Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Riverside County, Vernon K. Nakahara, Judge.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant Jess Lara.
Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant Shaun Wachter.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
BEDSWORTH, ACTING P. J.
OPINION
Appellants Jess Lara and Shaun Wachter were charged with murder in the shooting death of Steven Zamora. At trial, the defense theorized Lara shot Zamora to protect Wachter, and the facts supported this theory. However, the trial court failed to instruct on the defense of others, and the jury convicted appellants of the lesser-included crime of manslaughter. It also convicted Wachter of unlawfully possessing a firearm as a felon. We find the court erred in failing to instruct on the defense of others, and the error warrants the reversal of appellants’ manslaughter convictions and a remand for resentencing. In all other respects, we affirm.
FACTS
On the evening of July 26, 2002, Arlanza gang members Steven Zamora and Juan Isais drove to the Courtyard Apartments to purchase drugs. The apartments are located in a gang-infested area of Riverside that is claimed by both Arlanza and its rivals the Tiny Winos and Sur Riva Locotes. Lara, a Sur Riva Locotes member, lived at the Courtside Apartments, and Wachter, who was in the Tiny Winos, stayed with him there sometimes.
Upon arriving at the apartments, Zamora and Isais encountered a group of three or four rival gang members. (The record does not disclose whether appellants were in this group.) The exchange led to blows and Isais pulling a knife, but he and Zamora fled the area before anyone was injured. As they were leaving, their rivals threw objects at their car and warned them not to come back, but, according to the record, they shouted back, “Oh, all right. We’ll see.”
Angered by the encounter, Zamora and Isais drove to the house of fellow Arlanza member Manuel Lujan. Then, about an hour later, the three of them, along with
George Hernandez, drove back to the Courtyard Apartments with at least one gun in their possession. When they got there, Wachter was walking toward the apartments. They confronted him in a hostile manner, and Wachter stood up to them briefly. However, as the confrontation intensified, Wachter ran inside the apartments, closing the front gate behind him.
Zamora ran after him, gun in hand. He got within a few feet of the front gate when Wachter slipped and fell in the courtyard. At that point, Wachter pulled out a handgun and began shooting toward Zamora. Wachter fired three to five shots in all, but they did not hit anyone. In response, Zamora (and possibly one of his companions, as well) opened fire on Wachter, hitting him in the knee and elbow. Wachter shouted he had been shot, and moments later, Lara stepped outside his nearby apartment with a sawed-off shotgun. He fired the gun twice, hitting Zamora in the chest with both shots. Zamora’s companions dragged him to their car and dropped him off at the hospital, but he soon died from his wounds.
When interviewed by the police, appellants denied any involvement in the shooting. However, they were charged with first degree murder and attempted murder, with attendant gang and firearm enhancements. Wachter was also separately charged with being a felon in possession of a firearm. At trial, the court instructed on manslaughter as a lesser-included offense of murder, under the theories of heat of passion, imperfect self-defense and imperfect defense of others. It also instructed on perfect self-defense, but it did not instruct on perfect defense of others. The jury convicted appellants of manslaughter, acquitted them of attempted murder, and found Wachter guilty of the gun possession charge.
I
Appellants contend the court prejudicially erred in failing to instruct on perfect defense of others, which is a complete defense to murder. We agree.
For a killing to be in “perfect self-defense,” the defendant “must actually and reasonably believe in the need to defend. [Citation.] If the belief subjectively exists but is objectively unreasonable, there is ‘imperfect self-defense,’ i.e., ‘the defendant is deemed to have acted without malice and cannot be convicted of murder,’ but can be convicted of manslaughter. [Citation.]” (People v. Humphrey (1996) 13 Cal.4th 1073, 1082, fn. omitted.)
The same principles apply to the defense of others. Whereas perfect defense of others is a complete defense to murder, “one who kills in imperfect defense of others — in the actual but unreasonable belief he must defend another from imminent danger of death or great bodily injury — is guilty... of manslaughter.” (People v. Randle (2005) 35 Cal.4th 987, 997.) Our focus here is on the perfect defense of others, which we will refer to simply as the defense of others. All references to self-defense are to the perfect form of that defense, as well.
At trial, appellants’ counsel argued Lara fired at Zamora to protect Wachter. To facilitate this claim, they requested CALJIC No. 5.32, which is entitled, “Use of Force in Defense of Another.” That instruction provides, “It is lawful for a person who, as a reasonable person, has grounds for believing and does believe that bodily injury is about to be inflicted upon [another person] [] to protect that individual from attack. [¶] In doing so, [he] [she] may use all force and means which that person believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent.”
The prosecution did not object to this instruction, and the court did not question its general applicability to the case. In fact, at no point during the trial was it ever disputed that there was sufficient evidence to warrant instructions on the defense of others. However, because CALJIC No. 5.32 is indexed in the CALJIC book under a subheading entitled, “Non-Homicidal Defense of Self or Other,” the trial court refused to give it in this case. Instead it gave three instructions that come under the subheading of “Justifiable Homicide.”
The first instruction, CALJIC No. 5.12, pertains to self-defense. It states, “The killing of another person in self-defense is justifiable and not unlawful when the person who does the killing actually and reasonably believes: [¶] 1. That there is imminent danger that the other person will either kill [him] [her] or cause [him] [her] great bodily injury; and [¶] 2. That it is necessary under the circumstances for [him] [her] to use in self-defense force or means that might cause the death of the other person for the purpose of avoiding death or great bodily injury to [himself] [herself].”
The court also gave CALJIC No. 5.13, which is entitled, “Justifiable Homicide—Lawful Defense of Self or Another.” That instruction provides, “Homicide is justifiable and not unlawful when committed by any person in the defense of [himself] [herself] [[his] [her] _______ ] if [he] [she] actually and reasonably believed that the individual killed intended to commit a forcible and atrocious crime and that there was imminent danger of that crime being accomplished. A person may act upon appearances whether the danger is real or merely apparent.”
In cases such as this one, where the homicide is allegedly justified in the defense of another, the court is supposed to insert on the blank line the status and name of the person being defended. (See use note to CALJIC No. 5.13.) However, the court did not do that here. Instead, it worded the instruction in terms of self-defense only, telling the jury, “Homicide is justifiable and not unlawful when committed by any person in the defense of himself if he actually and reasonably believed....” (Italics added.)
The court’s third instruction in this area was CALJIC No. 5.14. Entitled “Homicide in Defense of Another,” that instruction explains, “The reasonable ground of apprehension does not require actual danger, but it does require (1) that the person about to kill another be confronted by the appearance of a peril such as has been mentioned; (2) that the appearance of peril arouse in [his] [her] mind an actual belief and fear of the existence of that peril; (3) that a reasonable person in the same situation, seeing and knowing the same facts, would justifiably have, and be justified in having, the same fear; and (4) that the killing be done under the influence of that fear alone.”
The Attorney General admits the court erred in limiting these instructions to self-defense and failing to instruct on the defense of others pursuant to CALJIC No. 5.13. However, he asserts that, despite this error, the jury would still have known the defense of others was a viable theory in this case, given all the information it received. We agree with the underlying premise of the Attorney General’s argument, i.e., in reviewing claims of instructional error, we must look at the entire record to determine whether there is a reasonable likelihood the jury understood the challenged instructions in a way that violated the defendant’s rights. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248-1249; People v. Cain (1995) 10 Cal.4th 1, 35-36; People v. Andrade (2000) 85 Cal.App.4th 579, 585.) But we disagree with the inferences the Attorney General draws from the record in this case.
Starting with the instructions themselves, the Attorney General contends, “Although CALJIC No. 5.13 referred only to ‘defense of himself,’ there was nothing in any of the instructions which specifically excluded ‘defense of another.’ The jury was also given a set of written instructions and the caption for CALJIC No. 5.14 ‘Homicide in Defense of Others,’ which immediately followed the general instructions on self-defense, and would have been understood to go along with the previous, more general, instructions on self-defense.”
To say the jury was properly instructed on the defense of others because none of the instructions specifically excluded the defense is to ignore the fact the trial court has an affirmative duty to instruct on the applicable legal principles involved in the case, including defenses. (People v. Maury (2003) 30 Cal.4th 342, 424; People v. Graham (1969) 71 Cal.2d 303, 317.) The whole idea behind this requirement is to ensure the jury has the necessary legal framework to decide the case fairly and correctly. While we may presume the jurors followed the instructions they were actually given (People v. Avila (2006) 38 Cal.4th 491, 574), we cannot presume they considered the defense of others simply because they were never expressly told they could not do so. To rule otherwise would severely undermine the right of criminal defendants to have their defenses fully and properly presented to the jury. It would also undermine a bedrock principle of the jury system, which is that jurors are supposed to follow the law as it is explained to them by the court. (See CALJIC Nos..50 and 1.00, which were given in this case.) Our system does not — and should not — encourage jurors to invoke legal theories on which they are not instructed simply because they were not explicitly forbidden to apply them.
The Attorney General is quite correct that the caption to CALJIC No. 5.14 refers to the defense of others. However, the court did not read the caption of this or any other instruction when it read them to the jury. Rather, it only recited the body of the instructions, and nothing provided therein specifically mentioned the defense of others. While the jurors did have a set of written instructions available to them during deliberations, there is no indication they actually looked at CALJIC No. 5.14. Even if they did, it is doubtful they would have understood from the instruction’s caption that the defense of others applied in this case. Looking at the jurors’ charge as a whole, there is nothing the court said to them, or gave to them, that would make up for its failure to provide substantive instructions on that particular defense.
That leads us to the Attorney General’s next argument, which is that the parties’ closing arguments sufficiently apprised the jury of the defense of others. It turns out the prosecutor only mentioned the concept once, while discussing the requirement that the killing be unlawful. He said, “The reason this element is here is, if there is a right to self-defense, or if there is a right to defense of others, then it is a lawful killing.” This brief reference to the defense of others can hardly be said to compensate for full and proper instructions on the issue. And while appellants’ counsel discussed the defense in more detail and argued for its application in this case, in the end, there was no instructional vehicle for the jurors to apply the defense to appellants. “Permitting a defendant to offer a defense is of little value if the jury is not informed that the defense, if it is believed or if it helps create a reasonable doubt in the jury’s mind, will entitle the defendant to a judgment of acquittal.” (United States v. Escobar de Bright (9th Cir. 1984) 742 F.2d 1196, 1201-1202.) Thus, it cannot be said that counsels’ arguments remedied the instructional error that occurred in this case.
Having determined the court’s error in failing to instruct on the defense of others was not rectified by the instructions as a whole or the arguments of counsel, we now turn to the issue of prejudice. The Attorney General assumes the standard of review announced in People v. Watson (1956) 46 Cal.2d 818, 836 applies and that reversal is not required unless it is reasonably probable the court’s error affected the jury’s verdict. (ROB, p. 26 & fn. 8.) However, the court’s error alleviated the prosecution of its obligation to prove Lara did not kill Zamora in the defense of Wachter (People v. Rios (2000) 23 Cal.4th 450, 461-462), thereby lightening the state’s burden of proof. Therefore, the error was of constitutional magnitude, and the more stringent harmless-beyond-a-reasonable-doubt standard should arguably apply in this setting. (Cf. Neder v. United States (1999) 527 U.S. 1 [trial court’s error in failing to instruct on an element of the charged offense on which the prosecution has the burden of proof can only be deemed harmless when the reviewing court is satisfied beyond a reasonable doubt that the error did not contribute to the jury’s verdict]; People v. Flood (1998) 18 Cal.4th 470 [same]; see also People v. Quach (2004) 116 Cal.App.4th 294, 303 [applying the harmless-beyond-a-reasonable-doubt standard of review to the trial court’s erroneous instructions on the right of self-defense].)
But it matters not. We are convinced reversal is required even under the more forgiving Watson standard. The Attorney General downplays the viability of the defense-of-others theory, noting one “reasonable interpretation of the evidence was that Lara was already outside, hiding in the courtyard, somewhere near the entrance to the apartment” before shooting Zamora. However, we know from the jury’s verdict that it rejected the prosecution’s theory Lara acted with premeditation and deliberation. Had the jury accepted this theory it would have convicted appellants of murder, not manslaughter.
Although the exact circumstances surrounding the shooting were not conclusively established by the evidence, the record shows Wachter was under enemy fire at the time Lara came to his aid and got involved in the shooting. In fact, Wachter had been shot twice and was screaming in pain when Lara appeared and fired at Zamora. Even if we assume appellants had a gang-related motive for shooting Zamora and were generally prepared for his return following the initial confrontation that occurred earlier in the evening, the undisputed facts as to how the shooting played out strongly support the theory Lara shot Zamora to prevent him from killing Wachter.
We also know from the jury’s verdict and deliberations that it did not consider this to be an “open and shut” case against appellants. It spent five days mulling over the evidence, and even without instructions on the defense of others, it acquitted appellants on the charges of murder and attempted murder. These factors militate in favor of a reversal. (See People v. Randle, supra, 35 Cal.4th at p. 1004 [in finding the trial court’s failure to instruct on imperfect self-defense to be prejudicial error, the court observed “the jury, even without having been instructed on this theory, took five days to reach its decision.”]; People v. Vasquez (2006) 136 Cal.App.4th 1176 [failure to instruct on imperfect self-defense deemed prejudicial where the jury spent three days deliberating on the case and rejected the prosecutor’s theory that the defendant committed murder in the first degree].)
It is also worth noting the jury’s verdict of manslaughter suggests a certain affinity for the defense of others. While the court instructed on three possible theories of manslaughter, Lara’s attorney essentially disavowed the heat of passion theory, and the imperfect self-defense theory did not really fit Lara, because he was inside his apartment when the shooting broke out. Most likely then, the jury convicted Lara of manslaughter on the theory of imperfect defense of others. Under that theory, the jury would have had to find that, in shooting Zamora, Lara actually believed his actions were necessary to defend Wachter from death or great bodily injury. Such an actual belief in the need to defend is a key element to the defense of others, with objective reasonableness being the other half of the equation. (See People v. Randle, supra, 35 Cal.4th at p. 997.) However, because the jurors were not instructed on this defense, they had no occasion to consider whether Lara’s actions were objectively reasonable in the light of the situation with which he was presented.
This not only deprived the jury of the opportunity to render a verdict that was commensurate with the evidence in the case. (See People v. Breverman (1998) 19 Cal.4th 142, 155 [a chief rationale for requiring trial courts to instruct on all applicable theories is that it guards against verdicts that are harsher or more lenient than the evidence merits].) It also created the potential for a miscarriage of justice, given the considerations we have discussed. Other courts have found prejudicial error in the omission of instructions on a defense that was, as here, both supported by the evidence adduced at trial and consistent with the jury’s verdict in the case (See, e.g., People v. Elize (1999) 71 Cal.App.4th 605 [reversing conviction due to trial court’s failure to instruct on self-defense], and we cannot ignore it here.
While instructional errors are often found to be harmless on appeal, this is the rare case in which the court’s error effectively undermined a central component of a defense theory that enjoyed substantial support in the record. Moreover, the error was not only harmful to Lara, the killer, but Wachter, as well, because his culpability was dependent on the lawfulness of Lara’s actions. Considering the entire record of the case, we are convinced that had the jury been instructed on the defense of others, it is reasonably probable it would have found Lara’s conduct in killing Zamora to be lawful under that theory, which would have led to both Lara and Wachter being fully acquitted of the homicide charge. Reversal of the manslaughter conviction is therefore required as to both appellants.
II
In light of this holding, appellants’ remaining arguments are moot, except Wachter’s contention that the prosecution failed to properly plead the allegation he had suffered a prior strike conviction pursuant to Penal Code section 667, subdivisions (b)-(i). He claims the record shows he was only charged with having suffered a prior serious felony conviction for purposes of Penal Code section 667, subdivision (a), but the information specifically alleged the prior also constituted a serious felony “within the meaning of Penal Code sections 667, subdivisions (c) and (e)(1).” Therefore, there was no charging error.
DISPOSITION
Appellants’ manslaughter convictions and the enhancements attendant thereto are reversed and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.
WE CONCUR: O’LEARY, J. MOORE, J.