P. v. Bonds

Filed 10/10/06 P. v. Bonds CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. Stephen A. Marcus, Judge. Affirmed as modified.

Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Paul M. Roadarmel Jr., Deputy Attorneys General, for Plaintiff and Respondent.

___________________________

Andrew Lamont Bonds timely appealed a judgment entered against him following a jury trial in which he was found guilty of second-degree murder. (Pen. Code, § 187, subd. (a).) The jury also found true allegations that defendant had personally used two dangerous and deadly weapons, a knife and a cane, within the meaning of Penal Code section 12022, subdivision (b)(1). Appellant was sentenced to a total term of 16 years to life in prison, consisting of 15 years to life for his second-degree murder conviction, plus one year for the knife use allegation. The court imposed a concurrent term of one year for the cane use allegation.[1]

On appeal, appellant contends the trial court had a sua sponte duty to instruct the jury with paragraph [2] from the 2004 revision to CALJIC Nos. 5.54 and 5.56 which provides that an initial aggressor need not withdraw and may use reasonable (even lethal) force to defend himself if the victim of that initial, simple assault responds with a sudden and deadly counter-assault from which the initial aggressor cannot safely withdraw. Appellant argues that this omission constitutes reversible error because it deprived him of his sole defense against the allegations.

The trial court did not err by failing to give this instruction because the instruction was not supported by substantial evidence. Additionally, because appellant did not rely on the instruction for his defense, his substantive rights were not violated.

Appellant further contends (and respondent agrees) the cane use enhancement should have been stayed. We affirm as modified.

FACTUAL AND PROCEDURAL SUMMARY

In September 2004, appellant, James Boozer, Brenda Hicks and Michael Riley lived together in a house in Los Angeles owned by Boozer.

Boozer was 5 feet 9 inches tall, 62 years of age, and used a cane. Appellant was 53 years old, stood 6 feet 1 inch tall and weighed approximately 206 pounds. Appellant was an experienced martial artist, having trained in the discipline for 15 to 25 years.

On September 10, 2004, the four residents and June Atkins smoked crack cocaine at Boozer’s house. Appellant, Boozer and Atkins smoked in the living room, while Hicks and Riley smoked in a bedroom. Boozer and appellant argued during the day, and at one point, appellant became “pissed off,” went outside and sat on the porch. Appellant and Boozer continued to trade insults for several more hours. Eventually, appellant walked inside the house and up to Boozer, who was sitting in a chair. Appellant punched Boozer, causing Boozer to fall out of his chair, hit his head on a table, and fall to the floor. The two men scuffled and Boozer was stabbed in the chest with a steak knife.

Boozer died later that night. An autopsy revealed Boozer had suffered a deep laceration to his forehead, and was killed by a three- to four-inch deep stab wound to the left side of his chest puncturing Boozer’s heart. The wound was C-shaped, indicating that the knife had been inserted and twisted. The wound was consistent with a blade later recovered by police from Boozer’s front yard.

Appellant’s Call to 9-1-1

In a 9-1-1 call made by appellant on the night of the incident, appellant at first admitted stabbing Boozer. Appellant stated: “Me and [Boozer] got to fighting I took the knife from him and I think I stabbed him but I don’t know if I killed him or not.” Appellant stated, “I think I stabbed [Boozer] and I just ran. But we was fighting though, he grabbed the knife first.” Appellant continued, “We were scuffling and I took [the knife] away from [Boozer] and he came towards me with his cane and I lunged towards him and I think I stabbed him but I think I pulled the knife out. I don’t know how deep I went in there.”

Later, during the same call, appellant denied stabbing Boozer. Appellant explained he and Boozer were scuffling when Boozer grabbed a knife. Appellant took the knife from Boozer and they fell. Appellant surmised, maybe “[Boozer] fell on the knife I don’t know, I didn’t stab him though.”

Appellant’s Post-Arrest Interview

In an interview with detectives following his arrest, appellant repeatedly denied stabbing or killing Boozer in self-defense. For example, appellant stated, “I can admit the fact I was there. I admit the fact that we fought. I admit the fact that I -- pulled and then I got the knife from him, but I did not kill this guy.” Appellant explained to the detectives that he did not stab Boozer because, “I don’t need no knife. I’m a fourth degree black belt. I don’t need no knife.”

Appellant reasoned, “Obviously, I mean, if he’d a got stabbed, he would have fell on the knife or I would have stabbed him. I’d say, ‘Yeah, okay. I killed this guy in self-defense.’” “I can’t say I took the knife and stabbed this guy in self-defense.”

Appellant maintained throughout the interview Boozer had reached for a steak knife, which appellant then twisted out of Boozer’s hand. Appellant told the detectives, “Well, we tussled. We both had the knife and then -- I don’t know. And I -- I -- shit. I had the knife. I took it from him.” Appellant was not cut or injured during the struggle, and even offered to strip for the officers to show the absence of any scars.

Appellant’s Trial Testimony

In his testimony at trial, appellant again denied stabbing Boozer, either intentionally or accidentally. Appellant testified Boozer told appellant “[h]e was going to break me over like a double barrel shotgun and fuck me in the ass.” Appellant then walked up to Boozer and asked, “‘What the fuck you say to me?’” Boozer replied, “‘You heard me.’” Appellant claimed next, as Boozer stood up, his hand touched a knife he had been using to cut cocaine, and “I tagged him. In other words, I hit him” on the left side of his face causing Boozer to fall, hitting his head on a table. After that, appellant and Boozer fought. At some point during the struggle, Boozer picked up the knife off the table and came at appellant with the knife in his hand. Appellant deflected the attack using a martial arts “parry” and gained control of the knife. Boozer then grabbed onto appellant and they both fell to the floor. Boozer picked up the knife again, but appellant knocked it out of Boozer’s hand.

Boozer then told appellant to “‘[g]et the fuck out of the house.’” When appellant stood up, appellant said, “‘This shit don’t make sense.’” Boozer said, “‘Fuck you,’” grabbed a cane he used to help him walk and swung at appellant. Appellant took the cane away from Boozer and walked out of the house. Appellant again denied stabbing Boozer, though he did not know whether Boozer had been stabbed when he and Boozer fell.

Defense and Jury Instructions

Appellant’s primary defense was self-defense, and the trial court provided the jury with several instructions on the concept of self-defense. (CALJIC Nos. 5.17, 5.30, 5.50, 5.51, 5.52, 5.53, 5.54, 5.55, 5.56.)

Based upon evidence appellant initiated an assault upon Boozer and evidence appellant and Boozer were engaged in mutual combat prior to Boozer’s stabbing, the trial court gave paragraph [1] of both CALJIC Nos. 5.54 and 5.56. CALJIC Nos. 5.54[1] and 5.56[1] afford the right of self-defense to an initial aggressor or mutual combatant respectively only after he has informed the other party that he has stopped fighting and he has given the other party the opportunity to stop fighting.

In 2004, paragraph [2] was added to these instructions to convey the principle first set forth over 100 years ago in People v. Hecker (1895) 109 Cal. 451, 463-464, that an individual who initiates a simple assault or who is involved in mutual combat need not satisfy the withdrawal requirements set forth in those instructions to be entitled to act in self-defense if the other individual suddenly escalates the fight by using deadly force, and no retreat is possible. (See People v. Quach (2004) 116 Cal.App.4th 294.)

In the present matter, neither party requested paragraph [2] when the court gave CALJIC Nos. 5.54 and 5.56, and the trial court did not include it.

DISCUSSION

Standard of Review

Errors in jury instructions are questions of law which we review de novo. (See People v. Guiuan (1998) 18 Cal.4th 558, 569-570.) The California Constitution addresses the prejudicial effect of instructional “misdirection of the jury” and provides that error in instructing the jury shall be grounds for reversal only when the reviewing court, “after an examination of the entire cause, including the evidence,” concludes that the error has resulted in a “miscarriage of justice.” (Cal. Const., art. VI, § 13.) “‘”The word ‘misdirection’ logically includes every kind of instructional error. It seems manifest that incorrect, ambiguous, conflicting, or wrongly omitted instructions may equally ‘misdirect’ the jury’s deliberations.”’” (People v. Flood (1998) 18 Cal.4th 470, 487.)

In People v. Flood, supra, 18 Cal.4th at pages 490-491, the court reviewed instructional error under the California Constitution under the Watson standard of harmless error. (People v. Watson (1956) 46 Cal.2d 818, 836 [“[A] ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.”].)[2]

Penal Code section 1259 provides for review of any instruction given, refused, or modified, even in the absence of a request or an objection, if the defendant’s substantial rights were affected. “Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim -- at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was.” (People v. Anderson (1994) 26 Cal.App.4th 1241, 1249.) Accordingly, we examine the merits of defendant’s arguments.

I. THE TRIAL COURT DID NOT ERR BY FAILING TO INSTRUCT THE JURY WITH THE NOTICE AND WITHDRAWAL EXCEPTION FOUND IN CALJIC NOS. 5.54 AND 5.56

“‘”It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. The general principles of law governing 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.”’” (Citation omitted.) (People v. Breverman (1998) 19 Cal.4th 142, 154.)

“The duty to instruct, sua sponte, on general principles closely and openly connected with the facts before the court also encompasses an obligation to instruct on defenses, including self-defense . . . and on the relationship of these defenses to the elements of the charged offense.” (Italics omitted.) (People v. Sedeno (1974) 10 Cal.3d 703, 716 disapproved on other points in People v. Breverman, supra, 19 Cal.4th at pp. 149 & 165 and People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.)

“The trial court is charged with instructing upon every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant’s theory of the case.” (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) However, “the trial court cannot be required to anticipate every possible theory that may fit the facts of the case before it and instruct the jury accordingly.” (People v. Flannel, supra, 25 Cal.3d at p. 683.) “‘The duty of the trial court involves percipience -- not omniscience.’” (Ibid.)

On appeal, appellant contends the trial court’s failure to include paragraph [2] of CALJIC Nos. 5.54 and 5.56 in its instructions sua sponte is reversible error because the alleged error improperly deprived him of his claim of self-defense and because the jury relied on an improper legal theory to convict him. Appellant argues the jury may well have concluded appellant acted in self-defense in defending himself from Boozer’s knife attack, but nevertheless erroneously rejected appellant’s claim of self-defense. Appellant contends that absent paragraph [2] of the instructions given to the jury, it was suggested that self-defense was not available to appellant unless he satisfied the withdrawal requirements set forth in CALJIC Nos. 5.54 and 5.56.

The Court of Appeal addressed a similar issue in People v. Quach, supra, 116 Cal.App.4th 294. In Quach, the defendant was convicted of various offenses, one of which involved a shootout between two armed combatants. Multiple eyewitnesses testified that defendant Quach pulled out his gun and shot at a rival gang member after that gang member fired the first shot. (Id., at pp. 297-298.)

In Quach, the trial court instructed the jury with former CALJIC No. 5.56, which at the time did not contain the paragraph providing that withdrawal is not required if the other party suddenly escalates the confrontation by using deadly force. The Court of Appeal observed that by failing to instruct the jury regarding the exception to the withdrawal and notification rule, the trial court failed to give the jury a correct statement of the law governing the case. (People v. Quach, supra, 116 Cal.App.4th at pp. 302-303.) According to the court, the trial court should have instructed the jury that, if the counter-assault was so sudden and perilous that the defendant had no opportunity to decline from further fighting or to retreat with safety, then the defendant was justified in using reasonable force.[3] (Ibid.)

The Quach court decided the trial court committed reversible error because CALJIC No. 5.56, absent the exception, denied defendant Quach the opportunity to claim the self-defense theory that most clearly related to the facts. (People v. Quach, supra, 116 Cal.App.4th at p. 303.)

However, the evidence in the record does not reveal that the absent sudden-and-deadly counter-assault paragraphs were warranted. The evidence did not show (nor did appellant argue) appellant killed Boozer while defending himself from a sudden deadly attack from which he could not retreat.

There were no third party percipient witnesses who could testify to Boozer’s sudden and deadly counter-assault, to appellant’s ability to retreat, or to appellant’s use of lethal force.[4] Moreover, in his post-arrest interview and at trial, appellant consistently maintained he did not stab or kill Boozer. Appellant claimed, after he initially assaulted Boozer, the two fought. Although appellant attempted to communicate his intent to withdraw, Boozer nevertheless suddenly came at appellant with a knife. Appellant quickly deflected Boozer’s attack and took control of the knife. Once the situation had been defused, appellant left the house.

Appellant stated repeatedly he was able to withdraw from the fight without exerting deadly force. Moreover, even if the jury believed Boozer suddenly came at appellant with a knife, appellant stated he was able to disarm him and defuse the danger. At that point there was no justification for the use of deadly force by appellant against Boozer.

Furthermore, because appellant consistently maintained he had defused the deadly assault that was directed at him and was able to withdraw, his defense did not require an instruction which would have allowed the use of deadly force in self-defense by reason of the actions of his adversary without withdrawing.

We conclude the trial court did not err by failing to give paragraph [2] of CALJIC Nos. 5.54 and 5.56 because substantial evidence did not show appellant was unable to retreat with safety -- an essential element of a Quach defense. In addition, because appellant’s defense did not rely on this instruction, appellant’s substantive rights were not violated.

II. THE ONE-YEAR TERM IMPOSED FOR THE CANE USE

ENHANCEMENT SHOULD BE STAYED

Under Penal Code section 1170.1, subdivision (f), “When two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense.” (See People v. Crites (2006) 135 Cal.App.4th 1251, 1255; People v. Jones (2000) 82 Cal.App.4th 485, 492-493.)

The jury found appellant used both a knife and a cane in committing the single offense of second-degree murder. The court imposed a one year sentence on each enhancement. Appellant also contends and respondent agrees that the one-year concurrent enhancement the trial court orally imposed pursuant to Penal Code section 12022, subdivision (b)(1), for the cane use allegation, should be stayed and that the abstract of judgment should be modified to reflect that stay.[5]

DISPOSITION

The judgment is affirmed as modified. The superior court is ordered to prepare and file with the Department of Corrections an amended abstract of judgment reflecting the imposition of the second enhancement for the cane use, but staying that enhancement.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

We concur:

PERLUSS, P.J. ZELON, J.

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[1] This enhancement is not reflected on the abstract of judgment.

[2] We do not apply the federal constitutional harmless error test set out in Chapman v. California (1967) 386 U.S. 18, 24 of “harmless beyond a reasonable doubt,” used in People v. Quach, supra, 116 Cal.App.4th at page 303, because we conclude appellant’s federal constitutional rights were not violated.

[3] Based on Quach and another case, CALJIC Nos. 5.54 and 5.56 were revised in 2004 to include, in paragraph [2], the exception to the rule of withdrawal and notification, when it is supported by substantial evidence. (Com. to CALJIC Nos. 5.54 & 5.56 (April 2006 ed.) pp. 212 & 214.) These instructions were available at the time of trial.

[4] The sole sources of the evidence supporting appellant’s version were tape recordings (and transcripts thereof) of appellant’s statements in a call he made to 9-1-1 a short time after the events in controversy, appellant’s statements made during a post-arrest police interview, and appellant’s testimony at trial. The tapes were played for the jury.

[5] Even though the abstract of judgment does not reflect the court’s imposition of this second enhancement, the court’s oral pronouncement of judgment is controlling. (See People v. Blackman (1963) 223 Cal.App.2d 303, 307.) Accordingly, the abstract of judgment should be modified to reflect a stay of the cane use enhancement.