Opinion
H050551
04-26-2024
THE PEOPLE, Plaintiff and Respondent, v. COREY KYREE PAGE, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. C2004028)
BROMBERG, J.
Appellant Corey Kyree Page appeals from a conviction for involuntary manslaughter. He challenges the instruction given to the jury on self-defense and defense of another, which he contends was erroneous, unnecessary, and misleading. The trial court, however, gave the standard instruction formulated by the Judicial Council, and none of Page's objections to that instruction are persuasive. In addition, to the extent that there is any error or confusion in the instruction, Page was not prejudiced by it. Consequently, we affirm the judgment.
I. Background
Page and his codefendant Arthur Seals were charged with the murder of Fernando Fernandez (Penal Code, § 187, subd. (a)) and the attempted murder of Chanda El on that same day (id., §§ 187, subd. (a), 664). Each count included a special allegation of the use and discharge of a firearm. (Id., § 12022.53, subds. (d), (g).) In addition, Seals was charged with illegally carrying a loaded firearm. (Id., § 25850, subd. (a).)
At trial, the prosecution presented a video, compiled from cameras in the vicinity, showing that on February 7, 2020, Page shot Fernandez in the parking lot of a night club. The evidence showed that in the early morning hours Page and Fernandez left the night club in two separate groups. Along with Seals and two other individuals, Trevon Travis and Antonio Reese, Page got into a car, which circled the lot and stopped near a group that included Fernandez and El. After Page and Seals exited the car, El, who had a gun, approached Page. Fernandez took Page aside, walked away from El and the others, and spoke briefly with Page. Afterwards, both Page and Fernandez walked back to the group.
Fernandez then put his arm around El, and when Fernandez walked away, a gun in his hand was discernible. At approximately the same time Page went to Seals, who also had a gun, and a few seconds later a gun was apparent in Page's right hand. Fernandez then walked away from the group opposite to Page, but Page circled around the group and shot Fernandez five times. Fernandez fell against a pillar, sat up against it for a few seconds, and then fell over onto his stomach. He died that day.
At trial Page claimed that he acted in self-defense and in defense of his friends. He testified that he asked Seals for his gun after learning El had one. Page also testified that he saw "Fernando cock [his] gun" and that he shot Fernandez because he "felt it was either my life, one of the friend's life-like it was no other choice. I wasn't about [to] let him shoot me or my friend."
The jury found Page found not guilty of Fernandez's murder or of the attempted murder of El. However, rejecting his claim of self-defense and defense of others, the jury convicted Page of voluntary manslaughter. The trial court sentenced Page to ten years in prison, six for manslaughter with a four-year enhancement for the use of a firearm.
Page filed a timely notice of appeal.
II. Discussion
Page contends that the trial court erred in instructing the jury on self-defense and the defense of another because that instruction included a third element: that the defendant used no more force than reasonably necessary. This element, Page asserts, is legally erroneous, unnecessary, and misleading. We are not persuaded, and, in any event, Page has not demonstrated prejudice.
Claims of instructional error are reviewed de novo. (People v. Mitchell (2019) 7 Cal.5th 561, 579.) In doing so, appellate courts "consider whether there is a reasonable likelihood that the trial court's instructions caused the jury to misapply the law. [Citation]." (Ibid.) Rather than assume that jurors misunderstood instructions, courts " ' "assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." [Citation.]' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In addition, instructions are " 'interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' " (Ibid.)
Here, the jury was instructed on self-defense and defense of another using CALCRIM No. 505, the instruction formulated and recommended by the Judicial Council. Specifically, the trial court instructed the jury that a defendant is justified in killing in self-defense or defense of another, and therefore not guilty of murder or manslaughter, if three requirements are satisfied:
"The defendant acted in lawful self-defense or defense of another if:
"1. The defendant reasonably believed that he or his co-defendant or Antonio Reese or Trevon Travis was in imminent danger of being killed or suffering great bodily injury;
"2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; AND
"3. The defendant used no more force than was reasonably necessary to defend against that danger."
With respect to the third requirement or element, the trial court further instructed that "[t]he defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation," and "[i]f the defendant used more force than was reasonable, the killing and/or attempted killing were not justified." The trial court also instructed the jury that "[w]hen deciding whether the defendant's beliefs were reasonable, consider all the circumstances that were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed."
Although Page asserts that the instruction's third element is "legally erroneous" and "contrary to the well-established law of self-defense," well-established authority supports the instruction. Page concedes, as he must, that "a defendant cannot use 'more force than reasonably necessary to defend against [the] danger.' " For at least six decades, California courts have recognized that "a justifiable homicide connotes only the use of force which is necessary" and that "use of excessive force destroys the justification." (People v. Young (1963) 214 Cal.App.2d 641, 646; see also People v. Clark (1982) 130 Cal.App.3d 371, 380 (Clark) ["only that force which is necessary to repel an attack may be used in self-defense; force which exceeds the necessity is not justified"].) Moreover, the Supreme Court has expressly recognized this requirement, stating that " '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, 1065, quoting People v. Pinholster (1992) 1 Cal.4th 865, 966.)
Page asserts that the third element is unnecessary because the second element "adequately and completely conveys" that element. The second and third elements, however, address different subjects. The second element addresses whether "the immediate use of deadly force was necessary," that is, the need for deadly force. The third element addresses whether the defendant employed "no more force than is necessary," that is, the amount of force. The need for deadly force is not the same as the amount of force. Accordingly, courts have long recognized that, even "where the evidence establishes the right of self-defense," a defendant may be found guilty of homicide "if the jury finds that . . . the force used exceeded that which was reasonably necessary to repel the attack." (Clark, supra, 130 Cal.App.3d at 380.)
Page also asserts that "the need to use deadly force must be assessed through the prism of the defendant's reasonable belief" and that the trial court's instruction improperly "detaches the jury's assessment of the need to use deadly force from the defendant's reasonable belief." The trial court, however, instructed the jury to determine whether Page "reasonably believed" that he or his companions were "in imminent danger" and "reasonably believed that the immediate use of deadly force was necessary." In addition, the court instructed the jury to determine whether Page used "no more force than was reasonably necessary" and that he was "entitled to use that amount of force that a reasonable person would believe is necessary in the same situation." Page fails to explain how there is any meaningful difference between a reasonable belief and the belief of a reasonable person in the same situation.
Page notes that the instruction, which the trial court drew from CALCRIM No. 505, appears to draw a distinction. As Page points out, while the first two elements of the instruction refer to what the defendant "reasonably believed," the third element refers to what was "reasonably necessary," which may suggest an intentional difference. This suggestion is reinforced by the instruction's explanation of these elements. In explaining the third element's amount-of-force requirement, the instruction states that the defendant may use only the amount of force "a reasonable person" would believe necessary "in the same situation." By contrast, in explaining the reasonable belief requirement in the first two elements, the instruction states that the jury should consider the circumstances "as they were known and appeared to the defendant" as well as what "a reasonable person" would believe "in a similar situation" and "with similar knowledge." Thus, the instruction may be read to suggest a distinction between reasonable belief and reasonable necessity.
We need not consider whether there is any such distinction or whether the CALCRIM No. 505 instruction creates unnecessary confusion (though the Judicial Council may wish to do so). Even if there is some error or confusion in the instruction concerning the amount-of-force element, it was harmless. As Page conceded at oral argument, his counsel did not even mention the amount of force in closing argument. Likewise, the prosecution barely mentioned it, simply noting the requirement in reviewing the jury instructions and then suggesting in passing that Page's explanation for firing five shots at Fernandez was not credible. Page notes that the prosecutor mentioned a cartridge found on the ground near Fernandez, which he may not have seen. However, he fails to explain how any confusion in the instruction impacted the reference to the cartridge. Page not only testified that he saw Fernandez "rack" his gun; based on this fact he argued that he had a reasonable belief that he was in imminent danger. Far from undermining this defense, the presence of the cartridge, which the prosecutor told the jury was ejected when Fernandez racked his gun, bolstered it. We therefore conclude that Page was not harmed by any confusion in the instruction concerning the amount-of-force element.
Because we reject Page's objections to the instruction on self-defense and defense of another, we need not consider whether Page forfeited those objections by not raising them in the trial court, whether Page was prejudiced by any error in the instruction, or whether trial counsel rendered ineffective assistance of counsel by failing to object to the instruction.
III. Disposition
The judgment is affirmed.
WE CONCUR: GROVER, ACTING P. J., ADAMS, J.[*]
[*] Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.