Opinion
C083296
03-19-2018
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY LEMUS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF157123)
In December 2015 defendant Jeffrey Lemus stabbed and killed Kelly Choate with a knife during a physical altercation at a bar. A jury acquitted defendant of first and second degree murder (Pen. Code, § 187) but found him guilty of voluntary manslaughter (Pen. Code, § 192, subd. (a)). The jury also found true the allegation he personally used a deadly or dangerous weapon. (Pen. Code, § 12022, subd. (b)(1).) The trial court sentenced him to an aggregate term of seven years in state prison.
On appeal, defendant contends the trial court prejudicially erred in failing sua sponte to properly instruct the jury pursuant to CALCRIM No. 505. He argues the trial court erred in omitting the following optional paragraph in CALCRM No. 505: "[If you find that the defendant knew that __________ <insert name of decedent/victim> had threatened or harmed others in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable.]" Anticipating that he may have forfeited his claim, defendant alternatively contends trial counsel rendered ineffective assistance in failing to ensure the jury was properly instructed. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In early 2015, both defendant and Choate lived in Woodland and frequently hung out together at Julio Flores's house. In the spring or summer of 2015, defendant and Choate were at Flores's house drinking beer and watching a boxing tournament. Around 20 minutes after Choate went home, defendant discovered that his bike was missing from the front of Flores's house.
Several days later, defendant learned that his bike was at Choate's house. When defendant confronted Choate about the bike, Choate admitted it was behind his house. Defendant argued with Choate about the bike but did not get into a physical altercation with him. Defendant, however, returned to Choate's house four days later and hit him, causing a cut to the back of his head.
Following this incident, Choate repeatedly threatened to "kick [defendant's] ass." Whenever they saw each other, Choate would swear at defendant and try to fight him. While Choate always carried a large fishing knife in a sheath on his belt, there was no evidence that he ever threatened to harm defendant with the knife.
On the evening of December 5, 2015, defendant was sitting in the patio area of a bar in Woodland when Choate walked by and threatened him. As Choate was on his way into the bar, he told defendant, "I'm going to get you, motherfucker, it's your time, I'm going to catch you . . . ." Defendant did not verbally respond to Choate. Instead, he put his arms up in the air, as if to indicate he was right there waiting for Choate. Defendant "looked pissed" and seemed annoyed. However, he was calm and did not appear afraid or scared.
After defendant told a friend that he did not like Choate and was sick of Choate disrespecting him, he got up aggressively, quickly walked to the door of the bar, and forcefully swung it open "like he was mad." As defendant was walking toward the bathroom, Choate yelled at him in a loud and very aggressive manner. Choate said, "fuck you, Jeff," four or five times. According to a mutual friend of Choate and defendant, Roger Estrada, defendant set Choate off by flipping him off.
David Perry, an acquaintance of Choate and defendant, went into the bathroom with defendant. According to Perry, defendant appeared "pissed" and was holding a big knife in his hand. Perry said, "[W]hat the fuck are you doing, Jeff?" Defendant replied, "I'm sick of this shit, me and [Choate] have fought, like, five times, and I'm fucking really tired of it." Defendant explained that he had beaten Choate up every time they had fought but Choate would not leave him alone.
Perry explained that, at the time of the stabbing, he had known Choate for about 45 years and defendant for about four or five years.
Less than a minute after Perry went into the bathroom, Estrada entered the bathroom. Defendant showed Estrada a large folding knife. He said that Choate better calm down, and indicated that he would use the knife if Choate "start[ed] any shit with [him]." According to Estrada, defendant showed him the knife because defendant wanted him to calm Choate down. After defendant calmed down, he folded his knife and left the bathroom with the knife in his hand.
As defendant walked toward the entrance of the bar, he pointed or waived at Choate. Choate put his hands up like he was getting ready to fight and repeatedly said, "fuck you, Jeff," in an aggressive tone. Choate then charged at defendant.
When Choate caught up to defendant, he punched defendant in the side of the head. The two then exchanged punches. As they were fighting, defendant opened his knife and stabbed Choate in the chest one time. Defendant then folded his knife, put it in his pocket, and calmly walked out the door.
Defendant subsequently returned to the bar and turned himself in to the police. Although Choate was carrying a large knife in a sheath on his belt when he was stabbed, he never threatened defendant with the knife or pulled it out in defendant's presence.
Choate died from a single four-inch deep stab wound that punctured his left lung and heart. His blood-alcohol level was approximately 0.20 percent and he had a high level of methamphetamine in his system. However, neither the alcohol nor the drugs in his system "had [any] bearing on the death."
Charged with first degree murder, defendant's theory at trial was perfect self-defense because in stabbing Choate he reasonably believed he was in danger of suffering death or great bodily injury, or in the alternative, voluntary manslaughter because he acted in imperfect self-defense or in the heat of passion based on adequate provocation.
Evidence was presented at trial showing that Choate had threatened and harmed others in the past. Testimony established that, starting around May 2011, Choate repeatedly threatened to slit the throat of one of his neighbors. There was also evidence that Choate waved a knife at the same neighbor and threatened to cut his "balls" off in August 2011. The neighbor explained that he almost got into a fistfight with Choate on five or six occasions. In addition, there was evidence that Choate assaulted a nurse and tried to bite the nurse's ear off in March 2011. The parties stipulated that Choate had four prior misdemeanor convictions, including brandishing a firearm in 1992, infliction of corporal injury on the mother of his child in 1996, vandalism in 2006, and battery on a nurse in the performance of his duties in 2011. Defendant did not testify.
During the discussion of jury instructions on voluntary manslaughter based on imperfect self-defense (CALCRIM No. 571) and justifiable homicide based on self- defense (CALCRIM No. 505), the trial court proposed to eliminate from both instructions optional language that would have permitted the jury to consider not only prior threats or harm by the victim to the defendant but also threats or harm to "others" in evaluating the reasonableness of defendant's conduct and beliefs. The optional paragraphs containing the "others" language would not have instructed the jury that defendant was required to have knowledge of Choate's prior threats or harm to others. (See CALCRIM Nos. 505 & 571.) Defense counsel disagreed with the trial court's proposal and asked the court to instruct the jury with the "others" language. Defense counsel explained: "I understand why the Court is getting rid of the if you find the Defendant knew that Kelly Choate had threatened or harmed others. That deals, I believe, with when the Defendant would testify, or other evidence shows that he knew, and that affects his ability to act in self-defense. [¶] However, . . . I believe that this section is the only section in all the instructions that deals with character evidence for violence of the victim, to show that the victim acted in conformity on that date." The prosecutor agreed with the court's proposal and asked that the "or others" language be removed from both instructions. The prosecutor reasoned: "[T]he Defense did not put the Defendant on the stand. I do believe that they would have needed to put the Defendant on the stand for this instruction, because this instruction is asking about his belief, and there is no evidence, whatsoever, that [defendant] had any knowledge of any violent character traits that have come out in evidence. There's no evidence of that whatsoever." Defense counsel disagreed with the prosecutor, stating, "I believe that the instruction is to show that where there is character evidence of violence, and that he's acting in conformity with that character evidence, that the Defendant may believe because of that, he is able to defend against the danger."
CALCRIM No. 505 states, in relevant part: "[If you find that __________ <insert name of decedent/victim> threatened or harmed the defendant [or others] in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable.]" CALCRIM No. 571 states, in relevant part: "[If you find that __________ <insert name of decedent/victim> threatened or harmed the defendant [or others] in the past, you may consider that information in evaluating the defendant's beliefs.]"
The trial court responded to the parties arguments as follows: "[F]or our particular situation, it seems like the [language in the model instructions is] poorly crafted, because on one hand, there's evidence that [Choate] has acted violent in the past, and that has relevance in [that such evidence] . . . goes to the jury's evaluation of the reasonableness, as opposed to the reasonableness of his beliefs. [¶] And . . . it seems like that it would be appropriate to describe that concept with separate language, because[,] . . . when you're talking about beliefs, if [defendant] doesn't know about [Choate's] prior conduct, his violent conduct, it's hard to put together how that would affect his beliefs. It might. [¶] But on the other hand, the jury knows about the prior conduct, and they can evaluate that in determining whether [Choate] was acting in conformity, and whether a reasonable person might view that. [¶] I would . . . invite you both to explore whether there should be additional language to deal with that concept. I think my initial position at this time is I would strike the phrase or others in both [CALCRIM No. 505 and CALCRIM No. 571], for the reasons that I've stated. [¶] But on the other hand, to the extent that a jury can consider [Choate's] violent propensities, and to the extent it has not been included in any instruction, perhaps additional instructions should be offered. [¶] So I would entertain additional . . . language in these instructions, or a special instruction on that issue."
The following day, defense counsel stated that he still wanted the trial court to instruct the jury with the "or others" language in CALCRIM No. 505 and CALCRIM No. 571, because "that propensity . . . goes to the Defendant's ability to act in self-defense." The trial court indicated it had crafted an instruction, jury instruction No. 350A, which addressed the character and propensity evidence relating to Choate and mirrored the language of Evidence Code section 1103. After defense counsel indicated that he had no comments about that instruction, the court stated, "I will give 350A. I decline to put back the words or others in the paragraphs of [CALCRIM Nos.] 505 and 571, because the context of that sentence talks about how it affects the Defendant's beliefs, and the Court still believes that information about whether Mr. Choate threatened or harmed others is irrelevant to the Defendant's beliefs unless he was aware of that. So I did strike that [language] in the last draft [of the jury instructions], and I will not add it back."
The trial court instructed the jury with CALCRIM No. 505, in part, as follows: "The Defendant is not guilty of murder or manslaughter if he was justified in killing someone in self-defense. [¶] The Defendant acted in lawful self-defense if one, the Defendant reasonably believed that he was in imminent danger of being killed, or suffering great bodily injury; two, the Defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; and three, the Defendant used no more force than was reasonably necessary to defend against that danger. [¶] 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 death or great bodily injury to himself, Defendant's belief must have been reasonable and he 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 killing was not justified. [¶] When deciding whether the Defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the Defendant, and consider what a reasonable person in a similar situation, with similar knowledge, would have believed. [¶] If the Defendant's beliefs were reasonable, the danger does not need to have actually existed. [¶] If you find that Kelly Choate had threatened or harmed the Defendant in the past, you may consider that information in deciding whether the Defendant's conduct and beliefs were reasonable. [¶] Someone who has been threatened or harmed by a person in the past is justified in acting more quickly, and taking greater self-defense measures against that person. [¶] A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself, and, if reasonably necessary, to pursue an assailant until the danger of death or great bodily injury has passed. This is so even if safety could have been achieved by retreating."
The trial court instructed the jury with CALCRIM No. 571, in part, as follows: "[A] killing that would otherwise be murder is reduced to voluntary manslaughter if the Defendant killed a person because he acted in imperfect self-defense. [¶] If you conclude the defendant acted in complete self-defense, his action was lawful, and you must find him not guilty of any crime. [¶] The difference between complete self-defense and imperfect self-defense depends on whether the Defendant's belief in the need to use deadly force was reasonable. [¶] The Defendant acted in imperfect self-defense if one, the Defendant actually believed that he was in imminent danger of being killed or suffering great bodily injury; and two, the Defendant actually believed that the immediate use of deadly force was necessary to defend against the danger; but three, at least one of those beliefs was unreasonable. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. [¶] In evaluating the Defendant's beliefs, consider all the circumstances as they were known and appeared to the Defendant. [¶] A danger is imminent if, when the fatal wound occurred, the danger actually existed or the Defendant believed it existed. [¶] The danger must seem immediate and present so that it must be instantly dealt with. It may not be merely prospective or in the future. [¶] If you find that Kelly Choate threatened or harmed the Defendant in the past, you may consider that information in evaluating Defendant's beliefs."
The trial court also instructed the jury with jury instruction No. 350A, Character of Victim, as follows: "You have heard character testimony that Kelly Choate is an aggressive or violent person, and that would include the stipulations as to the convictions that I read to you earlier this morning. [¶] You may consider that evidence for the limited purpose of whether his conduct was in conformity with . . . the character."
DISCUSSION
"Self-defense is perfect or imperfect. For perfect self-defense, one must actually and reasonably believe in the necessity of defending oneself from imminent danger of death or great bodily injury. [Citation.] A killing committed in perfect self-defense is neither murder nor manslaughter; it is justifiable homicide. [Citations.] [¶] 'One acting in imperfect self-defense also actually believes he must defend himself from imminent danger of death or great bodily injury; however, his belief is unreasonable. [Citations.] Imperfect self-defense mitigates, rather than justifies, homicide; it does so by negating the element of malice. [Citations.]' " (People v. Randle (2005) 35 Cal.4th 987, 994, overruled on another ground in People v. Chun (2009) 45 Cal.4th 1172, 1201.)
"To constitute 'perfect self-defense,' i.e., to exonerate the person completely, the belief must also be objectively reasonable." (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) In determining whether a defendant's belief in the need to defend was objectively reasonable, "a jury must consider what 'would appear to be necessary to a reasonable person in a similar situation and with similar knowledge . . . .' [Citation.] It judges reasonableness 'from the point of view of a reasonable person in the position of defendant . . . .' [Citation.] To do this, it must consider all the ' " 'facts and circumstances . . . in determining whether the defendant acted in a manner in which a reasonable man would act in protecting his own life or bodily safety.' " ' [Citation.] As [our Supreme Court] stated long ago, '. . . a defendant is entitled to have a jury take into consideration all the elements in the case which might be expected to operate on his mind . . . .' [Citation.]" (Id. at pp. 1082-1083, original italics omitted, italics added.) Under the objective "reasonable person" test, "[t]he issue is not whether defendant, or a person like him, had reasonable grounds for believing he was in danger. The issue is whether a 'reasonable person' in defendant's situation, seeing and knowing the same facts, would be justified in believing he was in imminent danger of bodily harm." (People v. Jefferson (2004) 119 Cal.App.4th 508, 519, italics added.)
" ' "It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." [Citation.]' " (People v. Breverman (1998) 19 Cal.4th 142, 154.) Although a court has no sua sponte duty to give a pinpoint instruction on specific evidence developed at trial (People v. Michaels (2002) 28 Cal.4th 486, 529-530), it must give a requested instruction "if the instruction correctly states the law and relates to a material question upon which there is evidence substantial enough to merit consideration." (People v. Barajas (2004) 120 Cal.App.4th 787, 791.) "In this context substantial evidence means evidence which is sufficient to deserve consideration by the jury and from which a jury composed of reasonable persons could conclude the particular facts underlying the instruction existed. The trial court is not required to present theories the jury could not reasonably find to exist." (People v. Oropeza (2007) 151 Cal.App.4th 73, 78.) "Evidence is 'substantial' only if a reasonable jury could find it persuasive." (People v. Young (2005) 34 Cal.4th 1149, 1200.) "The trial court need not give instructions based solely on conjecture and speculation." (Ibid.)
In discussing jury instructions before the trial court, defendant insisted that the jury should be instructed about the victim's prior threats or harm to others because the optional paragraph in CALCRIM No. 505 "is the only section in all the instructions that deals with character evidence for violence of the victim, to show that the victim acted in conformity on that date." Defendant never suggested he had any knowledge of the victim's prior threats or harm to others. To the contrary, defendant's counsel expressed understanding of why the court would eliminate language on defendant's knowledge of the victim's prior violence because there was no indication defendant had such knowledge. As expressed by counsel, "That deals, I believe with when the Defendant would testify, or other evidence shows that he knew . . . . " The court thereafter declined to instruct on the victim's prior violence as affecting defendant's beliefs, but invited counsel to suggest language on how the jury might otherwise consider the victim's violent propensities. Neither counsel proposed additional language.
On appeal, defendant insists the court erred in failing to instruct the jury that if they found defendant knew the victim had threatened or harmed others in the past, they could consider that information in deciding whether defendant's conduct and beliefs were reasonable for purposes of self-defense. The argument suffers from multiple infirmities.
First, it is inconsistent with defense counsel's argument before the trial court which seemed to acknowledge the absence of evidence that defendant knew of prior threats or harm; his argument was that irrespective of defendant's knowledge of the victim's prior history of violence, such evidence was relevant to show the victim's character for violence. The court invited counsel to submit additional instructions that would permit the jury to consider the victim's violent propensities. None were submitted. Nevertheless, the trial court instructed on the victim's character trait for violence using jury instruction No. 350A.
But the fundamental flaw in the argument is that the record is devoid of evidence. While there was evidence presented at trial showing the victim's propensity for violence against others, there was no direct evidence showing defendant knew of this conduct. We are unpersuaded by defendant's contention that there was substantial circumstantial evidence showing defendant knew about Choate's prior violent conduct against others. According to defendant, he knew about this conduct because he and Choate both lived in Woodland for many years, knew the same people, and were friends. On this record, the jury could not have reasonably found that defendant knew about Choate's prior violent conduct. The portions of the record cited by defendant would not allow a reasonable jury to infer defendant was aware of such conduct. Accordingly, the trial court did not err in omitting the optional paragraph in CALCRIM No. 505 related to defendant's knowledge of past threats or harm to others. A trial court is not required to give a pinpoint instruction that is not supported by substantial evidence.
Because the trial court did not err in omitting the optional paragraph in CALCRIM No. 505, defendant's related claim that the trial court erred in instructing the jury with jury instruction No. 350A fails. --------
DISPOSITION
The judgment is affirmed.
RAYE, P. J. We concur: ROBIE, J. MURRAY, J.