Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08WF0891, William R. Froeberg, Judge.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, Stacy Tyler and Scott Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Appellant was convicted of involuntary manslaughter for fatally striking a fellow bar patron in the head with a pool cue. He contends the trial court erred in failing to give his requested jury instruction on self-defense, and we agree. However, given the circumstances of the killing, we do not believe it is reasonably probable appellant would have obtained a more favorable verdict had the instruction been given. Therefore, other than to modify appellant’s presentence custody credits, we affirm the judgment in all respects.
FACTS
The basic facts are not in dispute. It was St. Patrick’s Day, 2008, and appellant was drinking with his girlfriend at Breaker’s bar in Cypress. After finishing a game of pool with Bradley Castle, appellant ordered Castle a beer. However, instead of delivering the drink to Castle, the bartender mistakenly gave it to Steve Toole, who was sitting at the bar. Toole didn’t want the beer, so he pushed it away. Thinking that was rude, appellant approached Toole. The two men exchanged words, and then Toole pushed appellant, causing him to stumble backwards and fall down. When appellant got up, he grabbed a pool cue and flipped it around so he was holding it by the tip. He then swung the cue at Toole, hitting him in the side of the head with the heavy end of the stick. The blow was fatal; Toole fell to the floor “lights out” and never regained consciousness.
Witnesses gave differing accounts as to how the incident transpired. Cindy Hoth, the bartender, testified that when Toole refused the beer, appellant got mad and asked Toole why he didn’t just take it. Toole said he had his own beer and just wanted to be left alone. However, appellant persisted, telling Toole he was being rude. At one point, he referred to Toole as his “bro, ” and Toole told him, “I’m not your fucking bro.” He then told appellant to get out of his face. When appellant didn’t leave, Toole said, “We can take it outside if you want to.” He then pushed appellant in the chest, causing him to fall backwards. As appellant was gathering himself, Toole walked over to the pool tables. He did not say or do anything to appellant; rather, he was “just standing there.” However, appellant came at Toole abruptly and struck him “very hard” with the cue. After Toole went down, appellant jumped on his back and started punching him, but others in the bar intervened and pulled him away.
Although Hoth testified Toole was “just standing there” in a defenseless posture before appellant struck him, she told a defense investigator before trial that Toole was actually bobbing up and down like a boxer with his fists clenched at that time. She also said Toole moved toward appellant before appellant struck him.
Castle testified appellant was very intoxicated and angry when he initially approached Toole at the bar. Yet, even though he harshly berated Toole for not accepting the beer, Toole remained calm and said he just wanted to be left alone. Appellant walked away momentarily but then returned to harangue Toole some more. Again, Toole asked to be left in peace. When appellant persisted, Toole began to lose his patience and told appellant to get out of his face. But, appellant stepped closer and kept “jabbering” away, and that’s when Toole pushed him. According to Castle, “it wasn’t a hard push. It was just hard enough to make [appellant] stumble backwards and lose his balance.” Castle thought that if appellant hadn’t been so drunk, he never would have fallen.
Following the push, Toole calmly walked over by the pool tables and just stood there; he had his hands at his side and did not make any aggressive moves or gestures. Appellant was anything but cool, however. With pool cue in hand, he charged at Toole with an “evil look on his face” and “Barry Bonds’d” him with the stick. After Toole went down, appellant jumped on him aggressively and had to be pulled away by onlookers. He then exclaimed, “It was self-defense, it was self-defense” and ran out of the bar.
Like the other witnesses, bar patron Percy Le Blanc testified appellant was upset when Toole refused the beer. Le Blanc told appellant to just let it go, but appellant said he did not like Toole. Le Blanc did not see Toole push appellant, but he did see appellant get up from the floor afterward. It appeared to Le Blanc that appellant was “torn” in that he really didn’t want to hit Toole. Le Blanc also testified that when appellant did strike Toole with the cue, “it was not a very hard hit, ” but more like “a tap.” However, when interviewed by the police afterwards, Le Blanc had said appellant took a “baseball swing” at Toole with the cue.
Bar patron George Ramsey testified he was coming out of the restroom when he saw appellant “sliding on his butt” on the floor. Appellant grabbed hold of a pool table to pull himself up, and when he did, his hand incidentally came into contact with a cue and he grasped it. Appellant seemed surprised to have the cue, but Toole was coming toward him, so he swung it at him. Ramsey didn’t think the swing had much power behind it. In fact, he thought Toole was faking it when he hit the floor. Ramsey also testified appellant left the bar right away after that. However, he told the police appellant walked over to the slain Toole and said, “I told you not to touch me in the face” before leaving.
Testifying on his own behalf, appellant stated that when Toole refused the beer, he approached him to introduce himself and ask him why he didn’t want a free drink. However, before he could even get his name out, Toole got up from his stool and said, “I know who the fuck you are.” Toole then brusquely pushed him in the chest, causing him to slide backwards on the floor about 10-15 feet. When appellant came to a stop, he looked up and saw Toole standing there in a “fighter’s stance” with his fists clenched. He had a crazed look in his eyes and was saying “come on, come on” in a loud voice. Appellant was scared; he couldn’t understand why Toole was so angry at him, and he didn’t know what Toole was going to do next. Judging from Toole’s initial reaction, he was worried “it could have escalated and got worse.” Therefore, he picked up a pool cue to protect himself. He doesn’t actually remember hitting Toole, but he doesn’t think he struck him that hard. Afterward, his girlfriend told him they better leave, and he told her, “I’m right behind you.” He looked back to see if Toole was getting up, but he wasn’t moving a muscle.
When appellant got home, he called his mother and told her something really bad happened. He then called the police and told them where he was. By that time, Cypress Police Officer Kyle Mori was already staking out appellant’s residence. At one point, Mori saw appellant and his girlfriend come outside in the front yard. Appearing to demonstrate his encounter with Toole, appellant made a pushing motion, which in Mori’s view looked like “a typical push.” Then appellant made a swinging motion, like he was taking a cut with a baseball bat. Appellant did not appear to notice that Mori was watching him at the time.
Later that day, the police took appellant into custody and transported him to the police station. After waiving his Miranda rights, appellant said he was a good 10-15 feet away from Toole when he struck him with the cue. When the investigating officer asked him how he could have reached Toole from that distance, appellant said, “That’s a good point.” He then speculated that Toole may have moved toward him before he struck him. Later in the interview, appellant said he was sure that Toole had done so. He also claimed Toole was bouncing up and down and saying “come on, come on” before he hit him. Appellant admitted he swung the cue hard, like a baseball bat. However, he claimed he did so because he was scared, not mad. He said Toole was several inches taller, and about 10-20 pounds heavier, than he was, and he thought Toole was going to kill him if he didn’t protect himself. He also said he had been taught to always get the first punch in if he was ever in a fight.
During his interview, appellant urged the police to have Toole drug-tested, claiming it would prove that Toole was acting irrationally and aggressively when appellant encountered him in the bar. Toole was tested, and it turned out he did have methamphetamine in his system at the time he was killed.
It was also revealed that Toole had made a phone call from the bar before he encountered appellant. The call was made to Robert Williams, who is the brother of appellant’s girlfriend. Toole left a message on Williams’ cell phone, saying, “I’m at the bar. If you want, come down and have a drink. Big Mouth’s here. If you want, come down [and] maybe we can corral him.” Williams knew Toole was referring to appellant when he said “Big Mouth, ” because that is the name his sister sometimes called appellant.
Appellant was charged with involuntary manslaughter under the theory he killed Toole during the commission of a crime (aggravated assault) that posed a high risk of death or great bodily injury because of the way it was committed. (Pen. Code, § 192, subd. (b).) Because that theory required the jury to find appellant committed the crime of assault, the defense requested instructions on self-defense that were tailored to that crime. In particular, the defense asked the court to give CALCRIM No. 3470, which pertains to self-defense in the context of a non-homicide crime. Under that instruction, the defendant must reasonably believe he was in imminent danger of “suffering bodily injury” or “being touched unlawfully” to prevail on a claim of self-defense. (CALCRIM No. 3470.)
However, the court refused to give CALCRIM No. 3470 and instead instructed the jury with CALCRIM No. 505. CALCRIM No. 505 is the standard self-defense instruction in homicide cases. To prevail on a claim of self-defense under that instruction, the defendant must reasonably believe he was “in imminent danger of being killed or suffering great bodily injury.” (CALCRIM No. 505.) In other words, he must reasonably believe he was in imminent danger of suffering a greater degree of harm than is required under CALCRIM No. 3470.
The jury convicted appellant as charged, and the court sentenced him to four years in prison. This appeal followed.
I
Appellant renews his claim that CALCRIM No. 3470 was the appropriate instruction in this case. Because assault was an essential element of the charged offense, he contends the jury should have been instructed he had the right to self-defense, so long as he reasonably believed he was in imminent danger of being touched unlawfully, as opposed to being killed or greatly injured, by Toole. The Attorney General does not dispute that, from a purely legal perspective, CALCRIM No. 3470 is a more fitting instruction than CALCRIM No. 505 when, as here, the defendant relies on self-defense to a homicide charge that is premised on the commission of non-homicide offense. However, the Attorney General insists that even under the more relaxed standard set forth in CALCRIM No. 3470, there was not a sufficient evidentiary basis for the court to instruct on self-defense. The state also contends that any error in failing to give CALCRIM No. 3470 was harmless under the circumstances presented. We agree with the state’s latter contention and affirm the judgment on that basis.
The law is well established. The trial court must instruct the jury on all material issues presented by the evidence, including affirmative defenses such as self-defense. (People v. Michaels (2002) 28 Cal.4th 486, 529.) In determining whether there is sufficient evidence to support defense instructions, the trial court does not consider issues of credibility, but simply whether there is “substantial evidence” to support them, that is, “‘“evidence that a reasonable jury could find persuasive.” [Citation.]’ [Citation.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1008, italics added.) “The testimony of a single witness, including the defendant, can constitute substantial evidence” in this regard. (People v. Lewis (2001) 25 Cal.4th 610, 646.) Moreover, “‘“[d]oubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused.” [Citations.]’ [Citation.]” (People v. Petznick (2003) 114 Cal.App.4th 663, 677.) “‘The fact that evidence may be incredible, or is not of a character to inspire belief, does not authorize the refusal of an instruction based thereon, for that is a question within the exclusive province of the jury.’ [Citations.]” (People v. Lemus (1988) 203 Cal.App.3d 470, 477; accord, People v. Webster (1991) 54 Cal.3d 411, 443; People v. Mejia-Lenares (2006) 135 Cal.App.4th 1437, 1446.)
Despite these principles, the Attorney General argues instructions on self-defense were unwarranted because the evidence in support of them was “incredible, ” “unpersuasive, ” and “self-serving.” However, while the evidence regarding the circumstances of the killing was no doubt conflicting, it was certainly sufficient to meet the substantial evidence test. Indeed, Hoth told a defense investigator that after Toole pushed appellant down, Toole readied himself for further combat and came at appellant. That is also what Ramsey said on the witness stand and what appellant told the police. And in his testimony to the jury, appellant said he hit Toole because, as evidenced by both his words and gestures, Toole was just itching to fight.
Also, according to eyewitnesses Le Blanc and Ramsey, appellant didn’t hit Toole very hard with the cue; Le Blanc described the blow as a reluctant tap, and Ramsey suggested appellant did nothing more than protect himself from Toole. Add in the fact Toole had methamphetamine in his system at the time of the encounter, and he had some preexisting animus toward appellant (as evidenced by his phone call to Williams before the fight), and it is readily apparent there was — as the trial court and the parties below presumed — substantial evidence to support appellant’s theory of self-defense. Thus, even though there was plenty of evidence to refute that theory, the trial court should have given appellant’s requested instruction.
Still, we do not believe the court’s failure to do so is grounds for reversal. As to the issue of prejudice, appellant urges us to employ the harmless-beyond-a-reasonable-doubt standard of review that has been used in cases where the trial court erroneously fails to give any instructions on self-defense. (See, e.g., People v. Saavedra (2007) 156 Cal.App.4th 561, 569.) Here, however, the court did not fail to instruct on self-defense. Rather, as explained above, it simply misinstructed the jury on the nature of the danger appellant was required to face in order to prevail on that defense. Therefore the standard of review articulated in People v. Watson (1956) 46 Cal.2d 818 applies, meaning we may only reverse if it is reasonably probable appellant would have obtained a more favorable verdict had the court given his requested instruction. (People v. Humphrey (1996) 13 Cal.4th 1073, 1089 [applying Watson standard where instructional error may have adversely affected, but did not preclude, defendant’s theory of self-defense]; People v. Ross (2007) 155 Cal.App.4th 1033, 1054 [same].)
To prevail on a claim of self-defense to the crime of aggravated assault, not only must the defendant honestly and reasonably believe he was in imminent danger of suffering bodily injury or being touched unlawfully, his use of force must be reasonable in light of the circumstances presented. (People v. Pinholster (1992) 1 Cal.4th 865, 966, overruled on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459.) That means the defendant’s use of force must be proportionate to the threat he is facing: “The right of self-defense [does] not provide [a] defendant with any justification or excuse for using deadly force to repel a nonlethal attack.” (Ibid.; see also 2 LaFave, Substantive Criminal Law (2d ed. 2003) Self-Defense, § 10.4, p. 142 [“It is never reasonable to use deadly force against [a] nondeadly attack.”].) That is precisely what appellant did in this case.
Toole may have spoken rudely to appellant at the bar, he may have invited appellant to “take it outside, ” he may have used considerable force in pushing appellant away from him, he may taken a “fighter’s stance” and said “come on, come on” as appellant was getting off the floor, and he even may have been coming toward appellant when appellant struck him with the pool cue. However, there was no evidence Toole had any weapons or threatened appellant with deadly force. At most, it seems Toole was simply prepared to duke it out with appellant, who, according to most of the witnesses in the bar, was acting aggressively in his own right. Fisticuffs could certainly be expected in this situation.
However, appellant seriously upped the ante by grabbing a pool cue, flipping it around, and taking the heavy end of the stick to Toole’s head. Le Blanc and Ramsey testified appellant didn’t strike Toole very hard, but they were friends of appellant, and even appellant admitted during his police interview that he swung the cue hard, like a baseball bat. That is also how appellant demonstrated the incident to his girlfriend afterwards. Appellant told the police he had always been taught to “get the first punch in” if he was ever in a fight. And if he had practiced what he had been taught, Toole probably wouldn’t be dead. But instead, appellant chose makeshift weaponry over fists, and, as it turned out, that decision had deadly consequences. In light of all the circumstances that were presented, we believe the method and manner of appellant’s choice of defense was so excessive and disproportionate to the threat he faced that, even if the court had given his requested instruction on self-defense, it is not reasonably probable he would have obtained a more favorable result at trial. Therefore, the court’s failure to do so is not cause for reversal. There is no basis to disturb appellant’s conviction.
II
Appellant is entitled to additional presentence credits, however. Although the applicable credits statute was not amended in appellant’s favor until after he was convicted, we find appellant is entitled to the benefit of that amendment.
Appellant was convicted on January 13, 2010. At that time, Penal Code section 4019 allowed defendants to earn presentence conduct credit at the rate of two days for every four days in custody. (Former Pen. Code, § 4019.) However, the Legislature amended the statute effective January 25, 2010, to allow defendants to earn presentence conduct credit at the rate of two days for every two days in custody. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) The amendment does not state whether it is to be applied retroactively.
Generally, amendatory statutes are presumed to operate prospectively unless they contain an express declaration to the contrary. (Pen. Code, § 3.) But in In re Estrada (1965) 63 Cal.2d 740, the Supreme Court created an exception to this rule for cases in which the subject statute mitigates punishment. (Id. at p. 748.) In that situation, the court explained, “It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply.” (Id. at p. 745.)
Courts have traditionally deemed legislative enactments that increase the amount of credits a defendant may accrue as statutes that mitigate punishment for purposes of the Estrada rule. (See, e.g., People v. Doganiere (1978) 86 Cal.App.3d 237 [statute involving conduct credits]; People v. Hunter (1977) 68 Cal.App.3d 389 [statute involving custody credits].) Following this tradition, the majority of courts that have considered the issue have determined the January 2010 amendment to Penal Code section 4019 falls within the Estrada rule, because it effectively reduces the amount of time eligible defendants will have to spend in prison. (See, e.g., People v. Jones (2010) 188 Cal.App.4th 165, review granted Dec. 15, 2010, S187135; People v. Bacon (2010) 186 Cal.App.4th 333, review granted Oct. 13, 2010, S184782; People v. Weber (2010) 185 Cal.App.4th 337, review granted Aug. 18, 2010, S184873; People v. Keating (2010) 185 Cal.App.4th 364, review granted Sept. 22, 2010, S184354; People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813; People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808; People v. Norton (2010) 184 Cal.App.4th 408, review granted Aug. 11, 2010, S183260; People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552; People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963; but see People v. Eusebio (2010) 185 Cal.App.4th 990, review granted Sept. 22, 2010, S184957; People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724; People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808.)
Although the Supreme Court has granted review in these cases and will have the final say on the matter, we agree with the reasoning expressed by the courts in the majority and conclude the January 2010 amendment to Penal Code section 4019 should be applied retroactively to cases pending on appeal. Pursuant to that amendment, we will modify the judgment to increase appellant’s presentence conduct award from 40 days to 80 days, based on his 80 days of actual custody.
DISPOSITION
The judgment is modified to award appellant 80 days of presentence conduct credit, for a total presentence credit award of 160 days. In all other respects, the judgment is affirmed.
WE CONCUR: ARONSON, J., FYBEL, J.