Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCE260031 Charles W. Ervin, Judge.
HUFFMAN, J.
A jury convicted Michael Dean Peterson of assault with a deadly weapon and by means of force likely to cause great bodily injury. (Pen. Code, § 245, subd. (a)(1).) The jury also found true allegations that Peterson had personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)) as well as having personally used a deadly and dangerous weapon, to wit: a knife, within the meaning of sections 1192.7, subdivision (c)(23) and 12022, subdivision (b)(1). The jury found Peterson not guilty of the charge of attempted murder and found the attendant enhancement allegations not true. The trial court sentenced Peterson to prison for a total of five years.
All statutory references are to the Penal Code unless otherwise specified.
Peterson appeals, contending the trial court violated his federal rights to due process and to present a defense by failing to instruct pursuant to CALCRIM No. 3475 "where the victim had trespassed." We affirm.
Because Peterson does not challenge the sufficiency of the evidence to support his conviction and the jury findings, we merely summarize the facts concerning the incident as background for our discussion.
Shortly after 1:00 p.m. on April 3, 2006, Peterson stabbed Richard Marshall with a knife near the parking area outside the Lakeside Hotel (the hotel), a sober living facility located on River Street in Lakeside, California. Peterson fled, but then called 911 to turn himself in to the police. Meanwhile, Marshall was taken to a hospital where he underwent surgery to repair an eight millimeter laceration to the right ventricle of his heart, damage to his diaphragm and the left lobe of his liver.
After his arrest, Peterson waived his rights under Miranda v. Arizona (1966) 384 U.S. 436 and told the police in a taped interview that just before the incident, his fiancée Ricki Mitchell, also Marshall's former girlfriend, who was with Peterson at the hotel for an Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) meeting, told him she had seen Marshall, who had allegedly been stalking her, walking down the street outside the hotel. Because they feared Marshall, who had recently been released from prison and was on parole, Peterson went to his truck parked in the lot outside the hotel and obtained a knife. He then confronted Marshall about stalking Mitchell. Peterson claimed he had stabbed Marshall only after Marshall had "started coming at [him]."
At Peterson's trial for attempted murder and aggravated assault charges, the 911 tape as well as Peterson's taped interview were played for the jury. In addition, the evidence in the prosecution case showed that Marshall, who had been an amateur boxer and had a long criminal history that included domestic violence, had had a dating relationship with Mitchell for about three months in 2004. When it ended, Marshall tried to contact Mitchell because he did not want the relationship to end on a "bad note." After serving five months in prison in late 2005 and early 2006 for a parole violation, Marshall again tried to contact Mitchell at a restaurant where she worked purportedly to advise her that someone he knew may have tried to use her identification to open up a checking account.
Marshall conceded that since 1978 he had pled guilty to numerous offenses including several misdemeanor batteries, battery causing serious bodily injury, arson and false imprisonment.
On April 3, 2006, at about 1:00 p.m., as Marshall and a friend were walking past the hotel, an AA or NA meeting had just ended and about 20 people were milling about in front of the hotel. When Marshall spotted a woman he knew holding a baby on the hotel porch, he approached her to discuss the child's paternity. Although Mitchell was also on the porch, Marshall did not speak with her. As Marshall continued talking with the other woman, Peterson and John Beck, an on-site manager of the hotel who was holding a round cylindrical stick, approached Marshall and asked him to come with them. The three men then walked away from the porch, toward the parking area near the front of the hotel, where Peterson and Beck began yelling at Marshall, pointing fingers at him, and accusing him of stalking Mitchell.
Marshall testified that even though he denied the accusations, he felt that a violent situation was "in the midst," and he raised his hands in the air repeatedly telling the men he was not there to fight. In response to asking Beck why he had the stick, Beck dropped it and slapped Marshall on the right side of his head. Although Marshall made no move toward the men, Peterson continued to yell at him. When Marshall asked Peterson, whom he did not know, why he was there with Beck, Peterson poked him in the chest with his finger and told him he was Mitchell's boyfriend. As the argument escalated, Marshall told Peterson he was at a disadvantage because he was on parole and told him not to put his hands on him again. Peterson then looked over at Beck who continued to argue with Marshall and struck him on his head with his hand a second time. Then without any provocation, Peterson stabbed Marshall and fled. Several witnesses who had been standing outside the hotel at the time of the altercation confirmed the sequence of events as described by Marshall.
The Defense
In addition to Peterson testifying in his own defense, Mitchell, another ex-girlfriend of Marshall's, and another manager of the hotel testified on Peterson's behalf. Mitchell testified that when she and Marshall had first broken off their relationship, he had come by the hotel where she was then employed and tried to talk her into working things out. When she refused, he became angry, pushed her against a wall and spit in her face. Because Marshall continued to come by the hotel to try to contact her, Mitchell went to the El Cajon courthouse to get a restraining order against him, but could not afford the fees to obtain and process it. When Marshall got out of prison in early 2006, he again tried to contact Mitchell, and she became nervous and scared and conveyed her fears to Peterson to whom she was then engaged. Although Mitchell had seen Marshall at the hotel once before the incident after his prison release, he had not approached her at that time.
Marshall's other ex-girlfriend testified that he had been physically abusive to her during their relationship. The other manager of the hotel testified that he had previously told Marshall to stay away from the hotel after he had been involved in several incidents at the hotel, including the one with pushing Mitchell.
Peterson testified that he was aware Marshall was trying to contact his fiancée and that she was scared. After hearing that Marshall was a boxer who had allegedly kidnapped two different women and had committed two murders, Peterson was also terrified of Marshall. When he saw Marshall on the day of the incident, Peterson obtained a knife from his truck that he carried for protection because he was scared. According to Peterson, Beck hit Marshall only after he had stepped toward Beck. Peterson claimed he stabbed Marshall after he then came toward him.
DISCUSSION
Peterson contends the trial court violated his rights to due process and to present a defense by failing to instruct the jury with CALCRIM No. 3475 regarding a lawful owner or occupant of property's use of reasonable force to eject a trespasser. We disagree.
During jury instruction discussions, Peterson's counsel requested that the court read CALCRIM No. 3475, arguing that Peterson was an occupant of the hotel because "he's there every day and spends a lot of time there. If not, Mr. Beck is. He was assistant manager of the residence. As he pointed out, he had the authority; he also resides at the location, so he is an occupant." Counsel claimed that because Peterson "went there with Mr. Beck, I think [it] gives him the power to do that in this situation."
CALCRIM No. 3475 provides that: "The (owner/lawful occupant) of a (home/property) may request that a trespasser leave the (home/property). If the trespasser does not leave within a reasonable time and it would appear to a reasonable person that the trespasser poses a threat to (the (home/property)/[or] the (owner/[or]occupants), the (owner/lawful occupant) may use reasonable force to make the trespasser leave. [¶] Reasonable force means the amount of force that a reasonable person in the same situation would believe is necessary to make the trespasser leave. [¶] [If the trespasser resists, the (owner/lawful occupant) may increase the amount of force he or she uses in proportion to the force used by the trespasser and the threat the trespasser poses to the property.] [¶] When deciding whether the defendant used reasonable force, 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. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant used more force than was reasonable. If the People have not met this burden, you must find the defendant not guilty of [the crime charged]."
The prosecutor opposed the giving of the instruction, pointing out that Peterson was not the owner or a lawful occupant of the property, the incident took place outside the "curtilage of the property," i.e., beyond the walled off patio of the hotel in the parking area, and Beck and Peterson were the ones who initially provoked Marshall. Counsel countered that because Marshall had been on the property when he was not supposed to be there and was a known threat based on his history, the instruction was proper.
The trial judge denied the request, noting that although, "I think homeowners have quite liberal rights these days[,] I don't consider this a situation where Mr. Peterson is an agent of this property. He is certainly not the owner. He's not an occupant. He is only there for the purpose of going to an AA or an NA meeting, or support group meeting. There is no evidence that he is one of those 18 residents that lives in the Lakeside Hotel." The court subsequently instructed the jury on Peterson's defenses of self-defense and imperfect self-defense.
Although a trial court has a sua sponte duty to instruct on a defense when the defendant is relying on it, or if there is substantial evidence supporting the defense and it is not inconsistent with the defendant's theory of the case (see People v. Breverman (1998) 19 Cal.4th 142, 155-156), here there was absolutely no evidence to support the giving of CALCRIM No. 3475 for Peterson. As the trial court correctly noted, Peterson was neither the owner nor a lawful occupant of the hotel. Even though Peterson was with the manager of the hotel who arguably had the legal authority to use reasonable force to make a person leave the hotel premises, there was no evidence that showed Peterson was the agent of the manager through employment or otherwise. Just being in close proximity with a person who has the legal right to use force to eject a purported trespasser does not transfer that right to another person who does not qualify for such right under the law. Nor does Peterson's frequent presence on the hotel premises to socialize or attend recovery meetings render him an occupant of the hotel.
Even though defense counsel argued in closing statements that Marshall had been a trespasser on the hotel premises and refused to leave the area when he was confronted by Beck and Peterson in the parking area outside the hotel, counsel also told the jury that it could not "tie what Mr. Beck does to [Peterson]" to negate his self-defense defense. In light of these circumstances and arguments, Peterson cannot show that the trial court erred in finding CALCRIM No. 3475 unsupported by the record evidence and inapplicable to his case.
Because we conclude that the trial court had no sua sponte duty to instruct under CALCRIM No. 3475, we do not engage in a discussion of the numerous miscellaneous issues Peterson has included to argue prejudicial instructional error.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., O'ROURKE, J.