Opinion
C097099
12-07-2023
THE PEOPLE, Plaintiff and Respondent, v. FABRIZIO LEAL, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 20FE004914)
BOULWARE EURIE, J.
At trial, defendant Fabrizio Leal asserted that he acted in self-defense or defense of another when he killed an unknown intruder who had been standing over his sleeping son with a clenched hand that held something sharp. Leal maintained he realized the intruder was a roommate only after he chased the intruder out of his room, down the hall, into a bathroom, and turned on the lights. After a jury found Leal guilty of first degree murder, the trial court sentenced him to an aggregate term of 26 years to life in state prison. On appeal, Leal contends: (1) the trial court erred when it instructed the jury that lawful self-defense or defense of another required that Leal acted only because of a reasonable belief there was imminent danger of death or great bodily injury, and (2) trial counsel was ineffective in multiple ways. We affirm.
BACKGROUND
Leal and A.C. had a son together in 2018. Though they later separated, they moved into a two-bedroom apartment together to avoid divided custody of their son. Leal moved out in October 2019, but occasionally visited the apartment.
In February 2020, Nicco Carmona moved in. A.C. and Carmona were platonic friends. Carmona and his girlfriend slept in the apartment's smaller bedroom and used the hallway bathroom, while A.C. and her son slept in the larger bedroom that had an adjoining bathroom.
Leal and Carmona knew each other. Along with A.C., they had lived together for a three-month period in 2018. The two men were fairly friendly with each other until Leal asked Carmona to move out. Leal once told A.C. he suspected Carmona was the biological father of their son.
On the night of March 10, 2020, Leal slept in the large bedroom of the apartment with A.C. and their son. By this time, the relationship between Leal and Carmona was not good. They avoided direct interactions with each other whenever Leal made one of his occasional visits to the apartment. It was clear Carmona did not like it when Leal was at the apartment, because on at least one occasion he said (loud enough for Leal to hear) that Leal "shouldn't fucking be here." Carmona's girlfriend never saw Leal respond to those comments, and A.C. never saw Leal do anything "aggressive" toward Carmona or even say anything impolite directly to him.
Both A.C. and Carmona's girlfriend left for work shortly before 7:00 a.m. on March 11, 2020. Carmona was sleeping in the small bedroom, Leal was in the bathroom of the large bedroom, and the toddler was asleep in the bed.
Leal testified that when he moved out of the apartment in October 2019, he left items. Behind the bed was a machete that A.C. owned. There were other bladed weapons in the apartment that morning, including Leal's stiletto knife, at least one of Carmona's three- to four-inch folding knives, and Leal's butterfly knife.
Testifying in his own defense, Leal told the jury that he went back to sleep after A.C. left for work shortly before 7:00 a.m. Later, he woke up in bed from a nightmare and saw an intruder standing over his sleeping son with a clenched hand. It was dark inside the room and Leal wore glasses to read and to drive at night. He could only see a silhouette. Disoriented, sleepy, and "overly stressed" because he was scheduled to start a new job that day, Leal panicked. He tried to grab whatever the intruder was holding and was hit in the hand with "something sharp." "And then [the intruder] bolts out the [bed]room" going deeper into the apartment to the hallway bathroom rather than toward the front door.
Angry that the intruder did not identify himself and fearful that the intruder would try to "give [him] the slip and go after [his] kid again," Leal grabbed his stiletto knife from a nearby nightstand, followed the intruder to the hallway bathroom about 11 feet away, and prevented him from closing the bathroom door. As Leal "push[ed] the door open with all [his] might to get to the bottom of" the situation, the intruder remained silent. No lights were on inside the apartment, and every curtain was closed, so Leal could not see the intruder's facial features.
A knife fight in the hallway bathroom ensued. Leal was surprised that he suffered only "minor" cuts. Leal turned on the light when the fight was over and realized the intruder was Carmona. On the bathroom floor was the butterfly knife that Leal left in the apartment when he moved out in October 2019. He had no idea how Carmona came to possess it. He had no desire to kill Carmona, and no desire to kill the unknown intruder. He only wanted the intruder to "identify themselves or leave."
Leal did not call 911. "[I]t was a blur, but apparently I cleaned up," Leal testified. Leal decided to stop trying to clean the scene once he realized it was futile. There was too much blood everywhere. Around 8:30 that morning, police responded to the apartment and found Carmona dead with 26 stab and cut wounds.
Leal testified he remembered telling a police officer that he was angry at the intruder that morning and in his mind, he said to the intruder: "If you are going to make an attempt on my life, I don't want to see you walk on the street because who knows what other lives you are going to take."
Verdicts and Sentencing
After the jury found Leal guilty of first degree murder and found true that he personally used a deadly and dangerous weapon while committing the murder (Pen. Code, §§ 187, subd. (a), 12022, subd. (b)(1)) the trial court sentenced him to an aggregate term of 26 years to life in state prison. Leal filed a notice of appeal with this court in October 2022. His opening brief was filed in February 2023, and this case was fully briefed on September 5, 2023.
Undesignated statutory references are to the Penal Code.
DISCUSSION
I
Jury Instruction on Self-Defense or Defense of Another
Leal contends the trial court erred when it instructed the jury he was not guilty of murder if he acted in lawful self-defense or defense of another, but he must have reasonably believed there was imminent danger of death or great bodily injury to himself or someone else, and he acted only because of that belief. The People argue this contention is forfeited on appeal because Leal's trial counsel failed to raise it, and it lacks merit in any event. We conclude Leal's claim is unpersuasive.
A. Additional Background
Relevant here, the trial court instructed the jury it is lawful self-defense or defense of another if a defendant: (1) reasonably believed that he or someone else was in imminent danger of being killed or suffering great bodily injury; (2) reasonably believed that the immediate use of deadly force was necessary to defend against that danger; (3) used no more force than was reasonably necessary to defend against that danger; and (4) "acted only because of" a belief there was imminent danger of death or great bodily injury. (See CALCRIM No. 505.)
The trial court also instructed the jury that self-defense is not available when a party "does not act out of fear alone but out of fear and a desire to harm ....The party killing is not precluded from feeling anger or other emotions save and except fear; however, the other emotions cannot be causal factors in his decision to use deadly force." (See People v. Nguyen (2015) 61 Cal.4th 1015 (Nguyen).) Defense counsel did not object.
B. Legal Background
A homicide is justifiable "when committed by any person" "[w]hen resisting any attempt to murder any person . . . or to do some great bodily injury upon any person [¶] . . . [¶] [or] [w]hen committed in the lawful defense of such person . . . when there is reasonable ground to apprehend a design . . . to do some great bodily injury, and imminent danger of such design being accomplished." (§ 197, italics added.) "A bare fear of the commission of any of the offenses mentioned in subdivisions 2 and 3 of Section 197, to prevent which homicide may be lawfully committed, is not sufficient to justify it. But the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone." (§ 198, italics added.)
In Nguyen, our Supreme Court recognized that a defendant who engages in a lethal response to imminent deadly force cannot claim self-defense if "he did not act on the basis of fear alone but also on a desire to kill." (Nguyen, supra, 61 Cal.4th at p. 1044.) The Nguyen court observed that several decisions have interpreted the phrase" 'fears alone'" in section 198 and the court quoted People v. Trevino (1988) 200 Cal.App.3d 874, which held that" 'an instruction which states that the party killing must act under the influence of such fears alone, is a correct statement of the law.'" (Nguyen, at p. 1045; see People v. Adams (1890) 85 Cal. 231, 235 [self-defense instructions properly required that the defendant" 'acted under the influence of such fears alone' "].)
"[T]his rule does not 'imply that a person who feels anger or even hatred toward the person killed, may never justifiably use deadly force in self-defense.' (Trevino, supra, 200 Cal.App.3d at p. 879.) '[I]t would be unreasonable to require an absence of any feeling other than fear, before the homicide could be considered justifiable. Such a requirement is not a part of the law .... Instead, the law requires that the party killing act out of fear alone....The party killing is not precluded from feeling anger or other emotions save and except fear; however, those other emotions cannot be causal factors in his decision to use deadly force.'" (Nguyen, supra, 61 Cal.4th at p. 1045, some italics added.)
C. Reviewability and Standard of Review
Even absent a request, a trial court must instruct on the general principles of law relevant to the issues raised by the evidence. (People v. Diaz (2015) 60 Cal.4th 1176, 1189.) The duty to instruct on general principles closely connected with the facts at issue includes instructing on self-defense. (People v. Sedeno (1974) 10 Cal.3d 703, 716, overruled on another ground in People v. Breverman (1998) 19 Cal.4th 142, 175.)
Because Leal's contention is that the challenged instructions caused him to be convicted under an invalid legal theory, we can consider it on appeal even though trial counsel made no objection. (People v. Powell (2021) 63 Cal.App.5th 689, 710 (Powell); see People v. Valdez (2012) 55 Cal.4th 82, 151.) We review de novo whether a jury instruction correctly states the law (People v. Guiuan (1998) 18 Cal.4th 558, 569) and consider the arguments of counsel in assessing the probable impact of the instruction on the jury (People v. Stone (2008) 160 Cal.App.4th 323, 331).
D. Analysis
Leal contends the challenged instructions erroneously required the jury to determine whether he acted only because of a reasonable belief in the need for selfdefense or defense of another. The "fears alone" rule of section 198 is inapplicable "in the face of an actual attack as described in" section 197, subdivision (1), Leal argues, because the language of section 198 limiting lawful self-defense refers only to section 197, subdivisions (2) and (3). This "compel[s] a conclusion that the Legislature did not intend for these limits to apply" to section 197, subdivision (1), Leal insists.
Although section 198 makes no reference to section 197, subdivision (1), Leal's argument is unpersuasive in light our Supreme Court's case law discussing the applicability of section 198 to section 197, subdivision (1). (See Nguyen, supra, 61 Cal.4th at pp. 1044-1045 [citing § 197, subds. (1) &(2), along with § 198, in discussing the law of perfect self-defense]; People v. Randle (2005) 35 Cal.4th 987, 998-999 [reasonable person standard of § 198 applies to § 197, subd. (1)], overruled on other grounds in People v. Chun (2009) 45 Cal.4th 1172, 1201.)
Leal asserts Nguyen left his particular argument unanswered. In Nguyen, our Supreme Court remarked in dicta: "We note that defendant did not argue in the trial court, nor has he argued on appeal, that the jury should have been instructed that acting based on mixed motives is permissible so long as reasonable fear was the but-for cause of his decision to kill. We therefore have no occasion to consider whether such a rule would be consistent with section 198 as interpreted in Trevino or other cases." (Nguyen, supra, 61 Cal.4th at p. 1046.)
We are not persuaded this dictum is sufficient grounds to find the trial court's instructions were erroneous. (Cf. Powell, supra, 63 Cal.App.5th at p. 710 [" 'If reasonably possible, instructions are interpreted to support the judgment rather than defeat it' "].)
II
Harmless Error
We do not find any error here and given the parties' closing arguments to the jury, if there was any error, we conclude it was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18.
A. Additional Background
In closing argument to the jury, the prosecutor insisted that Leal's version of what happened was false. Leal's testimony that he did not know the intruder was Carmona until he turned on the lights in the bathroom was not believable, the prosecutor maintained, because Leal never mentioned this in his hours-long police interview. Leal's explanation that he and Carmona had a knife fight was not believable, the prosecutor contended, because Carmona had 26 stab wounds while Leal had just a few minor cuts, one of which looked "a lot like a paper cut." Leal "ambush[ed] Carmona in the bathroom because that's what the evidence shows," the prosecutor argued.
Referencing CALCRIM No. 505, the prosecutor honed in on discrete elements of the doctrine of self-defense or defense of another to argue that - even under Leal's version of events - he did not act lawfully. Defense counsel also did not reference the "fears alone" rule in his closing argument to the jury when he discussed CALCRIM No. 505 and the relevant evidence.
B. Analysis
Assuming for the sake of argument that Leal's claim of instructional error has merit, any such error was harmless.
In Powell, after "examin[ing] 'the entire cause, including the evidence, and consider[ing] all relevant circumstances' [citation]," a different panel of this court "conclude[d] that a rational jury would have found [the defendant] guilty of second degree murder absent the instructional error." (Powell, supra, 63 Cal.App.5th at p. 718.) The panel ruled that because the error "was 'unimportant in relation to everything else the jury considered on the issue' of [the defendant's] liability for second degree murder," it was harmless beyond a reasonable doubt under Chapman. (Ibid.; see People v. Neal (2003) 31 Cal.4th 63, 86 [" 'To say that an error did not contribute to the ensuing verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record' "].)
"Of key importance to [the] determination that the instructional error . . . was harmless [was] the fact that the prosecutor did not rely on" the invalid theory, as "[c]ourts look to the prosecutor's argument as a relevant circumstance in determining whether instructional error is harmless." (Powell, supra, 63 Cal.App.5th at p. 715.) "Under the circumstances of th[e] case," the court determined, "given that the jury was never steered in [an] [invalid] direction, it [was] clear" the instructional error was harmless. (Id. at p. 716.)
Here, too, even if the challenged instructions were erroneous, any error was harmless beyond a reasonable doubt. Neither the prosecution nor the defense made any argument regarding the "fears alone" rule in closing argument. And, the jury "was never steered" toward a theory of Leal's liability for murder that depended on the "fears alone" rule. (Powell, supra, 63 Cal.App.5th at p. 716.)
Conceding the prosecutor "did not discuss the ['fears alone'] rule of section 198 much in his closing argument," Leal observes the prosecutor "ma[d]e it part of his Power Point presentation, making sure that the word 'only' was underlined for emphasis." Leal cites People v. Diaz (2014) 227 Cal.App.4th 362, 384 for the proposition that "[w]hen a particular item is highlighted during closing argument, it has the tendency to increase the danger of prejudice."
Leal's argument is not persuasive. In Diaz, the appellate court reversed a drunkdriving-murder conviction where the trial court erroneously permitted the jury to view videos concerning the consequences of alcohol-related driving offenses that included "tearful testimonials" from the families of victims of alcohol-related offenses. (People v. Diaz, supra, 227 Cal.App.4th at pp. 365-366.) That error was prejudicial, the appellate court ruled, because the prosecutor "referred to the videos five times during closing argument. The prosecutor read quotations of statements made in both videos, and even referred to statements made by [a] prosecutor and judge in the video ....A prosecutor's reference to evidence that should not have been presented to the jury increases the potential for prejudice flowing from the error." (Id. at p. 384.)
Here, the question is not whether certain evidence should have been presented to the jury, but whether a specific theory of criminal liability should have been presented to the jury. And as discussed above, the prosecutor did not rely on the challenged theory in closing argument. That one of the dozens of slides the prosecutor used in closing argument referenced the "fears alone" rule and underlined the concept for emphasis does not change this analysis. The "fears alone" rule was one of nine concepts that were underlined in the PowerPoint slides that appear on just the one page in the clerk's transcript that Leal cites.
III
Claims of Ineffective Assistance of Counsel
Leal makes two discrete claims of ineffective assistance of counsel. First, he argues trial counsel was ineffective by failing to request that the self-defense instructions given to the jury include language permitting the jury to consider Carmona's "previous threats or harmful actions as evidence supporting" Leal's theory of self-defense or defense of another. Second, he argues trial counsel was ineffective by failing to object to testimony by a detective that "impliedly express[ed] the belief" that Leal was guilty. We are not persuaded.
A. Additional Background
1. Previous Threats of Harmful Actions
As noted above, on at least one occasion Carmona said that Leal "shouldn't fucking be here." And during the defense's case, Leal testified that he once saw Carmona drop his newborn son on purpose.
2. Detective Testimony
A detective with the Sacramento Police Department testified for the prosecution that when she interviewed Leal and confronted him with information that conflicted with what he said happened in the apartment that morning, he "continued to change his story." In response to the prosecutor's question why she "ke[pt] pushing [Leal] on why this happened, why this went down at all," the detective replied: "Because it wasn't making sense." Defense counsel asked the detective if she was "eliciting a confession" from Leal "without a full story" of what happened that morning. She replied: "I wouldn't say I was eliciting a -- he provided a statement . . . to me. That is part of my investigation."
B. Legal Background
To demonstrate ineffective assistance, a criminal defendant must show that counsel's performance was deficient, and that the deficiency prejudiced the defense. On direct appeal, a finding of deficient performance is warranted where (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. Where trial counsel's tactics or strategic reasons for challenged decisions do not appear on the record, the court must not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for the acts or omissions. (People v. Johnsen (2021) 10 Cal.5th 1116, 1165.)
C. Analysis
Leal's first ineffective assistance claim is that Carmona's statement in the apartment at one point (made deliberately loud enough for him to hear) that Leal should not be there and Carmona's act of purposefully dropping his newborn son warranted inclusion of "antecedent threats/harm" language in model versions of self-defense or defense of another instructions given to the jury. This claim is unpersuasive because as the People observe the defense theory at trial was that Leal did not know who the intruder was until the fighting stopped. Thus, it was immaterial what Leal knew about Carmona when he chased and fought the unknown intruder. (See People v. Wader (1993) 5 Cal.4th 610, 643 [rejecting a claim that counsel was ineffective in failing to request a specific jury instruction, because it "would have been inconsistent with defendant's theory of the case"].)
Also unpersuasive is Leal's second ineffective assistance claim, that trial counsel should have objected to the detective's testimony that Leal's version of what happened "wasn't making sense" during the interview. In People v. Johnsen, supra, 10 Cal.5th at page 1165, our Supreme Court rejected an ineffective assistance claim arising out of defense counsel's failure to make an objection at trial. "Defense counsel may have made a strategic decision to rely on" arguments in "his closing statement rather than objecting," our Supreme Court reasoned. "Such a tactical choice was not objectively unreasonable." (Ibid.) Here too, defense counsel may have made a tactical choice to rely on argument in his closing statement (that the detective's "pre-existing belief" in Leal's guilt "color[ed] [her] interpretation" of the evidence and Leal's statements) rather than objecting to the detective's trial testimony that Leal's version of events "wasn't making sense." Accordingly, Leal's ineffective assistance of counsel claims are unpersuasive.
DISPOSITION
The judgment is affirmed.
We concur: EARL, P. J. ROBIE, J.