Brief Bank # B-691 (Re: F 5.12a [Antecedent Threats To The Defendant Justify Quicker And Harsher Measures In Self-Defense].)
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Date of Brief: September 1994
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
IN AND FOR THE FIRST APPELLATE DISTRICT, DIVISION FOUR
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
Defendant and Appellant.
APPELLANT’S OPENING BRIEF
On Appeal from the Judgment of the
Superior Court of the State of California
in and for the County of Contra Costa
Superior Court No. 9334269
HONORABLE ROBERT G. McGRATH, JUDGE
SARA H. RUDDY
2515 Milvia Street
Berkeley, California 94704
Telephone: (510) 548-4248
State Bar No. 69347
Attorney for Appellant
By appointment of the Court of Appeal
under the First District Appellate Project’s
Independent Case System.
I THE JUDGMENT MUST BE REVERSED BECAUSE THE TRIAL COURT REFUSED TO GIVE DEFENDANT’S REQUESTED INSTRUCTION ON PREVIOUS THREATS BY MR. S.
The defendant requested the following instruction concerning the effect of threats by the decedent on the availability of self-defense to negate criminal liability for a homicide:
One who has received threats made by another against his life or person is justified in acting more quickly and taking harsher measures for his own protection in the event of an actual or threatened assault than would be a person who had not received such threats.
If in this case you believe from the evidence that the decedent made threats against the defendant and that the defendant, because of such threats made before the transaction complained of, had reasonable cause to fear greater peril in the event of an altercation with the decedent than he would have otherwise, you must take such threats into consideration in determining whether the defendant acted in a manner in which a reasonable person would act in protecting his own life or bodily safety.
(CT 1 13.)
This was a correct statement of the law. (People v. Moore (1954) 43 Cal.2d 517, 527; People v. Pena (1984)151 Cal.App.3d 462; People v. Bush (1978) 84 Cal.App.3d 294.) The trial court erred in refusing to give the requested instruction.
In People v. Sears (1970) 2 Cal.3d 180, 190, the California Supreme Court held that “[a) defendant, upon proper request therefor, has a right to an instruction that directs attention to evidence from a consideration of which a reasonable doubt of his guilt could be engendered. [Citation]” Furthermore, “[a] defendant is entitled to an instruction relating particular facts to any legal issue. [Citations.]” (Emphasis added.) (Ibid.) In fact, Moore, in which the California Supreme Court held that the above instruction should be given on request (supra, 43 Cal.2d at p. 529), is one of the cases cited in Sears in support of the above principle. (Sears, supra, 2 Cal.3d at p. 190.) Here, the undisputed evidence showed that Mr. S had threatened Mr. P with great bodily harm on more than one occasion, if not by word, by deed. Thus, the requested instruction related particular facts to the legal question of what constituted a reasonable response to a perceived threat by Mr. S. There can be no doubt that the failure to give the instruction was error.
The only remaining question was whether the error was prejudicial. Where no instructions of’ any kind have been given relating antecedent threats to the defendant’s conduct at the time of the homicide, the failure to give the requested instruction has invariably been held prejudicial. (Moore, supra, 43 Cal.2d at p. 527; Pena, supra, 151 Cal.App.3d at p. 476; Bush, supra, 84 Cal.App.3d at p. 304; People v. Torres (1949) 94 Cal.App.2d 146, 152.) In fact, the court in Pena concluded on the basis of the analysis in Bush and Torres that the failure to give the requested instruction was presumptively prejudicial. (Pena, supra, 151 Cal.App.3d at p. 475.)
The case at bench included the factors that have led earlier courts to conclude that the failure to give the requested instruction constituted prejudicial error. The case was a close case, ind it hinged on the reasonableness of Mr. P’s use of deadly force against Mr. S. There were two eyewitnesses to the events that preceded Mr. S’s death — Mr. P himself, and Mr. S’s girlfriend, Ms. W. Their accounts dove-tailed in many crucial aspects, but diverged in others. If the jury had believed Ms. W’s account of the few seconds preceding the fatal shot, especially her assertions that Mr. P chased Mr. S around the car and that he then shot him in the back when he turned away, it is hard to see flow it could have returned anything but a verdict of second (or even first) degree murder. On the other hand, “There was nothing inherently improbable in defendant’s account of the shooting and it cannot be said from a reading of the record that the jury could not reasonably have reconciled all of the established circumstances with the theory of defendant’s innocence. It is because of this state of the evidence that the instructions of the court should be subjected to a critical examination.” (People v. Hatcliett (1944) 63 Cal.App. 2d 144, 152.)
The jury did not find Mr. P guilty of murder in any degree, but of voluntary manslaughter. Under the facts of’ this case, this verdict can mean nothing other than that the jury found that Mr. P honestly believed that his use of force against Mr. S was necessary to defend himself against imminent peril to life or great bodily injury but that that belief was unreasonable. [Footnote 1] (People v. Flannel (1980) 25 Cal.3d 668, 674.)
“The reasonableness of defendant’s belief, however, is precisely the issue addressed by defendant’s proffered instruction. The jury must take defendant’s knowledge of unconttradicted antecedent threats into consideration in its determination of whether “‘defendant acted in a manner [in] which a reasonable person would act in protecting his own life or bodily safety.”‘ (PeopIe v. Moore, supra, 43 Cal.2d 517, 528, quoting from PeopIe v. Torres, supra, 94 Cal.App. 2d 146, 151-153 . . . . )” (Pena, supra, 151 Cal.App.3d 462, 474.)
In the case at bench, however, unlike Moore, Pena, and Bush, the trial Court did, at the defendant’s request, instruct that: “In determining whether the deceased presented an imminent danger, the defendant was entitled to consider all of the circumstances, including any conduct of the deceased’s known to the defendant.” (CT 109, RT 774.) Although this instruction did relate Mr. S’s prior conduct to one aspect of whether Mr. P’s belief in the need for self-defense was reasonable, it was not an adequate substitute for the refused instruction.
The instruction given by the trial court did permit the jury to take Mr. S’s conduct into consideration in determining whether Mr. P reasonably believed that lie presented an imminent danger. However, it omitted a crucial aspect of the requested instruction. The requested instruction required the jury to take Mr. S’s prior threats into consideration not merely in determining whether Mr. P reasonably believed that Mr. S posed an imminent danger to his life or safety, but also in determining whether his response, i.e., the use of deadly force, was a reasonable one. Thus, the instruction actually given was incomplete.
The emphasis on the defendant’s conduct in the omitted instruction provides a crucial step in the analysis of reasonableness that was absent from the instructions actually given. It is a reasonable assumption from the verdict that the jury credited Mr. Piirisli’s version of what happened at the crucial moments of the encounter as being more accurate than that of Ms. W. The jury after all found not only that the offense was voluntary manslaughter, not murder, but found Mr. P not guilty of any offense with respect to Ms. W.
Mr. P’s testimony revealed that from the moment Mr. S emerged from the passenger side of his car, he was convinced that he had a gun in his hand. The jury’s verdict reveals that it believed this statement to be true. Thus, what the jury found unreasonable was either his belief that he was in imminent peril or his aggressive conduct despite the fact that Mr. S never fired a shot at him. The relationship between Mr. S’s previous conduct and the first of these issues was covered by the trial court’s instruction. The second was not. Because of the conflicts in evidence concerning whether Mr. S actually was armed that night, there is a reasonable probability that an instruction that Mr. P was entitled to act more quickly and take harsher measures because of Mr. S’s threatening behavior during previous encounters would have convinced the jury that his actions were those of a reasonable man under the same circumstances.
Mr. Parisli’s attitude, explicitly stated on the witness stand, was that the only way lie could prevent Mr. S from killing him was to shoot first. However, Mr. S certainly did not ever shoot at Mr. P; Ms. W testified that Mr. S did not have a gun in his glove compartment that night; and no gun was found at the scene. Mr. P himself admitted that he wondered why Mr. Sinallkvood did not shoot at him while they were circling the car and it occurred to him that Mr. S’s gun might have jammed. Although the defense presented evidence from which it could have been inferred that Mr. S did have a gun and that Mr. J or another friend of’ his had removed it from the gas station before the police arrived, that inference was by no means compelling. Thus, the jury may well have concluded that Mr. P did, in fact, whatever his belief, shoot an unarmed man, or a man with an inoperable firearm. Under the instructions given, the jury may well have found Mr. P guilty of voluntary manslaughter because it expected him to wait longer, to be more certain that Mr. S had a gun, and to be more certain that that gun was operable before took such a harsh measure as the use of deadly force. Had the requested instruction been given, explaining that because of Mr. S’s previous threats, Mr. P was justified in acting more quickly and taking harsher measures than would otherwise be reasonable, there is a much greater likelihood that it would have concluded that Mr. P was justified in not waiting until he was actually shot at before shooting at his adversary.
After all, the entire incident listed only a few seconds. After Mr. P fired the first shot and it missed, he and Mr. S started circling his car. [Footnote 2] As this was going on, according to the testimony of both Mr. P and Ms. W, Mr. S was ducking, trying to shield himself. Mr. P did not have a clear view of him then, and did not have a clear view of him seconds later when he shot at him from the other side of the car. (RT 456.) He did wonder why Mr. S was not shooting at him. Although it never occurred to him that Mr. S did not actually have a gun, it did occur to him to wonder whether the gun was jammed, but he did not consider this a likely enough possibility to make it safe for him to get into his car and drive away. It is likely that this was the key question in the case: Would a reasonable person at that point have said, “He has not fired at me in the 10 or so seconds that have gone by while we have been circling the car, so I guess he is not going to,” or would a reasonable person have continued to think that the likelihood that any second Mr. S was going to find a good opportunity to shoot or get his gun to work was great enough to justify shooting him first? Obviously the jury answered this question, “No.” Had the jury been instructed that because of Mr. S’s prior threatening behavior toward Mr. P — behavior which, not coincidentally, involved a gun on both occasions — Mr. P was entitled to act more quickly and take harsher measures than otherwise, there is a reasonable probability that it would have found he was justified in shooting at Mr. S when he had the opportunity, and not waiting longer to be sure that action was necessary. Thus, there is a reasonable probability that if the requested instruction had been given the jury would have found that Mr. P acted reasonably in self-defense. (People v. Watson (1956) 46 Cal.2d 818, 836.) The judgment must be reversed.
For the reasons stated above, appellant respectfully requests this court to reverse the judgment of the court below.
Footnote 1: Although both Mr. P and Ms. W testified to Mr. S’s provocative behavior before the shooting, there was no evidence of the kind of provocation on his part that would have reduced an intentional killing from murder to manslaughter, nor did Mr. P rely on Mr. S’s provocative behavior in his defense.
Footnote 2: Appellant assumes that the jury found this to have been the state of the facts. Mr. P’s statement that he fired first and hit the car door was partially corroborated by the fact that the police found evidence of only the three bullets he said he fired in places corresponding to his testimony; by Ms. W’s testimony at the preliminary hearing that the first shot was fired before the two men ran around the car; and by the testimony of one of the witnesses who heard the gunshot, who at trial said that the shot that sounded different from the others came first. In addition, the jury apparently believed Mr. P’s version of the order and number of the gunshots, because it found him not guilty of attempting to murder or assault Ms. W. In any event, in assessing the impact of instructional error in a case such as this with strongly conflicting evidence, it appropriate to consider all the evidence to which the omitted instruction pertains to determine its impact on the case. (See People v. Torres, supra, 94 Cal.App. 2d at p. 153.