Opinion
B227225
11-17-2011
THE PEOPLE, Plaintiff and Respondent, v. RAFAEL RAMIREZ, Defendant and Appellant.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. LA061257)
APPEAL from a judgment of the Superior Court of Los Angeles County, Joseph A. Brandolino, Judge. Affirmed.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.
Rafael Ramirez (defendant) appeals from the judgment entered after a jury convicted him of second degree murder (Pen. Code, § 187, subd. (a)), with a finding that he personally and intentionally discharged a firearm resulting in the victim's death (§ 12022.53, subd. (d)). Defendant contends that the trial court's instruction regarding the limited right to self-defense by a person who engages in mutual combat or who is the initial aggressor (CALCRIM No. 3471) did not correctly state the law, and that had the jury been instructed correctly, it likely would have convicted him of voluntary manslaughter, not second degree murder. We conclude there was no instructional error, and therefore we affirm.
All further statutory references are to the Penal Code.
STATEMENT OF FACTS
I. The Prosecution Case
On February 10, 2009, Kalani Perry, Joseph Gayton, Eric Reynoso (known as "O.G."), Jonathan Specter (known as "K.C."), and Gilbert Solano (known as "L.B.") were walking on the 6600 block of Laurel Canyon Boulevard on their way to a strip club. Gayton and Solano were members of the Street Villain gang, also known by the initials "STV;" Reynoso was a member of the Burbank Treces gang; and Specter was a member of the Imperial Beach gang. Gayton was in a wheelchair and was carrying a knife; none of the other men was armed. The men saw defendant inside a Bank of America, where he and his girlfriend were making a deposit in an ATM. Defendant is a member of the gang Money and Drugs or M.A.D., and is known by the gang moniker "Kiloe." Solano threw a gang sign, and defendant responded by throwing his own gang sign. Solano was angry, "fired up." He went to confront defendant, removing his shirt as he did so. Perry asked a bank customer who was inside the bank not to open the door, but as that customer exited, Solano was able to enter the bank. Solano asked defendant if he banged, and defendant said, "no." Solano said, "I am from Street Villains." Gayton told Solano, "Let's go[.] It's not worth it." Solano turned and followed Gayton and the others towards the strip club.
Defendant went to his car, pulled out a gun, whistled, and yelled, "Hey, hey." Gayton and Solano turned around and walked back towards defendant. When Gayton saw that defendant had a gun, he stopped, but Solano continued walking towards defendant. Gayton and some of the others told Solano that defendant had a gun, but Solano said he did not care. At some point, Solano "put up his hands . . . palms straight out, you know, at . . . chest level — kind of like 'what,' something to that effect." He did not have anything in his hands. Defendant pointed the gun towards Solano's chest and said, "Why you disrespect me in front of my lady?" He then shot Solano in the chest, saying, "I do bang" and "I am from M." Defendant and his girlfriend ran to defendant's truck and drove away.
Solano was taken by ambulance to Holy Cross Hospital, where he died.
Jonathan Ojeda, a Los Angeles Police Department (LAPD) officer, arrived at the scene at 9:14 p.m., immediately after the shooting. He found no weapons in the area of the shooting or among the personal property recovered from Solano at the hospital. Crime scene investigators who examined the scene after the shooting found a .22 casing.
LAPD Officers Scot Tween and Eric Peltier conducted a search of defendant's apartment on February 11, 2009, the day after the shooting. Officer Tween found an empty nylon gun holster and necklace with an "M" charm in defendant's closet. Officer Peltier found a handgun in a grey pickup truck parked under defendant's apartment building.
Ogbonna Chinwah, a deputy medical examiner, performed an autopsy of Solano on February 12, 2009. She determined that Solano died of a gunshot wound to the chest. At the time of his death, Solano's blood alcohol level was .23 percent.
Patricia Bertieri, an LAPD gang enforcement officer, testified at trial that defendant is a member of M.A.D. M.A.D.'s primary activities are assaults with a deadly weapon, robberies, burglaries from motor vehicles, vandalism, and narcotics. Officer Bertieri testified that in her opinion, defendant shot Solano for the benefit of M.A.D.
II. The Defense Case
Defendant testified that on February 10, 2009, he went to the Laurel Canyon Boulevard Bank of America with his girlfriend, Maricela Rivera, to make a deposit. He saw a crowd of people outside the bank, and one of them, whom he identified as Solano, flashed a gang sign at him. Defendant responded by flashing his own gang sign. Defendant perceived Solano's flashing of his gang sign to be a threat because in his experience, "you're not allowed to throw gang signs when you're with family members." Solano then walked up to the bank, removed his shirt, and tried to get into the bank. When a customer exited, Solano walked in. At that point, defendant thought that "things are going to go all bad right now. . . . What I mean by all bad either something bad is going to happen either to me or him. I don't know what's going to happen. . . . I mean, him approaching me in the bank, either he was going to rob me or fight me, or him opening the door, his other group were going to come in, as well."
Solano's eyes were red and he smelled of alcohol. He asked defendant what he was looking at and where he was from. Defendant answered, "I'm from nowhere" to try to avoid any trouble. Solano "[came] at" defendant and said, "fuck you and fuck valleros [the valley]" and "I'm from South Central from Street Villains gang." He told defendant that he better come up with some money or "something bad is going to happen to you and your girl." Solano then walked out, grabbed his shirt, and appeared to be moving on.
Defendant continued to watch Solano as he walked up the street. He could see Solano and the others waiting for him about 30 feet up the street. Defendant thought he had seen a gun on Reynoso's waistband, so he went to his car to get his own gun. Defendant walked towards the other men and flashed his gun. He believed that if he showed Solano and the others his gun, they would leave the scene. Instead, Solano approached him. Defendant raised his gun, and Solano "told me, 'What's up?' He started telling me his gang name, which is Street Villains, and he was going to tell me, 'So what's up? What are you going to do?' You know, I wasn't — I wasn't planning of, you know — I was not even thinking of doing — didn't even know what I was doing. I didn't even want to do anything. But he just came forward towards me when I had the gun." As Solano approached, defendant felt threatened: "[H]e could tackle me down, take the gun. It was going to go one way or another." Further, he had seen a gun with Gayton, "so I was not knowing if — if he [Solano] had a weapon on him or not. I was sure enough that the person . . . on the wheelchair [Gayton] had a gun." Defendant raised his gun and shot Solano. "The reason why I shot — because, like I said, I didn't know what I was doing. And when I pulled the gun up, I don't know. I just felt like he could either attack me or he could have done anything in order for him to get the gun. . . . I — I just didn't know what I was doing. I didn't — my intentions were not to kill him." "I wasn't thinking right, and he wasn't thinking right, as well, you know."
Defendant testified that M.A.D. was a tagging crew, not a gang. On cross-examination, defendant conceded that he did not see a weapon on Solano and Solano never touched him.
III. Verdict and Appeal
On April 15, 2010, the jury returned a verdict finding defendant guilty of the second degree murder of Solano. It further found that defendant discharged a firearm and that the murder of Solano was committed for the benefit of, at the direction of, or in association with a criminal street gang.
The trial court denied defendant's motion for new trial on September 3, 2010. The same day, it sentenced defendant to 15 years to life on count one (second degree murder) and 25 years to life pursuant to the firearm enhancement (§ 12022.53, subd. (d)). Defendant timely appealed.
STANDARD OF REVIEW
Defendant's sole contention on appeal is that the trial court misinstructed the jury. "'We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. [Citation.]' [Citation.]" (People v. Sigala (2011) 191 Cal.App.4th 695, 698.) In the absence of federal constitutional error, an incomplete or erroneous instruction merits reversal only if "'it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction been given.'" (People v. Dickey (2005) 35 Cal.4th 884, 905.)
DISCUSSION
Defendant conceded at trial that he shot Solano, but he claimed that he did so in either perfect or imperfect self-defense. Consistent with these theories, the court instructed the jury pursuant to CALCRIM No. 505 (Justifiable Homicide: Self-defense or Defense of Another) and CALCRIM No. 571 (Voluntary Manslaughter or Imperfect Self-defense).
"The defendant is not guilty of murder or manslaughter if he was justified in killing someone in self-defense or defense of another. The defendant acted in lawful self-defense or defense of another if:
"1. The defendant reasonably believed that he or someone else was in imminent danger of being killed or suffering great bodily injury;
"2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger;
"AND
"3. The defendant used no more force than was reasonably necessary to defend against that danger.
"Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of great bodily injury to himself or someone else. Defendant's belief must have been reasonable and he must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the killing was not justified.
"When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed.
"The defendant's belief that he or someone else was threatened may be reasonable even if he relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true. . . ."
"A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense or imperfect defense of another.
"If you conclude the defendant acted in complete self-defense or defense of another, his action was lawful and you must find him not guilty of any crime. The difference between complete self-defense or defense of another and imperfect self-defense or defense of another depends on whether the defendant's belief in the need to use deadly force was reasonable.
"The defendant acted in imperfect self-defense or imperfect defense of another if:
"1. The defendant actually believed that he or someone else was in imminent danger of being killed or suffering great bodily injury;
"AND
"2. The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger;
"BUT
"3. At least one of those beliefs was unreasonable.
"Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be.
"In evaluating the defendant's beliefs, consider all the circumstances as they were known and appeared to the defendant.
"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 beyond a reasonable doubt that the defendant was not acting in imperfect self-defense or imperfect defense of another. If the People have not met this burden, you must find the defendant not guilty of murder."
At the prosecution's request, the court also instructed the jury pursuant to CALCRIM No. 3471 (Right to Self-Defense: Mutual Combat or Initial Aggressor), as follows:
"A person who engages in mutual combat or who is the initial aggressor has a right to self-defense only if:
"1. He actually and in good faith tries to stop fighting;
"AND
"2. He indicates, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wants to stop fighting and that he has stopped fighting;
"AND
"3. He gives his opponent a chance to stop fighting.
"If a person meets these requirements, he then has a right to self-defense if the opponent continues to fight.
"A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense arose."
Defendant contends that the "initial aggressor" portion of CALCRIM No. 3471 did not correctly state the law. Specifically, he urges that an initial aggressor has the right of self-defense even if he does not withdraw from a fight if "'the attack [by the victim] is so sudden and perilous that [the initial aggressor] cannot withdraw'" or "'the victim of a simple assault responds in a sudden and deadly encounter assault.'" (Italics omitted.) Defendant contends the jury should have been instructed regarding the "sudden and deadly encounter" exception to the initial aggressor rule because when Solano approached defendant, defendant "reasonably or unreasonably . . . perceived [Solano's approach] to be a deadly threat to his life." According to defendant: "A reasonable juror could have found, on this record, that [defendant] rightly or wrongly believed Solano constituted a deadly threat to him at the time he fired the gun. . . . He was thus legally entitled to claim self-defense, perfect or imperfect, in so doing. [¶] But CALCRIM No. 3471 told the jurors he wasn't because he'd initiated the second confrontation."
Defendant concedes that although Solano threw the first gang sign, the jury properly could have found defendant to be the initial aggressor of a second confrontation that began when defendant "got his gun from his vehicle and regained Solano's attention."
The Attorney General responds that defendant forfeited his contention of instructional error because he did not ask the trial court to alter the standard instruction. Further, the Attorney General urges that the "initial aggressor" portion of the instruction correctly stated the law and any error was not prejudicial.
We consider these issues below.
I. The "Sudden and Deadly Encounter" Exception
In support of his contention that the trial court misinstructed the jury, defendant relies on People v. Sawyer (1967) 256 Cal.App.2d 66 (Sawyer), disapproved on other grounds in People v. Alvarez (1996) 14 Cal.4th 155, 219, footnote 23, and People v. Gleghorn (1987) 193 Cal.App.3d 196 (Gleghorn).
In Sawyer, four defendants and another man attacked two victims in their home. One of the victims retrieved a gun from his dresser and shot one of the defendants; another defendant then fired a single shot from his gun. (Sawyer, supra, 256 Cal.App.2d at pp. 71-72.) Following a trial in which they were convicted of burglary and assault, defendants claimed on appeal that the trial court erred in rejecting a proposed jury instruction "to the effect that when the victim of a simple assault indulges in a sudden and deadly counter assault, the original aggressor need not attempt to withdraw and may use reasonably necessary force in self-defense." (Id. at p. 75.) The appellate court agreed that the requested instruction correctly expressed the law, but said its rejection was not improper because the trial court adequately covered the subject through another instruction. (Ibid.)
"The trial court instructed the jury as follows: [¶] 'Where a person seeks or induces a quarrel which leads to the necessity in his own defense of using force against his adversary, the right to stand his ground and thus defend himself is not immediately available to him, but, instead he first must decline to carry on the affray, must honestly endeavor to escape from it, and must fairly and clearly inform his adversary of his desire for peace and of his abandonment of the contest unless the attack is so sudden and perilous that he cannot withdraw. Only when he has done so will the law justify him in thereafter standing his ground and using force upon his antagonist.'" (Sawyer, supra, 256 Cal.App.2d at p. 75, fn. 2.)
The court restated the "sudden and deadly encounter" exception in People v. Gleghorn. There, the defendant broke into a garage where the victim was sleeping in the rafters. Defendant beat on the rafters with a stick and said if the victim did not come down, he would burn him out; he then set fire to some of the victim's clothes. The victim responded by shooting defendant with an arrow. Defendant then beat the victim severely. (Gleghorn, supra, 193 Cal.App.3d at pp. 199-200.)
Defendant was convicted of assault and battery with the infliction of serious bodily injury, from which he appealed. He contended that since the jury found his acts prior to being shot constituted only simple assault, the victim was not justified in replying with deadly force; since the victim responded with deadly force, he was entitled to defend himself with deadly force. (Gleghorn, supra, 193 Cal.App.3d at p. 200.) The court disagreed and affirmed. It noted that when the victim of simple assault responds with "a sudden and deadly counterassault," the original aggressor need not attempt to withdraw and may use reasonably necessary force in self-defense. (Id. at p. 201.) Nonetheless, it found no error in the jury's verdict because the jury reasonably could infer from the evidence that: (1) the victim acted reasonably upon the appearances that his life was in danger or (2) even if the victim acted unreasonably in shooting defendant with the arrow and defendant was justified in responding with deadly force, defendant continued to beat his victim long after the attacker was disabled. The court concluded: "If a person attacked defends himself so successfully that his attacker is rendered incapable of inflicting injury, or for any other reason the danger no longer exists, there is no justification for further retaliation. . . . [¶] The evidence supports a finding that Fairall [the victim] did not threaten or take any action against appellant after Fairall descended from the loft. On the other hand, if the jury found, as it could have, that Fairall was justified in reasonably fearing for his life on the appearances of appellant's actions, appellant never obtained the right of self-defense in the first place. We find no error." (Id. at p. 202.)
II. The Court Did Not Err in Failing to Instruct the Jury About the "Sudden and Deadly Encounter" Exception
Defendant concedes that his attorney did not ask the trial court to instruct the jury about the "sudden and deadly encounter" exception, but urges that the court had a duty to so instruct it sua sponte. For the following reasons, we do not agree.
In a murder case, trial courts are obligated to instruct the jury only on those defenses supported by substantial evidence that could lead to conviction of the lesser included offense of voluntary manslaughter. (People v. Valenzuela (2011) 199 Cal.App.4th 1214.) Substantial evidence "is not '"'any evidence, no matter how weak,'"' but evidence from which a reasonable jury could conclude that the defendant was guilty only of manslaughter." (Id. at p. 1228.)
In this case, there was no substantial evidence that Solano responded to defendant's provocation with a "sudden and deadly" counterassault. (Gleghorn, supra, 193 Cal.App.3d 196.) To the contrary, the evidence is undisputed that Solano did not have a weapon of any kind and that his only response to defendant's brandishing of his gun was to walk slowly towards defendant. There is no evidence that Solano or any of his compatriots appeared to reach for a weapon—indeed, a prosecution witness testified that as he approached defendant, Solano "put up his hands . . . palms straight out, you know, at . . . chest level — kind of like 'what,' something to that effect." Solano did not have anything in his hands as he did so. On this record, the jury could not have found that Solano responded to defendant's initial act of aggression with a "sudden and deadly counterassault" against which defendant had the right of self-defense.
We also reject defendant's suggestion that his genuine but unreasonable belief that Solano posed a deadly threat required the court to instruct the jury regarding the "sudden and deadly encounter" exception. Defendant cites no authority for this proposition, and we are not aware of any. Indeed the law is to the contrary: "It is well established that the ordinary self-defense doctrine—applicable when a defendant reasonably believes that his safety is endangered—may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary's attack or pursuit is legally justified. (See generally, 1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Defenses, § 245, p. 280; 2 Robinson, Criminal Law Defenses (1984) § 131(b)(2), pp. 74-75.) It follows, a fortiori, that the imperfect self-defense doctrine cannot be invoked in such circumstances. For example, the imperfect self-defense doctrine would not permit a fleeing felon who shoots a pursuing police officer to escape a murder conviction even if the felon killed his pursuer with an actual belief in the need for self-defense." (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1; see also People v. Seaton (2001) 26 Cal.4th 598, 664 ["Because, however, defendant's testimony showed him to be the initial aggressor and the victim's response legally justified, defendant could not rely on unreasonable self-defense as a ground for voluntary manslaughter."]; People v. Frandsen (2011) 196 Cal.App.4th 266, 272 ["appellant cites no authority that the escalation exception applies to imperfect self-defense. Indeed, the law is to the contrary, for as the initial aggressor and with [victim] having acted lawfully, appellant may not rely on imperfect self-defense."].)
These analyses are instructive here. They teach that an aggressor who honestly but unreasonably believes that his victim has responded to the initial attack with illegal force does not have a right to self-defense; the right to self-defense exists only if the victim actually responds to the initial attack with illegal force. Because Solano did not actually respond to defendant's aggression with illegal force, on the present facts the trial court did not err in failing to instruct the jury about the "sudden escalation" exception.
For the same reason, defendant did not suffer any prejudice as a result of the omission of the sudden escalation clause because it is not reasonably probable the jury would have found that clause applicable and returned a different verdict. Had the trial court instructed the jury about the "sudden escalation" exception, it necessarily would have told the jury that the exception applies only where the victim responds to an initial act of aggression with force that is legally, not apparently, unjustified. Because there is no evidence that Solano's act of walking towards defendant was legally unjustified force—or indeed, that it was force at all—a jury could not have reasonably found that the "sudden escalation" exception applied.
Defendant also contends that the trial court erred in giving the "mutual combat" portion of the instruction. His counsel's failure to ask the court to strike the reference to "mutual combat" forfeited defendant's claim of instructional error because defendant has not shown that the instruction affected his substantial rights. (E.g., People v. Valenzuela, supra, 199 Cal.App.4th 1214.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J. We concur:
EPSTEIN, P. J.
WILLHITE, J.