Opinion
A139754
01-23-2017
THE PEOPLE, Plaintiff and Respondent, v. JACKSON EARL SURBER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR1102131B)
Following two jury trials, defendant Jackson Earl Surber was convicted of various felonies and attendant special allegations, including first degree felony-murder (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17)(G) [burglary special circumstances], and attempted voluntary manslaughter (§§ 192, subd. (a), 664.) The trial court sentenced defendant to a determinate term of 29 years, 6 months, consecutive to an indeterminate term of life without the possibility of parole, plus 25 years to life.
All further undesignated statutory references are to the Penal Code.
Defendant contends the trial court prejudicially erred in the first trial by giving confusing self-defense jury instructions. He also contends the trial court prejudicially erred in the second trial by barring his claim of self-defense vis-à-vis the felony-murder charge.
I. PROCEDURAL BACKGROUND
In 2011, defendant was charged by information with the first degree murder of Darrell Jay Hanger, Sr. (§ 187, subd. (a) [count 1]) with the use of a firearm causing great bodily injury and death (§ 12022.53, subd. (d)), during the commission of a felony (§ 190.2, subd. (a)(17)(G) [burglary]); attempted murder of Darrell Ryan Hanger (§§ 187, subd. (a), 664 [count 2]) with the use of a firearm (§ 12022.53, subd. (c)); first degree residential burglary (§ 459 [count 3]); first degree burglary with a person present (§ 459 [count 4]) with the use of firearm (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)(1)); conspiracy to commit residential burglary (§§ 182, subd. (a)(1)), 459 & 460, subd. (a)) [count 5]) with the use of a firearm (§ 12022, subd. (a)(1)); vehicle theft (Veh. Code, § 10851, subd. (a) [count 6]); being a felon in possession of a firearm (§ 12021, subd. (a)(1) [count 7]; and being a felon in possession of ammunition (§ 12316, subd. (b)(1) [count 8].) In August 2012, a jury acquitted defendant of attempted murder, convicted him of the lesser included offense of attempted voluntary manslaughter (count 2), and found true the firearm use allegation, convicted him of counts 3, 4, 5, 7, and 8, the jury found true the attendant allegations, and acquitted him of vehicle theft (count 6). The jury, however, could not reach a verdict on the murder count (count 1). The trial court declared a mistrial as to the murder count.
The information charged co-defendants Sonia Hunsucker and Samantha Machado with the same offenses. A first amended information was filed in 2012. Co-defendant Hunsucker pleaded guilty to second-degree murder before the commencement of trial.
In 2012, defendant was charged by second amended information with a single count of murder and attendant special allegations. In 2013, the second jury convicted defendant of the first degree murder of Darrell Jay Hanger, Sr. (§ 187, subd. (a)) and found true the allegations he committed this crime during the commission of a felony (§ 190.2, subd. (a)(17)(G) [burglary]), with the use of a firearm causing great bodily injury and death (§ 12022.53, subd. (d)). The trial court sentenced defendant to a determinate term of 29 years, 6 months, consecutive to an indeterminate term of life without the possibility of parole, plus 25 years to life.
II. FACTUAL BACKGROUND
A. First Trial
Prosecution Evidence
Ryan Hanger
Ryan Hanger grew up on Sunset Place in Willow Creek, a rural area in Humboldt County. In 2011 he lived at 480 Sunset Place, with his wife and one-year old child; his parents still lived in his childhood home, just a few houses up the street. On the morning of May 4, 2011, Ryan received a call from his mother that his house had been burglarized.
The victims are father and son, who share the same first and last names. For purposes of clarity, we shall refer to Darrell Jay Hanger, Sr. as "Darrell," and Darrell Ryan Hanger as "Ryan."
Ryan arrived home about noon to find a window and door broken; two guns and various electronics were missing. Later, that same day, Humboldt County Deputy Sheriff David Brooks came out to Ryan's house and took a burglary report. The house appeared to have been ransacked. Ryan's father, Darrell, was at the house and was very angry about the burglary and the police response time. Ryan was "shaken up" about the invasion of his privacy and the items taken from his house.
A neighbor, Clark Decker, helped cover the rear door of the house with a board. Ryan's wife was scared and did not want to stay at the house with their young child. Ryan returned to the house with Darrell around 9:00 p.m. Ryan and Darrell decided to spend the night there because the back door of the home had been broken and would not close. They took three guns with them: a .44-magnum, a .357-caliber, and .22 caliber. Decker was on standby to help out if he got a call from Darrell.
Ryan and Darrell went to sleep around 9:30 p.m. Ryan slept in the bedroom, while Darrell slept on the couch. About 1:00 a.m., Ryan was awakened by the sound of a vehicle approaching his residence. He then saw a pickup truck pull into his garage. Ryan could hear doors opening and people talking. He laid in his bed for a few seconds and then heard people walking on his back porch. Ryan grabbed the .44-caliber revolver and woke up his father, Darrell. Darrell grabbed the .357-caliber revolver and went out the front door. Ryan followed Darrell out the door. Darrell was angry and yelled something like, "You thieving bastards," and "Get the fuck out of the car."
Darrell shot out the left rear tire on the truck parked in the carport. Ryan heard a girl screaming, "Don't shoot." Ryan saw that the pickup truck was trying to back out of the carport and heard the engine revving. Darrell had gone into the carport. There was yelling back and forth. At some point the front tire was shot out. Bullets started to be fired from inside the truck. Ryan saw his father getting shot. As Ryan crawled back behind his own truck, bullets were being fired all around him. Ryan fired two shots at the pickup truck. He ran into the house, where he reloaded his gun. Ryan discovered that he had been hit in the ankle.
Neighbors
Clark Decker woke up to shots being fired and a lot of yelling. He ran out his house and saw two guys running up the road; one them of was injured. Decker went to Ryan's house and checked on Darrell. Decker saw Ryan; he was upset and said, "They killed my dad."
Other neighbors were woken up by the sound of gunshots. Doris Neal, who lived three houses away, heard rapid gunshots and saw two people trying to climb her fence. Vernon Neal, Doris's husband, heard six or seven rapid gunshots. Neighbor Kenneth Lance had been getting ready for bed when he heard rapid shots. He ran outside and heard people trying to climb a fence.
Police Investigation
At approximately 1:30 a.m. on May 5, 2011, Humboldt County Deputy Sheriff Joseph Conlin responded to a call of shots fired at a residence in Willow Creek. When he arrived at the scene, he saw a Ford pickup truck in front of the house, and a Toyota pickup truck partially in the carport, with two flat tires. Darrell Hanger was laying on the ground, half under the Ford. Darrell had a bullet hole in his upper abdominal region. There was a silver revolver near the body and a black revolver on the steps of the residence.
Karen Quenell, a criminalist with the Humboldt County Sheriff's Department, arrived at the scene and took photographs. She photographed Ryan Hanger's ankle injury and collected swabs of blood drops near the residence. Inside the Toyota pickup truck, she saw a 9mm semiautomatic pistol on the right rear floorboard. There was a bullet hole in the windshield and the ignition like it had been damaged or "punched out." A pink purse was found on the front passenger floorboard. There were multiple expended 9mm bullet casings. Inside the left rear door compartment, there were 238 cartridges for a .22 caliber revolver. A throwing knife and folding knife were also inside the truck. There was a bullet hole in the interior panel of the driver's door.
Inside the house, there was a fully loaded .22 semiautomatic pistol on the living room floor. There were two expended .44 caliber casings on the bedroom floor. A box of .357 magnum cartridges was on the floor, near the fireplace. On a subsequent visit to the residence, Quenell found an expended bullet in the kitchen wall. She photographed holes in the carport wall. Small metal fragments were lodged in the carport wall.
Forensic pathologist, Mark Super, testified that he performed an autopsy on Darrell Hanger. The cause of death was multiple gunshot wounds. There was a bullet inside the victim's body. The victim had four bullet wounds. One bullet struck the ground before hitting the victim's arm. One bullet struck and broke his left femur. A wound to the back occurred after the victim was on the ground.
On May 5, 2011, Humboldt County Sheriff detective Rich Schlesiger was returning to the scene, when he saw defendant and Sonia Hunsucker walking on Patterson Road. Detective Schlesiger knew Hunsucker from a prior law enforcement contact. She said, " 'I fucked up, Rich, but Jack and I did not shoot.' " Defendant and Hunsucker were handcuffed and taken to the station.
At the station, defendant was interviewed by Detective Schlesiger and Lieutenant Morey. A recording of the interview was played for the jury. During the interview, defendant acknowledged that he was a methamphetamine addict. He had not eaten or slept for two days. Defendant said that he and his three friends broke into the residence the first time by breaking the window on the back door. They went back to the house the next night because they thought no one was home. Defendant said that they were trying to leave when the shooting started. Shots came through the truck window and he was hit in his eye. Defendant said he fired in self-defense and had not meant to hurt anyone. He repeated that no one was supposed to get hurt. All he was trying to do was to "get out of there." He again said that no one was supposed to be there.
Defense Evidence
At approximately 11:30 a.m. on May 5, 2011, Charles Hames was hitchhiking near Willow Creek. Darrell Hanger pulled up and said that his house had been robbed that he heard Hames had been involved. Darrell was irritated and angry. Darrell told Hames to spread the word to let the people responsible for the break-in know that he would shoot them if they came back.
Defendant's Testimony
Defendant testified that he was a methamphetamine user and that he had served time in prison for firearm possession. He first saw the Toyota Tacoma pickup truck two days before the first burglary that occurred on May 4, 2011. Defendant had no part in taking the truck, and he never drove it.
On May 4, 2011, defendant, along with Sonia Hunsucker, Jason Hunsucker, and Samantha Machado, burglarized a house in Willow Creek that appeared to be empty. They pulled in and waited for a minute to make sure the house was empty. They went around to the back door and broke a window. While everyone was "grabbing stuff from inside the house, defendant quickly looked around and went back outside. He "grabbed" some snack foods from the back porch and loaded it into the truck. He thought the others had taken weapons from inside the house.
The four left and drove back to Hoopa, where they sold some of the stolen items, used methamphetamine, and eventually separated. They met up again later that night at a house in Hoopa. Shortly after midnight on May 5th, they returned to the house in Willow Creek to see what else they could take. When they pulled into the carport, the lights were off, and the house looked the same as it did the previous night. However, when defendant went to the back door, he saw that it been boarded up. Upon seeing this, he immediately turned around and quickly made his way back to the truck. On his way back to the truck, defendant told everyone, " 'Get back in the truck. Get back in the truck.' "
At this point, Jason was still inside the truck, Samantha was outside the truck on the passenger side, and Sonia was on her way to the front of the house. As he was returning to the truck, defendant heard Sonia say, "Hey" several times. While he was getting inside the truck, defendant heard a gunshot. He estimated that only 10 to 15 seconds had passed from the time they arrived at the house and when the gunshots began.
Once everyone was in the truck, defendant heard Sonia say something like "they was shooting at us or shot at her . . . ." As the truck started to back out a little ways, it stalled. After the truck stalled, a man in a white shirt went to the passenger side, pulled Samantha out, slammed her down on the ground, and pointed a gun at her. The man was yelling, " 'You fucking bastards, get out of the truck and get on the ground.' " Defendant said the man also kept yelling that he "was going to show us what they do with thieves around here." Inside of the truck, Sonia was saying, " 'Don't shoot. Don't shoot.' " About this time, defendant noticed another person standing at the back passenger side of the truck, with a gun pointing into the truck.
When Jason tried to start the truck, the man in the white shirt let Samantha go, and he moved to the driver's side. Samantha got back in the truck and both of the men outside circled around to the driver's side. Once the truck started to move, more shots were fired. Defendant saw a muzzle flash outside his window, the window broke, and defendant was hit in the face.
About the same time defendant was hit in the face, he heard Jason screaming that he had been shot. At this point, defendant began to shoot back with the 9mm that had been in the left rear door pocket. Defendant fired through his broken window toward the muzzle flashes. The girls in the truck were screaming "don't shoot." Defendant was not sure exactly what he had been thinking when he fired the gun, but he felt very scared and afraid that he and his friends were "all going to die."
About the same time that defendant ran out of ammunition, the truck stalled. Samantha and Jason fled down the street, while defendant and Sonia cut through a yard into a field. Defendant and Sonia were arrested the next day as they were walking to defendant's cousin's house. After giving his statement to the police, defendant was taken to the hospital where his eye injury was treated. B. Second Trial
The second trial included much of the same evidence as in the first trial, with a few exceptions. Accordingly, a somewhat abbreviated synopsis of the evidence in the second trial is presented.
Deputy Brooks again testified regarding the initial burglary report on May 4, 2011. Deputy Brooks also said that he had talked with Ryan Hanger about the potential for the burglars to return. Ryan testified about learning of the burglary and his observations upon arriving home.
Neighbor Clark Decker again described how he helped Darrell Hanger patch the back door. Decker said he went to bed about 11:00 p.m. on May 4, 2011. He told an officer that the plan was that, when he got a call from the Hangers, he would "run down there" with a gun, and they would see if they could "surround these bastards." Decker added that they "were going to detain these people if they showed up." At the second trial, Decker described two large caliber shots, shots from a smaller pistol, and a final shot after a pause. Decker also told a defense investigator that he was familiar with firearms and first heard three or four shots from a revolver belonging to the Hangers. After these shots, there were successive shots from a semi-automatic. Decker confirmed that he heard no shots after the "fast bursts."
Ryan testified about the events of the evening of May 4, 2011. He said that his wife did not feel safe spending the night at the house. So, Ryan and his father, Darrell, decided to spend the night there armed with a .44 revolver and .357 revolver. Ryan again described the arrival of the burglars. His new testimony was that he only fired at the Toyota after the shots from inside the truck had stopped. He said that after the shooting stopped, he "stood up over the back" of his truck and shot at the Toyota as he walked to his house. Ryan "dove inside" the house and locked the door.
In addition to the testimony of neighbors Kenneth Lance, Doris and Vern Neal, Mel Woodard testified that he heard approximately a dozen shots from an automatic weapon.
The second jury also heard from a new defense witness, Scott Fraser, M.D., a neurophysiologist, who testified about the "Human Alarm Reaction Pattern," which is commonly known as the "fight-or-flight syndrome." Dr. Fraser explained the "flight or fight" response happens in milliseconds and is "almost irrepressible." He also said that people tend to be more easily frightened in darkness. Also, people under stress often forget details of the event.
III. DISCUSSION
Defendant contends the trial court erred at the first trial by giving CALCRIM No. 3477 because it created a presumption shifting the burden onto defendant to show the unreasonableness of the Hangers' conduct, and the reasonableness of his own. He further asserts the trial court erred in refusing to give a modified version of CALCRIM No. 506, which would have advised the jury that use of deadly force by private citizens is only justified under limited circumstances. Finally, he claims the court erred at the second trial in failing to instruct the jury on self-defense and malice in relation to the felony murder theory. A. Standard of Review
In reviewing defendant's claims of instructional error we conduct an independent review. (People v. Cooksey (2002) 95 Cal.App.4th 1407, 1411.) "If a trial court's instructional error violates the United States Constitution, the standard stated in Chapman v. California (1967) 386 U.S. 18, 24 [], requires the People, in order to avoid reversal of the judgment, to 'prove beyond a reasonable doubt that the error . . . did not contribute to the verdict obtained.' [Citation.] But if a trial court's instructional error violates only California law, the standard is that stated in People v. Watson (1956) 46 Cal.2d 818, 836 [], which permits the People to avoid reversal unless 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' [Citation.]" (People v. Mower (2002) 28 Cal.4th 457, 484.)
It is error to give an instruction that correctly states a principle of law but has no application to the facts of the case. (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) However, if this is the only error, it is one of state law subject to the test articulated in People v. Watson, supra, 46 Cal.2d 818. (People v. Guiton, supra, 4 Cal.4th at pp. 1129-1130.) "[S]uch an error is usually harmless, having little or no effect 'other than to add to the bulk of the charge.' [Citation.] There is ground for concern only when an abstract or irrelevant instruction creates a substantial risk of misleading the jury to the defendant's prejudice." (People v. Rollo (1977) 20 Cal.3d 109, 123, superseded by constitutional amendment on another ground as stated in People v. Castro (1985) 38 Cal.3d 301, 307-308.) "In determining whether there was prejudice, the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict. [Citation.]" (People v. Guiton, supra, 4 Cal.4th at p. 1130.) B. CALCRIM No. 3477
At the first trial, the court instructed the jury with CALCRIM No. 3477, which discusses a resident's right to use deadly force against an intruder based on the presumption that the resident was reasonably afraid of death or great bodily injury. The following modified version was given in the first trial: "The law presumes that a resident reasonably feared imminent death or great bodily injury to himself, or to a member of his family or household, if: [¶] 1. An intruder unlawfully and forcibly entered or was entering the resident's home; [¶] 2. The resident knew or reasonably believed that an intruder unlawfully and forcibly entered or was entering the resident's home; [¶]3. The intruder was not a member of the resident's household or family; [¶] AND [¶] 4. The resident used force intended to or likely to cause death or great bodily injury to the intruder inside the home. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] The People have the burden of proving that the residents had a reasonable fear of imminent death or injury to themselves, or to a member of their family or household, when they used force against the intruders. If the People have not met this burden, you must find that the residents did not reasonably fear death or injury to themselves, or to a member of their family or household."
CALCRIM No. 3477 is based on section 198.5, enacted in 1984 and entitled the Home Protection Bill of Rights. Section 198.5 provides in pertinent part: "Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred." Defendant contends that the trial court erroneously instructed the jury pursuant to CALCRIM No. 3477 regarding the presumption that a resident was reasonably afraid of death or great bodily injury.
Defendant, without citation to authority, asserts this presumption is only appropriate to help residents resist criminal prosecution, but not to cases such as this, where the intruder is being prosecuted for injuring and killing the residents. According to defendant, using the presumption against him creates an unconstitutional presumption that the Hangers' use of force was justified, and consequently defendant's use of force against the Hangers was objectively unreasonable. We disagree. The jury was specifically told that the People had the burden of proving beyond a reasonable doubt that the Hangers had a reasonable fear of imminent death or injury and that if the People did not meet this burden the jury was required to find that the Hangers did not have this reasonable fear. (See CALCRIM No. 3477.) Nothing in CALCRIM No. 3477 shifted the burden of proof to defendant or otherwise compelled the jury to presume that the Hangers had a reasonable fear of great bodily injury or death. Moreover, the jury was instructed that the People were required to prove beyond a reasonable doubt each element of the crimes against defendant and that defendant was not acting in self-defense. (See CALCRIM Nos. 220, 505, 571, 580, 604, 3474.)
Inasmuch as defendant's claim of constitutional error fails, we do not apply the Chapman standard of error. (Chapman v. California, supra, 386 U.S. 18, 24).
Aside from his constitutional challenge, defendant contends the trial court erred in giving CALCRIM No. 3477 because there was no substantial evidence that he forcibly entered the residence. We agree, but as we will explain, it is not reasonably probable that a verdict more favorable to defendant would have resulted absent this error.
"For section 198.5 to apply, four elements must be met. There must be an unlawful and forcible entry into a residence; the entry must be by someone who is not a member of the family or the household; the residential occupant must have used 'deadly' force (as defined in § 198.5) against the [intruder] within the residence; and finally, the residential occupant must have had knowledge of the unlawful and forcible entry." (People v. Brown (1992) 6 Cal.App.4th 1489, 1494-1495; see People v. Hardin (2000) 85 Cal.App.4th 625, 633, fn. 5.) A residential occupant, however, is not entitled to the benefit of the presumption, unless each of these elements is present in a given case. (People v. Curtis (1994) 30 Cal.App.4th 1337, 1361-1362; People v. Brown, supra, 6 Cal.App.4th at pp. 1494-1499, CALCRIM No. 3477, § 198.5)
Here, there is no evidence that defendant forcibly entered the residence. In this case, however, the jury was not told that defendant had no right to self-defense if the Hangers' actions were lawful. Instead, the court instructed the jury on the right to self-defense and imperfect self-defense pursuant to CALCRIM Nos. 505, 571, and 604 without reference to the presumption set forth in CALCRIM No. 3477.
Given that CALCRIM No. 3477 was factually inapplicable and because the jury was not told the instruction has any bearing on the legality of defendant's conduct, we find that utilization of this instruction insufficient to establish any possibility of prejudice or to overcome the presumption that the jury followed the court's instructions. (See People v. Sanchez (2001) 26 Cal.4th 834, 852 ["Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions"].) We also note the trial court instructed the jury that such irrelevance was possible: "Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them." (CALCRIM No. 200.) Thus, even had CALCRIM No. 3477 not been given, it is not reasonably probable that a verdict more favorable to defendant would have resulted. (People v. Watson, supra, 46 Cal.2d at p. 836.) C. CALCRIM No. 506
Defendant further asserts that the court erroneously instructed the jury regarding the habitation defense at the first trial. The habitation defense is derived from section 197, which states, in part: "Homicide is . . . justifiable when committed by any person in any of the following cases: [¶] . . . [¶] When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous, or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein . . . ." (§ 197.)
"Defense of habitation applies where the [person] uses reasonable force to exclude someone he or she reasonably believes is trespassing in, or about to trespass in, his or her home. However, the intentional use of deadly force merely to protect property is never reasonable. Accordingly, a homicide involving the intentional use of deadly force can never be justified by defense of habitation alone. The [person] must also show either self-defense or defense of others, i.e., that he or she reasonably believed the intruder intended to kill or inflict serious injury on someone in the home." (People v. Curtis, supra, 30 Cal.App.4th at p. 1360.) "Like traditional self-defense, . . . defense of habitation applies only if the [person's] belief that a trespass is occurring or about to occur is reasonable." (Id. at p. 1361.)
The " 'right of defending one's dwelling is in some sense superior to that of the defense of his person; for in the latter case it is frequently the duty of the assaulted to flee, if the fierceness of the assault will permit, while in the former a man assaulted in his dwelling is not obliged to retreat, but may stand his ground, defend his possession and use such means as are absolutely necessary to repel the assailant from his house, even to the taking of life.' " (People v. Hubbard (1923) 64 Cal.App. 27, 36.)
Here, defense counsel requested that the trial court instruct the jury on the defense of habitation pursuant to a modified version of CALCRIM No. 506. Defense counsel argued that CALCRIM No. 506 was meant to provide a defense to a criminal defendant, however the People were using this instruction against defendant to "bolster" its case that the Hangers' conduct was reasonable. Defense counsel asserted that this instruction impermissibly shifted the burden to defendant. Relying on Garner, supra, 471 U.S. 1, defense counsel argued that the instruction required modification for the jury to determine "whether or not the use of force by the Hangers was justified, lawful, or reasonable." The trial court declined the modification, determining that Garner applied to a different set of circumstances. We agree.
The proposed instruction read as follows: "You are instructed that both Darrell Hanger and Ryan Hanger were legal occupants of the premises which was the scene of the events that took place in this case. [¶] A lawful occupant of a home may use deadly force to resist an intruder only in those circumstances where a reasonable person would believe that there was imminent danger that the intruder has enter[ed] the home or is attempting to enter the home intending to commit an act of violence against someone inside. The mere commission or attempted commission of a burglary, that is the entry or attempted entry into a home to commit a crime does not, by itself, reasonably create a belief that there will be an imminent danger of an act of violence against the occupant. [¶] In addition, the lawful occupant of a home may only use deadly force in attempting to prevent the escape of a fleeing intruder under circumstances that would lead a reasonable person to believe that the suspect [poses] a significant threat of death or serious physical injury to himself or others. Use of deadly force by a homeowner under any other circumstance is not justified. [¶] You are further instructed that in discharging their firearms under the circumstances of this case both Darrell Hanger and Ryan Hanger were using deadly force. If you find there is a reasonable doubt as to whether the defendant, in his use of deadly force were responding to the use of deadly force by either Darrell Hanger or Ryan Hanger, it would then be the burden of the People to prove beyond a reasonable doubt that the use of deadly force by either Darrell Hanger or Ryan Hanger to which the defendant was responding was justified. CALCRIM 506; CALJIC 5.40; CALJIC 5.16; CALJIC 5.42; Tennessee v. Garner 4 [(1985)] 71 U.S. 1 [(Garner)]; People v. Ceballos (1974) 12 Cal.3d 470 [Ceballos)]; People v. Martin (1985) 168 Cal.App.3d 1111."
In Garner, supra, 471 U.S. 1, 3, 11, the United States Supreme Court held that in the context of a federal civil rights action, the Fourth Amendment precludes a peace officer from using deadly force against a fleeing felon unless such force is necessary to prevent the escape and the suspect poses a significant threat of death or serious physical injury to the officer or others. There, a police officer shot and killed a suspect fleeing a nighttime residential burglary although reasonably sure the suspect was unarmed. (Id. at pp. 3-4.) The Supreme Court held that use of deadly force under these circumstances constituted an unreasonable seizure under the Fourth Amendment. (Id. at p. 4.)
In the instant case, defendant asserts that the principle of Garner applies because subdivision 4 of section 197 permits the use of deadly force only if by "lawful ways and means"; since Garner holds that the use of deadly force to arrest by a police officer, if excessive under the circumstances, is constitutionally unreasonable, such an arrest by a private citizen, a fortiori, would not be "by lawful ways and means."
"While [Garner] necessarily limits the scope of justification for homicide under section 197, subdivision 4," (People v. Martin, supra, 168 Cal.App.3d 1111, 1124) these limitations have no application to this case. Even assuming for the sake of argument that Garner applies to limit the conduct of private citizens, it did not reject the use of deadly force in all cases: "Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given." (Garner, supra, 471 U.S. at pp. 11-12.)
Defendant maintains that the "proper rule" in California is that a "private . . . citizen is not justified in using deadly force to apprehend a fleeing suspect, even for burglary, when the offense did not threaten death or great bodily injury and the fleeing suspect did not pose an immediate threat of death or serious bodily injury to the arresting person or others." Here, however, defendant, an armed suspect in a nighttime burglary, did pose "an immediate threat of death or serious bodily injury" to the Hangers.
CALCRIM No. 506, entitled "Defending Against Harm to Person Within Home or on Property," as given to the jury, provided, in relevant part: "A person does not unlawfully use deadly force if he or she used force to defend himself, herself or any other person in his or her home. Such a use of deadly force is justified, and therefore not unlawful, if: [¶] 1. The person reasonably believed that he or she was defending a home against someone, who intended to or tried to commit burglary, or violently tried to enter that home intending to commit an act of violence against someone inside; [¶] 2. The person reasonably believed that the danger was imminent; [¶] 3. The person reasonably believed that the use of deadly force was necessary to defend against the danger; [¶] AND [¶] 4. The person used no more force than was reasonably necessary to defend against the danger. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The person must have believed there was imminent danger of violence to himself or someone else. The person's belief must have been reasonable and he must have acted only because of that belief. The person is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the person used more force than was reasonable, then the use of deadly force was not justified . . . [¶] . . . [¶] The People have the burden of proving beyond a reasonable doubt that the use of deadly force was justified. If the People have not met this burden, you may consider whether or not the defendant acted in self-defense."
CALCRIM No. 506 as given to the jury was consistent with limits on the use of deadly force. The touchstone of CALCRIM No. 506's defense of habitation is reasonableness. On the facts of this case, there was substantial evidence that the Hangers reasonably believed they were defending the property and themselves against defendant, who they reasonably believed intended to commit burglary and who posed an imminent danger of violence to them.
Finally, to the extent defendant argues that the use of the People's version of CALCRIM No. 506 improperly shifted the burden to him to prove the reasonableness of the Hangers' conduct, this claim like his constitutional challenge to CALCRIM No. 3477, fails. The jury was specifically told that the People had the burden of proving beyond a reasonable doubt that the Hangers' use of deadly force was justified, and that if the People did not meet this burden the jury could consider whether or not defendant acted in self-defense. The trial court also instructed the jury on self-defense and imperfect self-defense with CALCRIM Nos. 505, 571, and 604. Having convicted defendant of the lesser included crime of attempted voluntary manslaughter of Ryan, the jury necessarily rejected defendant's claim of self-defense and concluded he acted in imperfect self-defense. D. Felony Murder Instructions at the Second Trial
We also reject defendant's passing claim of cumulative error. --------
Defendant argues that the trial court in the second trial erroneously failed to instruct the jury on malice and on self-defense. Neither contention has any merit.
1. Malice
The trial court instructed the jury that "Homicide is the killing of one human being by another. Murder is a type of homicide. The defendant is charged with murder." (CALCRIM No. 500.) The trial court instructed the jury on felony murder, indicating that the defendant would be guilty of first degree murder if the jury found the defendant intended to commit burglary and the victim's death was caused while attempting to commit the burglary, even if the defendant did not intend to kill the victim. (CALCRIM 540A.) The jury was also instructed that defendant could be found guilty of first degree murder based on malice aforethought by intentionally shooting a firearm from a vehicle. (CALCRIM No. 521.) With respect to these alternate theories, the trial court instructed the jury that "You may not find the defendant guilty of murder unless all of you unanimously agree that the People have proved that the defendant committed murder, and unanimously agree that the murder was committed in the commission of a burglary, or unanimously agree the murder was committed with malice aforethought." (CALCRIM NO. 548.)
The jury unanimously found that defendant committed the first degree murder by engaging in the crime of first degree burglary. The jury also unanimously rejected a finding that defendant committed first degree murder with malice aforethought by intentionally discharging a firearm from a vehicle.
Defendant now argues that his first degree murder conviction must be reversed because the instructions allowed the jury to convict him of first degree felony murder without first finding that the murder was committed with malice.
Defendant contends that "under the California Supreme Court's new view of the felony-murder doctrine, felony murder has a malice element," (capitalization omitted) which may have relevance to a claim of imperfect self-defense. According to defendant, the California Supreme Court's decision in People v. Chun (2009) 45 Cal.4th 1172 (Chun) establishes that second degree felony murder has a malice element that should apply with "equal force" to first degree felony murder. We disagree.
Defendant's reliance on Chun is misplaced. In Chun, the court held the merger doctrine precludes assaultive-type crimes from serving as the basis for a second-degree felony-murder instruction. (Chun, supra, 45 Cal.4th at p. 1178.) In reaching this conclusion, the court "highlighted the differences between the sources of the second degree felony-murder rule—the context in which the merger doctrine developed—and the first degree felony-murder rule. In Chun, [the court] recognized that the second degree felony-murder rule reflects a judicial interpretation of section 188's definition of implied malice." (People v. Farley (2009) 46 Cal.4th 1053, 1117 (Farley).) The court cautiously noted that "[b]ecause first degree felony murder is specifically prescribed by statute (§ 189), what we say about the second degree felony-murder rules does not necessarily apply to the first degree felony-murder rule." (Chun, supra, 45 Cal.4th at p. 1189, fn. 6, italics added.)
Indeed, three months after it decided Chun, the California Supreme Court decided Farley and ruled that the merger doctrine clarified in Chun does not apply in first degree felony-murder cases. (Farley, supra, 46 Cal.4th at pp. 1111-1122.) The Farley court explained: "In the context of second degree felony murder, courts must interpret section 188's reference to an " 'abandoned and malignant heart.' " [Citation.] In the context of first degree felony murder, however, there is no need for interpretation of the Legislature's clear language. Thus, the differences between the statutory bases for first and second degree felony murder support the conclusion that although this court properly may limit the breadth of second degree felony murder in a manner consistent with its interpretation of the Legislature's intent, there is no room for interpretation when the Legislature has defined first degree felony murder to include any killing 'committed in the perpetration of, or attempt to perpetrate, . . . burglary.' " (Id. at p. 1119.) Thus, the Farley court overruled People v. Wilson (1969) 1 Cal.3d 431, a prior case extending the merger doctrine to first degree felony murder. (Farley, supra, 46 Cal.4th at pp. 1117, 1121.)
Section 189 directs that burglary and attempted burglary are underlying felonies for purposes of the first degree felony-murder rule. "Burglary has been a delineated felony supporting first degree felony murder since section 189 was enacted in 1872, and indeed since the crime of murder was divided into first and second degree in 1856. (Stats. 1856, ch. 139, § 21, p. 219; see Chun, supra, 45 Cal.4th at p. 1185.) In enacting section 189, the Legislature did not limit the definition of burglary, or exclude burglaries based upon an intent to assault. Rather, section 189 applies the felony-murder rule to all burglaries. Under section 459, also enacted in 1872, burglary is committed when the defendant 'enters any [defined structure] with intent to commit grand or petit larceny or any felony,' including assault. (§ 459, italics added; see People v. Seaton (2001) 26 Cal.4th 598, 646 ['intent to unlawfully kill or to commit felonious assault' will sustain a burglary conviction].) Thus, nothing in the language of section 189 supports the application of the merger doctrine to its terms." (Farley, supra, 46 Cal.4th at pp. 1117-1120, fns. omitted.)
Here, defendant's intent to commit burglary was sufficient to impute malice for purposes of the felony-murder rule, and the trial court did not err by failing to instruct the jury that it had to find malice. Moreover, any failure to so instruct the jury would be harmless under any standard. Having unanimously concluded that defendant did not act with malice by shooting from a vehicle, the jury necessarily considered and rejected malice aforethought as a basis for convicting defendant of first degree murder.
2. Self-Defense
In a related argument, defendant argues the trial court should have instructed the jury on imperfect self-defense. He argues that his conduct was not inherently dangerous to life, such that he could only have been properly convicted of murder if the jury found beyond a reasonable doubt that he acted with malice.
This argument is based on Ceballos, supra, 12 Cal.3d 470, which held that a defendant who had set up a trap pistol in his garage could not claim self-defense when the pistol shot a burglar. Ceballos stated that although section 197 provides that homicide is justifiable when committed in resisting an attempt to commit a felony, if the felony is burglary, the burglary must be of such character and manner that it reasonably creates a fear of great bodily harm before a person may respond with deadly force. (Ceballos, supra, 12 Cal.3d at pp. 479-480.) The gist of defendant's reasoning is that if the felony that is the basis for felony murder is not a forcible and atrocious crime, and the victim of that felony responds with a use of deadly force, such response is unlawful and the defendant has the right to resist the unlawful use of deadly force by self-defense. Not so.
As previously explained, the circumstance of felony murder serves to impute the element of malice, obviating a finding of malice by the jury. Self-defense and imperfect self-defense are relevant only to the issue of the existence or nonexistence of malice. (People v. Johnson (2007) 150 Cal.App.4th 1467, 1481-1482.) Since malice is irrelevant to felony murder, so too are the doctrines of self-defense and imperfect self-defense. (People v. Tabios (1998) 67 Cal.App.4th 1, 8, disapproved on another point in Chun, supra, 45 Cal.4th at p. 1193.)
Accordingly, the trial court did not err, either in refusing to give an imperfect self-defense instruction, or in instructing the jury that self-defense was not available.
IV. DISPOSITION
The judgment is affirmed.
/s/_________
REARDON, J. We concur: /s/_________
RUVOLO, P. J. /s/_________
RIVERA, J.