Filed 9/25/18 P. v. Lambert CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt, Judge.

William W. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Donald Wayne Lambert appeals his convictions on one count of negligent discharge of a firearm (Pen. Code, § 246.3, subd. (a)[1]) and one count of child endangerment (§ 273a, subd. (a)). Appellant contends the trial court erred with respect to the firearm charge by improperly answering a question posed by the jury during deliberations. He separately argues the court erred on the child endangerment charge by failing to specifically instruct the jury on self-defense. For the reasons set forth below, we affirm.

factUAL AND PROCEDURAL BACKGROUND

As the central questions in this case revolve around the jury instructions, we only briefly recount the facts underlying appellant’s charges. Around July 26, 2015, appellant and his family were living in a home together in Fresno, California. Over time, the family kept hearing sounds coming from their roof. This caused the family enough concern that they slept together in a single room and tied wire to doorknobs to both prevent entry to rooms and alert the family if someone tried to open the doors. There were also concerns from one of the children about people following her at school and peering through her bedroom window. Appellant told police that he had once found a bag of bomb making material in his backyard and that someone had replaced all the plumbing under his house.

On July 26, 2015, these concerns led to appellant using his gun to fire several shots into the ceiling of the family’s home on the belief people were walking on the roof. Appellant had apparently fired his gun several times previously, both inside the home and outside of it, in response to perceived threats. He had also called the police on past occasions about his concerns, but no evidence of threats had been found. Appellant’s children were in the house at the time of the July 26, 2015, shooting.

Following an investigation, appellant was charged with negligent discharge of a firearm and child endangerment. His primary defense to those charges was a claim of self-defense. On that issue, the jury was instructed as follows, with respect to the negligent discharge of a firearm charge:

“Self-defense is a defense to shooting a firearm in a grossly negligent manner as charged in Count 1. The Defendant is not guilty of that crime if he used a firearm in lawful self-defense or defense of another. The Defendant acted in lawful self-defense or defense of another if, one, the Defendant reasonably believed that he or someone else 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 there was imminent danger of bodily injury to himself or someone else. The 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 or defense of another.

“When deciding whether the Defendant’s beliefs were reasonable, consider all of the circumstances as they were known to and appear 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 or someone else’s threat 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.

“A Defendant is not required to retreat. He is entitled to stand his ground and defend himself. And if reasonably necessary, to pursue an assailant until the danger or 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 or defense of another. If the People have not met this burden, you must find the Defendant not guilty of shooting a firearm in a grossly negligent manner as charged in Count 1.”

No similar instruction was provided with respect to the child endangerment count.

During deliberations, the jury sent a note to the court seeking clarification. The note read, in part: “And is the second part of self [defense]—defendant used no more force than necessary—to be judged in the defendant[’]s view point or the jur[y’s] view point?” Both counsel expressly agreed the court should respond, “As to instruction 3470, ‘Self Defense,’ the first two elements relate to the Defendant’s state of mind. The third element, ‘The Defendant used no more force than was reasonably necessary to defend against that danger’, is a determination the Jury must make.”

The jury ultimately found appellant guilty on both counts. This appeal timely followed.

Discussion

Appellant argues the court’s answer to the jury’s question on self-defense was misleading and failed to answer the question. He further contends the trial court erred by failing to instruct the jury on self-defense with respect to the child endangerment charge. Finally, appellant contends he received ineffective assistance of counsel if either argument above fails for lack of objection or request. In light of the ineffective assistance of counsel arguments, we consider the merits of appellant’s positions. We ultimately find no error in the trial court’s response to the jury’s question and no possibility of prejudice, even assuming error, in failing to separately instruct on self-defense with respect to the child endangerment charge. As appellant’s ineffective assistance claims require both a showing of error and of prejudice arising from such error, his claims fail.

Response to Jury Question

Standard of Review and Applicable Law

“When a jury asks a question after retiring for deliberation, ‘[s]ection 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law.’ [Citation.] But ‘[t]his does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information.’ [Citation.] We review for an abuse of discretion any error under section 1138.” (People v. Eid (2010) 187 Cal.App.4th 859, 881–882.)

“ ‘No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ [Citation.] Our high court has not provided definitive guidance on the standard of review applicable when deciding whether a trial court has misdirected a jury, but it appears we are to review instructional error arguments de novo. And if the challenged instruction is ambiguous, we are to independently review whether there is a ‘reasonable likelihood that the jury construed or applied the challenged instructions in a manner’ contrary to law.” (People v. Olivas (2016) 248 Cal.App.4th 758, 772.)

The Trial Court’s Response Did Not Mislead the Jury

Appellant contends the jury expressed confusion over “the point of view from which reasonable force is determined” and that “there is simply no conceivable reasonable interpretation of the trial court’s response that could have cleared up the jury’s confusion.” According to appellant, the “problem with the trial court’s response, was that it simply did not address the jury’s question.” In making these arguments, appellant concedes we are to interpret the court’s instructions to support the judgment if they are reasonably susceptible to such an interpretation. (See People v. Laskiewicz (1986) 176 Cal.App.3d 1254, 1258.) We do not agree that the court’s response may not be reasonably read as properly instructing the jury.

“ ‘To justify an act of self-defense . . ., the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him. . . .’ [Citation.] The threat of bodily injury must be imminent [citation], and ‘ . . . any right of self-defense is limited to the use of such force as is reasonable under the circumstances.’ ” (People v. Minifie (1996) 13 Cal.4th 1055, 1064–1065, italics omitted.) “In defending himself . . . a person may use only that force which is necessary in view of the nature of the attack; any use of excessive force is not justified . . . .” (People v. Clark (1982) 130 Cal.App.3d 371, 377, disapproved on other grounds by People v. Blakeley (2000) 23 Cal.4th 82, 92.) The honest and reasonable belief requirement considers both the subjective beliefs of the defendant and the objective reasonableness of this belief to a reasonable person in a similar situation with similar knowledge. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082–1083.)

The instructions provided to the jury contained a clear and detailed explanation of the law surrounding self-defense and provided, with respect to the point of view of the person involved that: “The Defendant must have believed there was imminent danger of bodily injury to himself or someone else. The Defendant’s belief must have been reasonable, and he must have acted because of that belief.” The instructions then turned to the amount of force appellant could use, explaining that: “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 or defense of another.”

Relevant to these later instructions, the jury questioned whether the “no more force than necessary” language was judged from appellant’s view, as the first two elements required, or from the jury’s view. The court’s answer distinguished the three requirements for self-defense in the linguistic terms raised by the jury. Thus, it confirmed that the first two requirements were considered from appellant’s view while the third was not. And it did so while specifically identifying the relevant jury instruction and its number in its response. That the court accepted the jury’s phrasing of the third requirement as “a determination the Jury must make” does not raise any meaningful concern. The jury, having read in the instructions that one “is only entitled to use that amount of force that a reasonable person would believe is necessary” asked whether that was to be viewed from the jury’s perspective. The court said that requirement was viewed from the jury’s perspective and noted it was thus different from the other requirements that looked at appellant’s subjective beliefs. This response accurately summarized the law on self-defense and directly responded to the question the jury asked. The court neither misled the jury nor failed to respond to their concerns.

Failure to Instruct on Self-Defense for Child Endangerment

Appellant contends he was entitled to an instruction on self-defense with respect to the child endangerment charge. The People disagree, but note that any alleged error was harmless because the jury necessarily concluded self-defense did not apply when it convicted appellant on the negligent discharge offense despite being properly instructed on self-defense in that instance. We agree with the People.

The omission of an instruction on a defense is not prejudicial if “ ‘the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.’ ” (People v. Wright (2006) 40 Cal.4th 81, 98.) The jury was specifically instructed on self-defense in this case and rejected that defense with respect to the negligent discharge offense. We have found no error in those instructions. The jury’s verdict definitively shows that it did not find appellant’s conduct justified under that doctrine and confirms that any failure to instruct the jury a second time on the defense, this time with respect to the child endangerment charge, was necessarily harmless.

disposition

The judgment is affirmed.