Filed 6/20/17 P. v. Chapman CA4/2






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 The opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

CRAIG LEE CHAPMAN,

Defendant and Appellant.


G053100

(Super. Ct. No. 12NF2924)

O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Craig Lee Chapman of assault with a firearm (Pen. Code, § 245, subd. (a)(2) [count 1]), brandishing a firearm in a rude or threatening manner (§ 417, subd. (a)(1) [count 2]), and domestic violence battery (§ 243, subd. (e)(1)). Chapman contends the trial court erred by failing to instruct on self-defense concerning the brandishing offense, and he challenges the sufficiency of the evidence to support the assault and spousal battery convictions. For the reasons expressed below, we affirm.

I
FACTUAL AND PROCEDURAL BACKGROUND
In September 2012, Michelle M. lived in Anaheim with her husband, Jon. Their townhouse shared a common wall with a townhouse belonging to Chapman and his wife Ana. The two couples occasionally socialized.
On the afternoon of September 8, 2012, Michelle and a friend, Erin, were in Michelle’s residence. Ana came over, and after a brief discussion, the three went to Ana’s townhouse to watch a movie. Chapman came downstairs and, according to Michelle, there appeared to be some tension between Ana and him. As he walked by to go to the kitchen, he lightly “smacked” or touched Ana on the head. Chapman appeared intoxicated and Ana had refused to get him a drink. Ana appeared upset. Chapman got a drink from the kitchen and returned upstairs.
Michelle went next door and persuaded her husband to come over to defuse the situation. Chapman came downstairs and said “Hi Jon. How you doing? I’m gonna divorce my wife tomorrow.” Chapman made another drink and went back upstairs. Jon gave Ana a house key in case she wanted to come over to their house.
Approximately 30 minutes later, Chapman came downstairs in an agitated state and mumbled something, apparently asking everyone to leave. He carried a handgun pointed at the floor. Jon asked Chapman to calm down and said he was leaving. When Chapman raised the gun and pointed the weapon at Jon, Michelle jumped in front of Chapman and yelled at him. Chapman hit Michelle on the head with the gun, which caused her scalp to bleed. Jon took the gun away from Chapman, who appeared very intoxicated. Michelle stated she and the others had been drinking while watching the movie, but they did not use illegal substances.
Ana testified she gave Michelle methamphetamine on the evening of the incident. Michelle told a defense investigator she immediately stepped in front of Chapman and poked him in the chest after he appeared with the handgun and before she was hit. She told a police officer that after Chapman struck Ana, she confronted him and he asked them to leave his house. The handgun contained bullets in the clip and a bullet in the chamber.
Following trial in October 2015, a jury convicted Chapman as noted above. In January 2016, the court suspended imposition of sentence and placed Chapman on probation on various terms and conditions, including 180 days in local custody.

II
DISCUSSION
A. Self-Defense Instructions
Chapman contends the trial court erred when it refused self-defense instructions on the brandishing charge (count 2). Although the court implicitly found no basis to support a self-defense claim on the brandishing count, the court gave self-defense instructions on the assault with a firearm charge (count 1) and also instructed the jury with CALCRIM No. 3415, which generally provides an occupant of a home may use reasonable force to eject a trespasser where the trespasser refuses a request to leave and it appears the trespasser poses a threat. Chapman’s contention lacks merit.
The trial court must instruct on the general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) This duty extends to defenses that are not inconsistent with the defendant’s theory of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) The court is not required to instruct on a defense unsupported by substantial evidence. (People v. Petznick (2003) 114 Cal.App.4th 663, 677 [test is whether evidence from which a jury composed of reasonable people could have concluded specific facts supported the instruction]; People v. Moore (2002) 96 Cal.App.4th 1105, 1116.)
Every person who, except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon in a rude, angry or threatening manner is guilty of brandishing. (§ 417, subd. (a); see also subd. (c) [drawing or exhibiting loaded or unloaded firearm in a rude, angry or threatening manner]; People v. Sanders (1995) 11 Cal.4th 475, 542 [weapon need not be directly pointed at the victim].)
A self-defense instruction is required where there is substantial evidence the defendant reasonably believed he was in imminent danger of suffering bodily injury or of being touched unlawfully, he reasonably believed immediate use of force was necessary to defend against the danger, and he used no more force than reasonably necessary. (See People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083; CALCRIM No. 3470.)
Chapman contends the evidence showed he raised the gun towards Jon after Michelle confronted him and poked him in the chest. Chapman is incorrect. When Chapman emerged from upstairs, Jon stood up and approached the base of the stairs. Chapman yelled, “Get the fuck out of my house.” Jon replied, “Just calm down, Craig.” Chapman then pointed the gun at Jon. Only after Chapman brandished the gun did Michelle step between Jon and him. There is no evidence from which a jury could conclude Chapman reasonably believed he was in imminent danger when Jon walked to the bottom of the stairs and told him to calm down. Nor was there any evidence Michelle’s actions posed an imminent threat that prompted Chapman to brandish the handgun. The trial court correctly instructed the jury.

B. Substantial Evidence of Spousal Battery
Chapman also challenges the sufficiency of the evidence to support his spousal battery conviction. The test for sufficiency of the evidence is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) Substantial evidence consists of evidence that is reasonable, credible, and of solid value. (People v. Johnson (1980) 26 Cal.3d 557, 578.)
Section 242 provides, “A battery is any willful and unlawful use of force or violence upon the person of another.” (See also § 243, subd. (e)(1) [battery against spouse]; People v. Lara (1996) 44 Cal.App.4th 102, 107 [willful means a purpose or willingness to commit the act].) “‘“It has long been established, both in tort and criminal law, that ‘the least touching’ may constitute battery. In other words, force against the person is enough, it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark.” [Citation.] [¶] “The ‘violent injury’ here mentioned is not synonymous with ‘bodily harm,’ but includes any wrongful act committed by means of physical force against the person of another, even although only the feelings of such person are injured by the act.” [Citation.]’” (People v. Myers (1998) 61 Cal.App.4th 328, 335; see People v. Rocha (1971) 3 Cal.3d 893, 899-900, fn. 12.)
Chapman came downstairs, disheveled and unhappy, and told Ana to make him another drink. When she declined, he walked past, striking her “upside the head.” Her head moved and she appeared upset by the act. Michelle heard a noise from the blow, and stated it was not a “loving tap.” The jury reasonably could conclude Chapman committed battery even if Chapman’s touching was “light” or not a “hard hit.”



C. Substantial Evidence of Assault with a Firearm
Chapman asserts there is insufficient evidence he committed assault with a firearm because he established self-defense as a matter of law. He argues the evidence established he came downstairs in possession of a handgun and Michelle immediately confronted him, began swearing at him and repeatedly poked him in the chest. Shortly after this, he struck her with the firearm. He states he was not required to retreat and he used no more force than was necessary to defend himself against Michelle’s continuing assault. (People v. Hardin (2000) 85 Cal.App.4th 625, 629-630 (Hardin).)
Viewing the evidence in a light most favorable to the judgment, the jury reasonably could have concluded Chapman did not have a reasonable belief he was in imminent danger such that the use of force was necessary, and that he acted disproportionately by striking Michelle in the head with his gun. (See People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065 [defendant must have an honest and reasonable belief that bodily injury is about to be inflicted upon him and must respond with an amount of force that is reasonable under the circumstances]; Hardin, supra, 85 Cal.App.4th at pp. 629-630 [force likely to cause great bodily injury may be used only to repel an attack which is in itself deadly or likely to cause great bodily injury]; People v. Clark (1982) 130 Cal.App.3d 371, 378 [issues relating to the right to self-defense including whether the force used was excessive are normally questions decided by the trier of fact, disapproved on another point in People v. Blakely (2000) 23 Cal.4th 82, 92-93].) The jury reasonably could have found Chapman struck Michelle with the gun before she poked him in the chest, as she testified. It might also have reasonably concluded striking her in the head with a gun was a disproportionate response to her act of poking him in the chest. Either way, Chapman has not established he acted in self-defense as a matter of law.


III
DISPOSITION
The judgment is affirmed.


ARONSON, ACTING P. J.

WE CONCUR:



FYBEL, J.



THOMPSON, J.