P. v. Shaw

Filed 10/11/06 P. v. Shaw CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Yuri Hofmann, Judge. Affirmed.

On the Fourth of July, 2004, Kenneth Shaw, a former NFL football player got into a verbal altercation with some teenagers outside an ice cream store in Carlsbad. Shaw struck one of the boys on the side of the head causing a perforated eardrum. Shaw was charged with battery with serious bodily injury (Pen. Code,^[1] § 243, subd. (d)).

Following a jury trial, Shaw was convicted of the lesser included offense of battery (§ 242). Shaw was granted summary probation. Shaw appeals contending the trial court erred in refusing to instruct on self-defense. We will find no error and affirm.

STATEMENT OF FACTS

In the afternoon of July 4, 2004, four teenagers, Dustin McKee, David Belbel, Dashel Dewitt and Brett Baldwin were at the Cold Stone ice cream parlor in Carlsbad. Dustin and Brett were sitting outside the parlor when Shaw and his friend, Jeff Czerniakowski arrived in the parking lot and got out of the car. As Czerniakowski walked past the young men he said, "Look, homos." Dashel and David came over to tell Dustin and Brett what had happened. Shaw and his friend had entered the ice cream shop. The young men looked into the store and were observed by Shaw. Shaw appeared angry and gestured toward them. Shaw then came out of the shop and confronted the four young men. He told them, "You don't want to fuck with me," and "you're messing with the wrong motherfucker." Shaw was standing over Dustin at the time he made his statements. The teenagers protested they were just kids and did not want to fight. As Dustin stood up from his chair to move away, Shaw struck him on his ear. Shaw then went back into the store and ultimately left with his friend after giving them his name and address. The young men called the police.

Brian Culley and his wife were at the ice cream store when these events took place. They were seated outside the shop and heard the man call the young men "homos." They also saw Shaw come "barreling" out of the store and approach the group. Culley described Shaw's manner as aggressive and threatening. The teenagers responded they were just kids and did not want to fight. Shaw used profanity and forcefully struck one of them in the head. The group reacted by backing away.

Daniel Jackson, another independent witness gave a version of events similar to that of Culley.

Defense Evidence

Jeff Czerniakowski testified he arrived with Shaw at the ice cream store. He said he believed one or more of the teenagers smirked at him, and he said to them something to the effect of "Whatever homo." He and Shaw then entered the store. Shaw then left the store and went outside. Czerniakowski did not see the encounter between Shaw and the teenagers, but did go outside and told Shaw to come in and get his ice cream. When they left, the teenagers said they were only 17 and were going to call the police. Czerniakowski gave his address and left with Shaw.

Shaw testified that as he and Czerniakowski walked toward the store he heard something about "homos." He noted that the young men at the store glared at him. Shaw entered the ice cream store with his friend. While he was in the store he observed the young men looking into the store. Fearing things were "escalating" Shaw went outside and contacted the young men. He testified he had played in the NFL and was not afraid of the group of young men. Shaw told them they "fucked with the wrong guys." At some point in the conversation he observed Dustin stand up. He reacted instantly by striking Dustin in the head.

Shaw testified he did not purposely strike Dustin and did not know he had hit Dustin until he saw the hand print on the side of Dustin's face. Shaw said he was not threatened and did not feel in danger. Shaw said he did not willfully strike Dustin and that he only reacted to the movement. He said he was not defending himself.

DISCUSSION

After the close of evidence Shaw requested the trial court to give various instructions on self-defense. The trial court declined, ruling there was no substantial evidence that Shaw acted in self-defense. Shaw contends the trial court erred in refusing his requested instructions. He contends that notwithstanding Shaw's testimony to the contrary, the jury could have found Shaw hit Dustin because he anticipated an offense, touching (a battery), by Dustin. Thus, Shaw argues he was entitled to self-defense instructions. We find no substantial evidence in this record to support Shaw's proffered self-defense instructions.

The trial court has a duty to instruct on applicable defenses, even in the absence of a request to do so, where there is substantial evidence presented to support such defenses. (People v. Breverman (1998) 19 Cal.4th 142, 160; People v. Elize (1999) 71 Cal.App.4th 605, 616 (Elize).)

Shaw relies principally on two cases to support his claim that self-defense instructions were appropriate in this case, Elize, supra, 71 Cal.App.4th 605, and People v. Myers (1998) 61 Cal.App.4th 328, 335 (Myers). In our view, neither case supports Shaw's contentions on this appeal.

In order to justify a claim of self-defense there must be evidence that the defendant actually and reasonably believed he or she needed to defend against the use of force. (People v. Jefferson (2004) 119 Cal.App.4th 508, 519.) The trial court is not required to instruct on principles of self-defense unless the evidence shows the defendant reasonably believes he or she is facing an imminent threat of the unlawful application of force to his or her person. That belief must be objectively reasonable and must be acted upon with only the force reasonably necessary to avoid the threat. (People v. Curtis (1994) 30 Cal.App.4th 1337, 1355-1357.)

Turning to the facts of this case, there is no substantial evidence that Shaw acted in self-defense. He was the person who initiated the encounter by exiting the ice cream store to confront the young men outside. Shaw was aggressive and profane. He was not afraid of the young men and intentionally acted in a "confident" and aggressive manner to "prevent matters from escalating," even though all the young men had done was look into the store window at Shaw and his companion.

When the blow was struck, all Dustin had done was stand up. The uncontradicted testimony is that Dustin made no effort to touch Shaw, and Shaw did not perceive any threat. Indeed Shaw's explanation was he struck Dustin simply as a reaction to movement, based on Shaw's football training. Even if the jury disbelieved Shaw's explanation, there is still no factual basis for a finding Shaw actually believed he was about to be touched or that a reasonable person would have believed it under the circumstances of these events.

In Myers, supra, 61 Cal.App.4th 328, 334-335, the court dealt with a case where a defendant had been charged with felony assault and was convicted of the lesser crime of simple assault. The evidence showed the victim had confronted the defendant and was poking him in the chest. The defendant claimed he had only pushed the victim who fell and was severely injured. Self-defense instructions were given but did not adequately cover the defendant's theory he had the right to use some force to defend against a battery.

The appellate court agreed that the instructions in Myers, supra, 61 Cal.App.4th 328 were defective. Even though the defendant said he was not afraid of the victim, he still had the right to use reasonable force to defend against a battery. Apparently the jury believed he only pushed the victim rather than hitting him as the prosecution alleged. The court thus reasoned that the jury, if properly instructed, could have found the defendant used only that force reasonably necessary to defend against an offensive touching.

Myers, supra, 61 Cal.App.4th 328 is readily distinguishable from the case before us. Here there is no evidence Shaw perceived he was about to be touched nor that a reasonable person would have held such belief. Shaw denied intentionally hitting the victim and never said he anticipated a touching. None of the witnesses to the events revealed any facts that would support a finding that a reasonable person would have anticipated an offensive touching.

Elize, supra, 71 Cal.App.4th 605, 611-616, involved a defendant who had been in an altercation with two women. The defendant tried to prevent one of the women from closing her car door. She hit him with a cell phone. The defendant pushed her away, pulled out a gun and shot at her. The defendant's version was that the gun went off accidentally during the struggle. The appellate court found the trial court erred in failing to give self-defense instructions because the jury might have disbelieved his version as to the intentional firing of the weapon, but still have believed he acted in response to a serious physical attack.

We find Shaw's reliance on Elize, supra, 71 Cal.App.4th 605 is also misplaced. As the facts of Elize demonstrate, there was clearly a factual dispute of how the defendant responded to a physical attack; whether he was the aggressor and whether he reasonably acted out of fear of further injury. As we have previously noted, the record in this case is devoid of any evidence that any of the teenagers whom Shaw accosted made any attempt to touch or injure him. Not only did Shaw's version of the event deny any such perception, there were no other witnesses who provided any factual basis for a reasonable apprehension of an offensive touching. Both Myers, supra, 61 Cal.App.4th 328, and Elize involved circumstances where the defendant had been touched or assaulted. The only question was the reasonableness of the response. In such circumstances the trial court was required to instruct on the principles of self-defense. Under the unique facts of this case the trial court correctly found there was no substantial evidence to support such instructions.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

McDONALD, J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.