P. v. Decker

Filed 6/30/06 P. v. Decker CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Louis R. Hanoian, Judge. Affirmed.

A jury convicted Travis Michael Decker of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1); count 1)^[1] and battery with serious bodily injury (§ 243, subd. (d); count 2) stemming from an altercation with Richard Rice. The jury also found true allegations that Decker inflicted great bodily injury on Rice in the commission of both counts (§ 12022.7, subd. (a), count 1; § 1192.7, subd. (c)(8), count 2). The court ordered a six-year prison sentence, which was stayed for five years while Decker was placed on formal probation subject to various terms and conditions, including 365 days in local custody.

Decker contends the evidence was insufficient to support his conviction because he acted in lawful self-defense as a matter of law. We affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On August 8, 2004, Richard Rice met friends Stacey Norton, Anthony Domiano, and Melissa Carreno at a nightclub in Lemon Grove. For several hours the friends drank alcoholic beverages before the club closed around 1:30 a.m. Outside the club after closing, Rice, Norton, Domiano, and Carreno witnessed the driver of a car leave after telling her companion, a visibly intoxicated woman, to "find [her] own ride" home.

Rice and his friends, concerned for the intoxicated woman's safety, approached her and discussed the best way to get her home. Decker approached the intoxicated woman and placed his arm around her. Decker testified he was concerned for the woman's well-being and he intended to give her a ride home. Rice objected to Decker's intervention and told him "Oh, no, you know. That's not going to happen tonight, dude." An argument ensued between Rice and Decker. Rice raised his fist and told Decker "I'll kick your ass. I'll kill you." Decker then swung his left hand at Rice's fist, although it was unclear whether he made contact with Rice. Rice then kicked and hit Decker before Decker's friend tackled and restrained Rice on the ground.

Subsequently, Rice was released and told Decker if he had not been restrained "[he] would have kicked [Decker's] ass." Decker pointed to his own jaw and responded, "if you're not going to leave, then hit me." Because of Rice's threats, Decker feared Rice would attack him from behind if he walked away. Domiano approached the pair to intervene but backed away after both Decker and Rice told him not to get involved.

Decker and Rice then both squared off and Decker struck Rice in the head. The blow sent Rice onto his back and, as he fell, his eyes were halfway closed. As Rice hit the ground, Decker got on top of him and struck him in the head between six and eight times. Rice offered no defense, lay motionless, and appeared to be unconscious throughout the beating. Decker testified he proceeded to punch Rice on the ground for three seconds in self-defense. Norton screamed for Decker to stop hitting Rice. Domiano kicked Decker in the head to stop the attack.^[2]

Rice was immediately taken to the hospital, admitted to the intensive care unit, and placed on a breathing apparatus. He suffered fractures to his cheek, nasal, and orbital bones, which required surgical insertion of metal plates for correctional purposes. A CAT scan revealed brain hemorrhaging caused by blunt force. Rice was treated for lacerations to his face, a split eyelid, a sprained neck, a bitten tongue, several chipped teeth, and a crushed maxillary sinus. As a result of the incident, Rice suffers double vision at times as well as a permanently crooked nose and sinus problems.

The trial court denied Decker's motion for new trial brought under section 1181, subdivision (6).^[3] The court stated: "I don't disagree with the jury findings or the verdict based upon the evidence that was received in connection with this case. [¶] [T]his is a very unique case in which there was a videotape of the entire incident that was viewed by the jury. It was viewed by the court. And I cannot say that I disagree with the jury's findings based upon that videotape and the other evidence presented in the case."

DISCUSSION

Sufficient evidence supported the jury's finding Decker did not act in lawful self-defense when he continued striking Rice after Rice fell on the ground.

In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether substantial evidence -- "that is, evidence that is reasonable, credible and of solid value" -- supports the finding of guilt beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 562, 578.) The question is not whether this court believes the evidence established guilt beyond a reasonable doubt, but "[i]nstead . . . whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) Thus, reversal is appropriate only where it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the judgment]." (People v. Redmond (1969) 71 Cal.2d 745, 755.) If the circumstances justify the finding of a rational trier of fact, " 'the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' " (People v. Hillery (1965) 62 Cal.2d 692, 702.) Additionally, it is the exclusive function of the trier of fact to assess the credibility of witnesses and the court will not substitute its own evaluation of witness credibility for that of the fact finder. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The jury was instructed regarding the legal bounds of self-defense.^[4] Self-defense makes it lawful for a reasonable person, reasonably fearing infliction of imminent bodily injury, to use all force reasonably necessary to prevent the harm. The perceived harm need not be actual danger; instead, an "honest and reasonable" belief in apparent imminent danger will justify self-defense. (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065; §§ 692, 693.) The reasonableness of that apparent danger is evaluated from the viewpoint of a reasonable person in the defendant's position and "[t]he jury must consider all the facts and circumstances that might ' "expect to operate on [defendant's] mind . . . ." ' " (People v. Minifie, supra, 13 Cal.4th at p. 1065.)

We reject Decker's claim that, as a matter of law, he struck Rice in self-defense because he honestly and reasonably believed Rice, as he lay on the ground motionless, remained a threat to him. Decker asserts that his personal perceptions are determinative as to whether Rice remained an apparent threat -- but such is not the law. (People v. Bates (1967) 256 Cal.App.2d 935, 940.) Where claims of self-defense as a matter of law are "predicated largely on [defendant's] own testimony . . . [t]he jury [is] not required to accept" that version of the incident. (Id. at p. 939.) "Where the evidence is uncontroverted, but reasonable persons could differ on whether the resort to force was justified or whether the force resorted to was excessive, then the issue is a question for the trier of fact." (People v. Clark (1982) 130 Cal.App.3d 371, 378-379, abrogated on another ground in People v. Blakeley (2000) 23 Cal.4th 82, 92.)

Here, other testimony indicated Decker's initial blow knocked Rice motionless and sent him backwards with his eyes halfway open. The evidence further indicated Rice was motionless and offered no defense to Decker's multiple punches. Once an assailant is apparently disabled such that the danger has passed, self-defense ceases to be a valid excuse because "the right of self-defense does not extend beyond the time of real or apparent danger." (People v. Pinholster (1992) 1 Cal.4th 865, 966.) The jury, instructed on the limits of self-defense,^[5] reasonably believed Rice's threat to Decker ended when he rendered Rice motionless. Even if the initial encounter afforded Decker the right to self-defense, that defense did not justify "the recurrent attacks upon the victim while he lay on the ground helpless and unconscious." (People v. Parrish (1985) 170 Cal.App.3d 336, 352.)

The jury, following all the instructions given, could not have convicted Decker unless it believed Decker continued to hit Rice after Rice no longer posed a threat to him. Sufficient evidence supported Decker's conviction -- "[t]hat the evidence might lead to a different verdict does not warrant a conclusion that the evidence supporting the verdict is insubstantial." (People v. Holt (1997) 15 Cal.4th 619, 669.)

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Real Estate Lawyers.

^[1] All statutory references are to the Penal Code.

^[2] At trial, the jury viewed several times a surveillance video recording of the entire incident.

^[3] The court may grant a new trial "[w]hen the verdict or finding is contrary to law or evidence . . . ." (§ 1181, subd. (6).)

^[4] CALJIC 5.30 states: "It is lawful for a person who is being assaulted to defend himself from attack if, as a reasonable person, he has grounds for believing and does believe that bodily injury is about to be inflicted upon him. In doing so, that person 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."

CALJIC 5.51 states: "Actual danger is not necessary to justify self-defense. If one is confronted by the appearance of danger which arouses in his mind, as a reasonable person, an actual belief and fear that he is about to suffer bodily injury, and if a reasonable person in a like situation, seeing and knowing the same facts, would be justified in believing himself in like danger, and if that individual so confronted acts in self-defense upon these appearances and from that fear and actual beliefs, the person's right of self-defense upon these appearances and from that fear and actual beliefs, the person's right of self-defense is the same whether the danger is real or merely apparent."

^[5] CALJIC 5.52 says: "The right of self-defense exists only as long as the real or apparent threatened danger continues to exist. When the danger ceases to appear to exist, the right to use force in self-defense ends."

CALJIC 5.53 states: "The right of self-defense ends when there is no longer any apparent danger of further violence on the part of an assailant. Thus where a person is attacked under circumstances which justify the exercise of the right of self-defense, and thereafter the person uses enough force upon his attacker as to render the attacker [apparently] incapable of inflicting further injuries, the right to use force in self-defense ends."