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People v. Lemus

California Court of Appeals, Second District, First Division
Jul 31, 2008
No. B197523 (Cal. Ct. App. Jul. 31, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BA295651, Robert J. Perry, Judge.

Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael C. Keller and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.


NEIDORF, J.

Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Appellant Vicente Lemus was charged with one count of attempted murder and two counts of assault with a deadly weapon. (Pen. Code, §§ 664, 187, subd. (a), 12022, subd. (b)(1), 245, subd. (a)(1).) As to all counts, it was alleged he personally inflicted great bodily injury. (§ 12022.7, subd. (e).) A jury acquitted Lemus of the attempted murder charge (count one), but found him guilty on both counts of assault with a deadly weapon (counts two and three). On the third count, the jury found true the allegation that he personally inflicted great bodily injury on the victim under circumstances involving domestic violence. (§ 12022.7, subd. (e).) Lemus appeals solely from his conviction on count three, contending the trial court failed to instruct the jury sua sponte on the defense of accident or misfortune and failed to instruct the jury on “transferred” self-defense. We reject these contentions and affirm.

All further section references are to the Penal Code.

BACKGROUND

As Lemus’s appeal involves count three only, we do not recite the facts related to counts one and two.

On the night of June 19, 2005, Alejandra Soria came home from a party in a “pirate taxi” sometime between 2:00 and 3:00 a.m. She paid the driver and got out of the car, carrying a bag containing three bottles of beer and some lingerie. The taxi then left.

Lemus, Soria’s ex-boyfriend, was waiting outside for her. He grabbed her bag and asked where she had been. She asked him if he was “getting started already” (alluding to her belief that he was going to strike her). As she walked away, Lemus struck her on the head with a beer bottle. Soria tried to hide in front of a parked car, then lost consciousness. When she came to, she was inside Lemus’s mother’s house, and Lemus’s mother was cleaning her face. Lemus had left the scene. An ambulance took Soria to the hospital where she received five staples.

Lemus was arrested and charged. The People presented evidence of the facts summarized above. In addition, prosecution witness Charles Abrahamson, an ordained minister, testified that on the night of June 19th he was reading in his living room in the front of his apartment when he heard angry voices arguing in Spanish coming from the street below. He went to his balcony and saw Lemus attempt to pull Soria from the car, then drag her to the grassy area between the sidewalk and the street in front of Abrahamson’s apartment building. The car was stationary for a few seconds but “left the premises . . . immediately after [Lemus] had dragged her out of the car.” Abrahamson saw Lemus hit Soria full force on her left temple with the beer bottle; he “saw the beer bottle shatter[,] the beer fly and parts of glass flying in the air.” Soria collapsed, then broke loose and ran a couple of car lengths before trying to hide behind a parked car. She shouted for help. Abrahamson called “911.”

At trial, Abrahamson identified Lemus and Soria as the couple he heard, then saw.

Lemus testified at trial that he had been waiting that night for Soria to come home from a party. As soon as she arrived, he asked her where she had been, and they began arguing. The driver got out of the taxi, and without saying anything, tried to stab Lemus with a butterfly knife. Lemus grabbed a beer bottle to defend himself, but accidentally struck Soria instead. The driver jumped back in his car and took off. Soria had passed out and was bleeding a lot, so Lemus took her to his mother’s house, then fled the scene.

As set forth at the outset, the jury found Lemus guilty on count three of assault with a deadly weapon and found that he personally inflicted great bodily injury on Soria under circumstances involving domestic violence. He timely appeals.

DISCUSSION

Lemus did not object to the jury instructions at trial, but now contends that the court’s failure to instruct the jury sua sponte on his “accident or misfortune defense” and the court’s inadequate self-defense instruction require reversal because they lessened the prosecutor’s burden of proof. We disagree.

A. Duty to Instruct Sua Sponte

“[T]he duty to give instructions, sua sponte, on particular defenses and their relevance to the charged offense 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.” (People v. Sedeno (1974) 10 Cal.3d 703, 716, overruled on other grounds by People v. Breverman (1998) 19 Cal.4th 142, 149, 178, fn. 26.) Substantial evidence means evidence from which a jury composed of reasonable persons could find the defense applicable. (See People v. Breverman, supra, 19 Cal.4th at p. 162; People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.) “Although a trial court should not measure the substantiality of the evidence [of a defense] by undertaking to weigh the credibility of the witnesses, the court need not give the requested instruction where the supporting evidence is minimal and insubstantial.” (People v. Barnett (1998) 17 Cal.4th 1044, 1145, fn. omitted.) “Doubts as to the sufficiency of the evidence should be resolved in the accused’s favor.” (People v. Barnett, supra, 17 Cal.4th at p. 1145.)

B. Accident or Misfortune Defense

Lemus contends the trial court had a sua sponte duty to instruct the jury “that a person who commits an act through misfortune or by accident does not commit a crime by that act so long as it appears that there was no evil design, intention, or culpable negligence[.]” The accident defense is a claim that the defendant acted without the requisite mental state to make his actions a crime. (People v. Gonzales (1999) 74 Cal.App.4th 382, 390.) That defense is available when the alleged crime was the result of an event that happened while the defendant was engaged in a lawful act. (People v. Gorgol (1953) 122 Cal.App.2d 281, 308.) In California, self-defense and the accident defense are fundamentally inconsistent; traditional self-defense implies an intentional act, not an accidental one. (See People v. Curtis (1994) 30 Cal.App.4th 1337, 1357-1358; People v. McCoy (1984) 150 Cal.App.3d 705, 708-709.) Accident or the absence of intent, moreover, refers to the act and not the result.

Lemus does not specify which instruction he believes the trial court should have given; however, the Judicial Council jury instruction for accident, adapted to fit this case, would read: “The defendant is not guilty of the crime charged in count three if he acted without the intent required for that crime, but acted instead accidentally. You may not find the defendant guilty of the crime charged in count three unless you are convinced beyond a reasonable doubt that he acted with the required intent.” (CALCRIM 3404.)

Here, Lemus confuses the possibility that the injury was unintended, not, as required for an instruction, that his act of swinging the bottle was accidental. The testimony he cites as compelling a sua sponte accident defense does not show that he unintentionally or accidentally grabbed a beer bottle and swung it when he tried to defend himself against the taxi driver, only that he missed and struck Soria. Indeed, at every opportunity he testified that he meant to defend himself with the bottle. Accordingly, the evidence does not support the defense at all. Given the mutually antagonistic relationship between the self-defense and accident defenses, the trial court had no duty to instruct the jury sua sponte on an accident defense.

“Q. And then you accidentally struck Soria when she got between you and this other man? A. Yes.” “Q. You hit her once with the beer bottle, but that was an accident? A. Yeah.”

An accident instruction would not have changed the outcome of the trial in any event. The trial court gave proper instructions on willfulness, telling the jury the People had to prove beyond a reasonable doubt that Lemus acted willfully and did not act in self-defense. “Willfully,” they were instructed, means Lemus acted “willingly or on purpose.” The jury was also told that every crime charged in the case required proof of wrongful intent. “To be guilty of [assault with a deadly or dangerous weapon, personal use of a deadly or dangerous weapon], a person must not only commit the prohibited act, but must do so intentionally or on purpose.” The jury gave no indication of confusion, asking no questions and deliberating just over two hours before rejecting Lemus’s claim of self-defense.

The prosecutor made clear in her closing argument that she was not seeking a conviction based on an accidental injury, but on Lemus’s intentional act, explaining that “‘willfully’ means he intentionally did it.” The prosecutor made it clear that finding intentionality required the jury to reject Lemus’s claim that he acted accidentally. In addition, to find Lemus guilty, the jury had to resolve conflicting versions of what occurred: Lemus’s account that he lawfully defended himself against the taxi driver’s knife attack versus that of both Soria and Abrahamson that after the taxi driver had already left the scene Lemus grabbed the bottle and swung it at her. In rejecting Lemus’s version, the jury had to be convinced beyond a reasonable doubt that Lemus acted willfully, that is, not by accident. Any possible error was harmless under either standard. (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824; People v. Watson (1956) 46 Cal.2d 818, 836.)

“Some of the Three Stooges act had stuff where they have the ladders and things and they turn around and they keep hitting the other two stooges. They don’t intend to. They’re just stooges. And they’re accidentally hitting these fellows as they swing. That is not what [assault with a deadly weapon] is talking about. [¶] This law is talking about when you intentionally do it.”

C. Transferred Self-Defense

Lemus further contends the self-defense instruction the trial court did give “failed to explain to the jury that the justification of self-defense applies when the defendant intends to injure the person who poses the threat but inadvertently injures an innocent bystander instead.” Although Lemus correctly states the law, he did not request a transferred self-defense instruction and, in fact, defense counsel told the court he had no objections or additions to the instructions the court proposed to give. To determine whether he was in fact deprived of this aspect of the self-defense instruction, we examine the entire charge of the court (People v. Chavez (1985) 39 Cal.3d 823, 830), together with counsel’s arguments to ascertain whether the jury was adequately informed of the point allegedly omitted from the court’s instructions (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248-1249).

The rationale behind transferred self-defense is that “one’s criminal intent follows the corresponding criminal act to its unintended consequences,” thus one’s lack of criminal intent follows the corresponding non-criminal act to its unintended consequences. (People v. Mathews, supra, 91 Cal.App.3d at p. 1023.) As self-defense is not limited to specific intent crimes, but applies to general intent crimes such as assault with a deadly weapon, it follows that transferred self-defense applies to both general and specific intent crimes.

As discussed above, Lemus testified that he intended to defend himself but Soria got in his way. His counsel so stated in his closing argument: “The taxi driver gets out of the car, approaches with what he believes is a knife, so he defends himself. In the process of defending himself, he strikes [Soria] on the head, not intending to hit her, but defend himself. That is his version of the events.” Later in the argument, counsel stated: “The man came at my client supposedly with a knife protecting himself and thrust his arm out. Unfortunately, it hit [Soria]. He is sorry.”

Significantly, on rebuttal, the prosecutor did not challenge Lemus’s claim that his actions would be justified if, while defending himself against the taxi driver’s knife attack, he struck Soria by accident, apparently assuming the applicability of transferred self-defense. Instead, the prosecutor challenged Lemus’s credibility: “There was a guy with a knife that came out of the cab. He tried to kill me. I defended myself . . . Folks, you didn’t fall off a turnip truck. You know when you’re being lied to.” The court gave the correct jury instructions for assault with a deadly weapon (CALCRIM 875), wrongful intent (CALCRIM 252), and self-defense (CALCRIM 3470). In particular, the trial court instructed that assault required that defendant act willfully and that when he acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone. (CALCRIM 875; People v. Williams (2001) 26 Cal.4th 779, 787-788 [assault requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another].) In addition, CALCRIM 3470 made clear that Lemus was not guilty if he used force in lawful self-defense against “the other person or another person,” that is, regardless who was the object of Lemus’s use of force, the taxi driver or Soria.

In sum, there is no reasonable probability the jury construed the self-defense instruction in a way that would have led it to reject the self-defense claim had it believed Lemus was protecting himself from the driver’s attack when he struck Soria. The issue was plainly before the jury, and they rejected Lemus’s self-defense claim. We find no prejudice under either standard. (Chapman v. California, supra, 386 U.S. at p. 24; People v. Watson, supra, 46 Cal.2d at p. 836.)

DISPOSITION

The judgment is affirmed.

We concur: MALLANO, P. J., ROTHSCHILD, J.


Summaries of

People v. Lemus

California Court of Appeals, Second District, First Division
Jul 31, 2008
No. B197523 (Cal. Ct. App. Jul. 31, 2008)
Case details for

People v. Lemus

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. VICENTE LEMUS, Defendant and…

Court:California Court of Appeals, Second District, First Division

Date published: Jul 31, 2008

Citations

No. B197523 (Cal. Ct. App. Jul. 31, 2008)