Brief Bank # B-874 (Re: F 5.32 n3 [Use Of Force In Defense Of Another: Duty To Instruct].)
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Date Of Brief: March, 2000
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
PEOPLE OF THE STATE OF CALIFORNIA, B000000
(Los Angeles County
Plaintiff and Respondent, Superior Court
No. LA000000)
v.
JOHN DOE,
Defendant and Appellant.
__________________________________/
APPELLANT’S OPENING BRIEF
On Appeal From the Judgment of the Superior Court of the State of California
Los Angeles County
HONORABLE MICHAEL HOFF, JUDGE
SANDRA URIBE
State Bar No. 183369
Law Offices of Sandra Uribe
11664 National Blvd., PMB #400
Los Angeles, CA 90064
(310) 358-7655
Attorney for Appellant
JOHN DOE
By Appointment of the Court Under The California Appellate Project’s
Assisted Case System.
STATEMENT OF APPEALABILITY
Appellant, John Doe, appeals from a judgment of conviction following a jury trial and an order which finally disposes of all issues between the parties. This appeal is authorized by Penal Code section 1237, subdivision (a).
STATEMENT OF THE CASE
Appellant was charged by information with mayhem (Pen. Code § 202 [Footnote 1]; count I) and assault with a deadly weapon (Pen. Code § 245, subd. (a)(1); count II). (CT 49-50.) [Footnote 2]
On August 18, 1999 a jury convicted appellant of both offenses. (CT 123-124.)
The court sentenced appellant to the high term of eight years on count I; sentence on count II was stayed pursuant to section 654. Appellant was awarded 139 days credit for time served (121 actual days credit, plus 18 days conduct credits). (CT 131-132.)
Appellant filed a timely notice of appeal. (CT 135.)
STATEMENT OF FACTS
On December 1, 1998, Mr. B was drinking in Mallory’s restaurant. (RT 14.) Appellant came in alone that evening. (RT 43.) He was later joined by the perpetrator, who was acting hostile and belligerent. (RT 43, 74.) Without provocation, the perpetrator accosted a female customer, and later, the bar owner. (RT 29, 45, 53.) Appellant intervened in both attacks. (RT 30, 53, 74.)
Subsequently, the perpetrator confronted Mr. B as he was returning from the restroom. (RT 17-18.) Mr. B and the perpetrator grabbed each other by the shirts. (RT 18.) Suddenly, appellant joined in, grabbing Mr. B by the arm. (Id.) Mr. B was surprised by appellant’s conduct because he had not seemed menacing. (RT 18-19.) Appellant kicked the victim and restrained him. (RT 19-20.) The perpetrator then bit off a piece of Mr. B’s ear. (RT 20.) After appellant let go, the perpetrator hit Mr. B with a chair. (RT 22.)
Appellant and the perpetrator left the scene together. (RT 26.) Police found them in another bar later that evening. Appellant had blood on his pants. (RT 63-64.)
Appellant, corroborated in part by the bar owner, testified that his role in the attack was not to assist. Rather, he tried to stop his companion and defend the victim. (RT 99.)
The bar owner was contradicted, in part, by a statement he made to the district attorney’s investigator. (RT 126-127.)
II.
THE COURT ERRED IN FAILING TO INSTRUCT
SUA SPONTE ON DEFENSE OF ANOTHER.
The trial court denied appellant’s request for instructions on self-defense. [Footnote 3] (RT 133.) The court reasoned that appellant’s testimony portrayed him as an “interloper” and therefore, the evidence did not support the self-defense instructions. (Ibid.) Appellant contends that the court should have instructed sua sponte on defense-of-another. The failure to instruct the jury abridged appellant’s right to have the jury instructed on an aspect of his defense. This failure to instruct requires reversal of appellant’s convictions.
In a criminal case, the trial court has a duty to instruct on the general principles of law relevant to issues raised by the evidence. (People v. Estrada (1995) 11 Cal.4th 568, 574.) Pursuant to that obligation, a trial court must instruct sua sponte on defenses which are supported by the evidence and which are not inconsistent with the defendant’s theory of the case, or if it appears that the defendant is relying on a particular defense. (People v. Barton (1995) 12 Cal.4th 186, 195.) When the defense is one that negates proof of an element of the charged offense, the defendant need only raise a reasonable doubt of the existence of that fact, because the defense goes directly to guilt or innocence. (People v. Gonzales (1999) 74 Cal.App.4th 382, 389.)
In People v. Gonzalez, supra, 74 Cal.App.4th 382, this court reversed a domestic violence conviction because the trial court failed to instruct the jury on the defense of accident. In Gonzalez, defendant’s girlfriend and other witnesses testified that she accidentally sustained head injuries when defendant opened a door. (Id. at p. 390.) This court found that the testimony provided substantial evidence that the injuries were accidental. (Ibid.) Moreover, this court noted that defense counsel relied on the defense in closing argument. (Ibid.) Based on those facts, this court concluded that “the trial court erred in failing to instruct the jury sua sponte regarding that defense.” (Ibid.)
The present case is indistinguishable from Gonzalez. Appellant presented ample evidence that he meant to hinder, rather than aid, any attack. The bar owner testified that appellant intervened when the perpetrator accosted a female customer and himself. (RT 74, 76.) The assistant manager of Chadney’s in Burbank also testified that he witnessed appellant attempt to prevent a fight between the bar owner and the perpetrator. (RT 53-54.) Even the victim admitted that appellant had tried to calm the perpetrator when he started an altercation with the bar owner. (RT 30, 32.) These testimonies provided evidence that appellant’s intent that night was to protect people from the perpetrator’s abusiveness. Finally, defendant’s testimony, if believed, established that he pulled the victim away from the perpetrator in an effort to break up the fight. (RT 99.) When assessing the sufficiency of evidence to warrant an instruction, we do not evaluate the credibility of witnesses, a task for the jury. (People v. Breverman (1998) 19 Cal.4th 142, 162-164.) Thus, there was sufficient evidence to support the giving of the instruction.
The defense of another instruction was not only supported by the evidence, but also consistent with appellant’s theory of the case. Defense counsel relied on the defense of another in his argument to the jury. (RT 156-158.) Even the court noted that appellant was an “interloper.” (RT 133.) Thus, the defense of another instruction was required, and the court’s failure to instruct the jury was error.
Traditionally, the erroneous omission of instructions on an affirmative defense required reversal unless the question posed by the omitted instruction was necessarily resolved by the jury, adversely to the defendant, under other correct instructions. (People v. Sedeno (1974) 10 Cal.3d 703, 721[overruled in People v. Breverman, supra, 19 Cal.4th 142]; People v. Stewart (1976) 16 Cal.3d 133, 141-142; People v. Lemus (1988) 203 Cal.App.3d 470, 478-480.) However, in People v. Breverman, supra, 19 Cal.4th 142, the California Supreme Court concluded that the failure to instruct sua sponte on a lesser included offense in a non-capital case is subject to harmless error review. (Id. at p. 165.) Accordingly, the Court overruled the Sedeno standard of prejudice in that context. (Ibid.) The Breverman court itself noted that there are distinctions between the duty to instruct on defenses and the duty to instruct on lesser included offenses. (Id. at p. 158.) Nevertheless, appellant acknowledges that an analogous argument might be made that failure to instruct sua sponte on an affirmative defense is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome.
In Gonzalez, this Court did not decide if the applicable standard of prejudice in failing to instruct on an affirmative defense was the Chapman [Footnote 4] standard of review, or the less stringent Watson [Footnote 5] standard. (People v. Gonzalez, supra, 74 Cal.App.4th 382, 391.) Appellant submits that the appropriate standard is the more stringent Chapman standard because this type of error is of federal constitutional magnitude. The federal Constitution guarantees the defendant a meaningful opportunity to present a defense. (Crane v. Kentucky, supra, 476 U.S. 683, 690 [106 S.Ct. 2142].) However, appellant can establish prejudice under either standard.
The jury had before it a factual scenario which suggested that appellant did not have the requisite intent to commit the crimes. Therefore, the defense of another instruction was essential to the jury’s proper consideration of the evidence in the case. Nor was the issue of defense of others submitted to the jury under any other instructions.
Moreover, as noted in Argument I, the jury’s request for read back of testimony and the length of their deliberations suggest this was a close case. Thus, the court’s error in failing to instruct sua sponte on this defense was prejudicial, and the convictions must be reversed.
CONCLUSION
Based on the evidentiary and instructional errors, the judgment must be reversed.
Dated: March 29, 2000 Respectfully Submitted,
SANDRA URIBE
Attorney for Appellant
FOOTNOTES:
Footnote 1: All further statutory references are to the Penal Code unless otherwise noted.
Footnote 2: “CT” refers to the Clerk’s Transcript and “RT” refers to the Reporter’s Transcript on appeal.
Footnote 3: The requested self-defense instructions included a request for CALJIC 5.32, use of force against another. (CT 112.) CALJIC 5.32 reads: “It is lawful for a person who, as a reasonable person, has grounds for believing and does believe that bodily injury is about to be inflicted upon … to protect him from attack. In doing so he may use all force and means which he believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent.”
Footnote 4: Chapman v. California‘s, supra, 386 U.S. 18, 24 [87 S.Ct. 824, 828], “harmless-beyond-a-reasonable-doubt” test generally applies to errors violative of the United States Constitution.
Footnote 5: People v. Watson‘s (1956) 46 Cal.2d 818, 836-837, “reasonable-probability” test usually covers error under California law.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
PEOPLE OF THE STATE OF CALIFORNIA, B000000
(Los Angeles County
Plaintiff and Respondent, Superior Court
No. LA000000)
v.
JOHN DOE,
Defendant and Appellant.
__________________________________/
REPLY BRIEF FOR APPELLANT
By this reply brief, no attempt is made to set forth a response to each of respondent’s contentions. Indeed, appellant’s opening brief by and large anticipated and refuted most of respondent’s arguments. Appellant stands by his opening brief, and only those points advanced by respondent which appellant believes require correction or additional comment will be addressed.
II.
THE TRIAL COURT SHOULD HAVE INSTRUCTED ON DEFENSE OF ANOTHER.
Respondent contends that the trial court properly refused to instruct on defense on another because the defense was not supported by substantial evidence. (RB 21.) Respondent argues that there was no evidence that appellant used force against Mr. B in order to protect the perpetrator. (RB 24.)
Respondent’s entire reply is based on the misconception that appellant argues that the defense of another instruction was warranted because there was substantial evidence that he was trying to protect the perpetrator. In fact, appellant argued that he was attempting to defend the victim. Thus, the question is whether substantial evidence was presented so that the jury could reasonably have found that appellant acted in an attempt to protect Mr. B. As noted in Appellant’s Opening Brief, the testimony of the defense witnesses constituted substantial evidence of appellant’s intent to restrain the perpetrator. Moreover, two prosecution witnesses, including the victim, testified that appellant had intervened in the perpetrator’s earlier assaults. (See AOB pp. 17-18.) Based on these facts, the jury could have concluded that appellant tried to act as a defender, not as an assailant. Accordingly, the instruction on defense of another was warranted.
CONCLUSION
For the reasons stated above and in Appellant’s Opening Brief, the convictions must be reversed.
Dated: July 18, 2000 Respectfully Submitted,
SANDRA URIBE
Attorney for Appellant
