Opinion
D070795
03-02-2017
THE PEOPLE, Plaintiff and Respondent, v. STANLEY Y. LARWA, Defendant and Appellant.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Seth M. Friedman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCE350953) APPEAL from a judgment of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed. Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Stanley Larwa, Jr., appeals from a judgment of conviction after a jury found him guilty of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) with attendant firearm use (§ 12022.5, subd. (a)) and great bodily injury (§ 12022.7, subd. (a)) enhancements. In two variations on a single theme, he contends the jury should have been instructed on a theory of self-defense. In his view, either his counsel was ineffective in requesting that the trial court not give self-defense instructions, or the trial judge should have ignored counsel's request and given the instructions anyway despite the fact they were inconsistent with counsel's proffered theory of defense. Finding no error on the part of either the trial court or counsel, we affirm.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with shooting Brett Marrs late at night in an El Cajon strip mall parking lot. Shortly before the shooting Marrs left a party in the company of Catherine Loyd-Sledge. As they drove away from the party, Marrs became irritated at the driver of a truck that was following him, who he referred to as "Stosh." At one point Marrs stopped his vehicle and the truck pulled up alongside. Marrs yelled, "That's the fastest way to get fucked up, Stosh. That's the fastest way to get fucked up, coming up on somebody like that."
The drivers of the two vehicles continued to drive and yell at each other. Marrs became increasingly angry. Ultimately he pulled into the parking lot of a gas station. Telling Loyd-Sledge, "I'm going to fuck him up," Marrs got out of his vehicle and crossed the street to a parking lot next to a taco shop where the truck was now parked. "Stosh" was now out of the truck. As Marrs approached to within five or six feet, "Stosh" raised a handgun and fired two shots. Only one of the shots hit Marrs.
Marrs succumbed to cancer before trial. A conditional examination was admitted as his trial testimony. --------
Two possible theories of defense were presented by the evidence. The first was that the People had failed to prove it was defendant who shot Marrs. Other than Marrs, there were two witnesses to the shooting—Loyd-Sledge and a customer at the gas station. Neither was able to identify the shooter. In his first interviews at the hospital and with police, Marrs also said he could not identify his assailant and claimed he had never seen him before. Later Marrs changed his story, said he knew who "Stosh" was, provided defendant's name and picked his picture out of a photo lineup. A .22 caliber revolver was found in defendant's residence concealed in a bag in the toilet tank of the bathroom he normally used. There were two empty chambers.
The second theory was self-defense, which was supported by comments made by Loyd-Sledge and the customer at the gas station. Loyd-Sledge described Marrs as he crossed the street toward the taco shop: "Well, honestly, the way [Marrs] was stomping, that was an aggressive stomp, his demeanor was aggressive, so of course, yeah, he's moving towards him. Maybe he was going to punch him." She noted, however, that Marrs carried no weapon of any kind.
The gas station customer was questioned about this same moment:
"Q. And what did the person who you saw go across the street do?
"A. He was trying to fight him physical, like having them up.
"Q. And for the record, you have your fists up in front of your face like the Notre Dame logo?
"A. Yes. He's trying to fight him physically. As soon as you walk to the fast food place, he has his arm ready to fight physically with the arm. He got kind of close to him, I think try to reach, but the other person had pulled the gun and shot him twice.
"Q. So you're saying that the person actually threw a punch?
"A. He threw a punch kind of close, but he didn't reach him.
"Q. So he threw a punch and missed?
"A. Uh-huh."
Defendant's counsel opted to focus on the first of the defense theories—that someone else shot Marrs. In a discussion about jury instructions, the trial court raised the question whether defendant wanted a self-defense instruction. Referring to the testimony about a missed punch, the judge commented, "it's kind of a long stretch to say that the fear created by Marrs yelling and coming across was so great that this advancing individual thought that he needed to use this force to stop the oncoming Marrs, so rather than doing anything else, he simply shot him." But ultimately he told defense counsel, "It's up to you."
After counsel conferred with his client, he told the court, "[I]n speaking with [defendant] from the beginning to the end, we have decided, based on my—what I've talked to, that we are not going to address a self-defense, so we're going to ask the Court not to have those instructions, and I make that for my record." The trial judge clarified that defense counsel was making this request "based upon your determination that you feel these instructions would in essence weaken or undermine the defense that is going to be proffered to the panel, and has been proffered through the questioning; correct?" Defense counsel answered, "Yes."
DISCUSSION
Not to belabor the obvious, but self-defense is a defense to a criminal charge of assault. (1 Witkin, Cal. Criminal Law (4th ed. 2012) Defenses, § 67, p. 507; see CALCRIM No. 3470.) The trial court's duty to instruct sua sponte on defenses was explained in People v. Breverman (1998) 19 Cal.4th 142: "In the case of defenses, . . . a sua sponte instructional duty arises 'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' " (Id. at p. 157, quoting People v. Sedeno (1974) 10 Cal.3d 703, 716, italics added by Breverman.) The Supreme Court in Breverman thus directed that "when the trial court believes 'there is substantial evidence that would support a defense inconsistent with that advanced by a defendant, the court should ascertain from the defendant whether he wishes instructions on the alternative theory.' " (Breverman, at p. 157, quoting Sedeno, at p. 717, fn. 7, italics added by Breverman.)
Here, the trial court did precisely as the Supreme Court instructed in Breverman. After concluding that the evidence, although a "stretch," would support a self-defense instruction, the court inquired of defense counsel whether defendant wanted an instruction inconsistent with his theory of defense—that he was not the shooter. Counsel was unequivocal: "[W]e're going to ask the Court not to have those [self-defense] instructions, and I make that for my record." Having confirmed that defendant's counsel did not want the self-instruction because he believed it would undermine the defense he intended to argue, the court would have erred had it given the self-defense instruction over counsel's objection.
Defendant further argues that if the trial court did not err in failing to give the self-defense instruction over his counsel's objection, then surely his counsel was at fault in making the objection. This is—purely and simply—Monday morning quarterbacking. Where a defendant raises a claim of ineffective assistance of counsel on appeal and "the record contains an explanation for the challenged aspect of counsel's representation, the reviewing court must determine 'whether the explanation demonstrates that counsel was reasonably competent and acting as a conscientious, diligent advocate.' " (People v. Cudjo (1993) 6 Cal.4th 585, 623, quoting People v. Pope (1979) 23 Cal.3d 412, 425.) Here, defense counsel made a tactical choice to focus the jury on his argument that the prosecution had failed to prove defendant was the person who shot Marrs. A self-defense instruction that assumed defendant was the shooter would have weakened his primary theory of defense—that he was not.
Moreover, as the trial judge aptly observed, self-defense on the facts of this case was problematic. "[O]nly that force which is necessary to repel an attack may be used in self-defense; force which exceeds the necessity is not justified." (People v. Clark (1982) 130 Cal.App.3d 371, 380, overruled on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 92.) Even if the jurors believed Marrs crossed the street intending to punch defendant, it is exceedingly likely they would have also found that shooting Marrs with a revolver amounted to excessive force. We cannot say no reasonable attorney would have concluded that a self-defense instruction would do more harm than good for defendant's case. (See generally People v. Wader (1993) 5 Cal.4th 610, 643; People v. Maury (2003) 30 Cal.4th 342, 394.)
DISPOSITION
Judgment affirmed.
/s/_________
DATO, J. WE CONCUR: /s/_________
BENKE, Acting P. J. /s/_________
O'ROURKE, J.