Filed 1/4/19 P. v. Rodriguez CA4/1 (unmodified opinion)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Laura W. Halgren, Judge. Affirmed.

Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Samuel Rodriguez of one count of making a criminal threat to his attending psychiatrist, Dr. S. (Pen. Code, § 422, subd. (a).) At the time of the threats, they were in the emergency department of the County Mental Health hospital (CMH), while Rodriguez being detained on a hold under Welfare and Institutions Code section 5150.[1] The sole issue on appeal is whether the trial court committed reversible error in failing to instruct the jury on the affirmative defense of self-defense. We affirm.

I. PROCEDURAL BACKGROUND

At trial, a jury convicted Rodriguez of one count of making a criminal threat in violation of Penal Code section 422, subdivision (a).[2] The court sentenced Rodriguez to three years formal probation with conditions, including that he not have any contact with Dr. S., and required Rodriguez to pay specified fees, fines, and penalties. Rodriguez timely appealed.

II. FACTUAL BACKGROUND

We generally review the record in a light most favorable to the judgment, presuming all facts in support of the judgment that the jury could reasonably deduce from the evidence. (People v. Powell (2018) 5 Cal.5th 921, 944 [sufficiency of evidence review].) However, where, as here, the issue on appeal is whether the defendant was entitled to have the jury instructed on a specified affirmative defense, we recite the evidence in support of the potential defense in a light most favorable to the defendant. (People v. Mentch (2008) 45 Cal.4th 274, 290 (Mentch).)

In the mid-morning on February 20, 2017, responding to a weapons call, police found Rodriguez in the garage of a residence in the Mira Mesa area of San Diego. He was agitated and upset that the police were there. The police found a baseball bat, machete, and a folding knife in Rodriguez's car. After one of the officers spoke with Rodriguez's wife, the officers transported Rodriguez to CMH for a 72-hour hold under section 5150 (at times, 5150 hold). (See fn. 1, ante.)

As the officers were placing Rodriguez, who was handcuffed, into their vehicle, he began swearing at them and his family members. He was yelling and screaming, because he did not want to be taken to the hospital. He threatened the officers and others with physical harm from both Hell's Angels and himself. As he was transported to CMH, Rodriguez threatened to hurt the hospital staff; he told the officers that he had received 10 years of formal training in mixed martial arts (MMA), Filipino knife fighting, military strategy, and hand-to-hand combat and had participated in 11 professional "cage fights" and five professional "boxing fights."

When they arrived at CMH, Rodriguez was still agitated. Although he allowed the triage nurse to check his vital signs and provided her with some information, for the most part, he was uncooperative. Rodriguez told the triage nurse that someone was going to get hurt, because he needed to leave. Dr. S. was a CMH psychiatrist who, on that date, was assigned to CMH's emergency department and Rodriguez was her patient.

Outside of Rodriguez's presence, the police officers and triage staff reported what they knew to Dr. S.—including that Rodriguez had said he was an MMA fighter and that the police had recovered weapons from his car. The nursing staff advised Dr. S. that Rodriguez was agitated, hostile, and angry and that he threatened to hurt someone if he was not allowed to leave. Dr. S. then interviewed Rodriguez, in an attempt first to build rapport and then to obtain a medical history that would help with her medical analysis. She explained who she was and asked him why he was at CMH. Although Rodriguez did not answer all of the questions, many of his responses were "clear" and "coherent"; and from what he did say, Dr. S. concluded both that he understood her and that he knew what was happening. This conversation lasted 20-25 minutes.

Rodriguez continued to say that he did not want to be at CMH; he was angry, irritable, distressed and loud. During the initial interview, Rodriguez told Dr. S. that she and her staff needed "to watch out" when the police removed the handcuffs and, in any event, that "he could take out people's knees." Approximately 15-20 minutes into the evaluation, as a result of Rodriguez's "extreme anger, agitation, [and] irritability," Dr. S. filled out an order for forced medication. Before directing its application, Dr. S. first offered Rodriguez the medication. He initially refused it, explaining that he was afraid of needles;[3] but after she educated him about the drugs and encouraged him, Rodriguez took oral doses of Haloperidol (an antipsychotic medication), Ativan (an antianxiety medication), and Benadryl (a prophylactic medication to combat potential side effects of the Haloperidol).

When Dr. S. checked on Rodriguez 10 minutes later, there was little change. He was still tense and angry. According to Dr. S., the "medication had limited effects"; Rodriguez's "demeanor was relatively the same from when he came in." In a raised voice, Rodriguez again threatened Dr. S. that, if he was not discharged, she and her staff "would all pay."

Shortly after Dr. S.'s visit, a nurse brought Rodriguez something to eat and drink. Rodriguez became further upset, threatening "to take out the nurse's knees"; regardless of the handcuffs, according to Rodriguez's threat, he could use other parts of his body to effect the harm.

Approximately one half hour after Rodriguez took the oral medications, Dr. S. again checked on Rodriguez. During this second visit, Rodriguez's demeanor had not changed, and the nurses advised Dr. S. that Rodriguez would not allow them to check his vital signs. She was concerned, since checking a patient's vital signs is the only way to monitor the patient's safety once the patient begins taking medication. Dr. S. again explained to Rodriguez what a 5150 hold was, the purpose of the emergency treatment, and the related need to monitor and assess him thoroughly and fully due to the reasons he had been brought to CMH's emergency department. Rodriguez did not believe that a 5150 hold was necessary for him and again responded with upset that he was not being discharged from the hospital. At this point, Dr. S. again offered Rodriguez another dose of oral medications, which he declined.

As Rodriguez began to realize that he would have to stay in the hospital, he became more upset, threatening Dr. S. as follows: when he was released, he would meet her "outside"—which she considered "a very credible threat"; "he knew Hell's Angels"; and she and her staff needed to "watch out, watch your backs." Still in handcuffs and with two police officers in the room, Rodriguez stood up and started walking toward Dr. S. "in a menacing, fighting stance." Dr. S. was "very scared" and for her own safety left the room and stood outside in the hallway looking in. Approximately one hour after Rodriguez had taken his oral medications, a nurse who was present testified that, as Rodriguez was pacing, in a very loud hostile voice, he threatened to kill his mother and the mother of his children and chop one or both into pieces.

At this point in time—between 30 and 60 minutes after administration of the oral medications—Dr. S. ordered intramuscular "emergency medication." More specifically, because Rodriguez had not shown signs of improving after the oral medications, Dr. S. ordered that Rodriguez be strapped to a gurney (with handcuffs removed) and given a shot of Thorazine, which Dr. S. described as an antipsychotic drug that helps patients like Rodriguez relax and go to sleep. Dr. S. remained in the hallway outside of Rodriguez's room, where she could see and hear what was happening.

The two police officers and at least three staff removed the handcuffs, applied soft restraints, and strapped Rodriguez onto the gurney. As they were encouraging him to cooperate, Rodriguez yelled obscenities and screamed that he did not want either medication or an injection. One of the nurses had brought in oral medications, but when he refused them, and the nurse left the room, Rodriguez threatened to kill her and Dr. S.—who was approximately five feet away from Rodriguez and visibly reacted to his statement.

Once Rodriguez was restrained on the gurney, Rodriguez looked directly at Dr. S., who was "relatively close to him" in the hallway outside of his room, and threatened that, once he got out of CMH, he would "come and find the first doctor" and "kill that bitch." The nurse then administered the emergency injection.[4]

Dr. S. understood Rodriguez's threats to be directed to her, and she was scared. She believed them to be credible, because his physically threatening communications to her earlier in the day were clear and she knew that he had weapons. As a result, Dr. S. immediately relinquished care of Rodriguez and arranged for another physician to take over responsibility for him.[5]

Rodriguez was in Dr. S.'s care for less than three hours. During that time, Dr. S. determined that Rodriguez was "in crisis" when he first arrived at CMH and preliminarily determined that, by the time she relinquished his care to another psychiatrist, Rodriguez suffered from a psychotic disorder, a mood disorder, cannabis dependence, and relationship problems. Because she relinquished his care, Dr. S. did not know what Rodriguez's ultimate diagnoses included.

Rodriguez was arrested later that day, in the early evening of February 20, 2017, and charged with one count of making a criminal threat in violation of Penal Code section 422.

Even after she relinquished Rodriguez's care, Dr. S. did not stop feeling afraid. During the three months between the threats and the trial, Dr. S. changed her work schedule, gave up shifts due to anxiety, moved her residence, and was looking into getting a security dog. When she testified at trial in May 2017, Dr. S. was still afraid as a result of Rodriguez's threats.

During closing argument, the prosecutor elected as the operative threats those that Rodriguez made to Dr. S. after he was placed on the gurney.

III. DISCUSSION

On appeal, Rodriguez argues that the trial court erred in not instructing the jury on the affirmative defense of self-defense. Rodriguez contends that he was entitled to have the jury instructed on "his right to defend himself against an unwanted and unlawful injection." (Italics added.)

Although the court has a sua sponte duty to instruct on applicable affirmative defenses (People v. Brooks (2017) 3 Cal.5th 1, 71, 73 (Brooks), in the present case the parties brought the issue to the court's attention. Here, the trial court twice considered and rejected a self-defense instruction—once during pretrial proceedings, and again after the close of evidence at the instructions conference—following input and argument from counsel.[6]

On appeal, Rodriguez argues that a proper application of self-defense " justifies any act of 'resistance' that would otherwise be a crime when it is done to defend against an unlawful touching." More specifically, Rodriguez argues that his threat to commit an act of violence toward Dr. S. was "justified under the law" because it was done to resist the anticipated unlawful touching from the injection ordered by Dr. S.

A. Law

The trial court must instruct on any affirmative defense on which the defendant is relying, as long as it "is supported by substantial evidence and is not inconsistent with the defendant's theory of the case." (Brooks, supra, 3 Cal.5th at p. 73; see People v. Manriquez (2005) 37 Cal.4th 547, 581 [referring to self-defense].) In this context, substantial evidence means evidence of a defense, which, if believed, would be sufficient for a reasonable jury to find a reasonable doubt as to the defendant's guilt. (People v. Salas (2006) 37 Cal.4th 967, 982-983.) Stated differently, a trial court is under no obligation to provide a self-defense instruction unless the defense is supported by " 'evidence sufficient to "deserve consideration by the jury," that is, evidence that a reasonable jury could find persuasive.' " (People v. Landry (2016) 2 Cal.5th 52, 120 (Landry).) Although doubts as to the sufficiency of the evidence should be resolved in favor of the accused (People v. Barnett (1998) 17 Cal.4th 1044, 1145 (Barnett)), if the evidence is speculative, minimal, or insubstantial, then the court need not instruct on its effect (People v. Simon (2016) 1 Cal.5th 98, 132).

" '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.' " (People v. Minifie (1996) 13 Cal.4th 1055, 1064 (Minifie), quoting People v. Goins (1991) 228 Cal.App.3d 511, 516, italics in original.) Under this standard, "the jury must conclude that defendant 'was actually in fear of his life or serious bodily injury and that the conduct of the other party was such as to produce that state of mind in a reasonable person.' " (People v. Wilson (1976) 62 Cal.App.3d 370, 374 (Wilson), italics added.) In addition, even where the threat of bodily injury is imminent, " 'any right of self-defense is limited to the use of such force as is reasonable under the circumstances.' " (Minifie, at p. 1065, italics added, quoting People v. Pinholster (1992) 1 Cal.4th 865, 966 (Pinholster), disapproved on different grounds in People v. Williams (2010) 49 Cal.4th 405, 459.)

In this context, reasonableness is an objective standard, and the reasonableness requirement "is determined from the point of view of a reasonable person in the defendant's position."[7] (Minifie, supra, 13 Cal.4th at p. 1065.) To do this, the jury "must consider all the ' " 'facts and circumstances . . . in determining whether the defendant acted in a manner in which a reasonable man would act in protecting his own life or bodily safety.' " ' " (People v. Humphrey (1996) 13 Cal.4th 1073, 1083, italics in original.)

We review de novo the trial court's decision not to give a requested jury instruction. (People v. Waidla (2000) 22 Cal.4th 690, 733 (Waidla); People v. Quarles (2018) 25 Cal.App.5th 631, 634.)

B. Analysis

The trial court "refus[ed] to give self-defense instructions" in the absence of California statutory or case law authority that allowed self-defense as an available defense to a charge of making a criminal threat under Penal Code section 422. In reaching this conclusion, the court emphasized the difference between assaultive behavior (i.e., where the defendant is charged with an assaultive crime) and mere words (i.e., where the defendant is charged with a threat crime).

On appeal, Rodriguez argues that no California authority precludes the application of self-defense, by way of a threat, to an unlawful touching and directs our attention to two Penal Code statutes that, according to Rodriguez, justify otherwise criminal acts when done in self-defense.[8] Rodriguez also explains why, even if self-defense is limited to assaultive crimes, a criminal threat can be " 'assaultive in nature' when it involves a threat of immediate violent injury," as here.[9] Finally, in attempting to establish that the evidence at trial supported a finding that he acted in self-defense (and therefore required the requested jury instruction), Rodriguez characterizes the unwanted injection as a "medical battery" and argues that he was entitled to defend himself against Dr. S.'s "unlawful" conduct.[10]

In response, consistent with the trial court's ruling, the People principally rely on the lack of authority that allows the defense to allegations of a criminal threat. Alternatively, the People argue that, even if self-defense applies to a charge of a criminal threat, the record in this case lacks substantial evidence to support its application (and, thus, did not require a jury instruction) on three bases: (1) Rodriguez, by his behavior, created the situation leading to the alleged harm (see In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1 ["[T]he ordinary self-defense doctrine—applicable when a defendant reasonably believes that his safety is endangered—may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary's attack or pursuit is legally justified."]); (2) Dr. S. did not administer the injection; and (3) because Rodriguez made the threats after the nurses administered the injection,[11] Rodriguez was not in imminent danger (see Minifie, supra, 13 Cal.4th at p. 1068 ["There must be evidence the defendant feared imminent . . . harm."]). The People also argued at length in opposition to Rodriguez's suggestion that, in ordering the injection, Dr. S. acted unlawfully.

However, we have no occasion to reach the merits of those arguments. As we explain, even if Rodriguez's legal theories are correct, he has not established reversible error on the record from his trial. Thus, we will assume—without deciding or expressing an opinion—that a defendant may assert self-defense as an affirmative defense to a charge of a criminal threat in violation of Penal Code section 422. We will further assume—without deciding or expressing an opinion—that, in ordering what she considered an intramuscular emergency medication for Rodriguez, Dr. S. acted unlawfully. Even with these assumptions, the record does not contain substantial evidence to support the application of the defense. Without substantial evidence to support the application of the defense, of course, the trial court did not err in failing to instruct the jury on self-defense. (Brooks, supra, 3 Cal.5th at p. 73.)

Based on our de novo review of the evidence as a whole (Waidla, supra, 22 Cal.4th at p. 733)—in a light most favorable to Rodriguez (Mentch, supra, 45 Cal.4th at p. 290) and resolving any doubts in favor of Rodriguez (Barnett, supra, 17 Cal.4th at p. 1145)—on two independent bases, the record lacks substantial evidence to support a jury instruction on the requested defense.

First, the record lacks evidence (or inferences from evidence) that a reasonable person in Rodriguez's position would have a reasonable fear of serious bodily injury from an intramuscular injection of medication.[12] The fear of an injection, however real it was to Rodriguez, was not objectively reasonable. Stated differently, the evidence of Rodriguez's fear of needles or injections—even an unwanted or unlawful injection—is not sufficient evidence of an objectively reasonable fear of serious bodily injury.[13]

Second, the record lacks evidence (or inferences from evidence) that a reasonable person in Rodriguez's position would threaten to return to the hospital after being discharged, seek out the doctor who ordered an injection, and kill her. As Pinholster, supra, 1 Cal.4th at page 966, teaches, "[t]he right of self-defense d[oes] not provide a defendant with any justification or excuse for using deadly force to repel a nonlethal attack." Accordingly, by threatening to kill a doctor who ordered a nonlethal injection, Rodriguez did not communicate an objectively reasonable threat.

Under Minifie, supra, 13 Cal.4th at pages 1064-1065, to justify self-defense, a defendant must have an objectively reasonable belief that bodily injury is about to be inflicted on him (see Wilson, supra, 62 Cal.App.3d at p. 374 ["serious bodily injury"]), and the force that a defendant uses must be objectively reasonably under the circumstances (see Pinholster, supra, 1 Cal.4th at p. 966 [cannot use "deadly force to repel a nonlethal attack"]). Contrasted with this standard, in the present case, the lack of evidence of any such reasonable fear of serious bodily injury or reasonable force under the circumstances relieved the trial court of an obligation to give a self-defense jury instruction. (Landry, supra, 2 Cal. 5th at p. 120.)

Accordingly, on the record presented, the trial court did not err in denying Rodriguez's request for a jury instruction on self-defense.

C. Harmless Error

In closing, even if we assume that the trial court erred in denying Rodriguez's request for a self-defense instruction, we conclude that any conceivable error was harmless. The prosecution's evidence was strong; Rodriguez had been threatening everyone from the police to the CMH staff to the attending physician, and more than once Rodriguez directed credible threats to Dr. S. in her presence. In contrast, the self-defense evidence was weak; it was based on inferences and would have required the trier of fact to distinguish between obvious anger over an extended period and questionably reasonable fear at one point in time.

Recently, our Supreme Court confirmed that it has "yet to determine whether a trial court's failure to instruct on a requested affirmative defense instruction supported by substantial evidence is federal constitutional error or state law error." (People v. Gonzalez (2018) 5 Cal.5th 186, 199 [first degree felony murder; affirmative defense of self-defense].) Where, as here, the evidence on which the defendant relies "was, at best, extremely weak compared to the [prosecution's] evidence," a failure to instruct is harmless under both the federal standard (Chapman v. California (1967) 386 U.S. 18, 24) and the state standard (People v. Watson (1956) 46 Cal.2d 818, 836). (People v. Sakarias (2000) 22 Cal.4th 596, 621.)

IV. DISPOSITION

The judgment is affirmed.

IRION, Acting P. J.

WE CONCUR:

DATO, J.

GUERRERO, J.