasonable jury could conclude the defendant committed the lesser offense, but not the greater offense. (Ibid.) "'Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused. [Citations.]' [Citation.]" (People v. Romo (1990) 220 Cal.App.3d 514, 519.) Imperfect self-defense is a form of voluntary manslaughter and a lesser included offense of murder. (People v. Barton (1995) 12 Cal.4th 186, 200-201.) "[I]mperfect self-defense is not an affirmative defense, but a description of one type of voluntary manslaughter. Thus the trial court must instruct on this doctrine, whether or not instructions are requested by counsel, whenever there is evidence substantial enough to merit consideration by the jury that under this doctrine the defendant is guilty of voluntary manslaughter. [Citation.]" (People v. Michaels (2002) 28 Cal.4th 486, 529.)
Under a self-defense theory, a defendant must have "a reasonable belief that killing is necessary to avert an imminent threat of death or great bodily injury." (People v. Elmore (2014) 59 Cal.4th 121, 133-134.) To claim imperfect self-defense, a defendant must have acted with an actual, but objectively unreasonable, belief in the need to defend against imminent death or great bodily injury. (Id. at p. 134.)
The prosecution relies heavily on People v. Valenzuela (2011) 199 Cal.App.4th 1214, 1232 (Valenzuela), for the proposition that a trial court has no duty to give sua sponte instructions on imperfect self-defense where the evidence at trial shows that the defendant either acted in self-defense or was not justified in claiming any form of self-defense at all. While we agree with the general principal set forth in Valenzuela, its application is inappropriate here.
In Valenzuela, the defendant appealed the trial court's failure to give a sua sponte instruction on imperfect self-defense and the Court of Appeal affirmed. (Valenzuela, supra, 99 Cal.App.4th at pp. 1227, 1232.) There, the defendant was convicted of attempted murder and second degree murder arising from a series of gang- related drive-by shootings. (Id. at pp. 1217-1218.) At trial, the defendant claimed self-defense and presented evidence that rival gang members initiated the confrontations by shooting at his car and leading him on a dangerous high-speed chase. (Id. at pp. 1228-1229.) During a conference on jury instructions, the trial court told counsel that even though the court did not believe defendant's testimony laid a foundation for self-defense, it would instruct on self-defense. (Id. at p. 1227.) "The court continued: 'However, I do not intend to instruct on the theory of imperfect self-defense. I don't think under any stretch of the imagination if the jury found that the defendant was in actual fear of death or great bodily injury, then under the circumstances where he alleged that the victims have [a] gun, that would be unreasonable.'" (Ibid.) The court instructed on self-defense but not imperfect self-defense and there was no objection from defense counsel. (Ibid.)
In Valenzuela the jury was faced with only two choices—a finding of either self-defense or murder. The Valenzuela defendant testified he feared for his life based upon being chased and shot at by rival gang members. (Valenzuela, supra, 199 Cal.100.4th at pp. 1228-1229.) The court correctly reasoned no jury could find defendant's imminent danger belief, if credited, was unreasonable. (Ibid.)
In contrast to Valenzuela, the facts here presented, not two, but three options for the jury. The three choices were whether Garcia: (1) committed attempted murder; (2) acted in imperfect self-defense based upon an actual, but objectively unreasonable, fear of imminent death or great bodily injury posed by Ortiz's belt buckle; or (3) acted in complete self-defense based upon a reasonable fear of imminent death or great bodily injury posed by Ortiz's belt buckle. Garcia testified Ortiz attacked him by swinging a large belt buckle at his head. Garcia claimed he was scared and feared for his life, and only stabbed Ortiz after he refused to back away. A witness for the prosecution, Cruz, at least partially corroborated Garcia's testimony by stating he saw Ortiz standing with his belt raised above his head as the fight with Garcia began.
The jury could have inferred that Garcia's beliefs—that he was in imminent danger and that immediate use of immediate deadly force was necessary to defend against Ortiz—were unreasonable. Based on the imbalance of the weaponry, a jury could have determined Garcia acted unreasonably in using deadly force against the danger posed by Ortiz's belt buckle. It also could have concluded Garcia's belief of being in imminent danger from the belt buckle was unreasonable. The difference in injuries, life threatening to Ortiz and no observed injuries on Garcia, could have contributed to a finding of unreasonableness. Finally, the jury could have believed Garcia stabbed Ortiz too many times to be reasonable under the circumstances.
This case is more akin to People v. Ceja (1994) 26 Cal.App.4th 78 (Ceja), abrogated on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 92-94. In Ceja, the Court of Appeal determined the trial court erred by failing to instruct on imperfect self-defense. (Id. at p. 86.) There, the "defendant testified that the victim pulled a gun from his waistband and that defendant saw the barrel of the victim's gun before defendant shot the victim, [but] no gun was found at the scene and prosecution witnesses testified that the victim did not have a gun." (Ibid.) Defendant also testified he was frightened and did not want to hurt the victim. (Ibid.) In finding error, the Court of Appeal determined the jury "might well have concluded that defendant was mistaken about the victim being armed but also have concluded that defendant honestly but unreasonably believed his life was in danger, making the killing at most voluntary or involuntary manslaughter." (Ibid.)
Garcia testified he feared for his life. While Garcia may have been mistaken about the lethal properties of Ortiz's belt buckle or the need to use deadly force, the jury could have concluded Garcia had an actual, although unreasonable, fear for his life. An instruction on imperfect self-defense was required.
This failure to instruct on imperfect self-defense cannot be deemed harmless. The prosecution claims the omitted instruction did not prejudice Garcia because "it is not reasonably probable that he would have received a more favorable outcome had the instructions been given." This argument is based upon the belief that the evidence at trial did not support a claim of imperfect self-defense, even crediting Garcia's version of the fight. As discussed above, we determine the evidence presented at trial, if credited, was sufficient to support a claim of imperfect self-defense. The failure to instruct was prejudicial to Garcia's defense because there was at least a reasonable chance the jury would have convicted Garcia of attempted voluntary manslaughter under an imperfect self-defense theory.
The trial court also gave the CALCRIM No. 603 instruction on attempted voluntary manslaughter: heat of passion-lesser included offense. This instruction did not remedy the court's failure to instruct on imperfect self-defense because the jury did not consider whether Garcia acted with an actual, although unreasonable, belief in the need to defend himself against Ortiz.
III
DISPOSITION
The judgment is reversed.
MOORE, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.