Opinion
A143841
02-15-2017
THE PEOPLE, Plaintiff and Respondent, v. JAMES PATRICK RILEY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-130706-5)
Appellant James Patrick Riley appeals his conviction, following a jury trial, of first degree murder (Pen. Code, § 187, subd. (a)). He argues the trial court erred in failing to instruct the jury on (1) an initial aggressor's right to self-defense following retreat, and (2) the lesser included offense of involuntary manslaughter. We affirm.
All undesignated section references are to the Penal Code.
BACKGROUND
Appellant was charged with the murder of Jerald Nagle (§ 187), with an allegation that he personally used a knife in the commission of the murder (§ 12022, subd. (b)(1)). Following trial, a jury found appellant guilty of first degree murder and found the knife use allegation true.
On December 5, 2012, appellant was homeless and living in a car with his longtime partner, Cheryl Martinez. Martinez was close friends with Bambi Bruney, who was the decedent Jerald Nagle's longtime partner. Bruney and Nagle were also homeless, living in a tent near a freeway on-ramp, a few minutes' walk from appellant's car. That evening, near appellant and Martinez's car, Martinez accused Nagle of taking her methamphetamine and paraphernalia. Nagle denied it and began walking toward his tent. Martinez told appellant, who approached Nagle, but Nagle continued to walk away. Martinez told appellant not to go after Nagle but appellant ran after him. Bruney testified that as he left, appellant said this may be the last time anyone sees Nagle, and he was going to make an example of Nagle so no one stole from Martinez again. About two minutes later, appellant called Martinez on her cellphone and told her to call the police and say Nagle had stolen money from her. Martinez did not call the police. After some time, Martinez became concerned and repeatedly tried to call appellant, who did not answer his phone. Bruney decided to walk to the tent. When she arrived, she saw appellant on top of Nagle with his hands up at Nagle's neck. Bruney yelled at appellant to get off Nagle. Appellant told Bruney, "it's really bad. I think I killed him. Call 911," and started doing CPR.
Paramedics arrived less than five minutes after the 911 call. Nagle was dead, and paramedics found a knife on the ground under his body. Appellant told paramedics he got his legs around Nagle's neck, increased his grip when Nagle fought back, and could feel he was "choking the breath out of him."
An expert in forensic pathology and cause of death testified Nagle died of asphyxia due to strangulation. Nagle had bruising and sharp-force injuries to his arms and hands that were consistent with defensive wounds, and blunt-force injuries to his head. Nagle had high levels of methamphetamine in his system when he died.
Appellant testified in his own defense. Appellant knew of Nagle's reputation for being violent when he was high on methamphetamine or drunk, and had seen him be violent on prior occasions. When he followed Nagle to Nagle's tent, he intended to flag down the police when they arrived and have Nagle arrested. As appellant arrived at Nagle's camp, he realized he had a four-inch pocket knife clipped to his pocket. Appellant asked Nagle to come out of his tent. Appellant heard scuffling noises inside the tent and thought Nagle was getting a knife, so appellant took out his knife. Nagle charged out of his tent and rushed at appellant, and appellant tackled Nagle. As the men began fighting, appellant realized Nagle did not have a knife and he threw his knife away because "you don't bring a knife to a fist fight." After a couple of minutes, the men ended up on the ground with appellant on top of Nagle. Nagle continued to fight, hitting and head-butting appellant. Appellant grabbed Nagle's arms and told Nagle that he was going to hold him until the police arrived. Nagle continued to struggle.
Other witnesses also testified about Nagle's violent behavior.
At this point, appellant's cell phone rang. It had already rung a few times but this time appellant tried to answer it. He testified, "I remember putting my hand out like this and yelling at him, Stay down; stay down"; "the phone is in my right pocket and so I'm having to reach -- so I'm having to let go of his arms at this point. And I let go of his arms and I'm still -- I get a couple more blows to my head and I'm pushing off with my left arm like this and I'm trying to -- to, you know, sit upright and grab the phone out of my pocket at the same time." He continued, "I'm yelling, Stay down; stay down, and I'm trying to push up off, and if I can -- if I can get up and back away at the same time, then I could probably get away from him far enough that I could just, you know, be like running backwards staying away from him at that point." Appellant used one hand to retrieve his phone, while the other arm pressed down on Nagle's chest or neck. He testified, "I thought I was putting pressure on his chest and trying to push back and get up and back away. So had I been able -- had I been strong enough or should I say had my arm been long enough, I would have been up and I would have been on my knees and then backwards and then I would have stood up and running backwards from him." On the fifth ring, appellant finally reached his phone and was about to answer it when he saw Nagle was no longer moving. Appellant immediately moved off Nagle and began CPR.
DISCUSSION
I. Self-Defense Instruction
Appellant argues the trial court erred in failing to sua sponte instruct the jury in an initial aggressor's right to self-defense following an attempt to retreat. We reject the claim.
The trial court instructed the jury in self-defense, including the following instruction pursuant to CALCRIM No. 3472: "A person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use force." In closing arguments, the prosecutor argued, "the law tells us right from the beginning that [appellant] is not entitled to any form of self-defense, that a person does not have the right to self-defense if he provokes a fight with the intent to create an excuse to use force. [¶] [Appellant] is the only person in this entire episode who is . . . going out confronting his victim. He is the only person who, after the victim removes himself from the situation, wants to go after him, wants to find him, wants to get him. And he's the only person who pulls out a knife and goes after the victim." Defense counsel did not respond in her closing argument, and the prosecutor reiterated in rebuttal that the "initial aggressor does not have the right to self-defense."
Appellant argues the trial court should have also issued the following instruction, pursuant to CALCRIM No. 3471: "A person who engages in mutual combat or who starts a fight has a right to self-defense only if: [¶] 1. He actually and in good faith tried to stop fighting; [¶] 2. He indicated, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wanted to stop fighting and that he had stopped fighting; [¶] AND [¶] 3. He gave his opponent a chance to stop fighting. [¶] If the defendant meets these requirements, he then had a right to self-defense if the opponent continued to fight."
"It is well settled that a defendant has a right to have the trial court, on its own initiative, give a jury instruction on any affirmative defense for which the record contains substantial evidence [citation]—evidence sufficient for a reasonable jury to find in favor of the defendant [citation]—unless the defense is inconsistent with the defendant's theory of the case." (People v. Salas (2006) 37 Cal.4th 967, 982.)
Appellant contends there was evidence he tried to stop fighting "by telling Nagle to stay down and attempting to push away from Nagle to run backwards in retreat." We agree with the People that this does not constitute substantial evidence requiring the provision of CALCRIM No. 3471. Appellant's testimony was that he told Nagle to stay down and pushed up from Nagle in an attempt to answer his phone, and that he was reaching for his phone. On appeal, he highlights his testimony that, "if I can get up and back away at the same time, then I could probably get away from him far enough that I could just, you know, be like running backwards staying away from him at that point." Assuming this constitutes substantial evidence that he was attempting in good faith to stop fighting, there is no evidence that he communicated this attempt to Nagle: telling Nagle to stay down and pushing off Nagle in an apparent attempt to reach his ringing cellphone does not constitute such a communication. (See People v. Button (1895) 106 Cal. 628, 632 ["In order for an assailant to justify the killing of his adversary he must not only endeavor to really and in good faith withdraw from the combat, but he must make known his intentions to his adversary. His secret intentions to withdraw amount to nothing. They furnish no guide for his antagonist's future conduct. They indicate in no way that the assault may not be repeated, and afford no assurance to the party assailed that the need of defense is gone."].)
Although appellant also points to his testimony that he threw the knife down when he realized Nagle did not have a knife, he fails to explain how this constituted an attempt to "stop fighting." --------
Because we find no substantial evidence supported the provision of CALCRIM No. 3471, we reject appellant's argument that the provision of CALCRIM No. 3472 alone in this case was error. People v. Ramirez (2015) 233 Cal.App.4th 940, relied on by appellant, is inapposite. (See id. at p. 947 [where there was evidence the defendants intended to start a nondeadly fight and shot the decedent only after the decedent pulled out a gun, "CALCRIM No. 3472 under the facts before the jury did not accurately state governing law"].)
II. Lesser Included Offense
Appellant next argues the trial court prejudicially erred in refusing to instruct the jury in a lesser included offense. We find any error harmless.
The trial court instructed the jury in first-degree murder, second-degree murder, and voluntary manslaughter. Appellant requested the jury also be instructed on involuntary manslaughter but the trial court refused, finding no substantial evidence supporting the instruction.
Appellant argues this was error because there was sufficient evidence that he did not intend to kill Nagle, but nonetheless killed him during an aggravated assault. Assuming the failure to instruct the jury on involuntary manslaughter was error, the error was harmless.
"Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions." (People v. Lewis (2001) 25 Cal.4th 610, 646.) The jury convicted appellant "of first degree murder. Thus, the jury found express malice, i.e., the intent to kill and found the murder was premeditated, deliberate and/or willful. Thus, having reached this factual conclusion, the jury could not have found defendant[] guilty of involuntary manslaughter." (People v. DeJesus (1995) 38 Cal.App.4th 1, 22; see also People v. Manriquez (2005) 37 Cal.4th 547, 588 ["The jury's verdict finding defendant guilty of the first degree murder of [the victim] implicitly rejected defendant's version of the events . . . eliminating any doubt that the jury would have returned the same verdict had it been instructed on involuntary manslaughter."]; People v. Gutierrez (2002) 28 Cal.4th 1083, 1145 ["the fact that the jury rejected [voluntary] manslaughter and found defendant guilty of the first degree murder of [the victim] precludes any possible error in the refusal to instruct on involuntary manslaughter"].)
DISPOSITION
The judgment is affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
NEEDHAM, J.