Filed 9/20/17 P. v. Armstrong CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

A jury found defendant Jason Everett Armstrong guilty of second degree murder involving the personal use of a firearm, for which he was sentenced to state prison for the prescribed term of 40 years to life. He contends the verdict is infected by two instances of prosecutorial misconduct, and one instance of misinstruction by the trial court. We conclude defendant’s contentions are without merit, and affirm.

BACKGROUND

Daneyal Siddique was killed late in the evening of October 21, 2014, by a single gunshot from a .9-mm handgun. The shot hit Siddique in the abdomen, perforating his stomach, liver, and small intestine, hitting his spine, and transecting the aorta. There was no dispute that the fatal shot was fired by defendant.

The killing occurred in southern Humboldt County, at Dean Creek Resort, a complex that included an RV and trailer park, a tent camping site, and a motel. Siddique lived there with his fiancée Danielle Henderson,[1] and had for several months. Defendant, his wife and two young children (ages 3 and 8) were recent arrivals from Odessa, Texas, and had lived at Dean Creek for just six days. Defendant testified that being a newcomer there, in an area he believed might be dangerous, he always carried a pistol “for protection.”

Two other people who lived at Dean Creek were Thomas Carneal and his girlfriend Joanne Hardy. They lived in a trailer, and had for several months.

During the afternoon and evening of October 21, Carneal and Hardy spent time with both Siddique and defendant, and were present at different points during what became the dispute between them. Both Carneal and Hardy testified at trial about those interactions, which began approximately 10 minutes before the shooting when Siddique, accompanied by Henderson, approached Carneal and asked him about a silver car that was parked in front of Siddique’s room, shining lights into his (Siddique’s) window. Siddique was upset. Carneal and Hardy said the car belonged to Mia Brody, with whom defendant and others had been socializing earlier that day. Carneal suggested that Siddique speak with Brody, telling him that she and defendant were in Brody’s trailer.

Siddique went to Brody’s trailer and in a somewhat accusatory manner, confronted them, accusing defendant of driving Brody’s car by his motel room. They denied it, but Siddique did not believe them, and they had a brief exchange. Carneal testified that the exchange was not heated, and Hardy described it as “just . . . two guys mouthing off.” But there was some posturing as Siddique walked away.

Carneal and Hardy testified that before they knew it, defendant was gone. Aware that defendant had a gun, and convinced that he would go after Siddique, Carneal (accompanied by his 100-pound dog) walked to Siddique’s room, which was less than a minute away, to warn him. Carneal found Siddique and Henderson smoking cigarettes on the patio behind their motel room, and told them they should go inside because defendant had “disappeared” and had a gun.

Meanwhile, defendant had returned to Brody’s trailer to retrieve his gun, which he had left on her table. According to Carneal, defendant arrived 10 or 15 seconds after Carneal had. Siddique told Henderson to “go get Carl, who was the assistant manager” at Dean Creek, and she left.

According to Carneal, defendant asked Siddique “ ‘Why are you threatening my family?’ ” or “something along those lines.” Siddique said he had not threatened anyone, and Carneal confirmed to defendant that no one had threatened his family.

Defendant drew the pistol from his jacket pocket and, Carneal testified, pointed it at Siddique and Carneal for some 10 to 15 seconds, panning it back and forth between them, a small table separating defendant from Siddique and Carneal. As soon as he had an opportunity, Siddique grabbed for the gun with both hands,[2] but defendant was able to retain control. He then took a step back and fired, killing Siddique. Siddique was intoxicated and unarmed.

Deputy Sheriff Jager arrived. Defendant walked up to the officer, told him he was responsible for the shooting,[3] and surrendered. He also said he would do it again. Defendant was handcuffed and given Miranda warnings, following which defendant described a sequence of events to which he would later testify at trial, which was this:

After the initial encounter, at the conclusion of which Siddique walked away, Carneal came to Brody’s trailer to warn that Siddique “is going after your family” and that his wife and two children “weren’t safe in the cabin.” Carneal told defendant “ ‘You need to go do something about [Siddique]. He’s threatening your family.’ ”

So, armed with his pistol, defendant “rushed” to confront Siddique about making this threat. He went to Siddique’s motel room, and found Siddique and Carneal sitting on a patio behind the motel. He approached Siddique and asked whether it was true that he had threatened his family. Siddique gave no answer. Defendant drew the pistol from his waistband, and holding it in his right hand, pointed toward the ground—not at Siddique or Carneal. He did so he said, not to harm Siddique, but simply to “scare him into leaving my family alone.”

The instant that defendant pulled out his pistol, Siddique rushed him and grabbed the gun with both hands. They struggled for the weapon, and defendant managed to keep his hold on the gun. He then tried to back away from Siddique, but Siddique charged “right back at” him, and was “just right on top of” defendant when he heard a single shot from the pistol. Defendant believed Siddique would have taken the gun away and shot him if he had not fired.

While defendant claimed to have been protecting his family after Siddique allegedly threatened them a few moments earlier, defendant admitted he never heard the threat from Siddique. Instead, he claimed it was relayed by Carneal. Carneal denied ever telling defendant about a threat from Siddique. Hardy, Carneal’s girlfriend, testified that she did not hear Siddique voice a threat, nor did she hear Carneal tell defendant that Siddique had threatened defendant’s family.

DISCUSSION

The Prosecutor Did Not Commit Misconduct by Vouching

for the Credibility of a Witness

In his final closing argument, the prosecutor argued that the jury should reject the defense claim of self-defense. In the course of his argument, he made the following remarks:

“The defendant had an opportunity to cool down, not just after the Dans left, when, you know, he was in—in the trailer with Mia. Questions are significant if they help you understand the answer, so the question about, ‘So, it was about ten minutes later that Dan came to your door and said ‘—or, sorry, ‘that Allen came to your door and said, “That guy is threatening your family,” ’ his answer is, ‘Yes.’

“In order to understand that ‘yes’ answer, you have to take the whole question. He didn’t say, ‘No. It was a minute later or two minutes later.’ He just said, ‘Yes, that’s what happened.’

“And then, in addition to that, he had a chance to cool down, when Mia was driving him. He had a chance to, okay, reflect on what’s going on. Yeah, it’s a short period of time, but he had a chance to cool down. He has someone else with him. They’re driving to where his family is. He had a chance to cool down, and he could have just gone to his family and—and left it, gone to sleep and addressed it in the morning, when, as Joanne suggested, sober heads were around, instead of these drunk assholes.

“Where was the gun pointed? Again, I’m—I’m not saying that you should not believe Allen. I think that his testimony is credible. What he told you, I believe, is what happened. If you believe it, that’s what matters. He said that the defendant pulled out the gun and, for one or two seconds, was going like that (demonstrating). If poor choice of words, ‘instantly, immediately,’ his testimony on the stand under oath—those interviews weren’t under oath or under penalty of perjury—his testimony on the stand under oath, the defendant pulled out the gun and, for one or two seconds, went like this (demonstrating) before . . . Dan grabbed the gun and tried to wrest it from the defendant’s hands.

“That’s consistent with immediately. One to two seconds is consistent with as soon as the defendant pulled out the gun, Dan grabbed for it. That’s consistent.

“And whether he was holding it out to here, pointing it at them (demonstrating), in either situation, it’s enough for Dan to think he has to defend himself. And I believe that—Allen was standing here and he said, ‘it was like this,’ elbow tucked in. That is what the testimony was. And if you believe it, that evidences an intent to kill, deliberation, premeditation.” (Italics added.)

Defendant contends the italicized sentences transgressed the principle that “A prosecutor . . . may not vouch for the credibility of a witness based on personal belief or by referring to evidence outside the record.” (People v. Martinez (2010) 47 Cal.4th 911, 958.) But the corollary of this principle is that the prosecutor “may comment upon the credibility of witnesses based on facts contained in the record, and any reasonable inferences that can be drawn from them” (ibid.), which allows the prosecutor to “make ‘assurances regarding the apparent honesty or reliability of’ a witness” so long as the assurance remains tethered to the record. (People v. Turner (2004) 34 Cal.4th 406, 432.)

Use of the pronoun “I” does not necessarily equate with the injection of personal beliefs. (See People v. Pineiro (1982) 129 Cal.App.3d 915, 924.) But it should be used with caution. The legitimate point the prosecutor was endeavoring to make—presenting his view of the evidence and asking the jury to reach the same conclusions—could just as easily have been made by argument along the line of “It is a reasonable view of Allen’s testimony that the defendant did not act in self-defense, and you should draw that inference.” In any event, a fair reading of the full context of the prosecutor’s remarks leaves no doubt that he accepted, and repeatedly emphasized, that the ultimate decision of credibility was for the jury (“If you believe it, that’s what matters”; “if you believe it,” italics added). The jurors were repeatedly instructed—with CALCRIM Nos. 105, 200, 222, and 226—that witness credibility was a matter for their exclusive determination, and there is nothing in the record showing that they disregarded those instructions and abdicated that responsibility. (E.g., Francis v. Franklin (1985) 471 U.S. 307, 324–325, fn. 9; People v. Adams (2014) 60 Cal.4th 541, 578.)

The Prosecutor Did Not Commit Misconduct by

Misstating the Law

Citing the principle that it is misconduct for a prosecutor to misstate the law in argument to the jury (e.g., People v. Whalen (2013) 56 Cal.4th 1, 77; People v. Boyette (2002) 29 Cal.4th 381, 435), defendant contends the prosecutor did so when he “misstated the standard for heat-of-passion manslaughter by equating it with what actions a ‘normal person’ would take under the circumstances.” More specifically, “the prosecutor framed the test as whether a ‘normal person’ would have killed in response to the provocation of learning of threats against his family rather than asking whether such a person would act rashly and without judgment.”

Because the claimed misconduct did not elicit an objection and request for the jury to be admonished, the point was not preserved for review. (E.g., People v. Thomas (2011) 51 Cal.4th 449, 492; People v. Gray (2005) 37 Cal.4th 168, 215.) Had the point been preserved, it would not prevail.

On the pages identified in defendant’s brief, the prosecutor argued as follows:

“I want to talk now about voluntary manslaughter and heat of passion. If the defendant killed in a way that would otherwise be murder but for some provocation, then it could be reduced. So, this is one of those instructions that, when you decide the facts, I think you’re going to find, ‘You know what? It just doesn’t apply to these facts.’

“In order to find a heat of passion, voluntary manslaughter to reduce from murder, you have to find that the defendant was provoked, that, as a result of the provocation he acted under intense emotion that clouded his judgment, and that the same provocation would have caused a normal person of average disposition to act without thinking, an act from passion, rather than judgment.

“Well, you know, the defendant testified, and from his testimony, again, you know that wasn’t true. He didn’t say that he was so angry that he wasn’t thinking. He said that when the Dans left the initial confrontation, the defendant was—he thought it was over and done with. He was fine. And when he testified that Allen came and conveyed this threat—again, I’m not capitulating that that happened at all, but if you believe the defendant that that happened, then he grabbed the gun and went to confront him, with the intent to brandish the gun and scare him.

“His judgment wasn’t obscured. He didn’t act so emotional that he didn’t know what he was doing. In fact, what he claims was going on is what he says is a rational thought process. ‘I perceived a threat to my family. I thought it was imminent. I grabbed the gun, and I went to address it.’ That’s not a threat from or process from emotion. That’s what he thought, and that’s how he worked it out.

“Now, that’s not enough. You also have to show that—in order to have the reduction, you also have to find that the normal person would have acted the same in those situations. And what would a normal person do? Call the police, again. ‘Hey, there’s a guy here threatening my family.’ Go to your family and protect them. Go to confront Dan without a loaded weapon. Take your family and drive away. That’s what a normal person would do, when faced [with] the same situation.”

We cannot discern the error claimed. The prosecution did not treat the issue for the jury as whether a “normal person” in defendant’s situation would have killed. The prosecutor did frame the issue, and correctly, as whether “the same provocation would have caused a normal person of average disposition to act without thinking, an act from passion, rather than judgment.” This is the language of People v. Beltran (2013) 56 Cal.4th 935, 938–939, 948–949, and of CALCRIM No. 570, which we presume the jury followed. (Francis v. Franklin, supra, 471 U.S. 307, 324–325, fn. 9; People v. Adams, supra, 60 Cal.4th 541, 578.) We also presume the jury complied with CALCRIM No. 200, that it was to apply the law as stated by the court, not the attorneys. (See People v. Centeno (2014) 60 Cal.4th 659, 676 [“ ‘When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for “[w]e presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.” ’ ”].)

There Was No Failure to Instruct

The trial court instructed the jury with CALCRIM Nos. 505 on perfect

self-defense; 3471 (“Mutual Combat or Initial Aggressor”); 3472 (“Right to

Self-Defense: May Not Be Contrived”); 522 on provocation; 570 on how murder could be reduced to manslaughter through either sudden quarrel or heat of passion; and 571 on how murder could be reduced to manslaughter through imperfect self-defense of one’s self or another.

The jury was instructed with a modified version of CALCRIM No. 505 as follows:

“The defendant is not guilty of murder or manslaughter if he was justified in killing someone in self-defense or defense of another. The defendant acted in lawful

self-defense or defense of another if:

“1. The defendant reasonably believed that he or his family were in imminent danger of being killed or suffering great bodily injury.

“2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger.

“AND

“3. The defendant used no more force than was reasonably necessary to defend against that danger.

“Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of death or great bodily injury to himself or someone else. Defendant’s belief must have been reasonable and he must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the killing was not justified.

“When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed.

“The defendant’s belief that he or his family were threatened may be reasonable even if he relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true.

“A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of death or great bodily injury has passed. This is so even if safety could have been achieved by retreating.

“Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

“The People have the burden of proving beyond a reasonable doubt that the killing was not justified. If the People have not met this burden, you must find the defendant not guilty of murder.”

Defendant claims it was error for the trial court to omit this optional sentence: “Someone who has been threatened or harmed by a person in the past, is justified in acting more quickly or taking greater self-defense measures against that person.” As he summarizes, “omitting the ‘antecedent threats’ provisions of CALCRIM 505, which explain the materiality of a defendant’s awareness of the victim’s prior threats” “may legitimately react more quickly and take harsher measures . . . than would ordinarily be appropriate in the absence of such . . . threats.”

Defendant advances three reasons why this omission constitutes reversible error: “First, having undertaken to deliver that core self-defense instruction, the court was obliged to instruct completely and accurately on that subject. The court had a sua sponte duty to provide these instructions because they explained legal principles that were closely related to the evidence and which were necessary for the jury to properly evaluate the defense theory in light of that evidence. Second, the omitted portions of CALCRIM 505 were clearly supported by substantial evidence that Armstrong initiated the fatal confrontation because he believed Siddique had threatened imminent harm to his wife and two young children. Third and finally, the omission of these instructions deprived Armstrong of his constitutional right to present a complete defense and caused him prejudice because the evidence was closely balanced as to the critical question whether he acted reasonably when he confronted Siddique, and the omitted portions of CALCRIM 505 were critical to allow the jury to properly evaluate this question.”

Defendant is mistaken. There were no “antecedent” or “prior” threats made by the victim, only the one threat relayed by Carneal on the night of October 22, 2014. “ ‘t is not error to omit an instruction which is not based upon substantial evidence.’ ” ([i]People v. Boyd (1990) 222 Cal.App.3d 541, 557.) And without supporting substantial evidence, the deleted language would not qualify as a “ ‘general principle[] of law relevant to the issues the evidence raise[d].’ ” (People v. Wyatt (2012) 55 Cal.4th 694, 698.) The jury was fully and accurately instructed on both perfect and imperfect self-defense as justified by the evidence.

Defendant’s remaining claims of error are mooted by the preceding analysis, thus requiring no further discussion.

DISPOSITION

The judgment of conviction is affirmed.

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Richman, Acting P.J.

We concur:

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Stewart, J.

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Miller, J.

A147286: People v. Armstrong