P. v. Gibson

Filed 8/14/07 P. v. Gibson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. W. Charles Morgan, Judge. Affirmed.

David L. Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Robin Derman, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted defendant of making criminal threats. (Count 1 ‑‑ Pen. Code,  422.)^[1] On appeal, defendant contends the trial court erred in refusing to give jury instructions on self-defense. We conclude defendant did not rely on the theory of self-defense as to the criminal threat count. Moreover, we determine that substantial evidence did not support such a defense and self-defense was inconsistent with defendants theory of the case; thus, the trial court had no duty to so instruct the jury. The judgment is, therefore, affirmed.

I. FACTUAL AND PROCEDURAL HISTORY

According to the trial testimony of Robert Stalder, on the night of November 8, 2005, he visited his friend Dawn Haugen at her apartment in Riverside. Defendant, the father of Ms. Haugens youngest child, was also present. At some point, Ms. Haugen and defendant engaged in a dispute and she asked that he leave for the night. Both she and defendant left the apartment while Mr. Stalder remained to eat dinner and watch television. Defendant and Ms. Haugan returned to the apartment at the same time. Ms. Haugen later went outside. After using the restroom, defendant walked into the kitchen, opened the knife drawer, and began walking toward Ms. Haugen outside. Mr. Stalder, while carrying a dinner plate, got up to follow him outside. Mr. Stalder noticed that defendant had a knife in his back pocket and exclaimed, Hey Dawn. Hes got a knife in his back pocket.

Mr. Stalder reached to grab the knife. Before he touched it, defendant turned around and grabbed it. Mr. Stalder did not remember at trial what, if anything, defendant said at that moment, although he stated defendant did not threaten him verbally or physically. Ms. Haugen called the police and handed Mr. Stalder the phone.

The People confronted Mr. Stalder with contradictory testimony he gave at the preliminary hearing, as well as inconsistent statements he made during the 911 phone call and to the police. At the preliminary hearing, Mr. Stalder testified that when defendant grabbed the knife he told Mr. Stalder he had better mind his own fucking business or he would kill him. He had likewise testified that defendants statement caused him to fear for his life.

The People played a recording of Mr. Stalders 911 call on the night of the incident. They presented the jury with a transcript of that phone call. During that call, Mr. Stalder alleged that defendant refused to leave the apartment despite Ms. Haugens requests that he do so. Thereafter, defendant brandished a knife and threatened both of them, specifically threatening to kill Ms. Haugen.

Officer Arturo Barajas testified that he was dispatched to Ms. Haugens apartment that night. Mr. Stalder told him that defendant and Ms. Haugen engaged in an argument and, when Mr. Stalder tried to intervene, defendant brandished a knife. Thereafter, Mr. Stalder backed away from defendant, but defendant threatened him, saying, If this wasnt your shit, you need to stay out of this. If you dont, I will kill you. Mr. Stalder informed the officer that he felt threatened that defendant would stab him. Officer Barajas testified that Mr. Stalders testimony at the preliminary hearing was consistent with what he told him the night of the incident.

Officer Dennis Causey was dispatched to Ms. Haugens apartment the following morning. Defendant had apparently attempted to regain entry into the apartment through a rear window and by trying to break down the door. Mr. Stalder informed Officer Causey that the previous night defendant pulled a knife on him and began swinging it at him. Mr. Stalder backed up to avoid being cut. Mr. Stalder told the officer he wanted to press charges against defendant and he filled out a private persons arrest form.

Mr. Stalder testified that he lied at the preliminary hearing about defendant threatening him and about being in fear for his life. He also lied to the officers about fearing for his life. He lied because he wanted defendant arrested and the police told him the only way they could do so was if Mr. Stalder felt threatened by defendant. Officer Barajas testified he did not tell Mr. Stalder this. Mr. Stalder admitted that he and defendant are friends, that he changed his narrative of the events of that night after requesting the district attorneys office to drop the charges against defendant, and that he and Ms. Haugen had discussed the matter and determined that, if convicted, defendant would get more time than Mr. Stalder thought proper.

Ms. Haugen testified that defendant, her fiance, and she shared the apartment. On the night of the incident, she had her friend Mr. Stalder over. She got into an argument with defendant and both of them, thereafter, left the apartment. By the time they came back, they had resolved their disagreement. Nonetheless, when they both attempted to enter through the front door, she stubbornly attempted to close it on defendant. Mr. Stalder got up and attempted to help her in preventing defendants entrance by placing his hand on defendants chest. However, Ms. Haugen told Mr. Stalder to let defendant in. Defendant went into the kitchen while she went outside. Defendant then came outside and asked if she was hungry. Mr. Stalder, carrying a heavy, thick dinner plate in his hands, followed defendant outside and reached for defendants back pocket. She then saw defendant with a knife in his hand, holding it away from Mr. Stalder. At no time did defendant try to stab or swing the knife at Mr. Stalder. Defendant had the knife because he was making dinner. However, despite multiple opportunities, she never told any officer that defendant was making dinner with the knife when they were investigating the incident.

Mr. Stalder told her that he reached for defendants pocket to grab the knife. He also told her the only reason defendant removed the knife from his pocket was because Mr. Stalder grabbed for it. He further told her he never feared for his life and that he told the officers he had because he wanted them to separate defendant and she for the night. Mr. Stalder had previously attempted to rekindle an old romance between the two of them. He told her he lied at the preliminary hearing because he did not want to get in trouble for lying to the police on the night of the incident.

On cross-examination, Ms. Haugen admitted that she wrote numerous letters attempting to get the district attorneys office to drop the charges against defendant. She wanted defendant to remain home with her and the children. She also discussed the case a number of times with Mr. Stalder, informing him of how important it was to have the charges against defendant dropped and have him stay home with her. Likewise, she would suffer economic hardship were defendant unable to remain home with her.

The People charged defendant with making criminal threats (count 1 ‑‑  422) while personally using a dangerous weapon ( 12022, subd. (b)(1), 1192.7, subd. (c)(23)) and assault with a deadly weapon (count 2 ‑‑  245, subd. (a)(1)).

Defendant requested a number of jury instructions related to self-defense.^[2] The trial judge denied the requests, concluding [t]here is no evidence of self-defense.

The jury found defendant guilty in count 1 of making criminal threats, although it found not true the special allegation that defendant used a deadly weapon in the commission thereof. The jury also found defendant not guilty of count 2. The court sentenced defendant to the midterm of two years in state prison.

II. DISCUSSION

There Was Insufficient Evidence to Give Self-defense Instructions

Defendant contends the trial court erred when it denied defense counsels requests for a jury instruction on self-defense.

A trial court must instruct on a defense only if (1) it appears the defendant is relying upon the defense, or (2) there is both substantial evidence to support the defense and the defense is not inconsistent with the defendants theory of the case. (People v. Breverman (1998) 19 Cal.4th 142, 157.) A trial court has a sua sponte duty to instruct on defenses where so warranted. (Ibid.) A defendants testimony that he believed in the necessity of defending himself is not a prerequisite for the giving of an instruction on self-defense, so long as substantial evidence from other sources may permit that inference. (People v. De Leon (1992) 10 Cal.App.4th 815, 824.) If the evidence should prove minimal and insubstantial, however, the court need not instruct on its effect. [Citation.] Instructions only need be given where the evidence [is] substantial enough to merit consideration. [Citation.] A trial courts refusal to instruct on perfect self-defense will be upheld on appeal where the record contains no substantial evidence to support the instructions. [Citations.] (People v. Hill (2005) 131 Cal.App.4th 1089, 1101.)

Initially we note that defendant fails to cite any case for the proposition that self-defense may be used as an affirmative defense to the crime of criminal threats. Indeed, the cases cited by defendant all reference the use of force in ostensible self-defense, not the use of threats for that purpose. Nonetheless, we are inclined to agree with defendant, that if a person may lawfully use force in self-defense, then a person may also lawfully threaten to use force in self-defense. We do not reach that issue however because we find a self-defense instruction was not otherwise warranted.

In the first instance, we find that defendant never relied below on the theory that he threatened Mr. Stalder in self-defense. Here, defendants theory, as developed through examination of witnesses, was that he never made any threats, not that threats were made in self-defense. Ms. Haugen, defendants sole witness at trial, testified that defendant never made any threats to either she or Mr. Stalder. Although Mr. Stalder ostensibly testified on behalf of the People, in actuality his testimony appears directed at reinforcing the defense theory. He testified that his previous statement that defendant threatened him was a lie. On cross-examination, rather than asking Mr. Stalder whether defendants threat was made in reaction to something Mr. Stalder did, defense counsel asked him, [h]e never actually made any threats against you; right? To which Mr. Stalder replied, I do not remember. Likewise, defense counsel attempted to reinforce the idea that Mr. Stalders earlier statements outside of trial, that defendant had threatened him, were lies and that only now was he telling the truth when stating that defendant had not threatened him. Thus, at trial, defendant sought to establish that no threat was made, not that the threat was made in response to Mr. Stalders aggression.

Moreover, contrary to defendants contention, he never requested any self-defense instructions relating to the criminal threats charge. Rather, the request for self-defense instructions was directed exclusively at the assault charge. In requesting the self-defense instruction, defense and the court engaged in the following colloquy:

[DEFENSE COUNSEL]: . . . I have asked for the self-defense instruction. Will you allow it so that I can prepare my closing argument appropriately?

THE COURT: I dont know on what basis.

[DEFENSE COUNSEL]: Your Honor, Mr. Stalder himself testified that he reached for my client. And in response, my client removed the knife from his pocket. I believe that that ‑‑ reaching for a knife and displaying it is a show of force on behalf of my client if, in fact, it was true. Mr. Stalder reaching for it is force used against my client and ‑‑

THE COURT: Even looking at the evidence in its best light, how does reaching for the knife, if that is to be believed, is, in fact, a response that would be self-defense?

[DEFENSE COUNSEL]: Well, Your Honor, Mr. Stalder also told us he was holding in his hand a plate and that he approached my client and reached for my client. My client then removed the knife from his pants. His response was a response to the show of force by Mr. Stalder. (Italics added.)

Later, defense counsel argued, if a person reaches for a weapon that is on your person, you have a right to reach for it and beat them to it. (Italics added.) And again, [I]f I was to walk up to [the bailiff] here and attempt to take his weapon, he would be justified in removing it and using it against me. (Italics added.) Thus, defense counsel argued the applicability of the self-defense instruction solely to the fact that defendant had grabbed and brandished the knife, not for purposes of justifying the subsequent verbal threat. Counsel on appeal fails to cite one instance in the record where defense counsel argued that defendants threat was made in self-defense. Indeed, as noted above, the defense theory was that no threat had ever been made.

Finally, substantial evidence does not support the theory of self-defense as it pertains to the criminal threats charge. Defendant never testified that he felt threatened by Mr. Stalders attempt to grab the knife in his back pocket. Likewise, no one else testified that Mr. Stalders endeavor to obtain the knife was done in an aggressive manner which would support the idea that it threatened defendant such that his statements were made to protect himself. Mr. Stalder testified he reached to grab the knife from [defendants] back pocket, and [defendant] turned around . . . . Later, he testified he reached to grab the knife and almost got it, but never quite touched it. Thus, Mr. Stalders intent was not to assault or batter defendant, but rather to neutralize the threat defendant posed to Ms. Haugen. Mr. Stalder further testified that defendant reached for the knife to prevent Mr. Stalder from taking it, not because defendant felt threatened.

The closest bit of evidence suggesting that defendants state of mind was one of self-defense was Mr. Stalders testimony that defendant turned around, and, you know, I guess he, you know ‑‑ he grabbed the knife, maybe ‑‑ I dont know what he thought. Maybe he thought I was going to do something with it. This, however, is pure speculation on Mr. Stalders part; indeed, he testified I dont know what [defendant] thought immediately prior to making this statement. There is absolutely no evidence here that defendant or any reasonable person in this situation would have found that Mr. Stalders actions would likely have resulted in a battery. Mr. Stalder never testified that he gave defendant any cause to believe he was a threat. Mr. Stalder never testified he intended to use the knife on defendant or even to threaten defendant with it. Moreover, nothing in the record indicates that Mr. Stalder touched defendant or even intended to.

Furthermore, Officers Barajas and Causey both testified Mr. Stalder told them that he immediately backed away after defendant grabbed the knife. Thus, defendant no longer needed to defend himself. [T]he right of self-defense does not extend beyond the time of real or apparent danger . . . . (People v. Pinholster (1992) 1 Cal.4th 865, 966.)

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Gaut

Acting P.J.

/s/ Miller

J.

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^[1]All further statutory references are to the Penal Code unless otherwise indicated.

^[2] CALJIC Nos. 5.30, 5.31, 5.32, 5.40, 5.42, 5.43, 5.50, and 5.51.