P. v. Wilson

Filed 6/22/07 P. v. Wilson CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Rand S. Rubin, Judge. Reversed.

James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Theresa A. Patterson and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Using a butcher knife, defendant Bertran Wilson eviscerated his roommate Steven Traylor. The People prosecuted defendant for attempted murder and assault with a deadly weapon or by means of force likely to produce great bodily injury. The People further alleged that defendant had personally used a deadly weapon and inflicted great bodily injury. At trial, the key issue was whether defendant acted in self-defense. Both men testified to their respective versions of the events; both were impeached by inconsistent statements and contradictory evidence.

In instructing the jury, the trial court correctly defined the elements of self-defense: at the time of the crime, the defendant must reasonably believe that he is in imminent danger of suffering bodily injury; the defendant must reasonably believe that immediate use of force is necessary to defend against the danger; and the defendant must use no more force than is reasonably necessary for his defense. The court also correctly told the jury, pursuant to CALJIC No. 9.00, that the People had the burden of establishing beyond a reasonable doubt that defendant had not acted in self-defense. In closing argument, however, the prosecutor incorrectly stated that it was the defense burden to establish self-defense.

During deliberations, the jury asked for clarification as to which party bore the burden of proof on the issue of self-defense and what that evidentiary burden was. The trial courts response first directed the jury to review the pattern instructions about self-defense. These instructions did not explain the burden of proof. Next, the court gave the following instruction on the prosecutions burden: The People have the burden of proving beyond a reasonable doubt that the defendant used more force than was reasonable. The court did not inform the jury that the People also had the burden of proving that the defendants use of force was not in self-defense, and that if the jury had a reasonable doubt on the issue the jury must acquit. Very shortly thereafter, the jury found defendant guilty of assault and found the two enhancement allegations to be true. (The jury acquitted defendant of the attempted murder charge.)

On this appeal, defendant contends that the trial courts response to the jurys question requires reversal. We agree. The trial courts incomplete response was misleading. It informed the jury only that the prosecution had the burden of proving that defendant used unreasonable force. Although this response was correct insofar as it went, it failed to inform the jury that the prosecution also had the burden of proof on the other elements of self-defense i.e., whether defendant reasonably believed that he was in imminent danger of suffering bodily injury, and whether defendant reasonably believed that immediate use of force was necessary to defend against the danger. The response thereby left the impression that defendant bore the burden of proof on those issues, and permitted the jury to convict if it concluded that defendant had not met that burden.

We cannot say that this error was harmless beyond a reasonable doubt. The parties framed self-defense as the key issue. The record contains evidence from which a properly instructed jury could entertain a reasonable doubt about whether defendant acted in self-defense. We therefore conclude that the trial courts error in answering the jurys inquiry with an incomplete and misleading statement about the burden of proof was prejudicial. Accordingly, we reverse the judgment.

STATEMENT OF FACTS

1. The Prosecutions Case-in-Chief

Defendant, Steven Traylor (the victim), and Gregory Swanson shared a house together. Defendant slept on the couch in the living room; Traylor and Swanson each had his own bedroom.

Swanson did not witness the stabbing but did testify to his earlier interactions with defendant on the day in question, February 23, 2005. According to Swanson, defendant arrived home around 6:00 p.m. He had been drinking heavily. Defendant, who carried knives on a daily basis, had three butcher knives in his pants. Swanson explained that defendant normally laid the knives out next to him before he went to sleep. For approximately two hours, defendant initiated hostile and incoherent arguments with Swanson but no physical confrontation occurred.[1] During this time, Traylor remained in his room. Around 8:00 p.m., Swanson retired to his bedroom.

Traylor testified that he encountered defendant at approximately 10:00 p.m. He (Traylor) had drunk three or four cans of beer earlier that day, between noon and 4:00 p.m.[2] Traylor, conceding that he used crack cocaine on a regular basis, testified that he had not smoked any that day and that he was not drunk when defendant later stabbed him.[3]

According to Traylor, defendant began cussing at him for no reason. Traylor yelled back at defendant and then went to the kitchen where he had been cooking tacos with a fork. Defendant remained in the adjacent living room and continued to yell at Traylor. The lights were on in both the kitchen and the living room. Traylor came out of the kitchen and yelled a profanity at defendant who was lying on the couch. Traylor was not carrying a fork or any other object and made no threatening gestures. Suddenly, defendant sat up and, in a quick swinging motion, stabbed Traylor in the stomach. As a result, Traylors intestines came out of his body. Traylor yelled: [Defendant] cut my guts out. Traylor never saw the knife.

Swanson, who had been in his bedroom during the altercation, heard Traylors cry and came to the living room. Swanson saw the eviscerated Traylor bleeding heavily. Defendant was seated on the couch. Defendant calmly placed some items in a bag and left without saying anything.

Swanson immediately telephoned 911. Within five minutes, the police and the paramedics arrived. Swanson told the police that defendant had stabbed Traylor and had left their home on foot. The police sent out a radio broadcast of defendants physical description. Within 15 minutes, Los Angeles Police Officer Hugh Ogara saw defendant walking down the street, carrying a white plastic bag. The officer arrested him. Defendants left hand was bloody and there was a half-inch cut on his left thumb. The officer opened the plastic bag and found a bloody knife.

2. The Defense Case

Defendant testified and claimed he had stabbed Traylor in self-defense.

According to defendant, he arrived home at approximately 10:00 p.m. on the evening of the stabbing. He was drunk.[4] Defendant began to watch television in the living room which also served as his bedroom. Traylor left his room and began walking back and forth through the living room, going to either the kitchen or the bathroom. Defendant thought that Traylor had used cocaine because he could not stay still. Defendant and Traylor had several profane arguments because Traylors constant movements blocked defendants view of the television. Defendant eventually turned the television off and laid down on the couch to go to sleep. Traylor continued to pace back and forth through the living room. The living room was dark, with the only light coming from the adjacent kitchen and bedroom.[5] In an angry tone, Traylor twice taunted defendant: Call me a punk again, now just call me a punk again. Defendant, who was lying on the couch, replied: Okay, then, punk. Traylor came at defendant with a shiny metal object.[6] Defendant put his hand up to protect himself. Traylor cut defendants left hand between the thumb and forefinger, causing it to bleed. Instinctively acting to protect himself, defendant picked up the nearby butcher knife and swung it around to keep [Traylor] from attacking [him] again. Traylor fell to his knees, exclaiming that defendant had cut him. Defendant, in shock, dropped the knife and replied: Hang on, you had cut me. Defendant put on his clothes, placed some personal items into his bag, and left the house. Defendant opined that the butcher knife had fallen into the bag when he had dropped it. Defendant left because he was afraid he would go to jail.

In addition to defendants testimony, the defense presented expert testimony that Traylor had used cocaine shortly before the stabbing and that Traylors blood alcohol level was .11

3. The Prosecutions Rebuttal Case

The prosecution offered evidence that defendant had given conflicting versions of the stabbing to the police after his arrest.

First, Officer Ogara testified he interviewed defendant at the police station on the day of his arrest, February 23, 2005. At that time, defendant claimed that Traylor had come into the living room while he was asleep. Traylor yelled at him and slapped him. Defendant picked up a knife to defend himself and cut Traylor. Defendant said he sustained a cut on his hand as a result of his fight with Traylor. However, defendant never told Officer Ogara that Traylor had been armed with a weapon and had cut him.

Next, Detective Jerome Code (the investigating officer) testified that he interviewed defendant on February 24, 2005. Defendant told him that Traylor had cut him with a knife. Defendant also claimed that he had left the knife he used to stab Traylor in the living room and that the police would not find a knife in the bag he was carrying when arrested.

4. The Jury Instructions

Before counsel presented their arguments, the court instructed the jury. It submitted, inter alia, CALJIC No. 9.00, the pattern instruction defining assault. Its last paragraph reads: A willful application of physical force upon the person of another is not unlawful when done in lawful self-defense. The People have the burden to prove that the application of physical force was not in lawful self-defense. If you have a reasonable doubt that the application of physical force was unlawful, you must find the defendant not guilty. (Italics added.)

In addition, the court gave five standard instructions defining self-defense: CALJIC Nos. 5.30 (Self-Defense Against Assault), 5.31 (Assault with Fists--When Use of Deadly Weapon Not Justified), 5.50 (Self-DefenseAssailed Person Need Not Retreat), 5.51 (Self-DefenseActual Danger Not Necessary), and 5.52 (Self-DefenseWhen Danger Ceases).

5. Closing Arguments

The prosecutor began her closing argument by noting that the jury would be required to evaluate and determine the credibility of both the victim and the defendant. In regard to defendants claim of self-defense, she urged his explanation of the events was not credible. Then, without any objection from the defense, she stated: But the reason why this is not self-defense is because the defense has to prove two things: that [defendant] actually did believe that injury was imminent to him and that the force he used was necessary.[7]

Defense counsels closing argument conceded that an assault had occurred. He argued that the key issue was self-defense and that the case came down to a credibility determination. During his explanation of the prosecutions burden of proof, he stated: [I]f you have a doubt, for example, youre not sure but think maybe this is self-defense, and its caused you to doubt whether or not the prosecution has proven to you that its not self-defense, you have a reasonable doubt at that point and you have to return a verdict of not guilty. At another point, he said: It is not okay to allow the burden of proof to be shifted onto [the defendant]. He doesnt have to prove anything to you. Not a thing. . . . If anything that [the defendant] said to you or if any other evidence that was presented to you by the defense causes you to doubt the evidence of the prosecutor, then you have a reasonable doubt and you must return a verdict of not guilty.

In her rebuttal argument, the prosecutor reiterated that credibility and self-defense were the key issues the jury had to address. She made no specific reference to burden of proof.

6. The Jurys Question and The Courts Response

During deliberations, the jury sent the following question to the trial court: When considering the self-defense issue of Count 2 [assault with a deadly weapon], whose responsibility is it to prove or disprove self-defense, and to what level?

The court met with counsel to discuss the jurys inquiry. The following exchange occurred:

[Defense Counsel]: The defense would propose, beyond just reading the self-defense instructions over again, particularly because this is sometimes a confusing issue for jurors regarding whose burden it is to prove or disprove self-defense, my understanding of the law is that if they have a reasonable doubt as to whether or not self-defense applies then they must return a verdict of not guilty.

In other words, unless the People have proven beyond a reasonable doubt that the defendant did not act in self-defense, theyre mandated by law to return a verdict of not guilty.

THE COURT: I dont think thats an accurate statement of the law.

[Deputy District Attorney]: I dont either.

THE COURT: I think an accurate statement of the law is that the People have the burden of proving beyond a reasonable doubt that the defendant used more force than was reasonable. I think thats an accurate statement of the law.

[Defense Counsel]: I think thats also an accurate statement of the law.

[Deputy District Attorney]: And that he believed that he believed isnt it the prong, that he actually believed an injury and that he didnt use more than

THE COURT: No. I think the jury instruction talks about the use of reasonable force in self-defense. I think the People have the burden of proving beyond a reasonable doubt that the defendant used more force than was reasonable.

If the two of you want time to look into this, you can look into it. So my response would be to reread [CALJIC Nos.] 5.30, 5.31, 5.50, 5.51, and 5.52, and that the People have the burden of proving beyond a reasonable doubt that the defendant used more force than was reasonable.

[Defense Counsel]: Submitted.

[Deputy District Attorney]: Submit.

THE COURT: Okay. Thats the response theyll get then.

Thereafter, the court sent the jury the following written response: Please re-read Jury Instructions 5.30, 5.31, 5.50, 5.51, and 5.52. [] The People have the burden of proving beyond a reasonable doubt that the defendant used more force than was reasonable. Twenty-seven minutes later, the jury returned with its verdicts. It convicted defendant of assault with a deadly weapon with true findings on the enhancement allegations of personal use of a deadly weapon and infliction of great bodily injury. It acquitted defendant of attempted murder as well as the lesser included offense of attempted voluntary manslaughter (act committed during a sudden quarrel or in heat of passion).

DISCUSSION

Defendant contends that reversal is required because the trial court failed to answer adequately the jurys question about which party carried the burden to prove or disprove self-defense. We agree.

For self-defense, the defendant must actually and reasonably believe in the need to defend, the belief must be objectively reasonable, and the fear must be of imminent danger to life or great bodily injury. (People v. Lee (2005) 131 Cal.App.4th 1413, 1427.) Further, the defendant may use only that amount of force which is reasonably necessary to defend against the danger. (People v. Clark (1982) 130 Cal.App.3d 371, 380.) When, as here, there is sufficient evidence to warrant instructions on self-defense, the prosecution must prove beyond a reasonable doubt that the defense does not apply. (People v. Adrian (1982) 135 Cal.App.3d 335, 340-341; People v. Pineiro (1982) 129 Cal.App.3d 915, 920; People v. Banks (1976) 67 Cal.App.3d 379, 384.) In other words, if there is a reasonable doubt whether the defense applies i.e., a reasonable doubt whether the defendant reasonably believed he was in imminent danger of bodily injury, reasonably believed immediate use of force was necessary to defend, and used no more force than was reasonably necessary the jury must acquit.

The parties agree that CALJIC No. 9.00which was submitted to the jury--correctly applied the concept of self-defense to the charge of assault. Where the parties disagree is on the question of the sufficiency of the trial courts response to the jurys question.[8] Defendants attack on the trial courts response is two fold. First, defendant urges that because the trial court failed to instruct the jury to review CALJIC No. 9.00, it did not properly direct the jury to any instruction explaining that the prosecution had the burden of proving beyond a reasonable doubt that he did not act in self-defense and that if the jury entertained a reasonable doubt about the application of the defense, it was required to acquit him. Defendants claim is well-taken. None of the five instructions cited by the trial court in its response addressed those issues. The instructions simply explained the elements of and exceptions to self-defense.

Second, defendant urges that the trial court misstated the law with regard to the burden of proof [because] the prosecution had the burden of proving more than just whether [defendant] used more force than was reasonable. Defendant is correct on that point. To defeat a claim of self-defense the prosecution was also required to prove beyond a reasonable doubt that defendants belief in the reasonableness of his force was unreasonable and that defendants belief that he was in danger of imminent harm was unreasonable. (See, e.g., CALJIC No. 5.30.)[9]

Taking these two points together, defendant argues the trial courts erroneous response . . . served to dilute the prosecutors burden of proof, resulting in a denial of due process which requires a reversal of the judgment.

We agree. The courts response did not inform the jury in clear terms of the principle that should have guided them in their deliberations: the prosecutions obligation to establish beyond a reasonable doubt that defendant did not act in self-defense. Instead, as we now explain, the response, given the context of this trial, was misleading.

As framed by each partys closing argument, self-defense was the dispositive issue. The jurys question indicated that it was concerned whether there was sufficient evidence to show self-defense and that it was confused as to which party had the burden to prove or disprove self-defense and what that burden of proof was. The courts answer, while correct insofar as it went, was incomplete because, as explained above, it directed the jury only to one element of the defense: the Peoples obligation to prove beyond a reasonable doubt that defendants use of force was unreasonable. The jury reasonably could have interpreted the response to mean that while the People were required to prove defendants use of force was unreasonable, the defendant was required to prove that his belief in imminent harm was reasonable and that his belief that he was required to use the force he did was reasonable. This result is particularly likely because the court also directed the jury to review the five instructions explaining all of the elements of self-defense. Since the jury was told that the People had the burden to disprove one of those elements (reasonable use of force), the jury could have very well concluded that the defense had the burden to establish the other elements.

Inconsistent or confusing instructions can constitute reversible error. (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, 666, pp. 957-958.) Conflicting instructions or instructions that misdescribe an element of an offense are harmless only if it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. [Citation.] To say that an error did not contribute to the verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record. [Citations.] (People v. Jeter (2005) 125 Cal.App.4th 1212, 1217.) The same standard of review should apply to conflicting or misleading instructions about the prosecutions burden of proof, a bedrock principle of American jurisprudence.

In this case, the error in giving an incomplete and potentially misleading instruction about the burden to prove or disprove self-defense was certainly not unimportant in relation to the jurys understanding of and deliberation on the assault charge. It was the key issue the jury had to decide. Although CALJIC No. 9.00 correctly explained the burden of proof, the parties closing arguments were in conflict on that key point. Not surprisingly, the jurys question indicated it was confused about whose burden it was to prove or disprove the defense. The trial court did not instruct the jury to review CALJIC No. 9.00 but, instead, merely told it to review the instructions about the elements of and exceptions to self-defense. The trial courts answer that it was the prosecutors burden to establish defendants use of force was unreasonable inferentially suggested that the defense had the burden to establish other elements of self-defense. Because the record contains evidence from which a properly instructed jury could conclude that the People had not met their burden of disproving self-defense beyond a reasonable doubt,[10]we conclude that the trial courts error in giving a misleadingly incomplete response to the jurys question was not harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 23-24.)

DISPOSITION

The judgment is reversed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J. SUZUKAWA, J.

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[1] When defendant testified, he denied that he had arrived home at 6:00 p.m. and that he had had these arguments with Swanson.

[2] In contrast, Swanson testified that Traylor started drinking after 6:00 p.m.

[3] As will be set forth later, the defense impeached Traylors testimony on this issue. An expert testified that Traylor had ingested cocaine the day of the stabbing and had a .11 blood alcohol level. In rebuttal, Swanson testified that Traylor did not appear to be high on cocaine the night of the stabbing.

[4] The pattern instructions about voluntary intoxication and its relationship to general and specific intent crimes were submitted to the jury. (CALJIC Nos. 4.20, 4.21, 4.21.1, 4.22.)

[5] In rebuttal, Swanson testified that the lights were on in living room when he entered after hearing Traylor scream.

[6] In his trial testimony, defendant never identified that object. The police did not find such any such object in the living room.

[7] Although defense counsel did not object below to these statements, defendant now contends that the comments constitute prejudicial prosecutorial misconduct. While we agree with the Attorney General that a timely and specific objection and request for a curative instruction would have cured the harm caused by this misstatement of law, we cannot see any satisfactory explanation for defense counsels failure to object. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Nonetheless, we need not decide whether prosecutorial misconduct or ineffective assistance of trial counsel would be a sufficient basis to reverse the judgment since, as will be explained, the trial courts incomplete and misleading response to the jurys question was an error which was not harmless beyond a reasonable doubt.

[8] The Attorney Generals argument that defendant has forfeited this contention is not persuasive. Defense counsel asked for an instruction informing the jury that the People had the burden of disproving self-defense beyond a reasonable doubt. The trial court rejected that request, erroneously concluding that it was not a correct statement of the law. Given that exchange, defense counsels subsequent statement that the trial courts proposed formulation was also an accurate statement of the law does not constitute a forfeiture by acquiescence in the trial courts answer to the jury or by abandonment of the earlier request. (Italics added.)

[9] CALJIC No. 5.30 reads: 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.

[10] The record also contains substantial evidence from which a properly instructed jury could reasonably find defendant guilty of the charge of assault with a deadly weapon.