Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Ct. No. BAF003089 Paul Zellerbach, Judge.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Jeffrey J. Koch and Pamela Ratner Sobeck, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Following a jury trial, defendant Willie Lavern Hickman was convicted of attempted murder and two counts of assault with a deadly weapon. He appeals, contending that the trial court erred in refusing to instruct the jury on his theories of perfect or imperfect self-defense or defense of others, and improperly refused to permit impeachment of the victim. We find no error and affirm.
II. FACTS AND PROCEDURAL BACKGROUND
A. Procedural Background
On August 5, 2005, an amended information was filed in the trial court charging defendant with four criminal counts. Count 1 was for the attempted murder of Frank Martinez (Pen. Code, §§ 664 and 187, subd. (a)), and counts 2, 3 and 4 were for committing an assault with a deadly weapon other than a firearm (§ 245, subd. (a)(1)). Count 2 involved using a “dark colored stick” against Roy Martinez, while counts 3 and 4 involved using a Ford Explorer against Frank and Roy Martinez, respectively. The information also alleged the offenses involved “great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness within the meaning of California Rules of Court, rule 4.421(a)(1).”
All further statutory references are to the Penal Code unless otherwise indicated.
The jury found defendant guilty of counts 1, 3 and 4, but not guilty of count 2. Additionally, the jury found that the attempted murder was willful, deliberate, and premeditated, and the aggravating factor was found to be true.
The trial court sentenced defendant to life with the possibility of parole on count 1 and the middle term of three years on count 4, both to run consecutively. The trial court also sentenced defendant to the middle term of three years on count 3 but stayed the sentence pursuant to section 654. In total, defendant received a sentence of life with the possibility of parole plus three years.
B. Facts
1. The Incident
On January 16, 2004, Frank Martinez (Martinez) walked out of his apartment complex and saw six to eight people standing in front of his neighbor’s house. Martinez approached the group to see what they were doing and asked where his neighbor was. Defendant and his adopted brother, John Hollands, were part of the group. Defendant and Hollands approached Martinez “like they were going to jump [him].” Martinez went back inside his apartment, where he told his son’s friend, Matt Henderson, that he “got into it with a couple guys out in the front of the apartments.”
Later that day, Martinez, Henderson and Martinez’s son, Rogelio Martinez (Roy), walked from Martinez’s apartment to a store via two dirt fields. On their way to the store, a gold Crown Victoria drove by, in which Hollands was a passenger. Hollands said some unfriendly things to the group, but the group did not respond.
To avoid confusion with his father, Frank Martinez, we will refer to Roy by his first name.
On their way back from the store, while walking through the south dirt field, the group saw a parked white sports utility vehicle (SUV) and Hollands walking from it toward the group. Henderson, who had previously worked with Hollands, attempted to speak with him, but Hollands kept walking and began to fight with Martinez. Defendant approached the group and warned Roy, who was attempting to help Martinez, “don’t do that.” Defendant then hit Roy with a dark-colored stick. In response, Martinez threw a piece of blacktop at defendant, which caused defendant to fall to the ground.
Defendant and Hollands returned to their Ford Explorer, and the Martinez group resumed walking home. Defendant (in the driver’s seat) and Hollands then drove up to the group and exchanged words. Roy threw a rock at the Ford Explorer and shattered the back driver’s side window. Defendant then drove toward Roy and Henderson. At the same time, Martinez began throwing rocks at the vehicle. Defendant then circled around the field, exited, re-entered, and drove toward Martinez. While running away from the oncoming vehicle, Martinez tripped and fell. Defendant then drove over Martinez and immediately drove away from the scene.
Martinez suffered a broken leg, back and hip, lost teeth, and an eye was torn from its socket. He now has no feeling in his left foot. Additionally, Martinez needed facial reconstruction and rods placed in his femur and back. Because of this incident, Martinez no longer has control of his bladder and bowels, and he now uses a catheter.
California Highway Patrol Officer Daniel Fitch pulled defendant over shortly after the incident because an all-points bulletin had been issued for the Ford Explorer driven by defendant. Fitch testified that he informed defendant he was being pulled over because of “the pedestrian that [he] ran over,” to which defendant replied, “Oh, yeah, that.”
City of Banning Staff Sergeant Michael West testified that he interviewed defendant on the day of the incident. Portions of the interview were played for the jury. During the interview, defendant repeatedly declared that he hit Martinez and that he was “pissed” throughout the incident.
2. Defense
Defendant testified that he initially entered the field because he saw two men running toward his brother, Hollands. Hollands believed Martinez had something to do with his mother’s stolen purse. As defendant approached, he saw Martinez swinging at Hollands with a stick. Roy then threw a stone, which hit defendant in the chest. Defendant claimed he never hit Roy with a stick.
Defendant and Hollands got into the Ford Explorer. Rocks were thrown at the vehicle, shattering a window. Another rock hit the fender above the left tire. Defendant stuck his head out the window to look at the fender and was struck in the back of the neck by another rock. This caused defendant to accelerate and turn into the field, hitting a pile of dirt. Dust then filled the air due to the spinning of defendant’s truck tires as he attempted to leave the field without getting stuck in the dirt. Defendant kept spinning, made a complete circle, and came out on the other side of a telephone pole, which is when defendant looked back and “noticed that [Martinez] was on his knees.” Defendant admitted he felt he was in danger.
Additionally, defendant testified that due to his diabetes, he becomes confused and anxious on his medication. Defendant had taken his diabetes medication on the day of the incident and admitted on cross-examination that he did not feel like he was having a problem on that day.
Defendant denied admitting to officers that he knew he had hit Martinez. Defendant claimed that although it was his voice on the tape played for the jury, “somehow [his words] got altered.”
On cross-examination, defendant agreed it would be unreasonable to run over another person in order to protect himself from rocks. Defendant also admitted this was not self-defense but an accident.
III. DISCUSSION
A. Defendant’s Theories of Perfect or Imperfect Self-Defense or Defense of Others
1. Background
Defendant contends the trial court improperly refused his request to instruct the jury on his claim of perfect self-defense, imperfect self-defense or defense of others. Defendant asserts the evidence “fully supported the giving of such instructions in this case.” Furthermore, because of the previous altercations immediately prior to running over Martinez, defendant argues the evidence established doubt as to whether he possessed the requisite mental element necessary for attempted murder, as opposed to the lesser included offense of attempted manslaughter. Lastly, defendant claims that the trial court’s failure to give these instructions resulted in prejudicial error.
During a discussion with counsel regarding jury instructions, the trial court stated that it did not see self-defense as an option for counts 1, 3 or 4. “I don’t see self-defense—if someone is throwing rocks at my vehicle, I can’t defend myself by running them over or hitting them with my car. That’s not self-defense.” However, the court decided it would withhold a final decision until the close of evidence. Ultimately, the court’s initial decision stood, and a defense of others instruction under element No. 5 of Judicial Council of California Criminal Jury Instructions, CALCRIM No. 875 was read for count 2.
2. Standard of Review
A trial court’s refusal to instruct on self-defense or any defense will be upheld on appeal where the record contains no substantial evidence to support the instructions. (People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1269-1270.)
3. Analysis
Instructing juries on the law involved with each issue is an important duty imposed on trial courts. Accordingly, section 1093, subdivision (f) states, in part: “The judge may then charge the jury, and shall do so on any points of law pertinent to the issue, if requested by either party; and the judge may state the testimony, and he or she may make such comment on the evidence and the testimony and credibility of any witness as in his or her opinion is necessary for the proper determination of the case and he or she may declare the law. At the beginning of the trial or from time to time during the trial, and without any request from either party, the trial judge may give the jury such instructions on the law applicable to the case as the judge may deem necessary for their guidance on hearing the case. . . .”
Ordinarily, the laws applicable to the case “are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case. [Citations.]” (People v. Wilson (1967) 66 Cal.2d 749, 759.) Additionally, “[i]n a criminal trial, it is ordinarily the trial court’s duty to instruct the jury not only on the crime with which the defendant is charged, but also on any lesser offense that is both included in the offense charged and shown by the evidence to have been committed.” (People v. Barton (1995) 12 Cal.4th 186, 190 (Barton).)
But, “‘[a] trial court has no duty to instruct the jury on a defense—even at the defendant’s request—unless the defense is supported by substantial evidence.’ [Citation.]” (People v. Hill (2005) 131 Cal.App.4th 1089, 1101, overruled on other grounds in People v. French (2008) 43 Cal.4th 36, 48, fn. 5.) Therefore, a trial court’s duty to instruct sua sponte on particular defenses arises “‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ [Citations.]” (Barton, supra, 12 Cal.4th at p. 195.)
Thus, in order for an instruction on defense or a lesser included offense to be given to the jury, there must be substantial evidence, or, for a defense instruction, reliance on it by the defendant. Consequently, to be entitled to an instruction, defendant must show either there was substantial evidence of perfect self-defense or imperfect self-defense, or defense of others, or that he was clearly relying on these defenses. Furthermore, in order for an instruction on the lesser included offense of attempted manslaughter to have been given to the jury, defendant must show substantial evidence that there was no malice in his act because the distinguishing feature between murder and manslaughter is that manslaughter lacks the element of malice. (People v. Randle (2005) 35 Cal.4th 987, 994 (Randle).)
a. Perfect self-defense
Perfect self-defense is an honest and reasonable belief of imminent peril that negates malice and justifies an injury or death. (People v. Curtis (1994) 30 Cal.App.4th 1337, 1359 (Curtis).) “A killing committed in perfect self-defense is neither murder nor manslaughter; it is justifiable homicide.” (Randle, supra, 35 Cal.4th at p. 994.) Statutorily California defines this justification as: “Homicide is also justifiable when committed by any person in any of the following cases: [¶] . . . [¶] 3. When committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed . . . .” (§ 197)
Perfect self-defense “applies where the defendant believes he or she is facing an imminent and unlawful threat of death or great bodily injury, and believes the acts which cause the victim’s death [or injury] are necessary to avert the threat, and these beliefs are objectively reasonable. [Citation.] In the usual case, the defendant injures or kills the person who poses the threat. . . .” (Curtis, supra, 30 Cal.App.4th at p. 1357.) Self-defense applies to intentional acts, but does not apply to accidental ones. (Ibid.)
Additionally, previous threats are not considered imminent, nor do they provide justification for a deadly assault. (Curtis, supra, 30 Cal.App.4th at p. 1359; People v. Scoggins (1869) 37 Cal. 676, 683.) Furthermore, “‘a quarrel which [a defendant] has provoked, or in a danger which he has voluntarily brought upon himself, by his own misconduct, can not be considered reasonable or sufficient in law to support a well-grounded apprehension of imminent danger . . . .’” and thus, a defendant could not claim self-defense. (People v. Holt (1944) 25 Cal.2d 59, 65-66.) If the quarrel is started by a defendant, the defendant must honestly attempt to escape from it in order to claim self-defense. (Id. at p. 66.)
In this case, defendant admitted on cross-examination that it is objectively unreasonable to believe that running a person over is a reasonable response to having rocks thrown at a car. Thus, given defendant’s own testimony, it is clear that a reasonable person in his position would not have believed his life was in such imminent threat of death or great bodily injury that running over Martinez was necessary to avert that threat. Additionally, there was no other evidence presented that indicated there was such a reasonable threat present.
Notwithstanding the above, even if defendant believed that his life was in danger and it was a reasonable belief, nothing from the surrounding facts indicates a justification for a deadly assault. It is clear from the record that defendant and/or his brother provoked each altercation that made up this quarrel. In addiiton, defendant did not attempt to escape the final altercation, but instead drove himself back into the dirt field and toward Martinez.
Furthermore, and most importantly, defendant made clear while testifying that he considered this incident an accident and not self-defense.
b. Imperfect self-defense
“Imperfect self-defense applies where the defendant actually believes he or she is facing an imminent and unlawful threat of death or great bodily injury, and actually believes the acts which cause the victim’s death are necessary to avert the threat, but these beliefs are objectively unreasonable. [Citation.]” (Curtis, supra, 30 Cal.App.4th at p. 1354.) Like perfect self-defense, imperfect self-defense has been held to apply only to volitional acts, not accidental ones. (Id. at p. 1355.) Imperfect self-defense “negates malice aforethought and thereby reduces a homicide which would otherwise be murder to voluntary manslaughter. [Citations.]” (Id. at pp. 1354-1355.)
Imperfect self-defense is narrow because “a defendant’s bare belief in the need for self-defense is insufficient to negate malice”; all other prerequisites must be met. (Curtis, supra, 30 Cal.App.4th at p. 1356.) “[T]he trier of fact must find an actual fear of an imminent harm. Without this finding, imperfect self-defense is no defense. [¶] We also emphasize that whether the defendant actually held the required belief is to be determined by the trier of fact based on all the relevant facts. It is not required to accept the defendant’s bare assertion of such a fear.” (In re Christian S. (1994) 7 Cal.4th 768, 783.)
At trial, defendant testified that he believed he was in danger. Also, as stated above, defendant agreed it was not objectively reasonable to run over Martinez in response to rocks being thrown at defendant’s car. Regardless of these two prerequisites being met, defendant did not believe his act which caused Martinez’s injury was necessary to avert the danger he believed he was in. Instead, defendant testified that he accelerated in the field because he was worried his Ford Explorer would get stuck, not because he feared imminent harm to himself. While accelerating, dust filled the air and defendant tried to avoid a telephone pole. Defendant kept spinning, made a complete circle and came out on the other side of the pole, which is when defendant looked back and “noticed that [Martinez] was on his knees.”
Thus, once again, given defendant’s own testimony and lack of substantial evidence to the contrary, it was not necessary for the trial court to instruct on imperfect self-defense, because defendant was not claiming he had an imminent, if unreasonable, fear of actual, bodily harm. Defendant was claiming that the incident was simply an accident as he tried to remove his Ford Explorer from the dirt field.
c. Perfect and imperfect defense of others
Similar to the analysis on perfect and imperfect self-defense, defense of others follows the same logic. Defense of others, like self-defense, if reasonable, is a complete defense to charges of murder or attempted murder. (Randle, supra, 35 Cal.4th at p. 996.) Like imperfect self-defense, imperfect defense of others requires a belief of imminent harm, though the belief is unreasonable. (People v. Michaels (2002) 28 Cal.4th 486, 530.) Likewise, “one who kills in imperfect defense of others—in the actual but unreasonable belief he must defend another from imminent danger of death or great bodily injury—is guilty only of manslaughter.” (Randle, supra, at p. 997.)
In deciding whether to include a defense of others instruction, the trial court allowed a defense of others instruction for count 2. Count 2 charged defendant with assaulting Roy with a dark-colored stick. The court allowed the defense of others instruction because there had been testimony that defendant reacted to Roy in defense of his brother, Hollands, during the initial fist fight in the south field. Given this, it was appropriate for a defense of others instruction to be given to the jury on this count.
As to the other counts, no evidence showed that defendant was attempting to defend another. As repeatedly stated, defendant was not defending himself or anyone else, he was asserting that the entire incident was an accident.
Even if it had been proper for the trial court to instruct the jury on either perfect or imperfect self-defense or defense of others, the jury would have most likely still found defendant guilty of attempted murder. Failure to instruct on self-defense or defense of others is subject to the harmless error test of People v. Watson (1956) 46 Cal.2d 818, 836. (See Randle, supra, 35 Cal.4th at p. 1003.) Even with the instruction, if the jury applied the facts to the law correctly, they would have gone through this same analysis. Defendant never testified or presented evidence that he was defending himself or his brother during the incident with the Ford Explorer. Defendant never testified or presented evidence that he believed the rocks thrown at his Ford Explorer led him to believe his life or someone else’s life was in actual danger. Defendant never testified or presented evidence that he clearly was aware he had to run over Martinez in order to save him or others from great bodily injury. Instead, defendant testified he was confused in the dust as he accelerated to remove his Ford Explorer from the dirt field.
For all of these reasons, we affirm the trial court’s decision not to instruct the jury on perfect or imperfect self-defense or defense of others for counts 1, 3 and 4.
B. Impeaching the Victim with Prior Conduct
1. Background
Defendant contends the trial court improperly refused to permit him to impeach Martinez using evidence of a December 2003 incident, in which Martinez was arrested in a stolen vehicle with eight grams of methamphetamine in his possession. Defendant claims the trial court ignored case law and the relevance of the incident to Martinez’s credibility as a witness. Defendant contends the exclusion of this evidence was prejudicial by denying him the right to challenge the credibility of the victim.
In the December 2003 incident, Martinez was charged with possession of methamphetamine, driving under the influence, and receiving stolen property, but he was not convicted of any of those offenses. Instead, Martinez was convicted of disturbing the peace (§ 415), a misdemeanor.
During trial, the judge reviewed the original police report and ultimately decided there was insufficient evidence to support a conclusion or finding that Martinez knew that the car was stolen. Thus, the court refused to permit defendant to use the incident to impeach Martinez.
2. Standard of Review
“A trial court’s exercise of discretion under Evidence Code section 352 will not be reversed unless it ‘exceeds the bounds of reason, all of the circumstances being considered.’ [Citation.]” (People v. Tran (1996) 47 Cal.App.4th 759, 771.)
3. Analysis
Oftentimes, “it is undeniable that a witness’ moral depravity of any kind has some ‘tendency in reason’ [citation] to shake one’s confidence in his honesty. . . . [¶] There is then some basis . . . for inferring that a person who has committed a crime which involves moral turpitude other than dishonesty is more likely to be dishonest than a witness about whom no such thing is known. Certainly the inference is not so irrational that it is beyond the power of the people to decree that in a proper case the jury must be permitted to draw it . . . .” (People v. Castro (1985) 38 Cal.3d 301, 315, fns. omitted.)
“[B]ut jurisdictions have restricted such evidence, even if relevant to honesty, on policy grounds. The concern has been that without such limitations, trials would flounder on collateral issues, witnesses would be deterred by unfair surprise or fear of public humiliation, and testifying criminal defendants would incur the danger of conviction for past, not present, misconduct. [Citations.]” (People v. Wheeler (1992) 4 Cal.4th 284, 290 (Wheeler), superseded by statute as stated in People v. Duran (2002) 97 Cal.App.4th 1448, 1460.)
California has acknowledged these policy concerns with Proposition 8 (Cal. Const. art. 1, § 28, subd. (d)). That section, entitled Right to Truth-in-Evidence, states: “Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103. Nothing in this section shall affect any existing statutory or constitutional right of the press.”
Thus, the Legislature has ensured that evidence, if relevant, is used in criminal proceedings. Relevancy is determined by balancing the evidence’s probative value and undue prejudice that may result. (See Evid. Code, § 352.) Additionally, “the admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude.” (Wheeler, supra, 4 Cal.4th at p. 296, fn. omitted.) This analysis is even stricter when the past misconduct involves a misdemeanor. “In general, a misdemeanor—or any other conduct not amounting to a felony—is a less forceful indicator of immoral character or dishonesty than is a felony. Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.” (Id. at pp. 296-297, fn. omitted.)
In this case, the trial judge engaged in balancing whether or not admission of Martinez’s misdemeanor would be probative, pursuant to Evidence Code section 352. First, Martinez’s conviction was for disturbing the peace (§ 415), which is an act of turpitude, but not necessarily an immoral one. (Rhaburn v. Superior Court (2006) 140 Cal.App.4th 1566, 1569-1570.) Second, the judge reviewed the initial report for the December 2003 incident and determined that Martinez’s explanation about the alleged stolen vehicle he was driving was confirmed by police. Third, Martinez’s crime had nothing to do with the fact that he was run over by a car driven by defendant. Thus, the jury may have become confused as to the relevant facts before it if this misconduct were introduced. Finally, even if the misdemeanor went to Martinez’s credibility, several other witnesses, including defendant, testified as to the events of January 16, 2004, to give the jury an opportunity to decide which version of events was true.
Defendant also argues that even if the conviction could not be used to impeach Martinez, he should have been able to use the underlying conduct of the conviction—the possession of methamphetamine—to impeach Martinez because this conduct does constitute an act of moral turpitude. Defendant cites People v. Harris (2005) 37 Cal.4th 310, 337, to support his contention. However, People v. Harris involved possession for sale, which is an act of moral turpitude, whereas Martinez’s simple possession of methamphetamine is not an act of moral turpitude. (People v. Vera (1999) 69 Cal.App.4th 1100, 1103; People v. Standard (1986) 181 Cal.App.3d 431, 435 [possession of marijuana for sale].) Accordingly, Martinez’s underlying conduct cannot be used to impeach him. (See People v. Rivera (2003) 107 Cal.App.4th 1374, 1380 [“‘a witness’ prior conviction should only be admissible for impeachment if the least adjudicated elements of the conviction necessarily involve moral turpitude’”].)
For these reasons, we affirm the court’s decision not to allow the impeachment of the victim.
IV. DISPOSITION
The judgment is affirmed.
We concur: GAUT, J., KING, J.