Filed 12/22/17 P. v. Jackson CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

KEN JAY JACKSON,

Defendant and Appellant.
H044115
(Santa Clara County
Super. Ct. No. C1487028)

I. INTRODUCTION
A jury convicted defendant Ken Jay Jackson of criminal threats (Pen. Code, § 422), and the trial court sentenced defendant to a 16-month prison term.
On appeal, defendant contends the jury instruction regarding his right to self-defense was improper because it referenced his “use of force” rather than his use of a threat. Defendant contends that if he forfeited the error by failing to request the instruction be modified at trial, his trial counsel was ineffective. For reasons that we will explain, we will affirm the judgment.
II. BACKGROUND
Defendant was charged with making a criminal threat to Mark Kisela on February 19, 2014. At trial, the prosecution also presented evidence of a prior threat defendant made to Kisela in 2012.
At the time of trial in 2016, Kisela was 60 years old. He was five feet, six inches tall and weighed “[a]lmost 143” pounds. He was “quite a bit smaller than” defendant. Defendant was six feet, two inches tall and weighed about 190 pounds.
A. Defendant’s Prior Threat to Kisela
In approximately 2012, Kisela rented a room to a woman who had a relationship with defendant. At some point, the woman had another man, John Paul Shay, move into the room with her. Kisela subsequently evicted both the woman and Shay.
When Kisela’s home was burglarized, he believed Shay was responsible. Kisela thought that defendant and Shay lived together. As part of the police investigation into the burglary, defendant’s home was searched.
On May 12, 2012, Kisela was waiting in line to order food at a Jack in the Box restaurant in Campbell. Defendant was also in the restaurant, with a female companion. Defendant “got right in [Kisela’s] face,” screamed at Kisela, and pushed Kisela backwards. Defendant accused Kisela of having sent the police “to raid his house.” Defendant said he was going to kill Kisela, then left the restaurant.
Maria Chanon, a cashier at Jack in the Box, saw a tall person push an older customer during an argument. The older man asked her to call the police, saying that someone was coming for him. Chanon called the police and told an officer that the taller man had said, “I could have killed you,” to the older man.
Kisela also called the police after the incident, from his home. To his knowledge, no charges were filed as a result of the incident.
B. The 2014 Threat Incident
1. Testimony of Mark Kisela
Kisela did not see defendant again for almost two years after the Jack in the Box incident. On February 19, 2014, Kisela was shopping at a Dollar Tree store in Campbell. Defendant approached and screamed at Kisela: “You sent the cops to my house.” Defendant was “towering over” Kisela and pointing at him. Defendant said he was going to kill Kisela.
Kisela was “really scared” and thought defendant might hit or grab him. Defendant appeared very angry and “ready to go.” Kisela looked around for witnesses. Defendant said, “I’ll kill you if I see you outside.” Defendant then walked towards the front door of the store.
Kisela wanted to defend himself, so he went to the kitchenware section and selected a big knife. He brought the knife to the store counter, where there was a person working at the register and people in line. He told them, “There is a guy out there and I want you guys to watch me.” Kisela then purchased the knife and removed its packaging.
As Kisela exited the store, he held the knife flush against his grocery bag. Defendant was standing in the parking lot. He spoke to Kisela, asking, “So you’re going to cut me?” Kisela went to his van without answering defendant. Defendant followed Kisela, who got into his van. Defendant slammed the van door shut. Kisela then locked the van door.
Defendant “started banging on the window very hard,” as Kisela was starting the van and backing it up. While banging on the window, defendant said he was going to kill Kisela. Defendant again accused Kisela of sending the police to his house. Kisela drove home and called 911.
Kisela told the 911 dispatcher that his life had been threatened. He told the dispatcher that he had seen defendant at the store and had asked him, “[H]ow’s it going?” Defendant had responded, “Not good. . . . it’s not good, and . . . next time I see you, [I’m] going to kill you, I’m gonna kill you, you understand that?” Kisela also told the 911 dispatcher that after he left the store, defendant had banged on his van window.
2. Testimony of Dollar Tree Cashier
Maria Arce was working as a cashier at the Dollar Tree on February 19, 2014. A customer approached and said he was buying a knife because someone had threatened to kill him. Arce told the customer to stay in the store and call the police, but the customer left, asking her to watch him as he walked to his car. She saw the customer get into a van. Someone else approached the van, closed the van door, and pounded on it. She could not hear anything being said outside of the store.
3. Testimony of Officer Cynthia Zuniga
Retired City of Campbell Police Officer Cynthia Zuniga spoke with Kisela and defendant. Defendant acknowledged having had a confrontation with someone at the Dollar Tree. Defendant said he had called the person names such as “prick” and “a weasel,” but he denied having threatened the person. Defendant also denied seeing a knife and denied pounding on a vehicle.
Kisela told Officer Zuniga that inside the store, defendant had told him, “Next time I see you, I’m going to kill you,” and that outside the store, defendant had yelled, “You’re going to stab me? I’m going [to] kill you.”
C. Defense Case
1. Testimony of Jessica Bowman
Jessica Bowman was in a dating relationship with defendant. She had been present during the May 2012 incident at Jack in the Box as well as during the raid at defendant’s house.
At Jack in the Box, defendant and Kisela had a verbal altercation, which was initiated by Kisela approaching defendant. Defendant told Kisela to “back off” and leave him alone. Defendant also said, “This is the guy that sent police to my house.” Bowman did not see a physical altercation nor hear any threats.
2. Testimony of Darla Sanchez
Darla Sanchez was the woman who used to rent a room from Kisela. In February 2014, Kisela called her from the Dollar Tree store. Kisela sounded intoxicated. Kisela said he had seen defendant, that he was going to buy a knife, and that if defendant approached him, he was “going to stab him and kill him.”
Sanchez then called defendant. Defendant said he was at the Dollar Tree and had seen Kisela. Sanchez told defendant, “Be careful because he said he’s going to buy a knife, and if you come at him, he’s going to stab you and kill you.”
3. Testimony of Defendant
Defendant believed that Kisela had provided the police with “misinformation” about Shay living at defendant’s house. When defendant saw Kisela at Jack in the Box, he told Bowman, “This is the man that sent the cops to our house.” Defendant made the statement in a “[v]ery loud and sarcastic” voice. Kisela denied sending the police to defendant’s house. Defendant told Kisela “he was somebody that [defendant] did not like” and that defendant “was not a friend of his.” Defendant also called Kisela names: a rat, a weasel, and a punk.
Kisela responded by “squaring up against” defendant, who backed away. Although defendant believed Kisela was trying to get defendant to hit him, defendant did not lay his hands on Kisela. After about four minutes, Bowman told defendant, “We have our food, let’s go.” Defendant and Bowman left.
At the Dollar Tree, Kisela walked up to defendant and said something like, “Hello.” Defendant responded by saying, “I’m not doing good, I’m not happy about this. You’re the one that sent them to my house. You keep denying it, you’re lying.” Kisela then came towards defendant, saying he was not the one who sent the police to defendant’s home. Kisela was “invading [defendant’s] personal space” and appeared to be trying to intimidate defendant. Defendant backed up and got louder, saying, “This man is a rat. This guy is a cop-calling rat. This guy is the one that called the cops on my house, sent them to my house for no reason.” Defendant did not threaten Kisela. After about 30 to 40 seconds, he walked toward the checkout line.
Kisela followed defendant to the front of the store. Defendant continued to be “very adamant and very loud.” He purchased an item and then left the store. Outside, defendant lit a cigarette and answered the call from Sanchez. Sanchez said that Kisela had called her, that Kisela was buying a knife, and that Kisela was going to stab defendant when he came out of the store. Defendant was scared.
Defendant then saw Kisela exit the store with a knife and walk quickly towards his van. Defendant was scared, so he ran over to try to disarm Kisela and to tell Kisela that he did not like being threatened, but Kisela got into his van. As Kisela tried to shut the van door, defendant pushed it shut. Kisela started waving the knife around inside the car. Kisela repeated that “he wasn’t the one” and said that he was going to hurt and kill defendant if he ever got a chance. Defendant responded by saying, “Oh, you want to stab me? I’ll kill you.” Defendant also hit the van door about three times. Defendant explained that he “didn’t want to live under the threat of [Kisela] coming after me with a knife.”
D. Proceedings re: Self-Defense Instruction
During trial, the parties discussed the question of whether self-defense instructions would be appropriate. The trial court concluded that “self-defense instructions in theory are possible” because someone could “make criminal threats as a way to respond to the application or threat of force in self-defense.”
The prosecutor argued that there was no substantial evidence that defendant made threats in self-defense. The prosecutor acknowledged that defendant testified that he felt scared when he saw Kisela with a knife but argued there was no evidence defendant was still scared when he “charged towards” Kisela and beat on Kisela’s van after Kisela had gotten inside and shut the door. Moreover, Kisela had not attempted to stab defendant or brandished the knife.
The trial court explained its decision to give the instruction was based on defendant’s testimony that he had gone over to Kisela’s van in order to disarm Kisela, defendant’s description of how he feared future harm, and defendant’s testimony that Kisela had been waving the knife around inside the van. The trial court found “there is enough there, though it’s a close call.”
The trial court informed the parties that it had modified the standard instruction on self-defense (CALCRIM No. 3470) in various ways and asked if the parties had “any other modifications to any of the self-defense instructions.” The prosecutor and defendant’s trial counsel both indicated they had no further modifications to suggest.
As read to the jury, CALCRIM No. 3470 provided: “Self-defense is a defense to the crime of criminal threats. The defendant is not guilty of that crime if he used force or made threats against the other person in lawful self-defense. The defendant acted in lawful self-defense if one, the defendant reasonably believed he was in imminent danger of suffering bodily injury; two, the defendant reasonably believed that the immediate use of force was necessary to defend against that danger; and three, the defendant used no more force than was reasonably necessary to defend against that danger.
“Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed that there was imminent danger of bodily injury to himself. Defendant’s belief must have been reasonable and he must have acted because of that belief.
“The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful self-defense.
“When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed.
“If the defendant’s beliefs were reasonable, the danger does not need to have actually existed. The defendant’s belief that he was threatened may be reasonable, even if he relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true.
“If you find that the defendant received a threat from someone else that he reasonably associated with Mark Kisela, you may consider that threat in deciding whether the defendant was justified in acting in self-defense.
“A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and if reasonably necessary to pursue an assailant until the danger of bodily injury has passed.
“This is so even if safety could have been achieved by retreating. The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. If the People have not met this burden, you must find the defendant not guilty of criminal threats.”
During argument to the jury, defendant’s trial counsel went through some of the elements included in the self-defense instruction. He argued that defendant reasonably believed he was in imminent danger of suffering great bodily injury. He also argued that defendant used “no more force than was reasonably necessary” because defendant’s only use of force was closing the van door and pounding on the van door.
The prosecutor argued that defendant did not reasonably believe he was in imminent danger of suffering great bodily injury, and that defendant did not reasonably believe that “immediate use of force” was necessary to avoid any danger. The prosecutor also argued that defendant did not act in lawful self-defense because he had provoked the situation.
E. Conviction and Sentence
A jury convicted defendant of criminal threats (§ 422), and the trial court sentenced defendant to a 16-month prison term.
III. DISCUSSION
As given, CALCRIM No. 3470 told the jury that defendant was not guilty of criminal threats “if he used force or made threats against the other person in lawful self-defense.” Defendant nevertheless contends the instruction was improper because it subsequently referenced his “use of force” in several places instead of also referencing his use of a threat. Defendant argues that his use of force (i.e., his banging on the van) was “immaterial” in determining whether his threat was made in self-defense. He contends that the instruction improperly directed the jury to focus on his use of force rather than his threat. Defendant suggests that the instructional error could have been avoided had the trial court instructed the jury that “use of force” included making criminal threats. He asserts that the instructional error violated his constitutional rights to due process and a jury trial.
Defendant acknowledges he did not object to the challenged instruction. He contends his appellate challenge was not forfeited because the instruction affected his “substantial rights.” (See § 1259 [an appellate court may “review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby”].) Alternatively, defendant contends that if his trial counsel’s failure to object resulted in forfeiture, he was deprived of his constitutional right to the effective assistance of counsel.
Whether we review defendant’s claim of instructional error under section 1259 or under the rubric of his claim of ineffective assistance of counsel, we must determine whether any error was prejudicial. (See People v. Ramos (2008) 163 Cal.App.4th 1082, 1087 [in order to ascertain whether “ ‘claimed instructional error affected the substantial rights of the defendant,’ ” appellate court must at least determine whether the asserted error resulted in prejudice]; Strickland v. Washington (1984) 466 U.S. 668, 693 (Strickland) [ineffective assistance claims require “that the defendant affirmatively prove prejudice”].) Thus, even if we assume the instruction was erroneous because it did not repeat the phrase “or made threats” and thereby focused on defendant’s use of force rather than his use of a threat, we would need to determine whether the error would require reversal of the judgment. We proceed to consider the parties’ prejudice arguments.
Defendant contends the instruction was prejudicial because it would have confused the jury and precluded jurors from considering his defense: that he reasonably threatened Kisela in response to the danger Kisela presented. Defendant acknowledges that there was evidence that he made two threats on February 19, 2014—one inside the Dollar Tree and one outside the Dollar Tree—and that his defense applied only to the threat he made outside the Dollar Tree. He contends that the evidence of the threat inside the Dollar Tree was weaker than the evidence of threat outside the Dollar Tree and that the jury was likely focused on the outside threat, to which his claim of self-defense applied.
Even if we assume the jury’s verdict was based on the threat outside the Dollar Tree, we conclude that any instructional error was harmless, whether considered under the “reasonable probability” standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) (see also Strickland, supra, 466 U.S. at p. 695) or the “beyond a reasonable doubt” standard of Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).
First, as noted, the instruction did tell the jury that defendant was not guilty of criminal threats “if he used force or made threats against the other person in lawful self-defense.” (Italics added.) Second, it was undisputed that defendant threatened to kill Kisela outside the Dollar Tree. And third, as explained below, at the time of that threat, there were no grounds for defendant to reasonably believe he was in imminent danger of suffering bodily injury or that a threat was necessary to defend against that danger.
The evidence established that Kisela walked quickly towards his own van after exiting the store with a knife. Although defendant claimed he had been told that Kisela was going to stab defendant when he came out of the store, Kisela did not walk towards defendant or say anything that would have placed a reasonable person in fear of imminent bodily injury. Rather, as defendant acknowledged in his own testimony, Kisela walked quickly towards his van and started getting into his van. Indeed, defendant’s act of running towards Kisela, who possessed a knife, strongly suggested that he did not actually believe he was in imminent danger of suffering bodily injury. (See People v. Humphrey (1996) 13 Cal.4th 1073, 1082 [for perfect self-defense, “the defendant must actually and reasonably believe in the need to defend”].) Further, after defendant ran over to Kisela’s van, Kisela did nothing that would have placed a reasonable person in fear of imminent bodily injury. Even if the jury believed defendant’s testimony about Kisela waving the knife around inside the van and threatening to kill defendant “if [he] ever [got] a chance,” there was no basis for a finding that defendant reasonably believed he was in imminent danger of suffering great bodily injury. There was no evidence, for instance, that Kisela made any efforts to open the window or the van door. And even if defendant reasonably had a fear of future harm based on Kisela’s threat, such fear would not be sufficient to establish defendant made his own threat in self-defense, since perfect self-defense requires that a defendant’s fear “ ‘be of imminent danger to life or great bodily injury.’ [Citation.]” (Id. at p. 1082.)
In sum, on this record, any error with respect to the self-defense instruction was harmless (see Watson, supra, 46 Cal.2d at p. 836; Chapman, supra, 386 U.S. at p. 24) and defendant cannot establish that his trial counsel was ineffective for failing to request further modification of that instruction (see Strickland, supra, 466 U.S. at p. 695).
IV. DISPOSITION
The judgment is affirmed.






___________________________________________
BAMATTRE-MANOUKIAN, J.






WE CONCUR:






__________________________
ELIA, ACTING P.J.






__________________________
MIHARA, J.