Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Phillip J. Argento, Judge. (Retired judge of the Los Angeles Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Super.Ct.No. RIF135178
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Jeffrey J. Koch and Pamela Ratner Sobeck, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster, Acting P.J.
A jury found Donald Darrell King, defendant and appellant (hereafter defendant), guilty of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) and unlawful possession of ammunition (§ 12316, subd. (b)(1)), but acquitted him of attempted murder (§§ 664/187) and assault with a deadly weapon (§ 245, subd. (a)). The charges all stem from an incident that occurred outside the home of defendant’s ex-wife. Defendant had been at the house to visit his three children, and was outside waiting for his girlfriend to pick him up when a truck pulled into the driveway. Pete Alderete got out of the truck and walked up to defendant. The two talked briefly, and then defendant and Alderete began to argue and yell at each other. When Alderete’s wife, who was driving the truck, yelled at him to get back in the truck, Alderete walked to the vehicle and opened the passenger door, but did not get in. After a few minutes, Alderete walked back to defendant and continued the argument which ended when defendant suddenly pulled a handgun from the waist of his pants and shot Alderete in the neck. Defendant testified at trial that he believed Alderete had a gun so he shot him in self-defense.
All further statutory references will be to the Penal Code unless otherwise indicated.
Although the trial court instructed the jury on self-defense in connection with defendant’s shooting of Alderete, the trial court refused defendant’s request to instruct the jury according to Judicial Council of California Criminal Jury Instruction, CALCRIM No. 2514 on felon in possession of a firearm in self-defense. Defendant contends the trial court erred in refusing his request. We disagree and, therefore, will affirm the judgment.
Defendant raises a second issue regarding the trial court’s failure to state reasons for denying defendant’s request for bail on appeal. That issue is moot since we granted defendant’s motion for bail on appeal, which we treated as a petition for writ of habeas corpus, and remanded the matter to the trial court for the limited purpose of reconsidering the issue of bail on appeal.
DISCUSSION
In his defense defendant testified, in pertinent part, that on the day in question he was visiting his children at the home of their mother. After it got dark, defendant heard a noise outside the house. He found a revolver in the house and went outside with the gun to investigate. Defendant testified that the gun did not belong to him and that he did not know whether it was loaded when he took it outside. Defendant looked around but could not locate the source of the noise. Defendant remained outside with the gun in his pocket while he waited for his girlfriend to pick him up. While waiting, defendant had the encounter with Alderete that ended when defendant pulled out the revolver and shot Alderete in the neck.
Defendant requested that the trial court instruct the jury according to CALCRIM No. 2514 which states, in pertinent part, that, “The defendant is not guilty of unlawful possession of a firearm . . . if (he/she) temporarily possessed the firearm in (self-defense/ [or] defense of another). The defendant possessed the firearm in lawful (self-defense/ [or] defense of another) if:
“1. The defendant reasonably believed that (he/she/someone else/ . . .) was in imminent danger of suffering significant or substantial physical injury;
“2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger.
“3. A firearm became available to the defendant without planning or preparation on (his/her) part;
“4. The defendant possessed the firearm temporarily, that is, for a period no longer than was necessary [or reasonably appeared to have been necessary] for self-defense;
“5. No other means of avoiding the danger of injury was available;
“AND
“6. The defendant’s use of the firearm was reasonable under the circumstances.
“Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of violence to (himself/herself/ [or] someone else). Defendant’s belief must have been reasonable and (he/she) must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful (self-defense/ [or] defense of another).”
The trial court refused defendant’s request to give the quoted instruction. In the trial court’s view, there was no evidence to support the instruction because defendant had possessed the gun longer than was necessary for him to investigate the noise, assuming that noise was sufficient to cause defendant to believe there was an imminent threat of violence. Because defendant kept the gun in his pocket after he had investigated the noise, when defendant used the gun to shoot Alderete it had not come into defendant’s possession without planning and preparation. That evidence negated the third requirement, quoted above, and as a result the trial court refused defendant’s request to give CALCRIM No. 2514.
The pertinent legal principals are well settled. A trial court has the duty to instruct on general principles of law relevant to the issues raised by the evidence. (People v. Sedeno (1974) 10 Cal.3d 703.) The evidence in this case is insufficient as a matter of law to support giving CALCRIM No. 2514. That instruction is based on People v. King (1978) 22 Cal.3d 12, in which the Supreme Court held that under certain circumstances self-defense may negate “an apparent violation of section 12021. In King the defendant was a guest at a party. During a violent altercation with a group of party crashers who were kicking and pounding on the front door and threatening to break it down, defendant was handed a .25 caliber pistol which he fired in an attempt to frighten the intruders. The court held, ‘Inasmuch as defendant’s brief use of a concealable firearm, without predesign or prior possession of the weapon, in the exercise of the right to self-defense, defense of others, or defense of habitation would not constitute the possession, custody, or control of the firearm which the Legislature has prohibited in section 12021, it was error for the court to fail to instruct the jury regarding the relevance of these defenses to the 12021 charge.’ [Citation.] [¶] Key points are that possession of a concealable firearm be brief and without predesign or prior possession.” (People v. McClindon (1980) 114 Cal.App.3d 336, 339-340, quoting People v. King, supra, at pp. 26-27.)
There was no evidence presented at trial in this case to show that defendant’s initial possession of the gun was the result of his reasonable belief that he or someone inside the house was in imminent danger of significant or substantial physical injury. The evidence on this critical aspect of defendant’s claim is defendant’s testimony, noted above, that he got the gun from somewhere in the house after he “heard something outside.” Defendant added that “there’s like a security camera at the house, and you can hear like noise, whatever, outside.” The quoted testimony is the only evidence presented at trial to show why defendant armed himself with the gun. Evidence that defendant “heard something outside” is insufficient as a matter of law to establish the essential fact that defendant possessed the gun because he reasonably believed there was an imminent danger of significant or substantial danger. Moreover, defendant retained possession of the gun after he completed his investigation of the noise outside. Because he did not immediately relinquish possession of the gun, and instead put it in his pocket while he waited for his girlfriend to pick him up, there is no evidence to show that defendant possessed the firearm temporarily, that is for a period no longer than was necessary for self-defense.
In short, although there was evidence to show that defendant fired the gun at Alderete in self-defense, there was no evidence to show that defendant initially obtained and possessed the gun in self-defense. According to the undisputed evidence, defendant’s possession of the gun occurred before the need for self-defense arose. Therefore, the trial court correctly refused defendant’s request to instruct the jury according to CALCRIM No. 2514 on felon in possession of a firearm in self-defense.
Defendant also points out that during their deliberations, the jurors sent a note that asked, “‘Is it against the law for a felon to possess a firearm, loaded or not, under any circumstances?’” The trial court responded “that the answer to that question is in the jury instruction having to deal with felon in possession. So read it over and see if the facts here fit. There’s also the instruction about mistake of law that is relevant to this as well.” After the jury returned to deliberate, defendant renewed his request for the trial court to give CALCRIM No. 2514 because defendant believed the jurors “might be thinking it might be okay for [him] to possess this weapon when he is defending himself.” The trial court again denied defendant’s request but offered to give a modified instruction that would cover the period when defendant initially obtained possession of the weapon in order to investigate the noise. Defendant did not accept the trial court’s offer.
The jury’s inquiry on the issue during their deliberation does not change our conclusion. The fact that the jury wondered whether defendant could lawfully possess the gun did not warrant an instruction on the issue absent evidence to support such an instruction. Because there was no evidence presented to support giving CALCRIM No. 2514 in this case, the trial court could have answered the jury’s question by advising that the issue was not relevant in this case and the jury had been fully instructed on the law relevant to the issues raised by the evidence. Moreover, defendant declined the trial court’s offer to instruct the jury on self-defense possession of a weapon by a convicted felon with respect to the circumstances under which defendant initially obtained possession of the gun. Although we do not share the trial court’s view that the evidence supported giving such an instruction, defendant did not accept the trial court’s offer and therefore may not complain on appeal that the trial court’s instructions were incomplete or erroneous. In other words, if the trial court erred, defendant invited that error by not accepting the trial court’s offer to the give the limited jury instruction. (People v. Wickersham (1982) 32 Cal.3d 307, 330 [“If defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal”]; see also People v. Marshall (1990) 50 Cal.3d 907, 931.)
For each of the reasons discussed, we conclude that the trial court correctly refused to instruct the jury in this case according to CALCRIM No. 2514.
DISPOSITION
The judgment is affirmed.
We concur: Richli, J., King, J.