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State v. Martin Perez

The Court of Appeals of Washington, Division Two
Apr 28, 2009
149 Wn. App. 1065 (Wash. Ct. App. 2009)

Opinion

No. 36998-2-II.

April 28, 2009.

Appeal from a judgment of the Superior Court for Thurston County, No. 07-1-00973-0, Gary R. Tabor, J., entered November 21, 2007.


Affirmed by unpublished opinion per Bridgewater, J., concurred in by Penoyar, A.C.J., and Armstrong, J.


Silvino Martin Perez appeals his conviction for first degree assault while armed with a deadly weapon. He contends that a misstatement of the law in the court's self-defense instructions warrants reversal. We affirm.

Facts

On May 28, 2007, Perez sought out and confronted Thomas Anderson about an altercation that Anderson had earlier with Perez's friend, Amber Heller, at Heller's home. After the altercation with Heller, Anderson went to a friend's house and while there, a van stopped in front of the residence, three men and Heller got out of the van, and one of the men, Perez, approached Anderson. At trial, Anderson and Perez told different versions of what transpired next.

According to Anderson, Perez approached him, asked if he had shoved Heller, and when Anderson responded that he had done so Perez said, "Are you ready to get your ass beat?" II RP at 368. Anderson testified that Perez was holding something in his right hand, but Anderson could not see what it was. According to Anderson, Perez then began hitting him and Anderson fought back. During the fight, Perez repeatedly struck Anderson in the chest. Anderson stepped back wondering why Perez's blows hurt so badly and realized that during the fight he had been stabbed five times in the torso. When Anderson fell from the stab wounds, Perez, Heller and the two other men fled in the van. Anderson was taken to Harborview Medical Center for surgery to treat a stab wound to his heart.

Perez testified that when he confronted Anderson about the earlier altercation with Heller, Perez was not armed and that he did not tell Anderson that he was going to beat him. According to Perez, as he approached Anderson it was Anderson who attacked, punching Perez several times with an object that Anderson held in his fist. Perez responded by fighting back to protect himself believing that Anderson was armed with a weapon. During the fight, someone tossed Perez a knife and he stabbed Anderson, who was still beating him. Perez then returned to the van and left the scene with Heller and the other men.

The State charged Perez by first amended information with one count of second degree attempted murder or in the alternative with first degree assault. Both crimes carried a deadly weapon allegation.

The trial court granted Perez's request to proceed pro se with stand-by counsel. At his jury trial, Perez proposed instructions including instructions on self-defense (definition and acts on appearances based on Washington Pattern Jury Instructions: Criminal 17.02 and 17.04, respectively)), but attempted to change the wording of these instructions so that they were consistent, which the court denied. The jury found Perez guilty of first degree assault and entered a special verdict finding that he was armed with a deadly weapon at the time of crime.

Prior to sentencing, Perez moved for a new trial based on the inconsistencies in the self-defense instructions 24 and 26 (definition and acts on appearances), which the court denied. The court then sentenced Perez to a standard range sentence with a deadly weapon enhancement for a total incarceration term of 295 months. Perez filed a timely notice of appeal.

Discussion

Perez argues that his conviction must be reversed because the court's instructions on self-defense misstated the law. We disagree.

Jury instructions on self-defense must more than adequately convey the law. Read as a whole, the jury instructions must make the relevant legal standard manifestly apparent to the average juror. State v. Walden, 131 Wn.2d 469, 473, 932 P.2d 1237 (1997). A jury instruction misstating the law of self-defense amounts to an error of constitutional magnitude and is presumed to be prejudicial. Walden, 131 Wn.2d at 473.

To be entitled to a jury instruction on self-defense, the defendant must produce some evidence demonstrating self-defense; however, once the defendant produces some evidence, the burden shifts to the prosecution to prove the absence of self-defense beyond a reasonable doubt. Walden, 131 Wn.2d at 473. Moreover, evidence of self-defense is evaluated from the standpoint of the reasonably prudent person, knowing all the defendant knows and seeing all the defendant sees. Walden, 131 Wn.2d at 474. This standard incorporates both objective and subjective elements. The subjective portion requires the jury to stand in the shoes of the defendant and consider all the facts and circumstances known to him or her; the objective portion requires the jury to use this information to determine what a reasonably prudent person similarly situated would have done. Walden, 131 Wn.2d at 474.

The self-defense instructions at issue here were based on former Washington Pattern Jury Instructions: Criminal (WPIC) 17.02 and 17.04. Instruction 24 (the self-defense definitional instruction based on WPIC 17.02 (1994)) stated:

See 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 17.02, at 196-98 (2d ed. 1994); and 11 WPIC 17.04, at 203-04 (1994). In relevant part, the current version of WPIC 17.02 (i.e. requiring that a person reasonably believes that he is about to be injured) is substantively the same as the instruction given here. See 11 Washington Practice Jury Instructions: Criminal 17.02, at 253 (3d ed. 2008). However, the current version of WPIC 17.04 now requires that a person believe that he or she is in "actual danger of injury" rather than actual danger of great bodily harm, which is the distinction and issue addressed in this case. See 11 WPIC 17.04 at 262-63 (2008).

It is a defense to a charge of attempted murder or assault that the force used, attempted or offered to be used was lawful as defined in the instruction.

The use of or attempt to use or offer to use force upon or toward the person of another is lawful when used, attempted or offered by a person who reasonably believes that he is about to be injured or by someone lawfully aiding a person who he reasonably believes is about to be injured in preventing or attempting to prevent an offense against the person or a malicious trespass or other malicious interference with real or personal property lawfully in that person's possession, and when the force is not more than is necessary.

The person using or offering to use the force may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they appeared to the person, taking into consideration all of the facts and circumstances known to the person at the time of and prior to the incident.

The State has the burden of proving beyond a reasonable doubt that the force used or attempted or offered to be used by the defendant was not lawful. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty.

CP at 195-96 (emphasis added). Instruction 26 (the act on appearances instruction based on WPIC 17.04 (1994)) stated:

A person is entitled to act on appearances in defending himself, if that person believes in good faith and on reasonable grounds that he is in actual danger of great bodily harm, although it afterwards might develop that the person was mistaken as to the extent of the danger. Actual danger is not necessary for the use of force to be lawful.

CP at 197 (emphasis added). Additionally, instruction 18 defined great bodily harm as follows: "Great bodily harm means bodily injury that creates a probability of death, or that causes significant serious permanent disfigurement, or that causes a significant permanent loss or impairment of the function of any bodily part or organ." CP at 193; see also 11 WPIC 2.04 at 28 (2008).

Perez correctly concedes that the self-defense definitional instruction 24 was a correct and accurate statement of the law. But he argues that the trial court grossly misstated the law on self-defense in instructions 26 and 18 because those instructions required the jury to find that he believed he was in actual danger of "great bodily harm" rather than lawful injury. Br. of Appellant at 6-7. Perez relies on State v. Woods, 138 Wn. App. 191, 156 P.3d 309 (2007), to support his argument. The State concedes the instructional error, but contends that it was harmless beyond a reasonable doubt. We agree with the State.

As noted in State v. Woods, 138 Wn. App. 191, 199, 156 P.3d 309 (2007), "RCW 9A.16.020(3) sets out the parameters of self-defense in Washington. The statute states that the use of force is lawful when `used by a party about to be injured . . . in preventing or attempting to prevent an offense against his or her person.'"

Woods does not require a different result. In Woods, the State charged the defendant with third degree assault after an incident where he stabbed the victim in the shoulder, resulting in a wound requiring three stitches. Woods, 138 Wn. App. at 195. The defense theory, supported by witnesses, was that the victim was the initial aggressor who first struck the defendant in the hand with a hammer over an altercation involving money. Woods, 138 Wn. App. at 195. Division Three of this court held that the defendant's attorney was ineffective for proposing a self-defense instruction based on WPIC 17.04 (1994). Woods, 138 Wn. App. at 201-02. It reasoned that the jury could have found the defendant reasonably believed that the victim was going to injure him, even if he did not expect great bodily harm. Woods, 138 Wn. App. at 201.

In rendering its decision, the Woods court relied on State v. L.B., 132 Wn. App. 948, 135 P.3d 508 (2006). L.B. involved a juvenile defendant charged with fourth degree assault. The defense theory was that the defendant responded to an alleged verbal threat by striking the victim in the jaw with his fist. L.B., 132 Wn. App. at 950-51. The L.B. trial court noted that WPIC 17.04 (1994), permitted a defendant to act in self-defense if he had a reasonable belief that he was in danger of great bodily harm. L.B., 132 Wn. App. at 951. On appeal, Division One held that WPIC 17.04 (1994), was not an accurate statement of the law:

According to the plain language of RCW 9A.16.020(3), a person has a right to use force to defend himself against danger of injury, "in case the force is not more than is necessary." The term "great bodily harm" places too high of a standard for one who tries to defend himself against a danger less than great bodily harm but that still threatens injury. Where the defendant raises a defense of self-defense for use of nondeadly force, WPIC 17.04 [1994] is not an accurate statement of the law because it impermissibly restricts the jury from considering whether the defendant reasonably believed the battery at issue would result in mere injury.

L.B., 132 Wn. App. at 953 (emphasis added).

Similarly, in Walden, the defendant brandished a knife at three teenagers whom he contended were going to beat him up. Walden, 131 Wn.2d at 471-72. The instructions informed the jury that the defendant could use deadly force only if he was in fear of death or great bodily harm, and then defined "[g]reat bodily injury." Walden, 131 Wn.2d at 472 (emphasis added). Our Supreme Court reversed defendant's second degree assault convictions holding that the instructions were internally inconsistent, the definition of "great bodily injury" misstated the law, and the State had failed to show the instructional error was harmless. Walden, 131 Wn.2d at 478-79. Notably, the defense in Walden did not allege that the victims confronted the defendant with a deadly weapon. Rather, the defense theory was that Walden produced a knife to scare off the unarmed teens with which he had a previous altercation. Walden, 131 Wn.2d at 471-72.

This case is distinguishable. In Walden, L.B., and Woods, the defense theory did not involve self-defense against deadly force. In other words, the defense in all three cases did not claim that the victims possessed deadly weapons or exerted deadly force.

In this case, however, Perez's defense theory was that he picked up and used a knife thrown to him only after someone yelled a warning that Anderson had a knife. Perez testified that he used the knife thrown to him to defend himself because Anderson was on top of him pummeling him with the handles of objects that Anderson held in his hands and he (Perez) was close to being knocked out. Perez then realized that Anderson was wielding a knife and a screwdriver. Under these circumstances, when the fight escalated with Anderson's alleged use of a knife and a screwdriver, deadly force was at issue. See State v. Clarke, 61 Wn.2d 138, 142, 377 P.2d 449 (1962) (deadly force is force "capable of, and entails great risk of, killing"). As such, there was sufficient evidence that Perez stabbed Anderson because he reasonably believed he had to protect himself from deadly harm. Therefore, Walden, L.B., and Woods are inapposite.

Based on the defense theory that Perez believed the victim was armed with a knife and screwdriver and threatening to cause great bodily harm, there was no possibility that a jury could have reached a different conclusion, even with proper self-defense instructions. Thus we hold that the error was harmless and there was no prejudice to Perez in instructions 26 and 18 under the facts presented.

Affirmed.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

ARMSTRONG, J. and PENOYAR, A.C.J., concur.


Summaries of

State v. Martin Perez

The Court of Appeals of Washington, Division Two
Apr 28, 2009
149 Wn. App. 1065 (Wash. Ct. App. 2009)
Case details for

State v. Martin Perez

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. SILVINO MARTIN PEREZ, Appellant

Court:The Court of Appeals of Washington, Division Two

Date published: Apr 28, 2009

Citations

149 Wn. App. 1065 (Wash. Ct. App. 2009)
149 Wash. App. 1065