Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F01659.
CANTIL-SAKAUYE, J.
A jury acquitted defendant of first degree murder, but found him guilty of second degree murder. (Pen. Code, §§ 187, 189.) The jury found true the allegation that defendant had personally used a firearm in the commission of the offense (§ 12022.53, subd. (b)), but found untrue the allegations that defendant had personally and intentionally discharged a firearm in the commission of the offense (§ 12022.53, subd. (c)) and had personally and intentionally discharged a firearm causing great bodily injury or death in the commission of the offense. (§ 12022.53, subd. (d).) The trial court sentenced defendant to state prison for a term of 15 years to life, enhanced by a determinate term of 10 years for the gun use enhancement.
Hereafter, undesignated statutory references are to the Penal Code.
The recent amendments to section 4019 do not operate to modify defendant’s entitlement to additional presentence custody credit as he was committed for a serious felony. (§§ 1192.7, subd. (c)(1), 4019, former subds. (b)(2) & (c)(2) [as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50], 2933, subd. (e)(3) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].)
On appeal defendant argues two jury instructional errors. (1) He contends the trial court failed its sua sponte duty to include in the instruction it gave on self-defense (CALCRIM No. 505) the portion informing the jury that the defense also lies for a person who resists a forcible and atrocious crime such as robbery. (2) He claims the instruction given by the trial court regarding the jury’s consideration of any false and misleading statements made by defendant (CALCRIM No. 362) improperly invited its application to defendant’s testimony itself. We reject defendant’s claims and affirm the judgment.
FACTUAL BACKGROUND
On February 15, 2007, 19-year-old Jonathan Giurbino was planning on traveling to San Diego with his family. His mother had given him three $100 bills and a $50 bill ahead of the trip. Giurbino told a friend a few days earlier that he wanted to take marijuana and around 100 Ecstasy pills with him to San Diego because he had a friend there that could sell the drugs for him and get $20 for each Ecstasy pill. Giurbino said he had found a connection that could get him what he needed. He named the person who could get him the drugs as a man named J-Bird. He said he was going to meet with J-Bird before he left for San Diego.
Brian Lehr worked with Giurbino for a few months. Lehr remembered an occasion when defendant drove up in a Toyota as Lehr and Giurbino were walking door-to-door doing their job. Giurbino spoke with defendant. Lehr joined them near the end of their conversation and heard defendant tell Giurbino that he (defendant) could get them pretty much any drugs they wanted. Defendant identified himself as J-Bird. On the morning of February 15, 2007, Giurbino called Lehr and asked for a ride to meet J-Bird. Giurbino told Lehr he wanted to take some good stuff, which Lehr understood to mean marijuana, down to San Diego. Lehr had seen Giurbino smoke marijuana.
A gas station surveillance tape of February 15, 2007, showed Giurbino shortly before 11:00 a.m. getting out of the passenger seat of a car, pumping gas into the car, and then producing a wallet to pay the cashier $15.
Charles Barr was cleaning a pool at a home on Fordham Way in Sacramento County on February 15, 2007. At around 11:30 a.m., he heard what he thought was a car backfire, followed by a “thump, thump” noise. The backfire sound could have been a gunshot. After the thump, thump, he heard an engine roar and tires skidding like a car was “peeling out.” As he walked to his truck, he saw a car leaving the area. He then noticed a young man (Giurbino) lying in the street. Giurbino had been shot in the head. Barr called 911.
Ronald Blubaugh was taking a walk on Fordham Way around the same time. He noticed a dark Japanese car pass him very quickly. The driver was a young man with dark complexion, black hair and Asian eyes. He looked angry. As Blubaugh continued to walk, he saw a young man lying in the street with blood coming from his head. A picture of the driver Blubaugh saw, drawn by a sketch artist, was admitted at trial.
Giurbino was taken to the hospital by ambulance, but died from the gunshot wound to his head. Giurbino had no wallet or money with him. A second wallet he owned was found at his home. It contained a $50 bill, fourteen $20 bills, and a piece of paper with the name J-Bird and J-Bird’s phone number on it. Giurbino’s mother said the $20 bills were from cashing a check. She did not know if the $100 bills had been broken into twenties.
Defendant’s sister-in-law, Danielle Hampton, testified she and her husband (defendant’s brother) had allowed defendant to use their Toyota Corolla for two or three months on the condition defendant pay $200 per month towards insurance. Defendant was not holding up his end of the deal and was supposed to be bringing the car back on February 15, 2007. Defendant brought the car back late, arriving around noon. Defendant looked sweaty. His clothes were dirty and his hair was messy. Defendant insisted on immediately cleaning the car and took a trash bag and wet towel offered for that purpose. Later forensic examination of the car showed hair, blood, and human tissue on the car. A bullet shell was found in the car.
In an interview with police, Tiana Robinson, defendant’s girlfriend, said defendant was with her in her room on the afternoon of February 14. At that time, defendant showed her a handgun that he had just bought. She knew defendant used marijuana and pills. She knew he sold marijuana and had seen him with cash. After his arrest, defendant wrote letters to Robinson’s brother Vincent expressing concern that Robinson would testify to seeing defendant with a gun. Defendant urged Vincent to kidnap and “tuct” Robinson away, even though “he got smacked with his own banger [gun].”
Robinson’s other brother Alonzo Smith was a friend of defendant. On February 15, 2007, Smith called defendant sometime in the morning and asked to borrow some money to put tires on his car. Defendant came to the tire store and gave Smith $50. Defendant called Smith later to ask for a ride from his brother’s house. Smith met up with defendant, who gave him a $100 bill to buy something to eat at Panda Express. Smith later drove defendant to Rancho Cordova. In a search of Smith’s bedroom, officers found a loaded.380-caliber handgun. Smith claimed defendant did not even know Smith had the gun.
When interviewed on February 16, Smith told detectives that defendant told him nothing about what had happened. However, in a later interview and then at trial, Smith claimed defendant told him when he called for a ride that something was wrong; that somebody had tried to do something to him; that a “dude tried to play” him. Smith understood defendant to be saying someone tried to rob him.
When interviewed by the police, defendant initially denied having any involvement in the shooting of Giurbino. Eventually, defendant admitted shooting Giurbino, but claimed it was in self-defense.
Defendant testified in his own defense at trial. He admitted he was a marijuana and Ecstasy user and that he made a living from selling marijuana, powder cocaine and Ecstasy. He admitted his nickname was J-Bird and that he had met Giurbino and offered to sell him drugs.
Defendant testified Giurbino phoned him on February 15. Giurbino wanted to purchase a large quantity of marijuana and Ecstasy. He was in a hurry because he was leaving for San Diego. When defendant told Giurbino that he could not provide the drugs until that evening, Giurbino talked about getting the Ecstasy pills from a friend’s connection who lived near Sacramento City College. Giurbino said he could get 100 pills for $400, which was less than the $5 defendant was paying for each Ecstasy pill. Defendant agreed to drive Giurbino to get the drugs so that he could purchase some pills too. Defendant stopped at a tire store to give Smith $50 for tires before picking up Giurbino at a Circle K. Defendant then made stops at a gas station, where Giurbino was videotaped, and a fast-food restaurant. Finally, Giurbino directed him to the house of his drug connection. Defendant and Giurbino shared a marijuana “blunt” on the way. Giurbino was fidgety and tense.
Defendant testified that as he pulled into a driveway, stopped, and put the car into park, he felt a gun at his temple and heard the click of a hammer being pulled back. Giurbino said: “Give me all your fucking money, dog.” Holding the gun in his left hand, Giurbino used his right hand to reach across defendant, tap defendant’s pockets, and pull out a wad of money from defendant’s left pocket. Giurbino opened the passenger door and put his right foot out. As he did so, he looked at defendant, pointed the gun at him, and told him to not move. Giurbino then scooted out of the car. Leaning back inside the car, Giurbino reached for his sweater and other belongings while still pointing the gun at defendant.
As Giurbino reached for his sweater, defendant claimed to have acted without thinking. Defendant grabbed the gearshift and slammed the car into reverse. The car jerked. Giurbino’s hand holding the gun hit the ceiling. The gun bounced off the ceiling and landed in defendant’s lap, pointing towards defendant’s left hip. Defendant continued in reverse, but Giurbino was able to regain his balance and walk with the car down the driveway. It seemed to defendant that Giurbino had a grin on his face and defendant thought he was crazy. Defendant stepped on the gas pedal and tried to make a turn out of the driveway onto the street. As defendant braked and reached for the gearshift, defendant saw Giurbino lunge toward him. Giurbino’s left hand was holding the top rim of the car and his right hand was reaching inside the car, across the passenger seat and center console to just above defendant’s right thigh. Giurbino’s eyes were looking in the direction of the gun on defendant’s lap. Defendant was “real scared” because he knew the gun was loaded from the clicking sound and that it might accidentally go off if Giurbino touched it. Scared that he would be shot, defendant swooped up the gun to prevent Giurbino from reaching it. Defendant swung his arm out towards Giurbino. The gun went off. Defendant saw Giurbino’s head open up.
Defendant testified he never consciously thought of trying to shoot Giurbino and when the gun went off, he was stunned. Defendant did not actually see Giurbino fall out of the car. Defendant did not look back; he just drove off. Defendant saw blood inside the car and thought there was probably blood on the outside of the car. Defendant panicked and threw the gun out of the passenger window as he was driving on the freeway. He drove the car back to his brother’s house.
At his brother’s house, defendant decided to clean the car. He gathered up Giurbino’s sweater, wallet and cell phone, along with the money Giurbino had taken out of defendant’s pocket, and put them in a garbage bag. Defendant went to the carwash where he disposed of the garbage bag and washed and vacuumed the car. He called Smith and asked him to meet him at a supermarket parking lot. When he met up with Smith, Smith was hungry. Defendant dipped into his pocket and ended up giving Smith a $100 bill for food.
Defendant was arrested the next day and interviewed. At trial, defendant was cross-examined in detail about his interview with the police and admitted he lied multiple times in his statements to them.
Defendant admitted belonging to a group called the Killa Mob Gangsters, but said he was a hustler, not a gangster.
DISCUSSION
I.
The Trial Court’s Instruction On Self-defense
The trial court instructed the jury on self-defense pursuant to CALCRIM No. 505 in pertinent part as follows:
“The defendant is not guilty of murder, voluntary manslaughter or involuntary manslaughter if he was justified in killing someone in self-defense. The defendant acted in lawful self-defense if:
“1. The defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily injury.
“2. The defendant reasonably believed that the immediate use of deadly force was necessary to defendant against that danger.
“AND
“3. The defendant used no more force than was reasonably necessary to defendant against that danger.”
Defendant claims his Sixth and Fourteenth Amendment right to present a defense was violated when the trial court failed to sua sponte include the optional portion of CALCRIM No. 505 that instructs the jury that self-defense also lies for a person who resists a forcible and atrocious crime such as robbery. (People v. Ceballos (1974) 12 Cal.3d 470, 478-479.) We disagree.
In criminal cases, the trial court must instruct sua sponte on the general principles of law relevant to all issues that the evidence raises. This includes a duty to instruct on defenses. (People v. Martinez (2010) 47 Cal.4th 911, 953; People v. Breverman (1988) 19 Cal.4th 142, 154, 157.) However, “[i]n the absence of a request for a particular instruction, a trial court’s obligation to instruct on a particular defense arises ‘“only if [1] it appears that the defendant is relying on such a defense, or [2] if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.”’ [Citations.]” (People v. Dominguez (2006) 39 Cal.4th 1141, 1148, quoting People v. Barton (1995) 12 Cal.4th 186, 195; see People v. Young (2001) 92 Cal.App.4th 229, 233.)
In this case, defendant contended the killing of Giurbino was caused by his accidentally pulling the trigger of the gun while justifiably defending himself from imminent death or great bodily injury as Giurbino was lunging for the gun. Defendant never asserted as a separate argument that he was entitled to shoot Giurbino in order to resist Giurbino’s robbery of him. Based on the evidence presented and the arguments made, it simply does not appear defendant was relying on this form of the defense, even if, as he now argues, it is a separate theory of self-defense.
Nor can we agree with defendant that the evidence was sufficient to support a separate consistent theory of self-defense of resistance to the crime of robbery, such that the trial court had a duty to sua sponte instruct on it even though defendant was not relying on it. Defendant claims on appeal the jury could have found Giurbino had obtained defendant’s money and was on his way out of the car, diminishing the threat of death or great bodily injury, but that defendant was still entitled to have used deadly force to resist the robbery. However, defendant’s testimony did not portray Giurbino as on his way out of the car, i.e., that he was in the process of escaping with defendant’s money after the robbery, at the point in time when defendant grabbed the gun off of his own lap and shot Giurbino. In fact, according to defendant, he was trying to escape from Giurbino, not the other way around. Defendant testified Giurbino held onto the car as defendant backed it down the driveway. As defendant tried to make a turn out of the driveway onto the street, defendant claimed Giurbino lunged toward him and reached inside the car towards the gun that had landed in defendant’s lap. Defendant testified Giurbino’s eyes were on the gun, which was pointed towards defendant’s hip. Defendant testified he was “real scared” because he knew the gun was loaded from the earlier clicking sound. He thought it might accidentally go off if Giurbino touched it. Frightened, defendant testified he “swooped” up the gun to prevent Giurbino from reaching it. At no point in his testimony, did defendant say he grabbed the gun to prevent a further taking of his property or Giurbino’s escape with his money. The evidence simply does not support a claim of self-defense to the imminent danger of a robbery. (See CALCRIM No. 505.)
Finally, even if the evidence could be construed in a way to support defendant’s claim, we conclude defendant would not have fared better if the trial court had included the additional language regarding self-defense to resist a forcible and atrocious crime such as robbery. On the evidence presented, there was no basis for the jury to distinguish between self-defense based on resistance to the crime of robbery and self-defense based on the imminent danger of being killed or suffering great bodily injury, finding the former but not the latter. Therefore, even if the trial court had instructed the jury regarding self-defense to resist a robbery, we can say beyond a reasonable doubt the jury would have rejected it.
II.
The Trial Court’s Instruction On False And Misleading Statements By The Defendant
The trial court instructed the jury with a prior version of CALCRIM No. 362 regarding false and misleading statements by defendant as follows:
“If the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt.
“If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself.” (Former CALCRIM No. 362 (2006-2007).)
Defendant claims the court in People v. Beyah (2009) 170 Cal.App.4th 1241, 1247-1250 (Beyah), found this instruction to be defective because it improperly invited the jury to apply its principle to defendant’s trial testimony, although the court found it to be harmless in that case. Defendant contends Beyah correctly determined the instruction is erroneous. Defendant argues former CALCRIM No. 362 improperly singled out his testimony for special scrutiny and, in his case, the giving of the instruction requires reversal.
Defendant did not object to the giving of CALCRIM No. 362 in its then current form, which “forfeits the objection on appeal unless the defendant’s substantial rights are affected. [Citations.]” (People v. Mitchell (2008) 164 Cal.App.4th 442, 465; accord, § 1259.) We conclude the instruction did not deprive defendant of his substantial rights.
“On review, we examine the jury instructions as a whole, in light of the trial record, to determine whether it is reasonably likely the jury understood the challenged instruction in a way that undermined the presumption of innocence or tended to relieve the prosecution of the burden to prove defendant’s guilt beyond a reasonable doubt. [Citation.]” (People v. Paysinger (2009) 174 Cal.App.4th 26, 30.)
Here, defendant was interviewed at length after his arrest and he admitted at trial that many of his statements to the police were lies. The prosecution argued at length that the lies in defendant’s statements completely undermined his credibility. The jury was instructed with CALCRIM No. 362 relating to defendant’s statements. It is unlikely the jury would have understood the instruction to apply to defendant’s testimony, as defendant now argues, given the wording of the instruction and the prosecution’s argument.
But even if the jury did apply the instruction in part to defendant’s trial testimony, we would find no prejudice.
In Beyah, former CALCRIM No. 362 was given, over the defendant’s objection, based entirely on the defendant’s trial testimony. (Beyah, supra, 170 Cal.App.4th at pp. 1247-1248.) The court found CALCRIM No. 362 was probably not “intended to be used when the basis for an inference of consciousness of guilt is disbelief of a defendant’s trial testimony.” (Beyah, supra, at p. 1248.) However, the court ultimately found the defendant was not prejudiced by use of the instruction “because California law makes clear that a defendant’s false trial testimony may, in proper circumstances, be considered as evidence of consciousness of guilt.” (Id. at p. 1249.)
Although the court in Beyah did “not endorse the use of CALCRIM No. 362 when the basis for an inference of guilt is false or misleading statements in a defendant’s trial testimony” (Beyah, supra, 170 Cal.App.4th at p. 1251), the court rejected the very argument defendant makes here regarding CALCRIM No. 362 improperly singling out his testimony for special scrutiny. The Beyah court stated: “As applied to this case, CALCRIM No. 362 did nothing more than state this principle, i.e., that if the jury concluded that defendant intentionally gave false or misleading testimony, it may infer that defendant is aware of his guilt and may consider that inference-along with other evidence-in determining defendant’s guilt. And although it might be said that the instruction singles out a defendant’s testimony as subject to heightened scrutiny compared to other witnesses, that is true only because the principle involved is uniquely applicable to the defendant. That is not, however, a legitimate ground for concluding that the instruction unconstitutionally burdened defendant’s choice to testify or resulted in any improper inference of guilt based on the jury’s evaluation of his testimony.” (Beyah, supra, at p. 1250, fn. & italics omitted.)
The trial court did not err here in instructing the jury with former CALCRIM No. 362.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, Acting P. J., ROBIE, J.