Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F079
CANTIL-SAKAUYE, J.
A jury found defendant John Krestan Stokke not guilty of attempted murder, but guilty of attempted voluntary manslaughter. The jury also found defendant guilty of assault with a deadly weapon and of discharging a firearm with gross negligence. As to the attempted manslaughter and assault convictions, the jury found true special allegations defendant had personally inflicted great bodily injury and had personally used a firearm. As to the manslaughter conviction, the jury also found defendant had personally and intentionally discharged a firearm, which proximately caused great bodily injury.
At sentencing the trial court dismissed the Penal Code section 12022.53, subdivision (d), special allegation as inapplicable to manslaughter. It then sentenced defendant to state prison for the midterm of three years for his attempted manslaughter conviction. It added a consecutive three-year term for the section 12022.7, subdivision (a), enhancement and a consecutive four-year term for the section 12022.5, subdivision (a), enhancement for a total prison term of 10 years. The trial court imposed, but stayed under section 654, a total concurrent prison term of 10 years for defendant’s assault with a deadly weapon conviction and its enhancements. The trial court imposed, but stayed under section 654, a consecutive eight months as one-third of the midterm for defendant’s discharge of firearm with gross negligence.
Hereafter, undesignated statutory references are to the Penal Code.
On appeal, defendant claims (1) trial court error in refusing his requested special jury instruction regarding evidence of the victim’s assaultive, aggressive or violent acts and (2) ineffective assistance of counsel in defense counsel’s failure to object to the trial court’s giving of CALJIC No. 2.62. Rejecting these claims, we shall affirm the judgment.
FACTUAL BACKGROUND
Defendant shot his housemate, Lucas Brown, on June 7, 2005. When Trinity County Sheriff deputies arrived, defendant was standing by the road. He pointed down his driveway and told them Brown had been shot. When asked who shot Brown, defendant calmly told the deputies he did. Once an ambulance arrived to attend Brown, the deputies talked to defendant about what had happened.
Defendant started by talking about Steven Raines, who had formerly lived in a trailer on defendant’s property. Defendant had asked him to leave because he was not paying his rent, but defendant discovered on June 7 that he was back on defendant’s property. Defendant was frustrated and mad. The same day defendant also discovered someone had kicked in a door to a shed on his property. Defendant thought it was Brown who had done this. Defendant was upset and tired of people taking advantage of him. When defendant returned to his trailer, he realized Brown was in the shower. Defendant thought he was taking too long. As it was costing defendant money to heat the water, defendant went out to the pump house, turned off the water, and returned to his trailer. Brown came out of the shower yelling at defendant for turning the water off and saying something about burning defendant’s house down. Defendant told the deputies he “flipped out.” He went outside, got his gun, returned and shot Brown. As Brown reached for defendant, defendant shot him a second time. Defendant said he did not know why he shot Brown a third time. Defendant showed the deputies where he had stashed the gun and the ammunition.
According to Deputy Whitman, defendant did not tell the deputies that Brown attacked him or that he acted in self-defense. Defendant had no observable injuries and did not appear to be upset.
Two days later, Trinity County Sheriff Sergeant Eric Palmer received a note from the jail indicating defendant wished to talk to him. Palmer spoke to defendant after advising defendant of his rights. Defendant explained his frustration with the high electricity bills that he was paying for the power used on his property. On the day of the shooting, he was upset when he found the door to the shed where the power switch was located had been kicked in. He became more upset when he discovered Raines was back on his property after he had kicked him off. When Brown took too long of a shower, defendant turned off the water, but turned it back on at the request of another housemate. Brown, however, was still angry. When Brown made the comment about burning the house down, defendant said he was in a “blind rage.” He decided to get his gun to do some target practice to blow off steam. He got his rifle from outside and went back inside. Defendant said to Brown, “You got something to say now.” Brown responded in a sarcastic voice, “Oh, you have a gun now.” Defendant then heard Brown charging him from the bedroom/bathroom area of the trailer. According to defendant, he turned, saw Brown, and was “super scared.” Defendant fired his gun, but Brown continued through the bathroom door toward defendant, reaching for him and the rifle. Defendant fired two more rounds in rapid succession. Brown fell to the floor. Defendant told the other people in the trailer that Brown needed help and he tried to call 911, but he was too shaky. He asked another person to make the call and went outside to stash the gun so no one else would get hurt. Defendant claimed he was calm about the whole thing because he knew the shooting was in self-defense.
At trial, Brown testified he was taking a shower on the day of the shooting for about 10 minutes. Defendant had never told him not to take a shower and had never complained about the length of his showers. Nevertheless, the water went off as Brown was soaping up. Brown got out and dried off. Brown “might have” yelled and cursed when it was difficult to get dressed because of the soap still on him. He heard a commotion as he was getting dressed. The next thing he heard was defendant saying he had a gun. Brown testified he replied, “If you have a gun, I can’t let you go outside.” As soon as he said that, he got shot. He was shot twice in the stomach. Brown asked, “Why the fuck are you shooting me?” He opened the bathroom door and saw defendant with a gun. Brown tried to get the gun, but was shot a couple more times. He was shot in the shoulder and hand. After defendant shot him, defendant said, “Oh, my God. I shot Luke. Call 911.” Brown remembered cops coming in, being wheeled out to an ambulance, and then going in a helicopter to the hospital, where he stayed for nine days. Brown testified that prior to being shot, he did not have any arguments or fights with defendant and did not threaten defendant.
Laura Bloss, another housemate of defendant, was in the trailer at the time of the shooting. At defendant’s trial she testified she heard Brown and defendant hollering back and forth after defendant turned the water off when Brown was showering. She could not hear what defendant said, but his tone was angry. She heard Brown tell defendant, “Go ahead” “shoot me.” She heard some pop sounds - gun shots. A couple of bullets went flying past where she was standing. She went out to see what was going on and saw defendant with a gun in his hand. Defendant threw the gun down and grabbed the phone. He handed it to Bloss and told her to call 911. She handed it to another person who was present and went to Brown with some towels to put pressure on his wounds.
Glenda Raines, mother of Steven Raines, testified at defendant’s trial. Among other things, she testified that when she heard someone yelling Brown had been shot, she asked who had shot him. Defendant told her “You’re looking at it” and then said to her son “You’re next.”
At trial, defendant essentially repeated the version of events he had described to Sergeant Palmer. He added further details. For example, defendant testified that when Brown was yelling at him after defendant turned off the water, defendant yelled back, “I don’t need this right now. [Raines is back] on the property.” Brown continued to yell and defendant heard him threaten to burn the house down. Defendant did not respond to him. Defendant was mad, but frightened of Brown, who was younger, taller and much heavier than defendant was. Defendant knew Brown was capable of doing something when in a temper. Defendant left the house and grabbed his rifle, intending to go to a part of his property where no one lived to relieve some tension by shooting. He went back into the house because he needed more ammunition. He did not know why he said, “Say something now, Lucas” as he entered. He denied he was trying to call Brown out or incite a fight. Brown called back, “Oh, you’ve got a gun.” Defendant heard someone running at him. He turned and saw it was Brown. Defendant was fearful for his life or at least of being hurt very badly. He could not run because of his physical disabilities. He fired the gun he was carrying and Brown initially went down, but then lunged at defendant again. Defendant fired another time. When he was later in the patrol car, defendant claimed he said to one of the deputies something like, “Why did he charge me?”
Defendant presented several witnesses to testify regarding his mental health issues. His half sister testified defendant’s mother was an alcoholic who drank heavily while she was pregnant with defendant. Dr. Fred Bookstein, an expert on fetal alcohol spectrum disorders (FASD), testified he had reviewed scans of defendant’s brain and that beyond a reasonable doubt defendant suffered brain damage caused by heavy prenatal alcohol exposure. He described the characteristics of persons with FASD as including, among other things, impulsive behavior, difficulty with anger, mood swings, overreaction, and a lack of awareness of consequences. He opined that much of defendant’s behavior in connection with the shooting could be attributed to his prenatal exposure to alcohol rather than to willfulness or premeditation. Dr. McGee-Williams, a clinical neuropsychologist, tested and evaluated defendant. He diagnosed defendant as having chronic depression, low-level bipolar disorder without manic episodes, cyclic mood disorder, major anxiety disorder and some obsessive compulsive features. It was his opinion that defendant did not develop an intent to kill or premeditate killing Brown, but acted impulsively.
One of defendant’s character witnesses, Serena Fahnestock, not only testified to defendant’s honesty, but testified she had come into contact with Brown on a couple of occasions and “he was a bully every single occasion.” He frightened her and her son. On at least one occasion, Brown had advanced on her as if to attack her. Fahnestock admitted she had never had to defend herself from Brown; she just left.
DISCUSSION
I.
The Trial Court Did Not Err In Refusing Defendant’s Special Jury Instruction
Defendant requested the trial court give the following special jury instruction: “Evidence was received of assaultive, aggressive or violent acts committed by _____[victim] upon _____ [defendant]. This evidence may be considered by you for two purposes: [¶] (1) To prove that ______[victim] had an assaultive, aggressive or violent character and that [he] [she] acted in conformity with such character on _____, 19__; [¶] (2) As relevant to _______’s [defendant] honest and reasonable belief in the necessity to defend [himself] [herself] against death or great bodily injury at the hands of _______[victim].” Defendant claims on appeal the trial court’s refusal to give such instruction is reversible error. We disagree.
A judge must give jury instructions requested by the defense and relevant to its theory of the case if they are correct in the law and supported by some evidence. (People v. Dieguez (2001) 89 Cal.App.4th 266, 277 [trial court may refuse to give an entirely accurate instruction if there is no evidence to support it]; see 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 607, pp. 866-867.)
Here defendant claims the instruction was necessary because of the evidence defendant knew Brown had a history of being aggressive and had been in prison, Brown had been a bully to Fahnestock and her son in the past, on one occasion coming at her as if to attack, and from the testimony of Brown himself regarding his prior troubles with the law, fights in Weaverville, and history of physical conflicts with jail personnel while he was in custody. However, all of such evidence relates to Brown’s aggression to third parties. Defendant’s proposed instruction asserted: “Evidence was received of assaultive, aggressive or violent acts committed by _____[victim] upon _____ [defendant].” There was no evidence received that Brown had committed assaultive, aggressive or violent acts upon defendant. In fact, Brown testified he had had no previous arguments with defendant, never threatened defendant, and never had any fights with defendant. Defendant agreed. Defendant testified that prior to the shower incident, he had no arguments with Brown. Defendant said Brown never threatened him and he never had problems with Brown being aggressive with him. No other witness testified to aggressive or violent acts by Brown towards defendant. Therefore, we need not address whether defendant’s proposed instruction was a proper pinpoint instruction (see People v. Wharton (1991) 53 Cal.3d 522, 570; People v. Wright (1988) 45 Cal.3d 1126, 1135-1137) because no evidence supported it. Thus, the trial court appropriately declined to give it.
II.
Defense Counsel Was Not Ineffective In Failing To Object To The Trial Court’s Giving Of CALJIC No. 2.62
The trial court instructed the jury with CALJIC No. 2.62, which allows the jury to draw adverse inferences from defendant’s failure to explain or deny evidence against him introduced by the prosecution. Defendant claims his trial counsel was ineffective for failing to object to the giving of this instruction, as there was no evidence to support it.
The trial court instructed the jury as follows: “In this case defendant has testified to certain matters. [¶] If you find that the defendant failed to explain or deny any evidence against him introduced by the prosecution which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of this evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are more probable. [¶] The failure of a defendant to deny or explain evidence against him does not, by itself, warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt. [¶] If a defendant does not have the knowledge that he would need to deny or to explain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain this evidence.” (Brackets omitted.)
“To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. [Citation.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ (Strickland v. Washington (1984) 466 U.S. 668, 694 [104 S.Ct. 2052, 2068, 80 L.Ed.2d 674].)” (People v. Scott (1997) 15 Cal.4th 1188, 1212.) A court need not consider the two prongs in a particular order. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, the court may consider that first without deciding whether counsel’s performance was deficient. (In re Alvernaz (1992) 2 Cal.4th 924, 945, citing Strickland v. Washington[, supra, ] 466 U.S. 668, 697 [80 L.Ed.2d 674, 700].)
“‘It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference [citation].’ [Citation.]” (People v. Saddler (1979) 24 Cal.3d 671, 681.) When there is no prosecutorial evidence that is within the defendant’s knowledge that defendant fails to explain or deny, it is error to give CALJIC No. 2.62. (People v. Saddler, supra, at pp. 682-683.) Assuming without deciding the trial court erred in giving CALJIC No. 2.62 in this case, such error was harmless and there is insufficient prejudice from counsel’s failure to object to show ineffective assistance of counsel.
When CALJIC No. 2.62 is erroneously given, the error is subject to the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Saddler, supra, 24 Cal.3d at p. 683; People v. Lamer (2003) 110 Cal.App.4th 1463, 1471-1472.)
In applying this standard, we find persuasive the analysis in Lamer, supra, 110 Cal.App.4th at p. 1472 : “Although . . . courts have frequently found giving CALJIC No. 2.62 to constitute error, we have not found a single case in which an appellate court found the error to be reversible under the Watson standard. On the contrary, courts have routinely found that the improper giving of CALJIC No. 2.62 constitutes harmless error. (See, e.g., Saddler, supra, 24 Cal.3d at p. 684; People v. James [1987] 196 Cal.App.3d [272,] 296; People v. Marsh [1985] 175 Cal.App.3d [987,] 994; People v. Peters (1982) 128 Cal.App.3d 75, 83–87 [180 Cal.Rptr.76] [all concluding that CALJIC No. 2.62 was improperly but harmlessly given].) [¶] One reason courts have found the improper giving of CALJIC No. 2.62 to be harmless is that the text of the instruction itself tells the jury that it would be unreasonable to draw an adverse inference if the defendant lacks the knowledge needed to explain or deny the evidence against him. As the court in People v. Ballard (1991) 1 Cal.App.4th 752, 756 [2 Cal.Rptr.2d 316], noted: ‘CALJIC No. 2.62 does not direct the jury to draw an adverse inference. It applies only if the jury finds that the defendant failed to explain or deny evidence. It contains other portions favorable to the defense (suggesting when it would be unreasonable to draw the inference; and cautioning that the failure to deny or explain evidence does not create a presumption of guilt, or by itself warrant an inference of guilt, nor relieve the prosecution of the burden of proving every essential element of the crime beyond a reasonable doubt).’ In addition, courts have noted that the fact that juries are instructed, pursuant to CALJIC No. 17.31, to ‘disregard any instruction which applies to a state of facts which you determine does not exist,’ also mitigates any prejudicial effect related to the improper giving of CALJIC No. 2.62. (Saddler, supra, 24 Cal.3d at p. 684.)”
For these same reasons, we are convinced the giving of CALJIC No. 2.62 here, if it was even error, was harmless error. We also conclude there is no reasonable probability that, but for counsel’s failing to object to such instruction, the result would have been more favorable to the defendant. (People v. Scott, supra, 15 Cal.4th at pp. 1211-1212.)
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, Acting P.J., BUTZ, J.