Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF016994. Curtis Hinman, Judge.
David L. Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Christine Levingston Bergman, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King, J.
A jury convicted defendant of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), witness intimidation (§ 136.1, subd. (c)(1)), and felony vandalism (§ 594, subd. (b)(1)). On appeal, defendant contends the court erred in failing to instruct the jury on self-defense. We find that substantial evidence did not support giving jury instructions on self-defense and, therefore, affirm the judgment below.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS AND PROCEDURAL BACKGROUND
Juan Gonzalez, an off-duty police officer, took a shortcut behind a supermarket in Perris in his unmarked police vehicle. He noted two males spray painting graffiti at the rear of the building. Defendant was the older of the two. Gonzalez parked his vehicle approximately 40 to 50 feet away and continued to observe them. The two walked off and the younger man started tagging the sidewalk. Gonzalez initiated a call to the local sheriff’s department on his cell phone.
Defendant noticed that Gonzalez was on the phone and yelled, “What the fuck are you doing? Are you ratting us out?” Defendant then briefly spoke to the younger individual. The younger male threw the spray can at Gonzalez’s vehicle, where it hit the passenger side front door. Gonzalez dropped his cell phone as he realized he was under attack. Defendant threw a vodka bottle, which also hit the vehicle. Gonzalez reached for his weapon, which was in its holster wedged between the center console and the front passenger seat. Gonzalez testified that he did not have the opportunity to point his weapon at the two as they immediately ran off after throwing the items. However, a transcript of the audio recording of Gonzalez’s call to the sheriff’s dispatch records Gonzalez saying, “I’ve got one at gun point.”
Gonzalez tucked his weapon between his legs, picked up the cell phone, dialed sheriff’s dispatch, and began pursuing the two in his vehicle. He was on the phone with sheriff’s dispatch as he tailed them. Defendant and his companion entered the parking lot of the local high school. Gonzalez followed them and stopped his car. At that point, the two were approximately 30 feet in front of him. They stopped, looked at Gonzalez, briefly conversed with one another, and the younger individual unzipped his backpack, withdrawing a hammer. Both individuals then charged towards Gonzalez. Gonzalez drew his service weapon and aimed it at the two. Both individuals stopped, the younger man dropping the hammer, and took off running in separate directions. During the entire incident, Gonzalez was dressed in plain clothes and never identified himself as a police officer.
Sheriff’s deputies apprehended defendant. Gonzalez made an on-scene identification of him. Gonzalez then directed officers to the initial scene in the supermarket parking lot where they found the spray can and vodka bottle. Gonzalez’s vehicle sustained $696.22 in damages from the thrown objects.
Defendant requested a number of jury instructions relating to self-defense. The trial judge denied defendant’s request, noting that no evidence supported the contention that defendant saw Gonzalez’s gun prior to the incident with the hammer; thus, defendant could not have been acting out of self-defense in charging Gonzalez. The trial court sentenced defendant to a four-year upper term, which it suspended in order to place him on probation.
The record reflects that defendant requested CALJIC Nos. 5.30, 5.50, and 5.51, but not, as he asserts in his brief, CALJIC Nos. 5.54 and 5.55. Defendant also asserts the court should have sua sponte instructed the jury with CALJIC No. 5.50.1.
The minute order of the sentencing hearing indicates the court imposed the upper term of four years on count 1, the upper term of four years on count 2, and the upper term of three years on count 3, counts 2 and 3 to run concurrent to count 1. However, the reporter’s transcript does not reflect any indication that the court ever sentenced defendant on counts 2 or 3, designated a principal count, or determined that any counts should be served concurrent or consecutive. Rather, it indicates solely that defendant was sentenced to the upper term of four years, suspended.
II. DISCUSSION
A trial court has a duty to instruct sua sponte on a defense “‘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.’ [Citation.] Thus, 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.’ [Citation.]” (People v. Breverman (1998) 19 Cal.4th 142, 157; People v. Gonzales (1999) 74 Cal.App.4th 382, 389.)
The trial court’s inquiry of defense counsel will ensure that defense counsel has not overlooked the alternative defense theory. (People v. Sedeno (1974) 10 Cal.3d 703, 717, fn. 7, overruled in part on other grounds in People v. Breverman, supra, 19 Cal.4th at p. 149, and disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12.) A defendant’s testimony that he believed in the necessity of defending himself is not a prerequisite for the giving of an instruction on self-defense, so long as substantial evidence from other sources may permit that inference. (People v. De Leon (1992) 10 Cal.App.4th 815, 824.) “‘If the evidence should prove minimal and insubstantial, however, the court need not instruct on its effect.’ [Citation.] Instructions only need be given where the ‘evidence [is] substantial enough to merit consideration.’ [Citation.] A trial court’s refusal to instruct on perfect self-defense will be upheld on appeal where the record contains no substantial evidence to support the instructions. [Citations.]” (People v. Hill (2005) 131 Cal.App.4th 1089, 1101.) “‘“Substantial evidence” in this specific context is defined as evidence which is “sufficient to ‘deserve consideration by the jury, i.e., “evidence from which a jury composed of reasonable men could have concluded”’ that the particular facts underlying the instruction did exist.” [Citations.]’” (People v. Lemus (1988) 203 Cal.App.3d 470, 477.) “[A]ssessing the credibility of a witness is an exclusive function of the jury and is not to be usurped by the court.” (Ibid.) “Nonetheless, ‘“[d]oubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused.’” [Citations.]” (Id. at p. 476.) “‘[T]he fact that evidence may be incredible, or is not of a character to inspire belief, does not authorize the refusal of an instruction based thereon, for that is a question within the exclusive province of the jury.’ [Citations.]” (Id. at p. 477.)
Here, the only evidence supportive of the contention that defendant was acting out of self-defense when he charged Gonzalez in the high school parking lot was the sheriff’s dispatch recording in which Gonzalez indicated that he previously had “one at gun point.” However, even if assumed to be the truth, in order to amount to substantial evidence in support of self-defense, we would have to further infer that: (1) defendant saw the weapon, and (2) defendant reasonably feared for his life. (People v. Sonier (1952) 113 Cal.App.2d 277, 278.) Defendant maintains that both contentions may be shown by the fact that he ran away as soon as Gonzalez drew his weapon. However, the evidence adduced below does not support this supposition. Rather, it is evident from the totality of the evidence offered at trial that defendant and his companion ran away as soon as they threw the objects at Gonzalez. Gonzalez testified that he did not point his weapon at either individual while in the supermarket parking lot because they had already taken off running. This is further supported by the fact that Gonzalez testified he did not initiate the second call to dispatch until after the two had taken off running. Thus, the dispatch recording reflected a conversation which occurred after the two already took off running.
Moreover, Gonzalez testified that the dispatch recording did not accurately reflect the events of that evening. He testified that because he became the victim of a crime, he became emotionally involved; hence, his report to dispatch was not a dispassionate, objective reporting of the incident, but a confused account. Gonzalez testified that he did not report everything to the dispatcher in chronological order, that everything moved very quickly, and that in the heat of the moment he said certain things that were not accurate. Indeed, he testified that when he told the dispatcher that he had “one at gun point,” he simply meant that he had pulled out his weapon. Defendant contends that such an analysis amounts to impermissible weighing of the evidence; however, in doing so, the judge was not so much evaluating the credibility of Gonzalez’s testimony as he was making a determination that, from the context of the evidence in its entirety, no reasonable person could conclude that defendant and his companion assaulted Gonzalez in self-defense. In other words, the evidence of self-defense was minimal and insubstantial.
Furthermore, the fact that the two later charged Gonzalez with a hammer is, as the trial judge below recognized, indicative that they did not see Gonzalez’s weapon earlier. It strains credulity to believe that someone would charge, from 30 feet away, an individual armed with a handgun solely with a hammer. Defense counsel below asserted that there was no evidence to show that her client or his compatriot did not see the weapon initially; however, this is not the test for giving a self-defense jury instruction. Indeed, it would run afoul of the negative proof fallacy if it were. Rather, the test is that there must be substantial evidence “that defendant was actually in fear of his life or serious bodily injury and that the conduct of the other party was such as to produce that state of mind in a reasonable person.” (People v. Sonier, supra, 113 Cal.App.2d at p. 278.) No such evidence was produced below. Finally, we note that defendant had no right to assert self-defense as a reason for his assault of Gonzalez in the high school parking lot. At the time defendant charged Gonzalez, there was no evidence that Gonzalez was pointing a weapon at the two. “[T]he right of self-defense does not extend beyond the time of real or apparent danger . . . .” (People v. Pinholster (1992) 1 Cal.4th 865, 966.) Likewise, self-defense may not “be invoked by a defendant who, through his own wrongful conduct . . . has created circumstances under which his adversary’s attack or pursuit is legally justified. [Citations.]” (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.) Here, it is indisputable that defendant threw the bottle at Gonzalez prior to Gonzalez drawing his weapon. Finally, the two could have continued running away, easily eluding Gonzalez, as they later did. Gonzalez testified that he could not pursue the two further than the high school parking lot because a gate prohibited his passage in the truck. Thus, defendant had no need or right to use deadly force in self-defense and the court committed no error in declining to so instruct the jury.
III. DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P.J., McKinster, J.