Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F08253
Premo, J.
Defendant Richard Rodriguez Magana stabbed and killed Alfred Garcia during an altercation that involved his father, defendant Luis Magana Magana. After a jury failed to reach verdicts, the trial court declared a mistrial. A second jury acquitted defendants of murder but convicted Richard of voluntary manslaughter and Luis of aggravated assault (deadly weapon or force likely to produce great bodily injury) and aggravated battery (infliction of serious bodily injury). The trial court sentenced Richard to the mid-term of six years in prison. As to Luis, it suspended imposition of sentence and placed him on probation for three years conditioned on serving 364 days in jail (less credit for 290 days).
For clarity, we will refer to defendants by their given names. (See In re Marriage of Nelson (2006) 139 Cal.App.4th 1546, 1549, fn. 1.)
On appeal, defendants contend that the trial court erred by misinstructing the jury as to self-defense and defense of another; Richard additionally contends that the trial court erred by denying his motions for a new trial grounded on two incidents of jury misconduct and for dismissal grounded on the prosecutor’s failure to redact gang-affiliation references from an evidentiary videotape; Luis additionally contends that the trial court erred by (1) misinstructing the jury as to the effect of voluntary intoxication on mental state, and (2) refusing his request to instruct the jury as to simple assault and simple battery. We agree that the trial court erroneously instructed the jury as to defense of another and that the error was prejudicial. We therefore find it unnecessary to address the parties’ remaining contentions. We reverse the judgment.
background
Luis was drinking beer with Garcia and others in Garcia’s auto shop. When Garcia’s drug dealer arrived with cocaine that Garcia had ordered, Garcia ordered Luis to pay for the cocaine. Luis threw $200 at the dealer’s feet. This provoked Garcia to beat up Luis. Luis went home, telephoned Richard, and told Richard what had happened. Richard and a friend drove to Luis’s home, picked up Luis, and drove to the auto shop. Richard and Luis exited the car. Garcia was standing outside the shop. Luis identified Garcia to Richard. Richard asked Garcia why he had beaten and robbed Luis. Garcia advised against pursuing the point because he was a Norteno gang member. Richard and Luis turned around and walked away. Garcia then followed, broke a beer bottle over Luis’s head, and began punching Luis in the face. Richard grabbed Garcia away. The two began punching each other and fell to the ground. Luis joined the fight. When Garcia and Richard got up, Garcia pulled a knife from his shirt that Richard deflected to the ground as the combatants fell again. Richard got up and picked up the knife. Garcia followed and punched Richard in the back. Richard turned around, and Garcia attacked Richard’s face. Richard then began stabbing Garcia until Garcia stopped attacking him. Garcia suffered 12 stab wounds. At some point during the melee, Luis stomped Garcia twice in the head, once in the left eye and once in the left ear.
The People’s theory was that Richard had committed murder and that Luis was culpable as an aider and abettor because Luis had intended to aid or abet a murder or an aggravated assault or aggravated battery that had murder as a natural and probable consequence. Defendants’ theory was that Richard had acted in self-defense and in defense of Luis.
calcrim no. 505
The trial court instructed the jury in the language of CALCRIM No. 505, the new pattern instruction on justifiable homicide that speaks about self-defense and defense of another. As relevant to the issue before us, the trial court informed that a killing was justified if the defendant (1) reasonably believed that someone else was in imminent danger of being killed or suffering great bodily injury, (2) reasonably believed that immediate use of deadly force was necessary to defend that danger, and (3) used no more force than was reasonably necessary to defend against that danger. It specifically stated the following language taken from CALCRIM No. 505: “When deciding whether the defendant’s beliefs were reasonable, consider all of 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--the danger does not need to have actually existed. [¶] If the defendant believes that he or someone else was threatened [it] may be reasonable even if he relied on information that was not true; however, the defendant must have--must actually and reasonably have believed that the information was true. [¶] If you find that Albert Garcia 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. [¶] If you find that the defendant knew that Alfred Garcia had threatened or harmed others 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 or taking greater self-defense measures against that person.” (Italics added.)
During deliberations, the jury submitted the following question to the trial court that referred to the above italicized language: “ ‘Someone who has been threatened or harmed by a person in the past, is justified in acting more quickly or taking greater self-defense measures against that person.’ Does this apply to Richard, given the past harm was done to his father, not him?”
Defendants argued that the trial court should answer the question affirmatively because the cited language (1) makes an unjustified distinction between a defendant who was threatened or harmed by the victim and a defendant who knew about the victim’s threat or harm to another (allowing the former greater self-defense measures), and (2) is inconsistent with the previous paragraph of CALCRIM No. 505, which allows a defendant’s knowledge about the victim’s threat or harm to another to be considered in the reasonableness evaluation.
The trial court acknowledged the distinction and inconsistency but disagreed that an affirmative answer was required. It responded to the jury as follows: “The sentence in CALCRIM 505 which states ‘Someone who has been threatened or harmed by a person in the past, is justified in acting more quickly or taking greater self-defense measures against that person’pertains to the threat or harm to that person, not a threat or harm that has occurred to another person. However, threats or harm to another person are factors you may consider, and are discussed in CALCRIM 505 and other instructions that I have given to you.”
discussion
Defendants essentially contend that the trial court erred either by not answering the jury’s question affirmatively or by refusing their implicit request to answer the question with a modification of CALCRIM No. 505 that accounted for the quicker- or greater-measures concept as it related to Richard’s knowledge of Garcia’s past harms to Luis. They reiterate that, under the facts, CALCRIM No. 505, as given, makes an unjustified distinction and is internally inconsistent. We agree with defendants because any distinction between self-defense and defense of another is a distinction without a difference.
“ ‘To justify an act of self-defense . . ., the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him. [Citation.]’ [Citation.] The threat of bodily injury must be imminent [citation], and ‘. . . any right of self-defense is limited to the use of such force as is reasonable under the circumstances.’ ” (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065, quoting People v. Goins (1991) 228 Cal.App.3d 511, 516, and People v. Pinholster (1992) 1 Cal.4th 865, 966, respectively.) Evidence that the victim had threatened or harmed the defendant is relevant and admissible to support a claim of self-defense. (People v. Minifie, supra, 13 Cal.4th at p. 1065.) Antecedent threats or harms are admissible because they are relevant to the defendant’s subjective mental state. (Id. at pp. 1065-1069; People v. Humphrey (1996) 13 Cal.4th 1073, 1093-1094.) For this purpose, threats against third parties, provided the defendant is aware of them, are as relevant as threats against the defendant. (People v. Spencer (1996) 51 Cal.App.4th 1208, 1219-1220.)
Thus, in a self-defense case, antecedent threats or harms “illuminate and reflect on the reasonableness of defendant’s perception of both the imminence of danger and the need to resist with the degree of force applied. [Citation.] They may also justify the defendant ‘in acting more quickly and taking harsher measures for [his or] her own protection in the event of assault, whether actual or threatened, than would a person who had not received such threats.’ ” (People v. Humphrey, supra, 13 Cal.4th at p. 1094, quoting People v. Bush (1978) 84 Cal.App.3d 294, 302-303.)
These principles are equally applicable to defense of another because defense of another similarly requires an honest and reasonable belief that another person is in imminent danger of death or great bodily injury and that the force used is reasonable and necessary under the circumstances. (People v. Uriarte (1990) 223 Cal.App.3d 192, 197.) Antecedent threats or harms are equally admissible in support of a defense-of-another claim. (People v. Spencer, supra, 51 Cal.App.4th at pp. 1219-1220.) It follows that a defendant asserting defense of another is entitled to an instruction on the effect of antecedent threats or harms by the victim on the reasonableness of the defendant’s conduct. (Ibid.) It also follows that such an instruction must also include the concept that known antecedent threats or harms to others may also justify the defendant in acting more quickly and taking harsher measures for his own or another’s protection than would a person who had not known of such threats or harms.
Here, however, neither CALCRIM No. 505, as given, nor the trial court’s answer to the jury’s question included the concept. Moreover, the instruction, as given, and the trial court’s answer affirmatively made the distinction that antecedent threats or harms to the defendant justified quicker or greater measures in self-defense while the same type of threats or harms to others were a mere consideration in the reasonableness evaluation for self-defense or defense of another. The trial court therefore erred.
The People make no cogent argument to the contrary. They recognize the distinction made by CALCRIM No. 505 and essentially argue that any error was harmless.
The state constitutional harmless-error standard applies--i.e., we must reverse only if it is reasonably probable that the error affected the outcome adversely to defendant. (People v. Humphrey, supra, 13 Cal.4th at p. 1089; People v. Spencer, supra, 51 Cal.App.4th at pp. 1220-1221.) In analogous self-defense cases, this same error has been held to be prejudicial where the case is closely balanced and the evidence pertaining to self-defense is in strong conflict. (People v. Moore (1954) 43 Cal.2d 517, 529; People v. Bush, supra, 84 Cal.App.3d at pp. 303-304; People v. Torres (1949) 94 Cal.App.2d 146, 153; see also People v. Pena (1984) 151 Cal.App.3d 462, 475, 478.)
On the other hand, in People v. Spencer, supra, 51 Cal.App.4th 1208, the court found a similar error harmless. There, the jury was instructed: “ ‘One who has received threats against his or her life or person is justified in acting more quickly and taking harsher measures for his or her own protection in the event of assault, either actual or threatened, [than] would be a person who had not received such threats. [¶] If in this case you find that the evidence shows that the deceased . . . made prior threats against the life or person of defendant, and [that] the defendant as a result thereof had reasonable cause to fear greater peril from an altercation with the deceased than he otherwise would have, you are to take such factors and circumstances into consideration in determining whether defendant acted in a manner in which a reasonable person would act in protecting his or her own life or bodily safety.’ ” (Id. at p. 1219.) It was also instructed: “ ‘In determining whether a person presents an imminent danger, the defendant is entitled to consider all the circumstances, including any prior assaults or threats by that person against the defendant.’ ” (Ibid.)
The defendant argued that the instruction was deficient because it referred only to threats against him; it did not include threats against third parties of which he was aware. (People v. Spencer, supra, 51 Cal.App.4th at p. 1220.) The court agreed that this was error but held the error harmless. It noted that another instruction allowed the jury, in deciding whether the defendant perceived an imminent danger, to consider “ ‘all the circumstances.’ ” (Ibid.) It also noted that the jury was “repeatedly admonished” that the evidence of threats against third parties was being admitted to show the defendant’s state of mind. (Id. at pp. 1219, 1221.)
Here, the People similarly stress that the trial court repeatedly told the jury that all circumstances must be considered in the reasonableness evaluation. They characterize the quicker- or greater-measures concept as a “subset” of the reasonableness evaluation rather than a separate concept allowing one to act other than reasonably. And they characterize the trial court’s answer to the jury as a correct description of CALCRIM No. 505 and a proper direction to focus on the reasonableness of Richard’s conduct. They continue that “a massive amount” of adverse character evidence had been admitted about Garcia’s “viciousness and aggressiveness” and the trial court instructed the jury that it could consider this evidence as to whether Garcia had acted in conformity with this character during the confrontation with defendants. They point out that the evidence “broadly contradicted” the defense version of the facts and urge that “a defense of complete self-defense was simply not available.”
But what distinguishes this case from Spencer is that this is not a mere failure-or refusal-to-instruct case. Here, the jury zeroed in on the quicker-or greater-measures concept as related to certain facts and asked whether it applied to Richard. Thus, contrary to the People’s point, the jury was interested in the availability of the concept for self-defense or defense of another. This interest was despite or perhaps because of the so-called broad evidentiary contradictions. That this case basically turns on Richard’s mental state and there had been a mistrial only reinforces the inference that the jury was interested in the concept. In any event, by effectively answering the jury’s question negatively, the trial court not only misinstructed but also “might well have served to divert the jurors’ attention from the evidence [supporting self-defense or defense of another].” (People v. Bush, supra, 84 Cal.App.3d at p. 304.) We cannot say that the trial court’s error was harmless.
The People argue that the error should not affect the judgment against Luis because the concept benefitted him only if his guilt was derivative of Richard’s guilt as an aider and abettor. They point out that the jury acquitted Luis of manslaughter and argue that the jury convicted Luis for his independent acts of stomping on Garcia’s head.
We disagree with this analysis.
It is true that the trial court directed the jury to complete verdict forms finding Luis guilty of aggravated assault and/or aggravated battery if it found that Luis was not guilty of voluntary manslaughter but guilty of aggravated assault and/or aggravated battery. Since the jury did so, this suggests that the jury indeed convicted Luis as a perpetrator of acts that were separate from the killing and, thus, not subject to defense-of-another principles.
The trial court instructed the jury that the People had the burden to disprove self-defense as to aggravated assault and aggravated battery.
But the trial court’s error in answering the jury’s question as to the quicker- or greater-measures concept effectively blocked Richard’s path to acquittal for the killing. If the error had not occurred and the jury had believed that the killing was justified because Richard’s knowledge of Garcia’s past harm to Luis triggered self-defense or defense-of-another, it may very well have accepted that any assault and/or battery was part of the justifiable melee rather than a divisible incident. The jury could have so reasoned simply by accepting the prosecutor’s argument that Luis’s culpability was as an aider and abettor rather than as an independent perpetrator. In its instructions on aiding and abetting, the trial court told the jury that “The People are alleging that the defendant originally intended to [aid] and abet either [aggravated assault] or [aggravated battery].” In his argument, the prosecutor began speaking about Luis’s culpability as follows: “So when we talk about the various commissions of the crime and the breakdown of the strategy, Luis Magana’s liability is that of an aider and abettor.” He then outlined his version of the facts, a scenario in which Richard and Luis exited their car at different points, approached Garcia from different directions, and together assaulted and battered Garcia before the killing occurred. He then concluded: “So when we talk about liability as it relates to murder, I want to be clear that Luis Magana’s liability is as an aider and abettor. It’s either directly with knowledge of the intent to kill Richard Magana [sic] or, two, under the natural and probable consequences, foreseeability [from an aggravated assault or aggravated battery].” Later, the prosecutor touched on evidence suggesting that Luis may have had his own knife and reminded: “Does it matter if there is two knives involved? No. The People don’t care. We’ve told you that the liability of Luis Magana is aiding and abetting.” At no time did the prosecutor argue to convict Luis of an aggravated assault or aggravated battery that was independent of aiding and abetting the killing. At no time did the prosecutor argue that Luis’s stomping of Garcia was a basis to find an aggravated assault or aggravated battery.
The prosecutor argued: “The People are clear in that Richard and Luis Magana came at Alfred Garcia from different directions. One from the front; one from the side. Came from different directions, despite what Luis Magana says that he got out of the car at the same time Richard did. That’s a lie. They came from two different directions. That’s clear.”
As it was, however, there was no path to acquittal for the killing. The jury was therefore compelled to consider whether Luis was an independent perpetrator of aggravated assault and/or aggravated battery after rejecting the aiding and abetting theory for murder and manslaughter. Under these circumstances, we cannot say that the trial court’s error was harmless as to Luis.
disposition
The judgment is reversed. The matter is remanded for a new trial.
WE CONCUR: Rushing, P.J., Elia, J.