Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Lake County Super. Ct. No. CR910573
Jones, P.J.
Jeffrey Michael Shepherd appeals from a judgment entered after a jury convicted him of misdemeanor battery against a cohabitant. (Pen. Code, § 243, subd. (e)(1).) He contends his conviction must be reversed because (1) the trial court failed to instruct the jurors on an available defense, (2) he received ineffective assistance of counsel, and (3) the standard CALCRIM instructions of the concept of reasonable doubt are inadequate. We reject these arguments and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant and Teresa Johns were in an ongoing dating relationship. On August 31, 2006, appellant and Johns were at appellant’s brother’s house on 29th Avenue in Clearlake. Near 8:30 p.m., Johns called 911. Officer Richard Towle responded. He spoke with Johns in front of the house. She smelled of alcohol and her speech was slurred, but she appeared responsive. She said she and appellant had an argument and that he had left just before Towle arrived. Towle conducted a protective search of the house but did not find anyone. He left too.
About five minutes later, Officer Towle received another call that a woman in the same area was screaming for help. When Towle arrived he found Johns just outside the 29th Avenue house. Her eye was bleeding and swollen shut and she had cuts on her arms and legs. The screen door to the house was broken off its hinges, and the porch was in disarray. Towle asked Johns what had happened. At first she refused to say. Then she said she fell down. Then she said she ran into a door. At that point, a friend of Johns who lived nearby came to comfort her. After receiving assistance, Johns told Towle that appellant had punched her in the face several times. Johns told Towle that she “[did] not want [appellant] to be prosecuted for this.” Towle wrote a statement for Johns and she signed it.
Based on these facts, an information was filed charging appellant with one felony count of inflicting corporal injury on a former cohabitant. (Pen. Code, § 273.5, subd. (a).)
The case proceeded to a jury trial where the prosecutor presented the evidence we have set forth above. The prosecutor also presented reluctant testimony from Johns. She said she did not remember how she got hurt on the night in question because she had “blacked out.” She said she did not remember the police coming to the house a second time, yelling for help, or giving a statement. According to Johns, she and appellant had argued before but he had never hit her. She said she cut her hand by falling on a rock.
Johns failed to appear in court originally. She was arrested and transported to court involuntarily.
The prosecution also presented testimony from Deputy Sheriff Renee Leffler who transported Johns to court that morning after she was arrested for failing to appear. Leffler said Johns told her that she did not want to be in the same room as appellant and that, “You saw what he did to me.”
Appellant testified in his own defense. He said that on the night in question he and Johns were at a friend’s house drinking. They argued and then left near 7:30 p.m. On the way home, they ran out of gas. Appellant set off alone eventually making his way to his brother’s house. Appellant’s brother, his girlfriend, and Johns all were there. Appellant was “shocked” to see Johns there. He did not want her at his brother’s house because she had been acting belligerently at the party. He wanted her to leave because she was “totally destructive on the property we were at.” Appellant leaned over Johns and told her, “I want you to leave. I want you to get out.” Appellant’s brother objected telling appellant he should not yell because the police would come. Appellant and Johns continued to argue. Appellant decided to leave, hoping Johns would follow and that he could return quickly and lock her out.
Appellant walked down the road. When he returned a few minutes later, he saw the police were there. He did not want to talk with the police so he stayed away.
Appellant returned about a half hour later. Again, he asked Johns to leave. She refused. Returning to the scheme he had tried earlier, appellant asked Johns to go for a walk. He hoped that if he lured her outside, he could run back in and lock her out.
Appellant and Johns went outside for a walk. Appellant maneuvered Johns so that they were on opposite sides of a fence. He then ran back toward the house. Johns followed. They struggled briefly over a gate in the fence. Appellant let go of the gate and walked toward the house. At that point, the police arrived a second time.
Appellant denied that he hit Johns and he denied seeing any injuries on her. She said he never touched Johns and “[i]f I touched her at all, it would have been her hand to walk her outside.”
The jurors considering this evidence declined to convict appellant on the charged felony offense and convicted him instead of the lesser included offense of misdemeanor battery against a cohabitant.
Subsequently, the court sentenced appellant to probation on the condition that he serve 120 days in the county jail.
II. DISCUSSION
A. Whether the Court Failed to Instruct on an Available Defense
Appellant contends the trial court erred because it failed to instruct, sua sponte, on an available defense.
“[A] trial court has a duty to instruct, sua sponte, ‘on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case.’ [Citation.] This includes the duty to give instructions concerning defenses on which the defendant relies or which are not inconsistent with the defendant’s theory of the case. [Citation.] The trial court has no duty to instruct on a defense that is not supported by substantial evidence. [Citation.]” (People v. Bohana (2000) 84 Cal.App.4th 360, 370.)
Here, appellant contends the trial court erred because it failed to instruct the jurors with CALCRIM No. 3475 that a lawful occupant of property has the right to use reasonable force to eject a trespasser. Such an instruction was required, appellant argues, based on the evidence that indicated he made physical contact with Johns while trying to get her to leave his brother’s house. We are unpersuaded.
CALCRIM No. 3475 states:
CALCRIM No. 3475 states that a lawful occupant may use “reasonable force to make the trespasser leave.” Here, there is no evidence that appellant used force against Johns in an attempt to make her leave his brother’s house. Appellant flatly denied touching Johns, but added that if he did touch her, “it would have been her hand to walk her outside.” Merely touching a person’s hand to walk her outside does not constitute the use of force. We conclude the trial court was not required to give the instruction appellant has identified because it was not supported by substantial evidence. (People v. Bohana, supra, 84 Cal.App.4th at p. 370.) The court did not err.
Of course, there was evidence that appellant used unreasonable force against Johns by punching her in the face repeatedly. However, appellant implicitly concedes the instruction was not supported by that evidence.
Indeed, appellant characterized his interaction with Johns as benign:
B. Whether Appellant Received Ineffective Assistance
Appellant contends his conviction must be reversed because he received ineffective assistance of counsel. Specifically, he contends trial counsel was ineffective because he failed to ask the court to instruct on the right of a lawful occupant to use reasonable force to eject a trespasser. However, since we have concluded such an instruction was not supported by the facts of this case, it follows that appellant cannot establish an ineffective assistance claim.
C. Instruction on Reasonable Doubt
Appellant contends the trial court misinstructed the jurors on the standard they must apply when determining his guilt.
The court told the jurors that the prosecution had the burden of proving appellant’s guilt beyond a reasonable doubt. The court explained the beyond a reasonable doubt standard using the standard CALCRIM instructions. As is relevant, the court told the jurors that “Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true.” Appellant now contends the portion of the standard instructions that we have italicized is inadequate.
The court instructed with CALCRIM Nos. 103 and 220 as follows:
Appellant’s argument on this point faces a mountain of contrary authority. In Victor v. Nebraska (1994) 511 U.S. 1, 14-15, the Unites States Supreme Court ruled that explaining reasonable doubt as requiring “an abiding conviction as to guilt” “correctly states the government’s burden of proof.” The California Supreme Court has ruled similarly approving an instruction that described reasonable doubt as “an abiding conviction of the truth of the charge.” (People v. Freeman (1994) 8 Cal.4th 450, 504, fn. 9.) Not surprisingly, every Court of Appeal in California of which we are aware has fallen into step approving language similar if not identical to the language used here. (See, e.g., People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268; People v. Light (1996) 44 Cal.App.4th 879, 884-889.) Based on this unbroken line of authority, we do not hesitate to conclude the court here instructed the jury correctly.
Appellant contends the instructions used here were inadequate because they fail to convey to the jurors the weight of the proof required. Specifically, appellant maintains the court should have defined an “abiding conviction” as one that a juror would be willing to act upon in the more weighty and important matters relating to his own affairs. This definition was required, appellant argues, by two United States Supreme Court opinions: Hopt v. Utah (1887) 120 U.S. 430 (Hopt), and Coffin v. United States (1895) 156 U.S. 432 (Coffin).
The court in Hopt did rule that an instruction “like the one given in this case, by reference to the conviction upon which the jurors would act in the weighty and important concerns of life, would be likely to aid them to a right conclusion . . . .” (Hopt, supra, 120 U.S. at p. 441.) However, the court did not rule that any particular definition of reasonable doubt was required. Similarly in Coffin, the court again did not hold that a certain definition of reasonable doubt was necessary. Rather, it held that it was error for the trial court to refuse to give an instruction regarding the presumption of innocence, even though it had given the reasonable doubt instruction. (Coffin, supra, 156 U.S. at pp. 453, 460-461.) We are confident that if the United States Supreme Court believed that the concept of reasonable doubt must be defined as set forth in Hopt and Coffin, it would have told us some time in the more than a century since those cases were decided.
We conclude the court instructed the jurors correctly.
III. DISPOSITION
The judgment is affirmed.
We concur: Simons, J., Needham, J.
“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 charged crime.]” (Original italics.)
“Q. [Defense Counsel] Mr. Shepherd, she agreed to go on this walk with you?
“A. Well, she didn’t verbally agree, but, yes, she willingly, you know, walked with me.
“Q. I mean – let me ask it this way. Did you physically force her
“A. No.
“Q. – to go for a walk with you?
“A. No.
“Q. Okay. But you said something or, ‘Let’s go for a walk,’ or something and she actually went outside with you?
“A. Yes.
“Q. Okay.
“A. Actually, she was right there at the front door shuffling around with – looking through stuff, looking for something, whatever.”
“The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial.
“A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime beyond a reasonable doubt.
“Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.
“Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.
“In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal, and you must find him not guilty.”