Brief Bank # B-976 (Re: F 5.12a [Antecedent Threats To The Defendant Justify Quicker And Harsher Measures In Self-Defense].) CAVEAT: The file below was not prepared by FORECITE. FORECITE has not made any attempt to review or edit this material and is not responsible for its content or format. FORECITE cannot guarantee the information is complete, accurate or up-to-date. You are advised to conduct your own independent, comprehensive research on all issues addressed in the material below.
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Date of Brief: June 2004
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
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, COUNTY OF SANTA CLARA,
THE HONORABLE JOYCE ALLEGRO, JUDGE PRESIDING
SIXTH DISTRICT APPELLATE PROGRAM
State Bar #100175
100 N. Winchester Blvd., Suite 310
Santa Clara, CA 95050
(408) 241 -6171
Attorneys for Appellant,
APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AMENDMENT TO THE FEDERAL CONSTITUTION WHEN HIS TRIAL ATTORNEY FAILED TO REQUEST A JURY INSTRUCTION THAT A PERSON IS ENTITLED TO ACT MORE QUICKLY AND HARSHLY IN SELF DEFENSE WHEN HE HAS PREVIOUSLY BEEN SUBJECTED TO THREATS AND ASSAULTS BY THE ALLEGED VICTIM.
For at least the last fifty years, California law has provided that a person is entitled to act more quickly and harshly in self defense than is usually the case when he has been the subject of prior assaults or threats by the alleged victim. (People v. Minifie (1996) 13 Cal.4th 1055, 1065; People v. Moore (1954) 43 Cal.2d 517, 531; People v. Garvin (2003) 110 Cal.App.4th 484, 488.) Given the settled nature of this principle, a multitude of cases hold that the trial court must grant a defendant’s request for a jury instruction on this topic. (Garvin, supra, 110 Cal.App.4th at p. 488 and cases cited therein.)
In the case at bar, there was substantial evidence that Antonio C. and Saul C. had both assaulted appellant and threatened to use a gun on him. Given this evidence, defense counsel could certainly have obtained a jury instruction regarding the legal significance of the antecedent assaults and threat. As will be demonstrated below, counsel’s failure to obtain an instruction deprived appellant of a fair trial.
As the record plainly shows, appellant had previously been the victim of a criminal assault perpetrated by the C brothers. On a summer afternoon, the C brothers and their colleague, Mr. A, attacked appellant and his brother, Ben Doe. (RT 1159-1160, 1380-1382.) During the assault, Mr. A brutally beat Ben Doe on the head with a fence board. (RT 1381-1382.) As a result, a criminal charge was brought against Mr. A. (RT 1387-1389.)
At the conclusion of the assault, one of the C brothers remarked to the other that he should go home and return with a gun. (RT 1163, 1385.) [Footnote 1] Later that day, appellant saw a third person deliver an item which looked like a gun to a group gathered across the street from his residence. (RT 1172.)
On these facts, appellant was unquestionably entitled to act quickly and harshly in self defense if he reasonably believed that Antonio C. was about to attack him. Given the prior assault by the C brothers and their implied threat to use a gun, appellant was fully justified in using severe measures in self defense. (People v. Moore, supra, 43 Cal.2d 517, 527-531; People v. Pena (1984) 151 Cal.App.3d 462, 474-478; People v. Bush (1978) 84 Cal.App.3d 294, 302-304.) Given this reality, the conclusion necessarily follows that appellant was deprived of the effective assistance of trial counsel when his attorney failed to obtain an appropriate jury instruction.
A meritorious claim of ineffective assistance of counsel requires a two part showing: (1) counsel’s performance fell below the objective standard of prevailing professional norms; and (2) the defendant was prejudiced by counsel’s failing. (Strickland v. Washington (1984) 466 U.S. 668, 688-695.) With respect to the requisite showing of prejudice, a defendant is entitled to relief if he can show “a significant but something-less-than 50 percent likelihood of a more favorable” result absent counsel’s error. (People v. Howard (1987) 190 Cal.App.3d 41, 48.)
Defense counsel has the duty to request appropriate jury instructions on the defense theory of the case. (People v. Sedeno (1974) 10 Cal.3d 703, 717, fn. 7, overruled on other points in People v. Breverman (1998) 19 Cal.4th 142, 163, fn. 10 and People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12.) Here, there can be no doubt that counsel erred by failing to request an instruction on the antecedent threats doctrine. [Footnote 2]
Defense counsel obtained instructions on the topic of self defense and argued that theory to the jury in his closing argument. (RT 1631-1640.) Insofar as he relied on self defense in seeking acquittal, counsel surely had no tactical reason for failing to obtain an antecedent threats instruction. In failing to obtain the instruction, counsel performed in an objectively unreasonable manner. (Strickland, supra, 466 U.S. 668, 690.)
In analyzing the prejudice flowing from counsel’s error, the central inquiry is whether this court can have “confidence” that the jury would have returned the same verdict had an antecedent threats instruction been given. (Strickland, supra, 466 U.S. at p. 694.) No such confidence can be found on the instant record.
At the outset, it must be emphasized that the principle underlying the antecedent threats doctrine goes to the essence of the case whenever a defendant relies on a self defense theory. Insofar as the doctrine allows a person to act more quickly and harshly than is the norm, the jury is seriously misled concerning the defendant’s rights when an appropriate instruction is not given. For this reason, the failure to give an antecedent threats instruction “is presumed prejudicial, requiring reversal. [Citations.]” (People v. Pena, supra, 151 Cal.App.3d 462, 475.)
In measuring the prejudice in this case, it is important to note that the undisputed facts found in the People’s case were strongly supportive of appellant’s right to defend himself against Antonio C. As Mr. T admitted, he followed appellant onto the freeway and then intentionally drove alongside appellant so that Mr. C. could exchange words and gestures with him. (RT 716-721.) The exchange went on for approximately a minute. (RT 722-723.) Given the fact that Mr. C’s group, and not appellant, instituted the confrontation on the freeway, there was certainly a substantial basis for appellant to believe that he was about to become the victim of a deadly attack.
The People will no doubt contend that appellant’s self defense theory was not well supported since a gun was not found in Mr. T’s car. However, there are two answers to such a claim.
First, the right to self defense “does not depend upon the existence of actual danger but rather depends upon appearances; . . . .” (People v. Clark (1982) 130 Cal.App.3d 371, 377.) Here, appellant testified that Mr. C had a “black object” in his hand. (RT 1197.) Since there were numerous items found in front of Mr. C’s seat (a screwdriver, a plastic bottle and a black item which looked like a Walkman), the jury could readily have found that appellant reasonably believed that Mr. C had a gun in his hand. (Defense Exhibit B.)
Second, an instruction on antecedent threats would have completely changed the jury’s calculus concerning the case. On the instructions given, the jury might well have determined that appellant was not entitled to use his gun since he was unsure that Mr. C had a gun. However, if the jury had been instructed that appellant was entitled to act quickly and harshly due to the prior assault and threat visited upon him, an acquittal might well have resulted.
People v. Pena, supra, 151 Cal.App.3d 462 supports this conclusion. There, the defendant knew that Frank Ambrosio was a violent man. After a dispute arose between the two men, Ambrosio told the defendant that he would be “looking” for him. Eventually, the empty handed Ambrosio approached the defendant in a bar. The defendant drew a gun and shot and killed Ambrosio. On these facts, the failure to give an antecedent threats instruction was deemed to be reversible error.
“Absent a clear instruction to consider defendant’s knowledge of the uncontradicted antecedent threats made by Ambrosio to him and to others about him, we cannot be sure jurors did not construe instructions which were proffered as narrowing the scope of facts and circumstances which they were entitled to consider to only those perceived by any other ‘reasonable man’ approached by Ambrosio while sitting in the bar at the Mexican Village restaurant. Suffice it to say, that other ‘reasonable man’ would view Ambrosio simply as another patron; Ambrosio’s entrance and approach would lack the import perceived by one aware of antecedent threats. A defendant’s knowledge of uncontradicted antecedent threats must, therefore, be taken into consideration in the determination of the reasonableness of a belief in the necessity of self-defense.” (Pena, supra, 151 Cal.App.3d 462, 476.)
The same analysis is appropriate here. As in Pena, a juror might assume that appellant had acted rashly by opening fire on the freeway. However, once the juror was apprised of the fact that appellant was legally entitled to act quickly and harshly in self defense, a different judgment might well have been made.
Reversal is required for a second reason as well. In its instructions, the court advised the jury that the right to self defense arises only when “there was imminent danger” of an attack on the defendant. (RT 1537.) By focusing the jury on this requirement without also factoring in the importance of the evidence of antecedent threats, the instructions eviscerated appellant’s defense.
This conclusion is established by well settled precedent. In both People v. Bush, supra, 84 Cal.App.3d 294 and People v. Torres (1949) 94 Cal.App.2d 146, the jury was instructed on the requirement of “imminent” danger. In each case, the court held that the combination of the instruction on imminent danger and the omission of an instruction on antecedent threats required reversal. (Bush, supra, 84 Cal.App.3d at pp. 303-304; Torres, supra, 94 Cal.App.2d at p. 153.) In the words of the Bush court:
“A reading of the self-defense instructions given by the trial court reveals that there was no reference to prior threats, but that the court did instruct the jury that homicide was justifiable when a person had reasonable ground to apprehend that he was in danger of death or great bodily injury and that there was imminent danger of such a design being accomplished. The court also instructed the jury that the danger must be apparent and ‘must be present and imminent, or must so appear at the time . . . .’ (Italics added.) Under the reasoning of the Torres case, these instructions might well have served to divert the jurors’ attention from the evidence of prior threats, hence the trial court ought to have given defendant’s proffered instructions, specifically explaining the significance of those threats. Where, as in this case, there is evidence tending to show the making of threats of death or great bodily harm by deceased against the defendant, which are relied on as influencing or justifying defendant’s act, instruction on the law of this subject is proper and, if not covered, a correct instruction on the subject proposed by one of the parties should be given. [Citation.]” (People v. Bush, supra, 84 Cal.App.3d at p. 304, emphasis in original.)
In failing to obtain an antecedent threats instruction, defense counsel irreparably damaged appellant’s case. A reasonable man in appellant’s position would have been deeply scared when Mr. C’s group drove up to him on the freeway. However, the jury was given absolutely no clue that appellant was legally entitled to act quickly and harshly to protect himself. The failure of defense counsel to request an antecedent threats instruction requires reversal. (United States v. Span (9th Cir. 1996) 75 F.3d 1383, 1390 [judgment reversed due to defense counsel’s error in failing to request a jury instruction on the defendant’s right to use force against an unlawful police assault].)
Footnote 1: There was a discrepancy in the defense testimony. Appellant testified that Saul made the comment about the gun whereas Ben Doe testified that Antonio made the comment. (RT 1163, 1385.) The discrepancy is of no consequence. This is so since appellant was entitled to act harshly in self defense against Antonio even if Saul made the comment about the gun. (People v. Minifie, supra, 13 Cal.4th 1055, 1060 [“evidence of third party threats is admissible to support a claim of self-defense if there is also evidence from which the jury may find that the defendant reasonably associated the victim with those threats.”].)
Footnote 2: The following instruction should have been requested:
“One who has previously been assaulted or received threats against his life made by another person is justified in acting more quickly and taking harsher measures for his own protection in the event of assault either actual or threatened by the other person, than would be one who has not been previously assaulted or received threats against his life. For the purpose of this instruction, you may consider any assault or threat previously made by either Saul C. or Antonio C. if you find that such an assault or threat was committed.”