P. v. Floyd

Filed 6/22/07 P. v. Floyd CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant Malachi Floyd was tried by a jury and convicted of second degree robbery, attempted murder, and assault with a firearm. The jury found true the special allegations that defendant personally and intentionally discharged a firearm causing great bodily injury, personally inflicted great bodily injury, and personally used a firearm. The court sentenced him to an aggregate prison term of eight years plus 50 years to life.

On appeal, defendant contends (1) the trial courts refusal to allow him to assert the defense of perfect or imperfect self-defense, and to instruct the jury as to those defenses, violated his constitutional rights to due process and a fair trial, and (2) the sentence imposed constitutes cruel and unusual punishment under the federal and state Constitutions. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Gary Cornellier, owner of a pizza parlor in Sacramento, was playing chess with his friend Donald Fong around 10:15 p.m. after closing the restaurant. Both men noticed defendant walk by the front window. When Fong got the impression that defendant might be casing the place, they decided to lock up and go home to be on the safe side.

Cornellier took his canvas briefcase containing, among other things, the nights receipts, including $600 in cash, and he and Fong walked out the front door. After looking around and talking for several minutes, both men went to their respective vehicles, which were parked approximately two stalls away from each other.

As soon as Cornellier closed his door and started the car, he heard a tapping sound on his window. He looked up and saw defendant with a knit mask over his face and a gun in his hand. Cornellier opened the door and defendant moved in between the door and Cornellier, pointed the gun at Cornellier, and said, Give me the bag. Cornellier told defendant the bag was in the back seat.

Fong, having seen defendant run out from the bushes and point the gun at Cornellier, stepped on the gas and rammed his van into Cornelliers car, bending back the door of Cornelliers car and pinning defendants foot under the right front tire.^[1]Defendant cussed and yelled at Fong to get off his foot, then pointed the gun at Fong through the passenger window and fired.^[2]Unable to open the door to get out, Fong leaned forward over the steering wheel, avoiding the first shot, which struck the drivers side door column. Defendant fired a second round, hitting Fong in the back. Once Fong was able to open the vans door, he got out and ran. As he did so, the van rolled back enough to free defendants foot, and he fired a third round at Fong. Fong ran behind his car to escape any further gunshots by defendant.

As a result of the collision, defendant was pushed backward into Cornelliers car. As Cornellier tried to grab him, he heard the gunshots. Cornellier let go of defendant and climbed over the console in an attempt to escape out the passenger door. Once defendants foot was free, he went around to the passenger side of Cornelliers car and, pointing the gun at Cornelliers chest, again demanded the bag. Cornellier handed him the bag and defendant took off, leaving one of his tennis shoes behind. Cornellier called 911 and assisted Fong until emergency personnel arrived.

Defendant was charged, by an amended information, with second degree robbery (Pen. Code, 211 -- count one),^[3]attempted murder ( 664, 187, subd. (a) -- count two), and assault with a firearm ( 245, subd. (a)(2) -- count three). As to counts one and two, it was alleged that defendant personally and intentionally discharged a firearm causing great bodily injury ( 12022.53, subd. (d)) and personally inflicted great bodily injury ( 12022.7, subd. (a)), and as to count three, it was alleged that defendant personally used a firearm ( 1203.06, subd. (a)(1), 12022.5, subd. (a)) and personally inflicted great bodily injury ( 12022.7, subd. (a)).

Prior to trial, the court heard argument regarding defendants request that the jury be instructed on the defenses of self-defense and imperfect self-defense, and on the lesser included offense of attempted voluntary manslaughter. The court denied the self-defense instruction, noting that defendants own felonious misconduct . . . is what caused Mr. Fong to have to come to the defense of his friend and finding no evidence before this Court that would warrant a self-defense instruction. On the same basis, the court also denied the imperfect self-defense and lesser included voluntary manslaughter instructions.

The jury found defendant guilty of second degree robbery, attempted murder, and assault with a firearm, and found true the allegations that defendant personally and intentionally discharged a firearm causing great bodily injury, personally inflicted great bodily injury, and personally used a firearm. The court sentenced defendant to an aggregate term of eight years plus 50 years to life in state prison.

Defendant filed a timely notice of appeal.

DISCUSSION

I

Defendant contends that his status as the instigator did not foreclose the defense of self-defense because the counter-assault on him was so sudden and perilous, that an opportunity to end the fight or a retreat to safety [was] precluded. At the very least, he urges, he should have been permitted to argue imperfect self-defense and the jury instructed as to the lesser included offense of voluntary manslaughter.

A trial court has no duty to instruct the jury on a defense -- even at the defendants request -- unless the defense is supported by substantial evidence. (People v. Curtis (1994) 30 Cal.App.4th 1337, 1355.)

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 (Hill).)

For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. [Citation.] If the belief subjectively exists but is objectively unreasonable, there is imperfect self-defense, i.e., the defendant is deemed to have acted without malice and cannot be convicted of murder, but can be convicted of manslaughter. [Citation.] To constitute perfect self-defense, i.e., to exonerate the person completely, the belief must also be objectively reasonable. [Citations.] As the Legislature has stated, [T]he circumstances must be sufficient to excite the fears of a reasonable person . . . . [Citations.] Moreover, for either perfect or imperfect self-defense, the fear must be of imminent harm. Fear of future harm -- no matter how great the fear and no matter how great the likelihood of the harm -- will not suffice. The defendants fear must be of imminent danger to life or great bodily injury. [Citation.] (People v. Humphrey (1996) 13 Cal.4th 1073, 1082, fn. omitted.)

It is well established that the 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 adversarys attack or pursuit is legally justified. (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1 (Christian S.).) Moreover, where a defendant provokes a quarrel, or by his own misconduct voluntarily brings danger upon himself, his claim of apprehension of imminent danger to his person cannot be considered reasonable or sufficient under the law. (People v. Holt (1944) 25 Cal.2d 59, 65-66 (Holt).) In other words, if one makes a felonious assault upon another, or has created appearances justifying the other to launch a deadly counterattack in self-defense, the original assailant cannot slay his adversary in self-defense unless he has first, in good faith, declined further combat, and has fairly notified him that he has abandoned the affray. [Citation.] However, when the victim of simple assault responds in a sudden and deadly counterassault, the original aggressor need not attempt to withdraw and may use reasonably necessary force in self-defense. [Citations.] (People v. Gleghorn (1987) 193 Cal.App.3d 196, 201 (Gleghorn); People v. Hecker (1895) 109 Cal. 451, 464 [counterattack to simple assault so sudden and perilous the original aggressor had no opportunity to make known his intent to decline the strife or retreat to safety].)

Here, defendant, the initial aggressor, was guilty not of a simple assault or trespass, but of a violent, felonious attack -- pointing a gun at Cornellier and demanding that he turn over his bag -- in response to which Fong undertook a counterattack by ramming his car into Cornelliers, trapping defendant by pinning his foot under the tire. It is that original felonious act (i.e., the armed robbery) that deprived defendant of the right to invoke the doctrine of self-defense -- either perfect or imperfect -- as a defense to the charges of attempted murder and assault with a firearm against Fong. (Christian S., supra, 7 Cal.4th at p. 773, fn. 1; Holt, supra, 25 Cal.2d at pp. 65-66; Gleghorn, supra, 193 Cal.App.3d at p. 201.) Because he initiated a violent physical assault, he is precluded from availing himself of the sudden and perilous exception to the duty to withdraw or retreat. We conclude there is no substantial evidence in this record to support the instructions requested by defendant. (Hill, supra, 131 Cal.App.4th at p. 1101.)

II

Defendant contends his sentence was unconstitutionally cruel and unusual. Specifically, defendant asserts that he did not have any intention to rob or hurt Fong and intended only to rob Cornellier of his restaurant cash and receipts. Had he been able to complete the crime he intended without Fongs interference, he urges, he would only have been convicted of second degree robbery with the personal use of a firearm and sentenced to a maximum term of 17 years in prison. Instead, he argues, he was sentenced to 50 years to life because of the unanticipated intervention of Fong during the robbery. We are not persuaded.

The Eighth Amendment to the federal Constitution forbids only extreme sentences that are grossly disproportionate to the crime. (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1135.) A punishment may violate the California Constitution if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch).) Under Lynch, the court must examine the nature of the offense and the offender, compare the challenged penalty to that proscribed in California for more serious crimes, and compare the penalty with the punishment in other jurisdictions for the same offense. (Id. at pp. 425-428.)

The offenses defendant was convicted of, together with the special allegations the jury found true, constitute serious and violent felonies, the type of which put the public in great danger. Defendant armed himself and waited in the bushes in the dark of night until the victim entered his car and then confronted the victim in a threatening manner (i.e., putting a gun to his chest), demanding his bag containing the cash receipts from the days business. When Fong tried to help the victim, defendant shot at him at least three times, hitting him once, and then returned to confront the victim a second time, demanding the bag of money at gunpoint.

While Fong may not have been defendants intended victim, we must assume that defendant, armed with a loaded weapon, was prepared to shoot Cornellier or anyone else who might interfere with his plan to take the bag by force. The fact that defendant did not anticipate Fongs attempt to save his friend does not persuade us that defendant is any less culpable for the results of his actions, nor does it render the intended crime any less serious or dangerous.

At the time of the current offenses, defendant was a 19-year-old adult. His prior offenses occurred just three years earlier, when he was a juvenile, and include theft (Pen. Code,  484), first degree burglary (Pen. Code, 459), and vandalism (Pen. Code, 594, subd. (b)(2)). According to the probation report, defendant completed probation in each instance. Just two years after completing probation for those offenses, defendant was arrested as an adult for felony second degree robbery (Pen. Code, 211) in connection with the robbery of an ice cream shop at gunpoint, although that case was subsequently dismissed. We note, also, that defendant was arrested in November 2004 (subsequent to commission of the instant offenses) and arraigned on a charge of possession or purchase of cocaine for sale (Health & Saf. Code, 11351.5); however, disposition of those charges was still pending at the time the probation report was prepared. We also note that defendant is a validated gang member.

Defendants attempt to compare himself to the defendant in People v. Dillon (1983) 34 Cal.3d 441 (Dillon) is unavailing. In Dillon, the defendant, a 17-year-old boy with no prior criminal record (id. at p. 486), and two other boys went to a field to steal some marijuana. Before they could do so, Dennis Johnson, the owner of the field, chased the boys off. The defendant returned some weeks later with six other boys, some of them (including the defendant) armed. When they encountered Johnson, who was also armed, the defendant fired his weapon nine times, killing Johnson. (Id. at pp. 451-452.) At trial, the defendant testified he fired on Johnson out of fear because he thought Johnson was about to shoot him. (Id. at pp. 482-483.) The jury convicted the defendant of attempted robbery and first degree murder. (Id. at p. 484.)

This states highest court affirmed the conviction for attempted robbery but reduced the conviction of first degree murder to second degree murder, finding that the defendant was an unusually immature youth who had no prior criminal history and was not the prototype of a hardened criminal who poses a grave threat to society. (Dillon, supra, 34 Cal.3d at p. 488.) The court also noted that the shooting was a response to a suddenly developing situation that defendant perceived as putting his life in immediate danger, and although the evidence was clear that the defendant provoked the situation himself, there was ample evidence that because of his immaturity he neither foresaw the risk he was creating nor was able to extricate himself without panicking when that risk seemed to eventuate. (Ibid.) The court found the sentence of life imprisonment to be disproportionate under those circumstances. (Ibid.)

Here, defendant, a 19 year old with a prior criminal record, armed himself and confronted an unarmed victim at approximately 10:00 p.m. The victims friend, Fong, attempted to intervene. Defendant, with his foot pinned under Fongs tire, yelled profanities and fired twice at Fong through the closed passenger window, barely missing Fong with the first shot but hitting him with the second. Although Fong was able to open the door and get out of the vehicle, defendant fired a third time as Fong ran for cover. Once defendant became unpinned, he turned again to Cornellier to complete the armed robbery, going around to the passenger side of Cornelliers car, pointing the gun at his chest, and demanding the bag of money. He took the money and fled.

These were not the acts of a frightened, emotionally immature youth with no prior criminal history; instead, defendants behavior was that of a bolder, more mature criminal who, when confronted by an unexpected challenger, did not hesitate to shoot repeatedly to rid himself of an intervening problem and return to the task at hand.

Furthermore, a comparison of the challenged penalty to that proscribed in California for more serious crimes and to that proscribed in other jurisdictions for the same offense does not reveal any impropriety in sentencing here. (Lynch, supra, 8 Cal.3d at pp. 425-428.)

We conclude that the sentence imposed by the trial court does not constitute cruel and unusual punishment.

DISPOSITION

The judgment is affirmed.

RAYE , J.

We concur:

SCOTLAND, P.J.

NICHOLSON , J.

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^[1] Fong testified that once his car hit Cornelliers, he stopped and made no attempt to keep going or jamb [sic] it in harder to the suspect.

^[2] Fong identified the person shooting as the same individual whom he had seen walk by the restaurant earlier.

^[3] All further statutory references are to the Penal Code unless otherwise indicated.