Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR487637
Haerle, J.
I. INTRODUCTION
David A. Sims appeals from a judgment of conviction by a jury for second degree murder (Pen. Code, § 187, subd. (a)). He contends that trial counsel provided ineffective assistance by failing to request a jury instruction on antecedent threats or assaults. The conviction must be reversed, he argues, because it was reasonably probable that he would have received a more favorable result at trial had the jury been properly instructed. We will affirm.
All further unspecified statutory references are to the Penal Code.
II. FACTUAL AND PROCEDURAL BACKGROUND
On July 28, 2006, an information was filed in Sonoma County Superior Court charging appellant with the murder of Benjamin Olivarez (§ 187, subd. (a); count 1) and burglary (§ 459; count 2). As to count 1, it was further alleged that in the commission of the offense appellant used a deadly weapon within the meaning of section 12022, subdivision (b)(1).
On August 6, 2007, jury trial began.
A. Prosecution Case
On May 20, 2006, Natalie Smith celebrated her cousin Joanne Loza’s birthday at a bar in Cotati. The group included Natalie, Loza, Fausto Hernandez, and Ben Olivarez. At around 1:30 a.m., the group left the bar, bought beer at Safeway, and went to Natalie’s sister Bernadette Smith’s apartment in Santa Rosa to continue the party.
For clarity, we will refer to the Smith sisters individually as Bernadette and Natalie.
The group arrived at Bernadette’s apartment around 2:15 a.m. They sat around the kitchen table and listened to music, drank beer, and caught up on old times. Natalie had known Hernandez and Olivarez for 15 years. Everyone drank beer, and Natalie smoked some marijuana. Olivarez left the table, sat on a small couch, and talked to his girlfriend on the phone. After the phone call, Olivarez passed out on the couch. Natalie moved Olivarez to a larger couch, took off his shoes, gave him a pillow, and covered him with a blanket.
Bernadette came home around 3:00 a.m. Olivarez did not wake up when she arrived. Bernadette joined Natalie, Loza, and Hernandez at the kitchen table for about half an hour. Hernandez had not seen Bernadette since she was seven years old, and he commented on the changes in her appearance. He commented on her breasts and suggested that she should change into a pair of shorts to look sexier for him. Hernandez also told Bernadette not to lock her bedroom door because he would be coming up there later that night. Natalie and Loza told Hernandez to “cool it’ but that did not stop him. Bernadette thought Hernandez was obnoxious and his comments were “rude, derogatory,” and “sexually graphic.” According to Loza, he was acting like a “dog in heat.”
At around 3:30 a.m., Bernadette went upstairs to her room and locked the door. She was uncomfortable, annoyed, and “somewhat scar[ed].” She changed into pajamas, got into bed, and called appellant. She was very upset.
Bernadette and appellant had been dating off and on for the past year and a half. Earlier that evening, Bernadette had met appellant and some of his friends at a bar and had stayed until closing time. Appellant and Bernadette then went to a party and had a discussion about their relationship. Bernadette gave appellant an ultimatum about marriage. Appellant was not ready for such a serious commitment. They decided it would be best if they took a break from each other. When Bernadette left the party to go home, she and appellant were on good terms.
When Bernadette called appellant, he was still at the party. She knew he had been drinking because he talks softly and quietly when he is drunk. She told him to go home and to call her when he got there. A short time later, not having heard from appellant, she called his father’s house to see if he was there. Appellant spoke to her in a soft, lovey-dovey voice. Bernadette told him that Natalie had brought a “homie friend” to her apartment. Homie is a common way to describe a Mexican gang member. Bernadette told appellant some of the things Hernandez had said to her. She did not tell him everything because she did not want appellant to fight Hernandez. She also told him that Natalie, Loza, and two of her sister’s homeboys were downstairs and still partying. Appellant asked if she wanted to come and get him, but she told him she was too tired. Appellant then told her, “I’ll get over there.” Bernadette fell asleep and did not wake up until Loza banged on her door and told her that appellant was downstairs.
Natalie described her friends as “homies,” but said they were not gang members. To Natalie, “homie” meant friend.
Bernadette knew that appellant did not like Hispanic gang members. Bernadette’s ex-boyfriend, the father of her son, used to be a gang member before she met him. Appellant told Bernadette that he had been jumped and beaten up by gang members when he was younger. Bernadette had a photo in her room of herself and a friend throwing gang signs which appellant did not like.
Natalie, Loza and Hernandez remained at the kitchen table for another hour or so after Bernadette left, and then they went upstairs for bed. Olivarez was still asleep on the couch downstairs. Natalie was taking off her jewelry when she heard a sliding glass door slam downstairs. As she ran downstairs to investigate, Natalie heard two “thumps” or popping noises almost immediately after she heard the door slam.
Appellant was in the apartment and he had something in his hand. At first, Natalie thought appellant was holding a paintball gun because she heard thumps rather than shots. Natalie later decided that the object looked like a tire iron. Loza testified that appellant was holding something that looked black and metallic. Loza thought it looked like “one of those club things that you put on your steering wheel.” The object in appellant's hand did not look like a paint roller or a broom handle.
Natalie saw blood spatters on the carpet where appellant was standing. She tried not to let appellant see that she knew something had happened.
Appellant was upset and angry, and he asked, “Where the fuck is Bernadette?” Natalie asked appellant what he was doing. He answered, “I heard that some fucking Mexicans were fucking with your sister.” Natalie told him no one was there but her friends. Appellant told Natalie he was there because he got a phone call from Bernadette. Loza and Hernandez came downstairs, and Loza asked appellant, “What the fuck do you got against Mexicans?” Natalie told Loza to shut up, and told appellant to just talk to her. Natalie and appellant got into an argument over whether he could go upstairs. Natalie was afraid for everyone’s safety, especially her sister’s, and she told appellant he could not see Bernadette. Bernadette was awakened by Loza, but she did not go downstairs. She heard Natalie talking and crying. Then she heard appellant calling for her to come downstairs. Natalie and appellant talked until she finally persuaded him to leave so that she could help Olivarez. She was trying to get appellant “sane enough” to leave so she could call the ambulance. She knew something was wrong with Olivarez because the blood on the floor was fresh and he never made any noise during the conversation with appellant.
After appellant left, Natalie called emergency services. She also checked on Olivarez. He had a big gash on his face. Bernadette went downstairs after the police were called and saw Olivarez in the same position that she saw him in earlier. After the call, she and Hernandez looked to see if Olivarez was breathing or if he was alive. They did not remove anything from the immediate area where he was lying.
Santa Rosa Police Officer Brett Siwy took the call at 5:00 a.m., and arrived at the apartment at 5:13 a.m. Officer Siwy noted that Olivarez had severe head trauma to the left front of his head, and that blood, brain matter, and skull were apparent in the wound. Officer Siwy pronounced Olivarez dead at 5:22 a.m.
Dr. Kelly Arthur performed the autopsy and concluded that Olivarez died of blunt force head trauma to the left side of his head. There were at least four distinct impact wounds. The first blow was to the back of the head. That blow fractured his skull and caused a hematoma, a collection of blood beneath the skull. Three other blows to the left side of his head caused “a very vast area of depressed fracturing.” Two of the wounds had fractured bone and brain matter protruding from them. There were too many fractures on his skull to count. A combination of the injuries caused death. Olivarez might have survived the first blow to the back of his head with brain swelling and possible loss of consciousness, but the other three blows were “devastating injuries” and caused his death.
Olivarez’s skull was struck by something long and narrow, like a tire iron or a crowbar, at high-velocity force. Dr. Arthur did not believe that Olivarez’s injuries were inflicted with a paint roller because the paint rollers she was familiar with have a hollow framework that would break before it broke a human skull. On cross-examination, Dr. Arthur stated that it was possible that a paint roller handle could have caused the injuries, depending on what the paint roller was made of.
Olivarez’s blood-alcohol content was 0.28 percent. His methamphetamine level was 0.10 milligrams per liter. Olivarez had no defensive wounds. It took “maybe a couple minutes” for him to die.
Blood and brain spatter evidence found on the ceiling, couch, blanket and pillow were consistent with Olivarez’s having been struck with a heavy object multiple times while he was lying on the couch. Olivarez could not have suffered the first blow to the left side of the back of his head in the position in which he was found after his death, face up. At some point, his head must have been off the couch or turned to the side so the back of his head was exposed.
B. Defense Case
Appellant had very negative feelings about Hispanic gang members. When he was 13, Hispanic gang members beat him up and took his bike. When he was 15, Hispanic gang members invaded the birthday party of a friend of his sister’s. Appellant was stabbed in the back during that incident. On other occasions, Hispanic gang members attacked appellant’s brother and vandalized appellant’s cars. Natalie and Loza dated Hispanic gang members, and the father of Bernadette’s child was a Hispanic gang member.
On the evening of May 20, 2006, appellant went to a bar with his brother. He had one mixed drink and six Coors Lights over three and a half hours. Bernadette met him at the bar later that evening. Later, they went to a party at someone’s house. They talked about their relationship at the party. Bernadette wanted appellant to marry her soon. He told her that he couldn’t give her his word right then, but that he loved her. Then Bernadette went home.
Fifteen minutes later, Bernadette called him. She told him that Natalie was there and she brought some of her “homies.” From his experience, appellant believed that “homies” meant gang members. At the time, Bernadette did not indicate that there was a problem.
As soon as appellant got home from the party, he got another phone call from Bernadette. She sounded scared and upset. She told him that Natalie’s homies were saying things she did not like. Bernadette told him that she had locked herself in her room and was afraid of “these guys.” She said they were bothering her, so appellant thought that both of Natalie’s friends were involved. She told him they were saying she had nice “boobs” and was really pretty, that she should put on some little shorts, and should not lock her door because “I’ll be coming in.” She asked appellant to come over.
Appellant went to Bernadette’s house because he thought she was in danger of being raped by Natalie’s gang friends. He left his home seconds after getting off the phone with Bernadette. He had a steel axe at home, but did not bring it. When he arrived at Bernadette’s apartment, he knocked on the door, but no one answered. He knew people who had been killed and assaulted by gang members. He worried that he was too late. He went around to the back and jumped the fence. He grabbed an aluminum paint roller as he ran through the yard. He grabbed the paint roller to use in self-defense because he knew that gang members carried knives or guns.
Appellant slammed open the sliding glass door and saw a man rise up from the couch. Appellant thought the man was coming after him. He thought the man was a gang member possibly holding a knife. He stood over the man and hit him twice with the paint roller. Then appellant started yelling for Bernadette. Natalie came down the stairs and refused to let him go upstairs to see Bernadette. Loza came downstairs and wanted to know what appellant had against Mexicans.
Appellant did not check on the condition of the man on the couch because he was only concerned about Bernadette’s and his own safety. He thought he had only knocked out the man on the couch. He had no idea that he had caused serious injury.
Natalie told appellant that Bernadette was trying to make him jealous. Bernadette had done that in the past. In fact, Bernadette liked to push her men over the edge and ruin them. Bernadette never went downstairs. From the top of the stairs, she denied that Natalie’s friends had done anything. She also denied making the phone call to appellant. Appellant was disgusted that Bernadette did not even have the guts to come down and face him. Appellant left through the front door. Before he left, Natalie told him that what he did was not cool. Appellant had no idea what she was talking about.
Appellant threw the paint roller on the seat of his truck. Appellant did not go home because he knew the police would be looking for him. He drove to a cousin’s house and slept in his truck in the driveway. The next day, he drove to Rudy Avalos’s house. Avalos was expecting appellant because the police had already talked to Avalos about Olivarez. Appellant learned from Avalos that Olivarez was dead and that the police thought appellant killed him. Appellant was speechless when he found out that he had killed Olivarez. He threw the paint roller away because the sight of it disgusted him. He turned himself in to the police some 66 hours after leaving Bernadette’s apartment.
On August 31, 2007, the jury found appellant guilty of second degree murder on count 1 and not guilty on count 2. As to count 1, the jury found the use allegation was true.
On April 10, 2008, the court sentenced appellant to 15 years to life in prison on count 1, plus a consecutive one-year term for the deadly weapon use enhancement. The court imposed a restitution fine of $200 pursuant to section 1202.4, subdivision (b). An additional restitution fine in the same amount was imposed but stayed pursuant to section 1202.45.
Appellant filed a timely notice of appeal on April 18, 2008.
III. DISCUSSION
Appellant contends that his counsel provided ineffective assistance by failing to request a jury instruction on antecedent threats or assaults, i.e., appellant’s prior experience with Hispanic gang members.
“‘In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was “deficient” because his “representation fell below an objective standard of reasonableness... under prevailing professional norms.” [Citations.] Second, he must also show prejudice flowing from counsel’s performance or lack thereof. [Citations.] Prejudice is shown when there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” [Citations.]’” (In re Avena (1996) 12 Cal.4th 694, 721; see also Strickland v. Washington (1984) 466 U.S. 668, 687, 694.)
“Our review of counsel’s performance is a deferential one. [Citation.] ‘It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” [Citation.]’ (Strickland v. Washington[, supra,] 466 U.S. 668, 689.) ‘However, “deferential scrutiny of counsel’s performance is limited in extent and indeed in certain cases may be altogether unjustified. ‘[D]eference is not abdication’ [citation]; it must never be used to insulate counsel’s performance from meaningful scrutiny and thereby automatically validate challenged acts or omissions.”’ [Citations.] ‘Otherwise, the constitutional right to the effective assistance of counsel would be reduced to form without substance.’ [Citation.]” (In re Jones (1996) 13 Cal.4th 552, 561-562.)
In criminal cases, a trial court is required to instruct the jury, sua sponte, on the general principles of law relevant to the issues raised by the evidence. (People v. St. Martin (1970) 1 Cal.3d 524, 531.) In addition, a criminal defendant is entitled, upon request, to “‘pinpoint’” instructions that “relate particular facts to a legal issue in the case or ‘pinpoint’ the crux of a defendant’s case....” (People v. Saille (1991) 54 Cal.3d 1103, 1119.) However, the trial court has no duty to give a pinpoint instruction when neither party has requested it. (People v. Silva (2001) 25 Cal.4th 345, 371.)
It is settled that a homicide defendant who asserts self-defense is entitled, upon request, to a pinpoint instruction on antecedent threats or assaults where there is sufficient evidence to support such an instruction. (People v. Garvin (2003) 110 Cal.App.4th 484, 488.) The Garvin court observed that “[i]t is undisputed that there is a line of authority holding that it is erroneous to refuse a request for instruction on the effect of the victim’s antecedent threats or assaults against the defendant on the reasonableness of defendant’s conduct.” (Id. at p. 488.) This principle has been extended to include antecedent threats made by persons other than the victim, if the defendant reasonably associated the victim with those threats. (People v. Minifie (1996) 13 Cal.4th 1055, 1068.)
Pursuant to appellant’s request, the court instructed the jury on imperfect self-defense or defense of another which reduces a killing from murder to voluntary manslaughter (CALCRIM No. 571): “[Appellant] acted in imperfect self defense or imperfect defense of another if: [¶] 1. [Appellant] actually believed that he or Bernadette Smith was in [imminent] danger of being killed or suffering great bodily injury or [being] forcibly sexually assaulted. [¶] AND [¶] 2. [Appellant] actually believed that the immediate use of deadly force was necessary to defend against that danger. [¶] BUT [¶] 3. At least one of those beliefs was unreasonable.” The jury was also instructed that, “[i]n evaluating [appellant’s] beliefs, consider all the circumstances as they were known and appeared to [appellant].” (CALCRIM No. 571.)
At trial, the court also instructed the jury on lawful self-defense pursuant to CALCRIM No. 505, under which a defendant is not guilty of either murder or manslaughter because the killing was justified. The court gave this instruction with none of the optional paragraphs. From the record, it is unclear whether either party requested this instruction or the court gave the instruction sua sponte. At any rate, appellant does not address this instruction in his briefs to this court; accordingly, we will confine our discussion to CALCRIM No. 571.
However, the court did not give the following optional paragraph of this instruction: “[If you find that the defendant received a threat from someone else that (he/she) reasonably associated with , you may consider that threat in evaluating the defendant’s beliefs.]” (CALCRIM No. 571.)
Appellant argues that he would have been entitled to a pinpoint instruction on antecedent threats and assaults if his trial counsel had requested it. Appellant cites the Bench Notes to CALCRIM No. 571, which state: “In evaluating whether the defendant actually believed in the need for self-defense, the jury may consider the effect of antecedent threats and assaults against the defendant, including threats received by the defendant from a third party that the defendant reasonably associated with the aggressor. (People v. Minifie[,supra,] 13 Cal.4th 1055, 1064, 1069.) If there is sufficient evidence, the court should give the bracketed paragraph[] on prior threats or assaults on request.” Appellant argues that the failure to request inclusion of this paragraph was an unreasonable oversight by his counsel; respondent disputes whether the evidence of antecedent threats or assaults in this case was sufficient for the court to instruct on that issue. We need not resolve these questions, however, because appellant cannot establish the required prejudice to show ineffective assistance.
Even assuming that the instruction on antecedent threats or assaults would have been given if requested, the error in failing to request it was harmless in that there was no “reasonable probability” that the jury would have reached a result more favorable to appellant if such an instruction had been given. (Strickland v. Washington, supra, 466 U.S. at p. 694; see also People v. Gonzales (1992) 8 Cal.App.4th 1658, 1663-1665 [any error in failing to give requested instruction on antecedent assault was harmless].) Specifically, there is no reasonable probability that, had the instruction been given, the jury would have concluded that appellant acted in imperfect self-defense or defense of another, which would have reduced murder to voluntary manslaughter. The jury was properly instructed on imperfect self-defense or defense of another, which included being instructed to consider all the circumstances as they were known to and appeared to appellant in evaluating appellant’s beliefs. As in Gonzales, defense counsel here “thoroughly aired” the subject of appellant’s previous experience with gang members in argument. (Id. at p. 1664.) As in Gonzales, defense counsel argued that appellant’s history with gang members and his dislike and mistrust of them “colored [his] perception” and “justified his quick response” upon entering the apartment. (Id. at p. 1664.) The reasoning of the Gonzales court in concluding that the error, if any, was harmless, is also applicable here: “The concept at issue here is closer to rough and ready common sense than abstract legal principle. It is also fully consistent with the otherwise complete self-defense instructions given by the court. It is unlikely the jury hearing the evidence, the instructions given and the argument of counsel would have failed to give the defendant’s position full consideration.” (Id. at p. 1665.)
Moreover, defense counsel’s argument to the jury focused, first and foremost, on justifiable self-defense or defense of another and, secondarily and only reluctantly, on involuntary manslaughter, in which there is no intent to kill and no conscious disregard for human life. (See CALCRIM No. 580.) Counsel made a tactical choice to defend against the murder charge by urging acquittal or a verdict of involuntary manslaughter based on the evidence that appellant did not intend to kill Olivarez. By contrast, imperfect self-defense or defense of another involves a willful act done with full knowledge and awareness that the person is endangering the life of another and done in conscious disregard of that risk. (See CALCRIM No. 571.)
Defense counsel argued that appellant’s actions were lawful self-defense or defense of another because he had to react immediately upon entering the apartment and seeing “what he believed [was] a gang banger jumping up as he came into the house....” “The only person that [appellant] hurt was someone he perceived as a threat when he first got there. Given the circumstances, reasonably so.” “Is David Sims responsible for an unlawful act? I don’t believe so.... [A]nd the evidence certainly supports that Ben was getting up possibly to, you know, attack him or do him harm – that when he reacted under those circumstances, even though it may have been ultimately mistaken, he acted lawfully.”
In the alternative, counsel argued that appellant was at most guilty of involuntary manslaughter: “In the very least – and I’m sorry to suggest it, it certainly is not murder first or second and I don’t believe it’s even voluntarily. I think at worst if you believe he hit him certainly without – I don’t believe the evidence supports it, but when he did hit him, that he was consciously disregarding, you know, that his acts could kill this person, I think his actions were such that he thought at worst he might knock the guy out just to protect himself and potentially Bernadette, but he had no intention of killing. He had no malice implied or otherwise. It was at worst an unfortunate situation which I ask you to find him not guilty. But if you feel that you can’t reach that point, which I think the evidence does support, that in the very least it is no more than an involuntary manslaughter.”
Under the circumstances, we find no reasonable probability that, had the jury been instructed on antecedent threats or assaults, it would have reached a different verdict. Thus, defense counsel did not provide ineffective assistance by failing to request such an instruction.
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Richman, J.