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People v. Stephens

California Court of Appeals, Fourth District, Second Division
Jul 29, 2008
No. E042313 (Cal. Ct. App. Jul. 29, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. SWF014935 Robert W. Armstrong, Judge. (Retired Judge of the L.A. Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and William M. Wood, Deputy Attorney General, for Plaintiff and Respondent.


OPINION

Richli, J.

In August 2005, defendant stabbed two different men in the neck, using a wire splicer against one victim, and a knife against another. After defendant was apprehended by police, and detained in jail, he attempted to escape by posing as his cell mate who was being released.

Defendant was found guilty of attempted murder and assault with a deadly weapon of both victims, and of attempted escape from county jail.

Defendant now contends:

1. The trial court erroneously admitted a knife found in defendant’s possession when he was arrested that was not relevant to any of the charged offenses.

2. The trial court erroneously excluded defense witnesses.

3. The trial court committed numerous instructional errors.

We find no prejudicial error and affirm the judgment.

I. PROCEDURAL BACKGROUND

A jury found defendant guilty of the attempted murders (Pen. Code, §§ 664, 187, subd. (a)) of Rafael Gutierrez and Dexter Gant, and found true the allegations for those counts that he personally used a deadly and dangerous weapon (§ 12022.7, subd. (a)) during the commission of the offenses. In addition, the jury found defendant guilty of assault with a deadly or dangerous weapon (§ 245, subd. (a)(1)) against Gutierrez and Gant, and the jury also found true the allegations that defendant used a deadly or dangerous weapon (§ 12022.7, subd. (a)) during the commission of the offenses. The jury additionally found a great bodily injury enhancement true for the attempted murder and assault with a deadly weapon on Gutierrez. (§ 12022.7, subd. (a).) The jury also found defendant guilty of attempting to escape from custody. (§ 4532, subd. (b)(1).) The trial court sentenced defendant to 12 years 8 months in state prison.

All further statutory references are to the Penal Code unless otherwise specified.

II FACTUAL BACKGROUND

A. Prosecution

1. Attempted Murder and Assault With a Deadly Weapon of Dexter Gant

On August 8, 2005, Dexter Gant lived at 541 Barka Creek Drive in Perris. Defendant had lived in Gant’s neighborhood for at least 10 years. Gant was separated from his wife and was renting a room to defendant.

Gant did not want to testify and had to be subpoenaed to testify. He ignored the subpoena and was taken to jail.

That day, when Gant arrived home from his job at a telephone company, defendant and Gant smoked marijuana together (as they oftentimes did) in the garage. Defendant told Gant that someone was looking for Gant or out to get him, but did not say whom. Defendant seemed to be acting different after he smoked the marijuana.

Defendant went inside the house. Suddenly, Gant felt something hit him in the head. He felt something hit him all over his body. Gant then realized it was defendant hitting him. Gant did not feel any cutting, but saw something that looked like a wire splicer or “cable knife,” that he used to cut wires at his work in defendant’s hand. Defendant, who looked “crazy,” told Gant to get out of there.

Gant ran to a neighbor’s house. For the first time, Gant realized he was bleeding and his neighbors gave him a towel to wipe up the blood. Gant observed defendant run down the street away from his house.

Gant suffered three cuts on his right arm, a cut on his hand, and one on his neck. Although Gant did not think he needed to go to the hospital, his friends and neighbors convinced him to go. At the hospital, Gant received two or three stitches on his arm and hand. Gant told an officer that interviewed him at the hospital that he did not want to press charges against defendant, although he admitted that defendant caused his injuries.

Gant was transferred to another hospital to have more extensive testing on the cut on his neck. There was evidence of injury to his carotid gland (which aids in digestion), but surgery was not necessary. There were minor injuries to his carotid artery. Gant stayed in the hospital for observation for two days. Gant eventually received stitches on the cut on his neck.

2. Attempted Murder and Assault With a Deadly Weapon of Rafael Gutierrez

On August 9, 2005, at about 9:00 p.m., Gutierrez went to Craig Stephens, Jr.’s (defendant’s brother) mobile home, which was located on Cajalco Road in Perris, to discuss buying some pit bull puppies. Stephens, Jr. lived in a mobile home on a large piece of property owned by his and defendant’s father, Craig Stephens, Sr. There were multiple occupied and unoccupied mobile homes and/or recreational vehicles (RV) on the property. Stephens, Jr. had not seen defendant on the property that day and he was not living on the property at the time.

Gutierrez had a prior misdemeanor theft conviction and a felony grand theft automobile conviction.

Gutierrez arrived and knocked on Stephens, Jr.’s door. When Stephens, Jr. did not answer, Gutierrez went back to his vehicle to wait for him. Gutierrez had his driver’s side window halfway down. As Gutierrez was waiting in his truck, defendant approached him, walking from an old RV that was on the property. Defendant told Gutierrez that Stephens, Jr. was not home and that he should leave. Gutierrez told defendant that he had spoken with Stephens, Jr. and that he was going to wait.

Stephens, Jr. testified at trial that he was home and met with Gutierrez that night.

Defendant walked away and went back in the RV. Defendant came back from the RV and punched toward Gutierrez’s driver’s side window with his hand. Defendant’s hand hit the window, but he still was able to punch through to hit Gutierrez on the left side of his neck. Gutierrez did not see a knife in defendant’s hand, but immediately started bleeding from his neck.

Gutierrez blacked out for about 30 seconds. When he came to, defendant was still standing by the car. Gutierrez immediately drove off in his car to a nearby Circle K convenience store. When he got to the Circle K, he pulled out the tip of the knife that had lodged itself in his neck. Gutierrez believed that the blade was five inches long.

Riverside County Sheriff’s Deputy Sam Morovich was the first to arrive at the Circle K. Gutierrez approached him crying, asking for help, and bleeding from his neck. Gutierrez was holding the knife blade in his hand. It was “small and skinny” and probably one or one-half inches long. The blade was placed on his patrol car. The knife blade was lost and not booked into evidence.

Deputy Paul Sandoval also responded to the 911 call. When he arrived, he contacted Gutierrez, who was holding a bloody T-shirt to his neck. Gutierrez was taken away in an ambulance.

Deputy Sandoval drove to the property where Gutierrez indicated he had been stabbed. Defendant was not at the location. After hearing that Gutierrez had been stabbed, Stephens, Jr. searched the property, but did not find defendant or anyone else.

Gutierrez was treated at Riverside Regional Medical Center. Gutierrez did not require surgery on the neck wound as there was no damage to his windpipe. He received two stitches and was sent home.

The following evening, August 10, 2005, defendant was apprehended. A stainless steel steak knife with a black handle was found in his front pocket when he was arrested.

Defendant was interviewed at the police station. Defendant claimed that the day before he was sleeping in his motor home when someone entered and assaulted him. The person hit him over the head with a bottle. Defendant grabbed a knife and stabbed the person in the neck with a knife. Defendant did not know the person who attacked him. Defendant had no marks, bruises or cuts on his body when he was arrested.

3. Escape from Custody

On August 17, 2005, Riverside County Sheriff’s Deputies Robert Watkins and Wayne Tillett were working as correctional deputies at the Robert Presley Detention Center. At approximately 1:00 a.m. on that day, they received a call that an inmate named Arturo Tellez was to be sent down to the release area because he was being released. Defendant was Tellez’s cell mate.

The unit on which defendant and Tellez were housed was for mentally disabled or handicapped inmates who needed psychiatric medication.

Deputies Watkins and Tillett called into the cell through the intercom system. They asked for Tellez and a male voice responded. Believing it was Tellez, they told the person to gather his belongings and come down for release.

Defendant came and met Deputies Tillett and Watkins; they believed that he was Tellez. Defendant was not wearing his prison issued wristband, which would have contained his photograph, booking number, date of birth, and name. Defendant told them that he lost it. Defendant was carrying property that had Tellez’s name on it.

Deputy Watkins obtained a card from the office that had Tellez’s picture. Although defendant looked different from the picture, Deputy Watkins could not be sure. Deputy Watkins gave the card to defendant. Defendant was sent down to release.

Deputy Robert Mills was in the release area. Defendant told Deputy Mills that he was Tellez. Deputy Mills instructed defendant to grab his property bag from a row of bags that contained property from when the inmates were booked into jail. Defendant grabbed the one with Tellez’s name on it. Defendant was instructed to change back into his civilian clothing. Deputy Mills then went to his supervisor, Deputy Perry Sexson, and informed him that they may have the wrong inmate because he did not match the picture on the card.

Deputy Sexson went to the changing area and asked for Tellez. Defendant responded, “That’s . . . me.” Defendant was in Tellez’s clothes, but had not put on the shoes. When Deputy Sexson asked defendant why he did not put on the shoes, he responded that his feet had grown.

Deputy Sexson asked defendant background information for Tellez. Defendant said his name was Arturo Tellez and gave Tellez’s correct date of birth. He could not provide any other information. Deputy Sexson then asked defendant to give his real name. At first he stated he was Tellez, but finally admitted who he really was. Defendant just shrugged his shoulders when Deputy Sexson asked him why he was pretending to be Tellez.

Deputy Sexson talked to another deputy, Deputy Ferguson, after the incident. He did not recall telling Deputy Ferguson the statement defendant made about not putting on the shoes.

Deputy Ferguson’s first name does not appear in the record.

B. Defense

The trial court took judicial notice of the fact that the moon was at 19 percent of full capacity on August 9, 2005, the night that Gutierrez was stabbed.

Deputy Sandoval was recalled and testified that Gutierrez (who identified himself as Rodriguez) told him at the Circle K that he had been at the Perris property to visit Stephens, Sr. As he approached the front door, a male adult asked him what he was doing there. Gutierrez did not respond. Gutierrez then started back to his truck. The male adult then stabbed him in the neck. Gutierrez ran back to his truck and drove away.

III ADMISSION OF UNRELATED KNIFE

Defendant contends the trial court erred by denying his motion to exclude evidence of a steak knife found in his possession when he was arrested because it was irrelevant and constituted improper character evidence.

A. Additional Factual and Procedural Background

On September 18, 2006, defendant filed a motion to exclude a five-inch steak knife that was found on his person when he was arrested on August 10, 2005, as irrelevant and overly prejudicial. Defendant claimed it was improper character evidence under Evidence Code section 1101, subdivision (a). The People filed a response, arguing the evidence was admissible under Evidence Code section 1101, subdivision (b), as evidence of his intent to kill, as well as common plan or scheme evidence. No oral hearing on the motion appears in the record although it appears such a hearing took place.

During trial, on September 20, 2006, the prosecutor advised the trial court that she was seeking to introduce the testimony of Riverside County Sheriff’s Corporal Nelson Guzman, who was not on the prosecution’s witness list. The police report had erroneously stated that another officer had recovered the knife from defendant when he was arrested, but it was actually Corporal Guzman who had found the knife on defendant.

Defense counsel responded that the knife had no connection to the knife testified to in the instant case. The trial court responded, “Although we talked about this before, and her point was that at the time that he was arrested that he had a knife in his pocket, which is not something that the ordinary citizen walks down the street carrying. And in view of what had happened on the previous two nights, the fact that he was again carrying a weapon, is circumstantial evidence of his violent conduct with weapons. And it’s peripheral, but I think it’s admissible.”

Defense counsel asked to submit briefing on character evidence. The trial court responded, “It’s not character.” Defense counsel disagreed, arguing that the fact he carried around a steak knife was only relevant to show his violent character. The trial court then made a somewhat confusing ruling, stating, “I think it’s just as permissible to bring out of somebody who is convicted, as to bring out somebody convicted of grand theft that was permissible. I even allowed the misdemeanor in because it involves moral turpitude. So, you’re quite right. But as far as what it really has to do with this case, you have to admit it’s pretty peripheral, that he’s lying about everything in this case because he stole a car in Texas. [¶] But, nevertheless, the jury is entitled to consider it and be allowed to—he’ll also be allowed to consider this knife.”

The trial court was apparently referring to the fact that Gutierrez was impeached with his prior convictions. (See fn. 3, ante.)

At trial, Corporal Guzman testified that he was on patrol in the City of Perris when he received a radio call that someone had brandished a knife at the Wal-Mart store in the area. The person matched defendant’s description, and Corporal Guzman had been briefed earlier that defendant was wanted for committing two stabbings.

Corporal Guzman found defendant walking down the street. Since Corporal Guzman thought defendant was going to run, and because he believed defendant was armed, he pointed his gun at defendant and told him to stop. Defendant was ordered to lie face down on the ground and he did not attempt to run. Defendant was handcuffed and the knife was found on his person.

B. Analysis

Both parties address waiver in their briefs. We do not find that defendant waived any argument as to admission of the knife possession evidence based on both his written motion and objections in court.

Relevant evidence includes evidence “relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) The test of relevance is whether the evidence tends to “logically, naturally, and by reasonable inference” prove a material fact. (People v. Daniels (1991) 52 Cal.3d 815, 856.) The trial court retains broad discretion in determining the relevancy of evidence. (People v. Heard (2003) 31 Cal.4th 946, 973.)

Here, evidence of the steak knife found on defendant when he was arrested was irrelevant. This knife was not the one used in either of the stabbings and was not of the same character as the other weapons used. Hence, it did not prove or disprove a material fact in the case. The trial court rejected that it was character evidence, but did not articulate its relevance.

Further, it was improper character evidence under Evidence Code section 1101, subdivision (a). Subdivision (a) of Evidence Code section 1101 prohibits “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” This is exactly what the evidence was admitted to prove: since defendant was carrying a knife when he was arrested, he had a violent character.

Moreover, although the People argued in the lower court that the knife was admissible under Evidence Code section 1101, subdivision (b), to prove intent to kill and common plan or scheme, they make no such argument here. Instead, the People contend for the first time on appeal that defendant’s possession of the knife constituted past criminal conduct (possession of a dirk or dagger pursuant to Pen. Code, § 12020, subd. (a)(4)) which was admissible to impeach defendant’s credibility pursuant to Evidence Code section 1202. The People contend the trial court’s ruling shows it considered it impeachment evidence. We do not believe that it is clear that this was the trial court’s intention in admitting the evidence.

Evidence Code section 1202 provides, in pertinent part: “Evidence of a statement or other conduct by a declarant that is inconsistent with a statement by such declarant received in evidence as hearsay evidence is not inadmissible for the purpose of attacking the credibility of the declarant though he is not given and has not had an opportunity to explain or to deny such inconsistent statement or other conduct. Any other evidence offered to attack or support the credibility of the declarant is admissible if it would have been admissible had the declarant been a witness at the hearing. . . .”

Moreover, even if we were to conclude that defendant’s possession of the knife amounted to misdemeanor conduct, in People v. Fritz (2007) 153 Cal.App.4th 949, 956, Division Three of this district held that when the prosecution admits the pretrial statement of a defendant it cannot then impeach the credibility of the defendant with prior convictions because the prosecution, not the defendant, placed his credibility at issue. (Cf. People v. Jacobs (2000) 78 Cal.App.4th 1444, 1446 [defendant admitted his exculpatory pretrial statement so the prosecution could impeach his credibility with his prior felony conviction under the authority of Evid. Code, §§ 788 & 1202 as defendant put his credibility at issue].) We agree with the reasoning in Fritz and find that defendant’s conduct of possession of the knife could not be introduced to impeach his credibility as the prosecution, not defendant, introduced evidence of this conduct.

Furthermore, even if the evidence was somehow admissible, it should have been excluded under Evidence Code section 352, because any probative value was outweighed by the potential prejudice. Here, defendant committed the first stabbing with a wire splicer. Defendant committed the second attack with a knife that had a one- or two-inch blade. Neither of the two weapons were introduced at trial. The fact that the jury was shown a five-inch blade steak knife found on defendant when he was arrested shortly after these incidents was more prejudicial than probative.

That being said, we do not believe that the admission of the evidence mandates reversal of the convictions in this case. The erroneous admission of evidence over an objection under Evidence Code section 352 must be found to be prejudicial to justify reversal. (People v. Mullens (2004) 119 Cal.App.4th 648, 659.) In assessing prejudice, it must be reasonably probable defendant would have achieved a more favorable result if the court had not committed the evidentiary error. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)

Defendant does not argue that admission of the knife prejudiced his escape conviction.

The evidence of defendant’s guilt in this case was strong. As to the conviction of the attempted murder and assault with a deadly weapon of Gant, there was no dispute that defendant attacked Gant, unprovoked, with a wire splicer. He damaged Gant’s carotid gland and came within inches of his carotid artery. The act of defendant stabbing Gant in the neck was strong evidence of his intent to kill. (See People v. Bolden (2002) 29 Cal.4th 515, 561 [“In plunging the knife so deeply into such a vital area of the body of an apparently unsuspecting and defenseless victim, defendant could have had no other intent than to kill”].) Defendant’s counsel conceded that he had committed assault with a deadly weapon. Further, defendant had no viable defense to his actions against Gant.

As for the stabbing of Gutierrez, defendant chose to stab Gutierrez in the neck. He used such force that he was able to go through Gutierrez’s window and the blade broke off in Gutierrez’s neck. Although Gutierrez required only a few stitches, the fact remains that defendant aimed and stabbed him in the neck. Furthermore, despite that Gutierrez changed his story, defendant himself admitted that he was present at the property and stabbed someone. Again, this is strong evidence of defendant’s intent to kill for attempted murder and defendant also conceded that he committed assault with a deadly weapon.

Based on the strong evidence of defendant’s guilt, we cannot conclude that the admission of the steak knife requires reversal.

IV EXCLUSION OF DEFENSE WITNESSES

Defendant contends that the trial court improperly excluded his defense witnesses.

A. Additional Factual and Procedural Background

Prior to the defense case, defense counsel indicated that he had a proposed stipulation. Defense counsel stated that he did not have Deputy Ferguson available to testify. Deputy Ferguson would have testified that Deputy Sexson never told him that defendant had said he did not put on the shoes because his feet had grown when he described the incident to him. The trial court felt this evidence was not significant based on all the other statements that defendant made identifying himself as Tellez. Defense counsel noted that one of the jurors had audibly laughed at this testimony. The trial court felt the witness was unnecessary because Deputy Ferguson would not call Deputy Sexson a liar, but would accept a stipulation from the People.

The People were not willing to stipulate. Deputy Sexson had testified that he could not remember if he relayed that statement to Deputy Ferguson. The trial court ruled, “Okay. I think that it’s unnecessary, and it’s un-[Evidence Code section] 352. I think the probative value is zero and the time consumption is prohibitive, so I would not allow that witness to testify if he were standing in the hall.”

The People then asked for an offer of proof for a witness who was an Own Recognizance (OR) clerk at the jail. Defendant apparently spoke with her and could have believed that he was being released. The trial court felt this evidence was irrelevant because if he thought he was being released, he would have no reason to pretend to be Tellez. Defense counsel responded that it was possible that defendant, who was sleepy at 1:00 a.m., may have believed he was being released. The trial court excluded the witness as irrelevant and inadmissible under Evidence Code section 352.

B. Analysis

A criminal defendant has a right to present a defense. (Washington v. State of Texas (1967) 388 U.S. 14, 19 [87 S.Ct. 1920, 18 L.Ed.2d 1019]; People v. Jones (1990) 51 Cal.3d 294, 317.) However, this right is not unlimited. (Crane v. Kentucky (1986) 476 U.S. 683, 690-691 [106 S.Ct. 2142, 90 L.Ed.2d 636].) The trial court retains discretion to admit or exclude defense evidence under Evidence Code section 352. (People v. Cudjo (1993) 6 Cal.4th 585, 611; People v. Nunn (1996) 50 Cal.App.4th 1357, 1363.) The exclusion of evidence pursuant to Evidence Code section 352 does “not [generally] infringe on a defendant’s right to present a defense.” (People v. Frye (1998) 18 Cal.4th 894, 945.)

A court’s decision to exclude evidence is reviewed by this court for abuse of discretion. (People v. Vieira (2005) 35 Cal.4th 264, 292.) We cannot find that the trial court abused its discretion by excluding this evidence.

As for the supposed testimony from Deputy Ferguson, it is apparent that defendant did not subpoena Deputy Ferguson. Rather, defendant wanted the prosecution to accept his stipulation admitting the defense evidence. There was no exclusion of defense evidence as defendant had no evidence to present. Further, the People had no obligation to agree to defendant’s stipulation. Defense counsel did not request a continuance in order to secure Deputy Ferguson’s testimony. As such, the trial court did not deprive defendant of the opportunity to present his defense when he had nothing to present. Additionally, Deputy Sexson had already testified that he was not sure if he relayed the statement to Deputy Ferguson. This evidence was superfluous and did not deprive defendant of his right to present a defense.

Furthermore, the exclusion of the OR clerk’s testimony was proper. This evidence was clearly irrelevant based on the fact that defendant had identified himself as Tellez, not himself. If he truly believed that he was subject to release, there would be no reason to identify himself as Tellez. This evidence was simply irrelevant, speculative (in that defendant’s offer of proof was that he may have believed he was actually being released), and it had no evidentiary weight. Since the evidence was irrelevant, it could not deprive him of his right to present a defense.

Because there was no deprivation of defendant’s constitutional right to present a defense, any error in excluding the evidence under Evidence Code section 352 is subject to the Watson harmless error standard. (See People v. Alcala (1992) 4 Cal.4th 742, 790-791; People v. Mullens, supra, 119 Cal.App.4th at p. 659.)

Initially, as noted above, Deputy Sexson already presented testimony that he may not have told Deputy Ferguson this statement. Moreover, the testimony from the OR clerk constituted mere speculation that defendant may have thought he was actually being released.

Furthermore, defendant clearly represented that he was Tellez. Defendant continued the charade that he was Tellez, even getting into Tellez’s civilian clothes. When defendant was asked why he posed as Tellez, he just shrugged his shoulders. Strong evidence supported that defendant was posing as Tellez in order to be released. Since the evidence of his escape attempt was substantial, it is not reasonably probable that had the defense evidence been presented, he would have received a more favorable verdict.

V INSTRUCTIONAL ERRORS

Defendant raises several instructional errors. He additionally claims that the cumulative instructional errors require reversal.

A. Lesser Included Offenses of Simple Assault and Attempted Voluntary Manslaughter

Defendant claims that he was entitled to the lesser included offense instructions on simple assault for the assault with deadly weapons offenses committed against Gant and Gutierrez. He also claims that he was entitled to attempted voluntary manslaughter instructions for the attempted murder charges against both Gant and Gutierrez.

1. Standard for Instructing on Lesser Included Offenses

“‘“It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]’” (People v. Breverman (1998) 19 Cal.4th 142, 154.)

In other words, a trial court must give appropriate instructions, either upon request or sua sponte, whenever there is evidence substantial enough to merit consideration by the jury. (See People v. Manriquez (2005) 37 Cal.4th 547, 581.) “‘“‘Substantial evidence’ in this context is ‘“evidence from which a jury composed of reasonable [persons] could . . . conclude[]”’ that the lesser offense, but not the greater, was committed.”’ [Citation.]” (People v. Huggins (2006) 38 Cal.4th 175, 215.)

2. Simple Assault

Simple assault is a lesser included offense of assault with a deadly weapon. (People v. Rupert (1971) 20 Cal.App.3d 961, 968; § 240.) The difference is the use of a weapon. “‘As used in [Penal Code] section 245, subdivision (a)(1), a “deadly weapon” is “any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.” [Citation.] Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such. [Citation.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. . . .’ [Citations.]” (People v. Page (2004) 123 Cal.App.4th 1466, 1470.)

Here, the instruction on simple assault was not warranted by the evidence. Defendant used a wire splicer against Gant and a knife against Gutierrez. In both instances, he intentionally stabbed the victims in the neck with these items. There was virtually no evidence that defendant committed a simple assault or that defendant assaulted his victims without the use of a deadly weapon. Despite defendant’s claim to the contrary, the jury could not have found these weapons to be less than deadly weapons. The record contains evidence that proved defendant guilty of only the greater offense. (See People v. Richmond (1991) 2 Cal.App.4th 610, 618.) “There was no substantial evidence for the view defendant now offers, i.e., evidence from which a jury composed of reasonable persons could conclude that the lesser offense, but not the greater, was committed.” (People v. Huggins, supra, 38 Cal.4th at p. 217.) Therefore, an instruction on the lesser offense of simple assault was not required.

3. Attempted Voluntary Manslaughter

Defendant contends the trial court erred by refusing to give instructions on attempted voluntary manslaughter on a theory that he was voluntarily intoxicated or mentally impaired. Such instructions would be improper.

Attempted voluntary manslaughter is a lesser included offense of attempted murder. (People v. Van Ronk (1985) 171 Cal.App.3d 818, 822-825.) “A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of the lesser included offense of voluntary manslaughter. (§ 192.)” (People v. Barton (1995) 12 Cal.4th 186, 199.) Attempted voluntary manslaughter instructions are justified only if, notwithstanding the fact the defendant harbored the intent to kill, there were circumstances negating the malice required for murder. “[A] defendant who intentionally and unlawfully kills lacks malice only in limited, explicitly defined circumstances: either when the defendant acts in a ‘sudden quarrel or heat of passion’ (§ 192, subd. (a)), or when the defendant kills in ‘unreasonable self-defense’—the unreasonable but good faith belief in having to act in self-defense [citations].” (Ibid.) “Only these circumstances negate malice when a defendant intends to kill.” (People v. Lee (1999) 20 Cal.4th 47, 59.)

Here, defendant does not argue that unreasonable self-defense or provocation for the murder of Gant was evident to reduce the murder in this case to attempted voluntary manslaughter. Voluntary intoxication and mental impairment do not negate malice. As noted by the People, had the jury concluded that he did not possess the intent to kill Gant, they would have acquitted him. (People v. Saille (1991) 54 Cal.3d 1103, 1114-1117.) Instructions on attempted voluntary manslaughter for the charges against Gant would be improper as there was absolutely no evidence of provocation or unreasonable self-defense.

Defendant appears to claim in his reply brief that the jury could have concluded he was guilty of attempted involuntary manslaughter. There is no such crime. (People v. Brito (1991) 232 Cal.App.3d 316, 320-321.)

Defendant claims that he was entitled to attempted voluntary manslaughter instructions for the attempted murder of Gutierrez on a theory of imperfect self-defense.

The California Supreme Court has explained self-defense as follows: “For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. [Citation.] If the belief subjectively exists but is objectively unreasonable, there is ‘imperfect self-defense,’ i.e., ‘the defendant is deemed to have acted without malice and cannot be convicted of murder,’ but can be convicted of manslaughter. [Citation.] To constitute ‘perfect self-defense,’ i.e., to exonerate the person completely, the belief must also be objectively reasonable. [Citations.] As the Legislature has stated: ‘[T]he circumstances must be sufficient to excite the fears of a reasonable person . . . .’ [Citations.] Moreover, for either perfect or imperfect self-defense, the fear must be of imminent harm. ‘Fear of future harm—no matter how great the fear and no matter how great the likelihood of the harm—will not suffice. The defendant’s fear must be of imminent danger to life or great bodily injury.’ [Citation.]” (People v. Humphrey (1996) 13 Cal.4th 1073, 1082, fn. omitted; People v. Hardin (2000) 85 Cal.App.4th 625, 629-630.)

Here, there was no substantial evidence presented to warrant attempted voluntary manslaughter instructions on a theory of imperfect self-defense. Defendant told officers that a man broke into his RV and started attacking him. The man then hit defendant over his head with a bottle. In order to protect himself, he grabbed a knife and stabbed the man in the neck. We agree with the People that, if believed, this constituted reasonable self-defense, not imperfect self-defense. Defendant was being attacked in his home (see § 198.5) and responded with appropriate force. Since there was only evidence of reasonable self-defense, defendant would be entitled to acquittal, not instructions on attempted voluntary manslaughter.

Defendant contends in his reply brief that defendant may have only imagined he was being attacked, which would support the unreasonable self-defense. Such argument is specious in that there was absolutely no support for such a finding.

Assuming that the trial court erred in refusing to instruct on attempted voluntary manslaughter as a lesser offense for Gutierrez under the theory of unreasonable self-defense, any alleged error would be harmless. (People v. Breverman, supra, 19 Cal.4th at p. 178.) As discussed in section III, part B., ante, the evidence against defendant was strong. Any self-serving testimony by defendant that he committed the crime against Gutierrez in self-defense was not compelling. Moreover, since defendant had committed essentially the same crime against Gant just one day prior, it is inconceivable that the jury would have found that he stabbed Gutierrez in unreasonable self-defense.

B. Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 875 (Assault With a Deadly Weapon Instruction)

Defendant contends that CALCRIM No. 875 does not adequately define the concept of assault with a deadly weapon as it did not require proof that he intended a violent injury.

Section 245, subdivision (a)(1) penalizes “[a]ny person who commits an assault upon the person of another with a deadly weapon . . . .” Section 240 defines an assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” “‘“The ‘violent injury’ here mentioned is not synonymous with ‘bodily harm,’ but includes any wrongful act committed by means of physical force against the person of another, even although only the feelings of such person are injured . . . .”’” (People v. Colantuono (1994) 7 Cal.4th 206, 214, fn. 4.) “It follows that an offensive touching, although it inflicts no bodily harm, may nonetheless constitute a battery . . . .” (People v. Myers (1998) 61 Cal.App.4th 328, 335.)

As stated in People v. Williams (2001) 26 Cal.4th 779, in order to show assault with a deadly weapon, “that assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (Id. at p. 790.)

Here, CALCRIM No. 875 advised the jury that the People were required to prove various elements to prove defendant’s guilt of assault with a deadly weapon. These elements included that (a) defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person; (b) defendant did that act willfully; and (c) when defendant acted, he was aware of facts that would lead a reasonable person to realize his act, by its nature, would directly and probably result in the application of force to another. Thus, CALCRIM No. 875 accurately instructed the jury on the applicable substantive law of assault with a deadly weapon as set forth in People v. Williams, supra, 26 Cal.4th 779.

Furthermore, there is no question that defendant caused violent injury to both Gant and Gutierrez. Although defendant claims that they were not seriously hurt, the jury disagreed in regards to Gutierrez, by finding that defendant caused great bodily injury. Although the jury rejected that defendant committed great bodily injury against Gant, defendant acted with physical force when he stabbed Gant in the neck with a wire splicer. The jury was properly instructed.

C. Flight Instruction

Defendant claims the trial court erroneously gave a flight instruction to the jury.

In the lower court, the prosecution contended that the flight instruction was supported by the evidence that defendant left the Perris property after he stabbed Gutierrez. The trial court agreed, and gave CALCRIM No. 372, as follows: “If the defendant fled (immediately after the crime was committed that conduct may show that (he/she) was aware of (his/her) guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself.”

“‘In general, a flight instruction “is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.”’ [Citations.] Evidence that a defendant left the scene is not alone sufficient; instead, the circumstances of departure must suggest ‘a purpose to avoid being observed or arrested.’ [Citations.]” (People v. Bonilla (2007) 41 Cal.4th 313, 328.)

We need not determine if the instruction was erroneously given here, as we find that giving the instruction did not result in prejudice. An error in giving a flight instruction is harmless unless it is reasonably probable the result would have been more favorable to defendant if the instruction had not been given. (See People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130; People v. Wright (1988) 45 Cal.3d 1126, 1144.)

Initially, CALCRIM No. 372 did not tell the jury there was evidence of flight. It left this determination to the jury. “The instruction did not assume that flight was established, but instead permitted the jury to make that factual determination and to decide what weight to accord it. [Citation.]” (People v. Carter (2005) 36 Cal.4th 1114, 1182-1183, fn. omitted.) If there was insufficient evidence of flight, we may safely assume that the jury made no use of the instruction. (See ibid.)

Furthermore the evidence that defendant committed the instant crimes was overwhelming as set forth in section III, part B., ante. In light of this evidence, we conclude the jury would have reached the same conclusion had the flight instruction not been given.

D. Self-defense Instruction

Defendant claims the trial court erred by refusing to give instructions on self-defense. Defendant’s argument is not entirely clear. It appears he is claiming that he was entitled to instructions on unreasonable self-defense on the attempted murder of Gutierrez and Gant. Such instructions would have reduced defendant’s attempted murder convictions to attempted voluntary manslaughter. However, we have already rejected that there was evidence of unreasonable self-defense in section V, part A.3., ante. We believe the only self-defense instructions warranted by the evidence would have been perfect self-defense to the charges involving Gutierrez.

“A defendant is entitled to have the court instruct on a defense theory if it is supported by substantial evidence, i.e., if a reasonable jury could conclude the particular facts underlying the instruction existed. [Citations.]” (People v. Sullivan (1989) 215 Cal.App.3d 1446, 1450.) “[T]he concepts of unreasonable self-defense and perfect self-defense are independent, and the giving of instructions on the former does not compel instructions on the latter theory of defense.” (People v. Hill (2005) 131 Cal.App.4th 1089, 1103.)

We set forth the definition of perfect self-defense in section V, part A.3., ante. As previously stated, there was evidence presented to support an instruction on reasonable self-defense. In fact, the People concede an instruction on perfect self-defense as to the charges of the assault with a deadly weapon. Such instruction would also have provided for acquittal of the attempted murder of Gutierrez. Hence, the trial court erred by failing to instruct the jury on reasonable self-defense as a defense to the charges involving Gutierrez.

The California Supreme Court has assumed, without deciding, that the failure to instruct on a defense is subject to the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]. (People v. Salas (2006) 37 Cal.4th 967, 984.)

Here, even had the jury been instructed with reasonable self-defense instructions, it would not have acquitted him of the assault with a deadly weapon and attempted murder of Gutierrez. No other evidence supported that defendant was in the trailer when he was attacked. Defendant did not have a bruise or cut on him when he was arrested, despite the fact he was hit with a bottle. Further, defendant had committed the same unprovoked attack just one day prior on Gant. Any error was harmless beyond a reasonable doubt.

E. Mental Impairment

Defendant’s final instructional error claim is that the trial court erred by refusing to instruct the jury on his mental disease or defect.

In the lower court, defendant requested that the trial court instruct the jury with CALCRIM No. 3428, based on the testimonies of Gant, who said defendant looked “crazy,” and the correctional deputies that he was housed on a mentally disordered offenders floor at the jail. The trial court rejected the instruction, finding there was no evidence of mental disease or defect.

CALCRIM No. 3428 is required to be given only on request where substantial evidence supports the defense theory. (People v. Ervin (2000) 22 Cal.4th 48, 91, [referring to CALJIC No. 3.32, the predecessor to CALCRIM No. 3428].) Mental illness, disorder, or defect is a medical diagnosis. (People v. Kelly (1992) 1 Cal.4th 495, 540; People v. Moore (2002) 96 Cal.App.4th 1105, 1116-1117.) Expert medical testimony is necessary to establish a defendant suffered from a mental disease, mental defect, or mental disorder as such a determination cannot be made by the jury from common experience. (People v. Moore, supra, at pp. 1116-1117.)

CALCRIM No. 3428 provides, in pertinent part; “You have heard evidence that the defendant may have suffered from a mental (disease[,]/ [or] defect[,]/ [or] disorder). You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted [or failed to act] with the intent or mental state required for that crime.”

Here, there was no expert medical testimony presented to the jury regarding defendant’s mental capacity. Gant’s statement that defendant appeared “crazy” when he attacked him, and the fact that defendant was housed on a ward that included mentally disordered inmates, did not warrant instruction on mental disease or defect. Expert testimony was required.

In his reply brief, defendant claims that to require a mental health expert to testify regarding mental impairment at the time of the offense would burden the defense and would result in a “mini trial,” thereby conceding no expert testimony was presented here. The law requires that a mental expert testify as to mental disease or defect in order to instruct the jury on mental impairment. (People v. Moore, supra, 96 Cal.App.4th at pp. 1116-1117.) No such evidence was presented, and therefore, the instruction was not warranted.

F. Cumulative Error

Defendant asserts that reversal is required due to cumulative instructional errors which deprived him of a fair trial. We do not agree, as any errors that occurred, did not prejudice defendant. Therefore, we reject defendant’s argument that cumulative error deprived him of a fair trial or warrants reversal. Defendant is entitled to a fair trial, not a perfect one. (People v. Houston (2005) 130 Cal.App.4th 279, 320.)

VI DISPOSITION

In all respects, the judgment is affirmed.

We concur: Ramirez P.J., Hollenhorst J.


Summaries of

People v. Stephens

California Court of Appeals, Fourth District, Second Division
Jul 29, 2008
No. E042313 (Cal. Ct. App. Jul. 29, 2008)
Case details for

People v. Stephens

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CARL ANTHONY STEPHENS, Defendant…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Jul 29, 2008

Citations

No. E042313 (Cal. Ct. App. Jul. 29, 2008)