Opinion
G059230
04-01-2021
THE PEOPLE, Plaintiff and Respondent, v. GUADALUPE ESPINOZA, Defendant and Appellant.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Heather Arambarri and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 19CF1555) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael A. Leversen, Judge. Reversed and remanded. James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Heather Arambarri and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
Defendant Guadalupe Espinoza and Terry Knisely had a physical altercation, during the course of which defendant took Knisely's knife. Based on the incident, defendant was charged with assault with a deadly weapon and robbery. The trial court instructed the jury that self-defense was a defense to the assault charge; the jury acquitted defendant of that charge. Defendant was convicted of robbery after the court denied his request to instruct the jury that self-defense was also a defense to that charge.
Defendant testified that Knisely threatened him with a knife, that he disarmed Knisely, and that he took the knife and later threw it away. Based on the testimony, we conclude that the failure to give the self-defense instruction for the robbery charge was prejudicial error. (People v. Watson (1956) 46 Cal.2d 818, 836.) Under the specific facts of this case, we reverse and remand for a retrial on the robbery charge.
Citing People v. Dueñas (2019) 30 Cal.App.5th 1157, defendant argues that the trial court erred by failing to conduct an ability-to-pay hearing before imposing fees and fines on him at the sentencing hearing. In light of our holding that the conviction on the robbery charge must be reversed, the Dueñas issues are moot.
STATEMENT OF FACTS
I.
PROSECUTION'S CASE IN CHIEF
Knisely, defendant, and a man referred to at trial alternately as "Mr. Brown" or "Papa" were all homeless in June 2019, and living on the streets of Santa Ana. At about 8:00 a.m. on June 10, 2019, Knisely and Papa were talking at a bus stop near the First Presbyterian Church on Santa Ana Boulevard. Defendant approached Knisely from behind and struck him on the back and the arm with a metal pipe that was one and a half to two feet in length. Defendant said he wanted to hurt or kill Knisely, and grabbed a folding pocketknife that was lying on top of Knisely's belongings. Knisely said, "Give it back. It's not yours." Defendant walked away, screaming, laughing, and calling Knisely names, and waving the metal pipe.
The item was alternately described as a pipe or a pole. We will refer to it in this opinion as a pipe for clarity.
An employee of the First Presbyterian Church passed two homeless men sitting on the bus stop on her way to work; she described them as "peaceful." Once she was inside the church sanctuary, she heard a loud commotion outside. She began filming the incident on her cellphone; the video began after defendant had struck Knisely's and taken his knife. The video shows Knisely pleading for defendant to return the knife while defendant is brandishing the knife at him. The church employee saw defendant holding a knife with the blade exposed; she never saw Knisely "use any weapons." She also saw a pipe in the shopping cart defendant was pushing. After defendant had walked away, she called the police.
A Santa Ana police officer later saw defendant pushing a shopping cart westbound on Santa Ana Boulevard. The officer found a two-foot-long, solid metal pipe in the shopping cart. At an in-field identification, Knisely identified defendant as the person who had attacked and robbed him.
II.
DEFENDANT'S TESTIMONY
Defendant testified on his own behalf. On the morning of the incident, he had been collecting recyclable materials in a shopping cart for about two hours when he encountered Knisely and Papa in front of the church, and asked them whether free food was being handed out. When they said no, he continued pushing his shopping cart westbound on Santa Ana Boulevard. He turned around and again approached Knisely and Papa and asked if they had seen another person defendant was following. Knisely stood up, pointed a knife at defendant, and said in an aggressive tone of voice, "motherfucker . . . I'll cut you." Defendant blocked the knife with his right hand, and used his left hand to remove the knife from Knisely's hand. The knife fell to the ground; defendant picked it up and put it in his cart. Knisely asked for the knife back, but defendant was unwilling to do so because Knisely had threatened him with it.
Defendant again proceeded westbound on Santa Ana Boulevard, heading for the recycling center. Knisely and Papa started coming toward him. Defendant grabbed a metal pipe from his shopping cart and warned them not to attack him. Knisely threatened to "shoot you tonight." While on his way to the recycling center, defendant threw the knife into some bushes.
III.
TESTIMONY REGARDING PRIOR VIOLENT ACTS
Testimony was presented as to the aggressive tendencies of both Knisely and defendant. The case manager for the Courtyard homeless shelter testified that in April 2017, Knisely came to the shelter intoxicated. When told he could not enter the shelter, Knisely became verbally and physically abusive toward one of the shelter workers and threw punches at him. Santa Ana Police Officer Matthew Matherly, who responded to the case manager's call to the police, encountered Knisely in front of the shelter. Knisely refused to comply with the officer's commands, was aggressive, assumed a fighting stance, and resisted police officers when they tried to take him into custody.
A security guard at a shopping center on Bristol Street testified he encountered defendant at about 11:00 a.m. on September 4, 2018. The security guard told defendant he would have to leave because he was drinking an alcoholic beverage. Defendant tried to attack the security guard; the security guard used pepper spray to stop him. Defendant returned to the shopping center two hours later holding a disk connected to a belt and told the security guard he would "fuck [him] up." Defendant struck the security guard three times with the disk and chased the guard, but fled when the security guard called for help from a coworker.
PROCEDURAL HISTORY
A jury found defendant not guilty of assault with a deadly weapon, and the lesser included offense of simple assault. (Pen. Code, §§ 240, 245, subd. (a)(1).) The jury found defendant guilty of second degree robbery. (Pen. Code, §§ 211, 212.5, subd. (c).) The jury found true a sentencing enhancement allegation that he personally used a deadly weapon (metal pipe) in the commission of the robbery. (Id., § 12022, subd. (b)(1).) In a bifurcated proceeding, the trial court found true allegations that defendant had a prior serious and violent felony conviction (id., §§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)), a prior serious felony conviction (id., § 667, subd. (a)(1)), and had served two prior prison terms (id., § 667.5, subd. (b)).
The trial court imposed a total sentence of four years, representing the low term doubled due to the prior serious and violent felony conviction. The court either struck or stayed imposition of all other sentencing enhancements and priors. The court explained its decision to strike the priors as follows: "The Court has considered the defendant's age, social history, and future prospects for productive life. [¶] The Court considered the general objectives of sentencing, including protection of society, deterrence from future criminal conduct, and sentencing uniformity; the sentence indicated herein is commensurate with the defendant's behavior in the current case combined with his record."
During the oral recitation of the sentence, the trial court imposed a $300 restitution fine (Pen. Code, § 1202.4), imposed and stayed a $300 parole revocation fine (id., § 1202.45), and imposed "[a]ll mandatory criminal court costs and fees." Defendant's trial counsel waived a recitation of the fees and fines. The court also orally imposed "a fine of $500 plus penalty assessment."
The trial court's minute order reflects that, in addition to the restitution fine and the parole revocation fine, defendant was ordered to pay a $40 court operations fee (Pen. Code, § 1465.8, subd. (a)(1)), a $30 criminal conviction assessment fee (Gov. Code, § 70373, subd. (a)(1)), a $249.27 booking fee payable to the Santa Ana Police Department, and a "FINE of $500.00 plus penalty assessments as to [the robbery count] payable through the Department of Corrections."
DISCUSSION
At trial, defendant requested that the court instruct the jury on the affirmative defense of self-defense as to the robbery charge. The trial court denied the request on the ground that robbery is a specific intent crime and self-defense is not a defense to robbery. The court instructed the jury on the defense of legal necessity with respect to the robbery charge.
Defendant's proposed jury instruction read as follows: "The People must prove beyond a reasonable doubt, that the defendant did not act in lawful self-defense when he used force or fear to take the property or to prevent the person from resisting, and that he instead intended to deprive the owner of the property permanently of such property. [¶] If the People have not proved that the defendant did not act in lawful self-defense when he used such force or fear, defendant is not guilty of robbery in the second degree." This instruction is consistent with CALCRIM No. 3470, with which the jury was instructed in connection with the assault charge.
CALCRIM No. 3403, as read to the jury in this case, provides: "The defendant is not guilty of robbery if he acted because of legal necessity. In order to establish this defense, the defendant must prove that: one, he acted in an emergency to prevent a significant bodily harm or injury to himself; two, he had no adequate[] legal alternative; three, the defendant's acts did not create a greater danger than the one avoided; four, when the defendant acted, he actually believed that the act was necessary to prevent the threatened harm or evil; five, a reasonable person would have believed that the act was necessary under the circumstances; and, six, the defendant did not substantially contribute to the emergency. [¶] The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by [a] preponderance of the evidence, the defendant must prove that it is more likely than not that each of the six items is true." --------
The trial court must instruct the jury on any affirmative defense that is consistent with the defendant's theory of the case and for which there is substantial evidence, whether or not the defendant formally requests such an instruction. (People v. Boyer (2006) 38 Cal.4th 412, 469.) We review de novo a trial court's decision not to give an instruction. (People v. Simon (2016) 1 Cal.5th 98, 133 [failure to instruct on affirmative defense].)
Self-defense is not generally recognized as a defense to a charge of robbery. (People v. Costa (1963) 218 Cal.App.2d 310, 316; see People v. Arauz (1970) 5 Cal.App.3d 523, 533 [where undisputed evidence showed defendant was engaged in an armed robbery at the time of the altercation, the defendant is not entitled to a self-defense instruction], disapproved on another ground in People v. Chi Ko Wong (1976) 18 Cal.3d 698, 716, fn. 14.) As acknowledged by the Attorney General, however, other states have held that the taking of a weapon from an antagonist may be justified as self-defense. (See People v. DeGreat (Colo. 2018) 428 P.3d 541, 545; State v. Campbell (Iowa 1974) 214 N.W.2d 195, 197.)
In this case, it was possible for defendant to have acted in self-defense while having the specific intent necessary for robbery. Under defendant's version of the events of June 10, 2019, defendant took Knisely's knife away from Knisely through the use of force or fear with the intent to deprive Knisley of the knife either permanently or long enough to prevent Knisely from attacking defendant. These facts satisfy the elements of robbery. (Pen. Code, § 211.) However, the purpose of defendant's use of force or fear to take the knife from Knisely was to defend himself from an attack, and therefore the defense of self-defense came into play.
Rather than argue that a self-defense instruction was not required in this case, the Attorney General focuses on the lack of prejudice. The California Supreme Court has not yet determined which test for prejudice applies when the trial court fails to instruct the jury on an applicable affirmative defense. (People v. Salas (2006) 37 Cal.4th 967, 984 [even assuming the more rigorous standard applied, the error was harmless]; Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson, supra, 46 Cal.2d at p. 836.) However, in People v. Molano (2019) 7 Cal.5th 620, 669-670, the court applied the Watson standard of harmless error when addressing a trial court's failure to instruct on the affirmative defense of the defendant's unreasonable belief that the victim consented to intercourse. We will apply the People v. Watson harmless error standard in our review.
The Attorney General concedes that the jury's rejection of the necessity defense does not resolve the issue of the lack of a self-defense instruction. In People v. Lee (2005) 131 Cal.App.4th 1413, 1429, the court, using the People v. Watson standard of prejudice, held that the failure to instruct the jury on self-defense was not made harmless by a legal necessity instruction. The defendant was found guilty of gross negligence in discharging a firearm when she fired her handgun at two unleashed dogs while she was on a walk. (Id. at p. 1415.) The trial court instructed the jury on legal necessity but not on self-defense, under the theory that the defense of self-defense does not apply when a defendant is attacked by an animal rather than a person. (Id. at p. 1425.) The appellate court concluded that a person has the right to use reasonable self-defense against an aggressive animal. (Id. at p. 1429.)
The appellate court then determined that it was reasonably probable that the defendant would have obtained a better result in the absence of the error. (People v. Lee, supra, 131 Cal.App.4th at pp. 1429-1430.) Even though the jury obviously rejected the necessity defense, this does not mean it would have also rejected self-defense because (1) the defendant has to prove necessity by a preponderance of the evidence, while the prosecution has to prove beyond a reasonable doubt that the defendant did not act in self-defense, and (2) "the defense of necessity more properly applies to situations when the person asserting the defense is faced with an extraordinary, or at least unusual, situation" (Id. at p. 1429.) "The basic context of [the necessity] defense is that, '[u]nder the force of extreme circumstances, conduct which would otherwise constitute a crime is justifiable and not criminal; the actor engages in the conduct out of necessity to prevent a greater harm from occurring.'" (Ibid.) Here, too, the jury's apparent rejection of the legal necessity defense does not mean that it would also have rejected an affirmative defense of self-defense, given the different standard of proof applicable to each defense and the lack of an extraordinary set of circumstances.
Defendant argues that because the jury acquitted him on the assault charge, on which a self-defense instruction was given, it was probable the jury would also have acquitted him of robbery if a self-defense instruction had been given. To the extent the assault charge was based on defendant's attack on Knisely with the metal pipe, that alleged crime was completed before the robbery began. However, to the extent the assault charge was based on defendant's actions in taking the knife away from Knisely, there is a reasonable probability that if the jury acquitted defendant of assault based on the affirmative defense of self-defense, it would have done the same on the robbery charge if it had been instructed that self-defense applied to that charge as well. (The parties' briefs and the appellate record do not show the prosecution specified which act or acts by defendant constituted the assault.)
In closing argument, defendant's trial counsel argued that defendant was acting in self-defense and that self-defense went to the lack of intent for the robbery. However, the prosecutor told the jury self-defense was not a defense to robbery, and the trial court's instructions had made clear that the instruction on self-defense applied only to the assault charge.
The facts of this case were not overwhelmingly weighted in favor of conviction. Knisely and defendant provided opposing testimony regarding who was the aggressor in their confrontation, and evidence showed each had engaged in prior aggressive behavior . The video of the incident began after defendant took Knisely's knife. In the present case, it is reasonably probable that defendant would have obtained a better result if the trial court had instructed the jury on self-defense.
DISPOSITION
The judgment is reversed and the matter is remanded for retrial on the robbery count.
FYBEL, J. WE CONCUR: MOORE, ACTING P. J. ARONSON, J.