P. v. Barners

Filed 9/26/07 P. v. Barners CA2/3

Opinion following remand by U.S. Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Bob S. Bowers, Jr., Judge. Affirmed.

Robert Bryzman, under appointment by the Court of Appeal, for Defendant and

Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney

General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and

Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

Paul S. Barnes appeals from the judgment entered following his convictions by jury on two counts of assault on a peace officer with a semiautomatic firearm (Pen. Code,  245, subd. (d)(2)); counts 3 and 4) with, as to each count, personal use of a firearm (Pen. Code,  12022.5, subd. (a), 12022.53, subd. (b)) and on count 5 possession of a firearm by a felon (Pen. Code,  12021, subd. (a)(1)).[1] The court sentenced him to prison for 19 years. Appellant claims the trial court committed trial and sentencing errors. We affirm the judgment.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1208), the evidence, the sufficiency of which is undisputed, established the following. In July 1999, appellant was released on parole and assigned to an Oakland halfway house operated by the Federal Bureau of Prisons. In August 1999, he left without permission and failed to return, and an arrest warrant was issued. After the present offenses occurred, a federal grand jury indicted him for escape.

About 5:30 p.m. on October 11, 2001, Los Angeles Police Officers Lasalle Culpepper and Brian Engquist were on patrol when they received a call that an armed robbery had occurred. En route to the location, the officers saw two men who the officers suspected might be the robbers. The officers drove into the driveway of a tire store and exited their car. Culpepper ordered the men to stop, and asked them to turn and face a gate. One complied and Engquist detained him. Appellant, who was the other man, yelled at Culpepper, Fuck this. Fuck you. This is bullshit. Appellant used additional similar profanity, waving his arms. Culpepper tried to explain why he was stopping appellant, and appellant continued to use profanity. Appellant started to walk away. Culpepper, walking near appellant, ordered appellant to stop.

Appellant, looking for an escape route, began walking towards Culpepper. Appellant was waving his arms in a threatening manner. Culpepper sprayed appellant with pepper spray. Appellant stopped and wiped his eyes, then shouted profanities and moved towards Culpepper at an angle. Culpepper called Engquist for assistance and subsequently sprayed appellant again.

Appellant stopped, became more irritated, continued using profanities, and waved his arms. Appellant began reaching under his T-shirt. Culpepper ordered appellant to show his hands. Appellant removed a .45-caliber semiautomatic handgun from under his shirt and held the gun down and at a slight angle to his side. Culpepper thought appellant was going to shoot Culpepper and/or that the three of them were about to be involved in a shooting. Culpepper told Engquist that appellant had a gun. Engquist testified appellant was kind of crouched over, wiping his face, and Engquist could see the gun down at appellants side. After Engquist saw the firearm, appellant turned back and looked in Engquists direction. Culpepper drew his gun and retreated, looking for cover. Culpepper ordered appellant to drop his gun, put his hands up, and stop. Appellant briefly wiped his eyes and then fled.

Appellant later stopped, turned, and faced the officers. According to Engquist, appellant turned and crouched, facing the officers. Appellant wiped his eyes with his left hand, and used profanity. Appellant was holding the gun in his right hand, and the gun was pointed down. Culpepper testified appellants gun was ready to be used at any moment appellant wanted to use it.

Culpepper ordered appellant to drop his gun and put his hands on his head. Appellant wiped his eyes, used profanity, and tried to locate Culpepper. Appellant turned and fled with both officers in pursuit.

Appellant climbed a fence, continued fleeing, but stumbled and dropped his gun. Culpepper began climbing over the fence until he saw appellant crawl toward his gun. Culpepper ordered appellant not to go for the gun or pick it up. Appellant picked it up. At some point when appellant was crawling towards his gun and getting it, he perhaps looked back over his shoulder as if trying to locate Culpepper and Engquist. An officer sprayed appellant again. Culpepper jumped back off the fence. Appellant fled with the gun in his hand.

The officers ran along another route to cut off appellants escape. En route, Culpepper broadcasted that he and Engquist were pursuing an armed person, and Culpepper requested assistance. Subsequently, Culpepper saw appellant, gun in hand, trying to climb a fence. Culpepper ordered appellant to drop his gun and get on the ground. At some point appellant turned and walked toward Culpepper and Engquist. Culpepper repeatedly issued commands to appellant to stop, drop his weapon, and put up his hands.

Appellant did not comply. Instead, appellant walked towards Culpepper, used profanity, and wiped his eyes. Culpepper told appellant to drop the gun and stop, but appellant did not comply. At some point while appellant was walking towards Culpepper and Engquist, appellant was holding his gun in his right hand and pointing it down. Culpepper testified appellant tried to locate Culpepper and Engquist and, at some point, started to raise the gun at a 45-degree angle in the direction of Culpepper and Engquist.

Engquist testified appellant raised his gun until it was pointed at Culpepper and Engquist. Appellants elbow was below his shoulder and his forearm was perpendicular to his body. Engquist testified at a previous proceeding in this case that appellants arm was extended straight at shoulder level and perpendicular to his body. Some hours after the shooting, Engquist was interviewed by police in an administrative hearing. He did not tell police that appellants arm was extended straight at shoulder level, or that appellants elbow had been bent. Engquist told police that appellant started to bring the weapon in the direction of Engquist and Culpepper; Engquist was not certain if the weapon was pointed at Engquist and Culpepper but it was pointed downrange in their direction.[2] Culpepper, in self-defense, fired his gun twice at appellant. Engquist then fired his gun once at appellant. Appellant stopped for a moment and looked at his chest.

Appellant shouted a profanity, looked at Culpepper and Engquist, and began advancing towards them. Appellant again raised his weapon towards Culpepper and Engquist, and both fired shots at appellant. Appellant fell and dropped his gun. Appellant, shouting profanities at Culpepper and Engquist, yelled that appellant had been shot. Culpepper again radioed for assistance.

Appellant rolled over, yelled profanities at Culpepper and Engquist, and began reaching for appellants gun. Culpepper told appellant not to reach for the gun and to put his hands up. Engquist fired a shot at appellant. Appellant withdrew his arm from the gun and curled up on the ground. Additional officers arrived and helped take appellant into custody. Although he had been shot, appellant resisted the officers efforts to handcuff him, but he was eventually handcuffed.

Police recovered appellants gun. A round was in the chamber, the safety was off, and the guns hammer was cocked. There were six rounds in the guns extended magazine. Police recovered two loaded ammunition magazines in appellants right front pocket. One contained six rounds, the other contained five. Police also recovered from appellant a small film canister containing a green leafy substance resembling marijuana. Appellants gun was test fired with all of the above magazines, and the gun functioned normally.

Gregorio Gonzalez testified that about 5:30 p.m. on October 11, 2001, he was at the tire shop. His view of the gunman was partially obstructed. According to Gonzalez, the gunman was holding the gun down with the gunmans arm at his side. Gonzalez later saw appellant leaning against a wall. The gunmans arm was hanging down. Gonzalez moved from his location and split his attention between the officers and gunman. Gonzalez entered the tire shops office. Just before shots were fired, Gonzalez lost sight of the gunman. When the shots were fired, Gonzalez could not see the gunman or his gun. Gonzalez previously had testified that he saw a portion of appellant and the gun was pointed down. He also previously had testified that, a minute before shots were fired, Gonzalez had moved slightly and only saw the officers.

Karina Jara testified that, on the above date, she was leaving her residence when she saw a police car at the tire shop. She also saw a man try to jump a fence, and an officer pointing a gun at the man and telling him to get down. The man jumped off the fence and walked towards the officer. Officers repeatedly told him to stop. The man pulled out a gun and pointed it towards officers. The arm holding the gun was fully extended from the shoulder. Officers were pointing guns at the gunman. Jara heard a shot, ran upstairs, and later heard additional shots. Jara previously had testified that the gunman stood with the gun for a minute before she heard the first shot. However, at trial, she testified she did not know how many minutes had passed but it was certainly less than a minute. Jara initially told police that she saw the gunman shoot at least three times at officers. At trial, she testified that, at the time, she only had assumed the gunman fired at least three times. Appellant presented no defense evidence.

CONTENTIONS

Appellant contends (1) the trial court erred in failing to give a unanimity instruction and (2) he was entitled to a jury trial on the facts relied upon by the trial court to impose upper terms on counts 3 and 4.

DISCUSSION

1. The Trial Court Did Not Reversibly Err by Failing to Give a Unanimity Instruction.

a. Pertinent Facts.

During jury argument, appellants counsel argued there were two identical charges so there was really one charge, and the issue was whether appellant committed assault. Appellants counsel also commented he thought he said during his opening statement that the officers were justified in shooting appellant.

Appellant also argued as follows. Appellant was guilty of assault only if he pointed the gun at the officers, and there was no evidence he pointed the gun at them. As soon as appellant raised his arm, Culpepper and Engquist fired, and Culpepper justifiably shot appellant. Engquists testimony that, at that time, appellant was pointing his gun at the officers was not credible. Culpepper told the truth; the gun was just starting to come up. That was why the evidence was ambiguous and why there was not proof beyond a reasonable doubt that an assault had occurred.

Appellant also argued that he took the gun out of his pants, but there was no testimony as to why he had done so, and he may have wanted to discard or hide it. When appellant took the gun out of his pants, he could have immediately killed Culpepper but did not do so. Appellant further argued he never fired the gun and, when he was approaching the officers, he did not fire at them.

Appellant requested a jury instruction on brandishing a weapon in violation of Penal Code section 417. The court denied the request, and there is no dispute as to the validity of that denial. The court did not give a unanimity instruction. The jury requested a copy of a portion of a transcript of Culpeppers testimony regarding the position of appellants gun just before the shooting. The court permitted a readback of the testimony.

b. Analysis.

Appellant claims he committed four arguable assaults with a firearm, that is, when he (1) after removing the gun from under his shirt, displayed it and held it pointed down, (2) turned and faced the officers while holding the gun pointed down, (3) started to raise the gun, and (4) after he was shot, again raised the gun. He therefore argues the trial court erroneously failed to give a unanimity instruction.[3]

When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act. [Citation.] The duty to instruct on unanimity when no election has been made rests upon the court sua sponte. [Citation.] (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.)

An assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another. (People v. Williams (2001) 26 Cal.4th 779, 790.) The requisite intent may be inferred from the doing of the wrongful act. (People v. Corson (1963) 221 Cal.App.2d 579, 582.)

People v. Raviart (2001) 93 Cal.App.4th 258 (Raviart) is illuminating. In that case, two officers confronted the defendant to arrest him, he pointed a gun at only one, and both shot him. Convicted on two counts of assault with a firearm upon a peace officer, the defendant on appeal presented a sufficiency challenge, claiming he could not have been convicted of assaulting the officer towards whom the defendant had not pointed the gun. (Raviart, at p. 262.)

The court in Raviart rejected the challenge, stating, In People v. McMakin (1857) 8 Cal. 547, there was evidence the defendant pointed a revolver toward another person, but with the instrument so pointed, that the ball would strike the ground before it reached the witness, had the pistol been discharged. (Ibid.) The Supreme Court affirmed the defendants conviction for assault, stating: Holding up a fist in a menacing manner, drawing a sword, or bayonet, presenting a gun at a person who is within its range, have been held to constitute an assault. So, any other similar act, accompanied by such circumstances as denote an intention existing at the time, coupled with a present ability of using actual violence against the person of another, will be considered an assault. . . . [] . . . [] . . . [W]hen the party draws the weapon, although he does not directly point it at the other, but holds it in such a position as enables him to use it before the other party could defend himself, at the same time declaring his determination to use it against the other, the jury are fully warranted in finding that such was his intention. (Id. at pp. 548-549, italics omitted.)

In People v. Hunter (1925) 71 Cal.App. 315 . . . , there was evidence the defendant attempted to draw a pistol from his sock to shoot his wife, but she jumped out the window before he could do so. [Citation.] On appeal, the defendant contended the evidence was insufficient to prove the alleged assault in that it [did] not show that the defendant attempted to use the weapon. [Citation.] The court disagreed, stating: The evidence is ample to show that the defendant had the intention and the present ability to kill his wife. The only question remaining is whether he attempted to carry his purpose into execution. To accomplish that purpose, it was necessary for him to take the gun from his sock, to point it at his wife, and to pull the trigger. Any one of these would constitute an overt act toward the immediate accomplishment of the intended crime. He was endeavoring to take the gun from his sock when his wife thwarted the attempt to kill her by jumping out of the window. Naturally she did not wait to see whether he succeeded in getting hold of the gun or whether he pointed it at her, and it is immaterial whether he did either. The actual transaction had commenced which would have ended in murder if it had not been interrupted. [Citation.]

Finally, in People v. Thompson (1949) 93 Cal.App.2d 780 . . . , there was evidence the defendant pointed a revolver toward two sheriffs deputies, aiming between them and pointing the gun downward. The appellate court held the defendants actions were sufficient to support his conviction on two counts of assault with a deadly weapon, noting that [w]hile [the defendant] did not point the gun directly at [the deputies] or either of them, it was in a position to be used instantly. [Citation.] (Raviart, supra, 93 Cal.App.4th at pp. 263-264, italics added.)

In the present case, appellant was charged in counts 3 and 4 with assault with a semiautomatic firearm on Culpepper and Engquist, respectively. Appellant does not distinguish between the counts in his analysis; neither do we in our analysis below.

We assume without deciding that the evidence presented at trial in the present case tended to show four separate assaults as to each count as urged by appellant, and that the prosecutor failed to elect the specific act relied upon to prove the charge to the jury. Accordingly, since the trial court failed to give a unanimity instruction, we assume that that failure was error.

However, we have recited the facts pertaining to the four assaults, including not only appellants conduct pertaining to each, but the circumstances surrounding such conduct, and we will not repeat that recitation here. Suffice it to say we believe there was overwhelming evidence that appellant committed the four felonious assaults during an on-going incident in which consummation of the assaults was frustrated by, inter alia, the pepper spray in his eyes. (See Raviart, supra, 93 Cal.App.4th at pp. 263-264.)

Appellant never distinguished four assaults during jury argument. The main focus of his argument was the third assault, that is, appellants conduct just before he was shot, and he argued that the reason he did not commit felonious assault at that time was that he did not point the gun at the officers. He concedes the parties argument focused on whether he was guilty of an assault based on the third assault.

Further, as to the first assault, appellant admitted during jury argument that when appellant removed the gun from his pants, he could have killed Culpepper immediately. As to the third assault, appellant admitted during jury argument that Culpepper justifiably shot appellant. This admission implied Culpepper reasonably believed, just prior to the shooting, that appellant was feloniously assaulting Culpepper.[4] If Culpepper could reasonably so believe, we believe that, on this record, so could the jury.

Further still, this is not a case where defense evidence presented different defenses as to one or more of the four assaults and permitted the jury to treat them differently -- no defense evidence was presented. The jurys readback request at least suggests they were focusing on the third assault. The jury rejected appellants argument. Any trial court error in failing to give a unanimity instruction was harmless under any conceivable standard. (Cf. People v. Stankewitz (1990) 51 Cal.3d 72, 100; People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].) None of the cases cited by appellant compels a contrary conclusion.

2. The Trial Court Did Not Commit Cunningham Error When It Imposed the Upper Terms.

a. Pertinent Facts.

The information filed in January 2002 alleged as count 5 that appellant was a felon in possession of a gun. The information also alleged as the predicate felony conviction for that offense that appellant suffered a March 7, 1994 conviction for a violation of title 21 United States Code section 846, in case No. CR-91-0043 in federal court in Omaha, Nebraska. That section provided that Any person who attempts or conspires to commit any offense defined in this title shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy. Title 21 pertains to Food and Drugs. The information does not otherwise specify the nature of the 1994 conviction.

The probation report prepared for a February 2002 hearing reflects appellant suffered four prior convictions, and perhaps three more. In particular, appellant suffered a 1986 conviction for assault with a deadly weapon or with force likely to produce great bodily injury, and a 1986 conviction for a violation of Vehicle Code section 31 (providing false information to a police officer). Appellant also suffered a 1986 conviction for a violation of Penal Code section 12034 (permitting a passenger to carry a firearm in a vehicle), and a 2002 conviction for a violation of Vehicle Code section 12500 (driving without a license).

Moreover, the report reflects appellant was arrested in 1992, in Omaha, Nebraska, by United States Marshals. The report appears to reflect concerning that matter that appellant was convicted of three crimes: conspiracy to distribute cocaine and cocaine base, possession of cocaine with intent to distribute, and conspiracy to launder money.[5] On February 13, 2003, during appellants first trial, and in the presence of the jury, he admitted the 1994 predicate conviction alleged in the information as to count 5.

At sentencing on November 17, 2003, the court, which indicated it had considered the February 2002 probation report, issued a written tentative sentencing decision.[6] The decision indicated, inter alia, that as to each of counts 3 and 4, The court has selected the upper term because the crime involved the threat of great bodily harm or death. The decision also indicated the court would order that appellant serve his sentences on counts 4 and 5 concurrently with his sentence on count 3.

The court told the prosecutor, To give you some idea of what the court was attempting to do not the reason but one of the reasons high term was imposed is because of, again, the prior confrontations, the prior use of the gun before. The court also stated it had not ordered consecutive sentences on counts 3, 4 and 5. The court indicated it had not imposed consecutives sentences because Enquist (the victim of count 4) was a rookie police officer who had approached the scene to do something totally different and he was almost surprised when he heard gunfire. According to the court, Enquist had not been under a steady assault by appellant. The court indicated it might have imposed consecutive sentences if Enquist had testified that appellant definitely had pointed a gun at Enquist, but the court suggested Enquist merely had been in the same area as Culpepper when appellant was shooting at Culpepper.

The court observed that it had given the parties its written tentative decision. The court sentenced appellant to prison for, inter alia, nine-year upper terms on counts 3 and 4. The court stated it had considered the aggravating and mitigating circumstances set forth in the California Rules of Court, and had found that the aggravating circumstances outweighed the mitigating circumstances. The court then stated, The court has selected the upper term because the crime involved the threat of great bodily harm or death. The court ordered that appellant serve concurrently his sentences on counts 3 and 4.

b. Analysis.

Appellant effectively claims the trial court committed Cunningham error when imposing the upper terms on counts 3 and 4. We conclude no Cunningham error occurred because the record demonstrates appellant admitted he suffered a prior conviction, and demonstrates that he suffered other prior convictions.

(1) Applicable Law.

In Cunningham [v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] [Cunningham]], the United States Supreme Court, applying principles established in its earlier decisions in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 120 S.Ct. 2348] (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531] (Blakely), concluded that Californias [determinate sentence law] does not comply with a defendants right to a jury trial. [U]nder the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. (Cunningham, supra, 549 U.S. at pp. ___-___ [127 S.Ct. at pp. 863-864].) (People v. Sandoval (2007) 41 Cal.4th 825, 835 (Sandoval).)

The Sandoval court later observed, Apprendi stated, Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490, italics added.) (Sandoval, supra, 41 Cal.4th at p. 835.)

In Blakely, the high court concluded that the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. (Id. at p. 303.) (Sandoval, supra, 41 Cal.4th p. 836.)

In People v. Black (2007) 41 Cal.4th 799 (Black), our Supreme Court stated, we agree with the Attorney Generals contention that as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant's right to jury trial. (Id. at p. 812.) The court also stated, so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. (Id. at p. 813.)

Black also stated, imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (Black, supra, 41 Cal.4th at p. 816.)

The United States Supreme Court has recognized two exceptions to a defendants Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jurys verdict. (Blakely, supra, 542 U.S. at p. 303.) Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. [Citations.] (Sandoval, supra, 41 Cal.4that pp. 836-837.)

(2) The Court Did Not Commit Cunningham Error.

We need not reach the issue of whether the trial court committed Cunningham error to the extent the trial court relied upon its stated reasons for imposing the upper terms on counts 3 and 4. In the present case, the record reflects that appellant admitted that he suffered the 1994 conviction underlying count 5. His admission that he suffered a prior conviction, as well as the fact that the record demonstrates he suffered multiple prior convictions, rendered him eligible for imposition of the upper terms. (Black, supra, 41 Cal.4th at pp. 812-816.) No Cunningham error occurred.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

ALDRICH, J.

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Analysis and review provided by El Cajon Property line Lawyers.

1 Appellant was convicted on count 5 during his first trial, but the jury hung on counts 3 and 4, as did a second jury. A third jury convicted him on counts 3 and 4. Other counts were dismissed at various stages during these proceedings. Appellant appeals following his third trial.

[2] Although appellant cites to the record to support his claim that, when appellant raised his gun and was shot, his finger was not on the trigger, the record cited does not support his claim.

[3] CALJIC No. 17.01 (7th ed. 2003) reads: The defendant is accused of having committed the crime of ______ [in Count _____]. The prosecution has introduced evidence for the purpose of showing that there is more than one [act] [or] [omission] upon which a conviction [on Count _____] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] [she] committed any one or more of the [acts] [or] [omissions]. However, in order to return a verdict of guilty [to Count _____], all jurors must agree that [he] [she] committed the same [act] [or] [omission] [or] [acts] [or] [omissions]. It is not necessary that the particular [act] [or] [omission] agreed upon be stated in your verdict.

[4] CALJIC No. 5.12 (7th ed. 2003), pertaining to justifiable homicide in self-defense, states, The killing of another person in self-defense is justifiable and not unlawful when the person who does the killing actually and reasonably believes: [] 1. That there is imminent danger that the other person will either kill [him] [her] or cause [him] [her] great bodily injury; and [] 2. That it is necessary under the circumstances for [him] [her] to use in self-defense force or means that might cause the death of the other person for the purpose of avoiding death or great bodily injury to [himself] [herself]. (Italics added.

[5] In particular, the report reflects, 4/21/94 US Penitentiary Lompoc, CA chrgs-consp to dist coc & coc base, pwid coc, consp money launder; court sen: 276 mos.

[6] The augmented record contains a settled statement reflecting the above decision.