Opinion
H024185.
11-7-2003
THE PEOPLE, Plaintiff and Respondent, v. JACOB STEVEN LOWMAN, Defendant and Appellant.
Defendant Jacob Steven Lowman appeals after conviction, by jury trial, of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)). The jury found true an allegation of personal firearm use (§ 12022.53, subd. (c)). At sentencing, the trial court imposed a six-year prison term.
Unspecified section references are to the Penal Code.
On appeal, defendant contends the trial court erred by refusing to instruct the jury on self-defense against assault, pursuant to CALJIC No. 5.30. We conclude that there was no substantial evidence to support a finding that defendant acted with a reasonable belief that it was necessary to shoot his firearm in self-defense. Therefore, we will affirm the judgment.
I. Background
Generally, when setting forth the facts underlying a defendants offenses, we present those facts in the light most favorable to the judgment. (See People v. Valencia (2002) 28 Cal.4th 1, 4.) However, because "the right to instructions on self-defense is the central issue in this appeal, our recital of the evidence introduced at trial is necessarily one emphasizing matters which would justify such instructions . . . ." (People v. King (1978) 22 Cal.3d 12, 16-17, fn. omitted.)
On April 24, 2001, defendant (age 24) drove to Santa Cruz with two friends: Ruben Serna and Elijah Sells. They intended to "cruise around, find some weed, smoke it." Defendant drove his blue Honda Civic. Defendants 9-millimeter semiautomatic handgun was in the car, along with several clips of hollow-point bullets. Defendant had purchased the gun after an incident involving two gang members who had been providing alcohol to his younger sister. After defendant confronted the gang members, they drove away, but their car flipped over. Defendant believed the men were angry and that they might seek revenge, so he obtained the gun for protection.
Serna was in the front passenger seat and Sells was in the back seat. Serna was an admitted member of the Nortenos, a criminal street gang. Nortenos identify themselves with the color red and the number 14. Serna wore a red beanie cap and a red sweatshirt. Sells, an associate of Norteno gang members, wore a red flannel pullover and a black do-rag. Defendant wore a red Nike cap and a red belt with an "N" on the buckle.
The trio drove down Ocean Street, where they saw two men who were apparently members or associates of the Surenos, another criminal street gang. Surenos are rivals of the Nortenos, and they identify themselves with the color blue and the number 13. The two apparent Surenos "flipped . . . off" defendant and his friends.
Defendant, Serna, and Sills then drove into downtown Santa Cruz, where they purchased $40 worth of marijuana. The trio next drove into the area near the Santa Cruz Beach Boardwalk, which is known as Beach Flats and is comprised of many one-way streets. Beach Flats is a "Sureno stronghold." Defendant, Serna and Sills saw the two men they had seen on Ocean Street. The men again "flipped [them] off."
The trio drove down Beach Street, which runs along the Boardwalk and turns into Third Street. They made a left onto Raymond Street, and then a left onto Leibrandt Avenue. They passed Beach Flats Park, where a number of people were hanging out. These people included a group of teenaged girls, a group of 10-12 men, and some women and children. Many of the men were Surenos; they were wearing blue. One of these men was Arturo Venegas; his wife Lisa was also present.
Some of the Surenos and one or more of the Hondas occupants displayed gang signs. A young person who was associated with the Surenos threw a can or bottle of soda into the Honda. The container struck Serna, and soda splashed onto Sernas pants and Sellss face. Defendant was "panicked" and "pretty pissed off." Sells was "a little nervous." Serna took out his folding knife and held it.
Sells testified that only Serna threw gang signs. Serna testified that he and Sells threw gang signs. Arturo Venegas testified that only the passenger (apparently Serna) threw gang signs. Lisa Venegas and Carina A. testified that all three occupants of the Honda threw gang signs.
Defendant drove down Leibrandt Street, past the park, and back onto Beach Street/Third Street, which was the only way out of the Beach Flats area.
Some men from the Sureno group ran down Kaye Street and Uhden Street. According to various witnesses, it appeared that the Surenos intended to cut off the Honda as it looped around. Some of the men from the Sureno group carried bottles, and possibly bricks, knives, sticks and bats. Arturo Venegas ventured part of the way down Kaye Street, where he stood to watch the developing events.
Nearly all of the witnesses testified that the men had bottles. Yobana H. testified that some of the men also picked up bricks. Cynthia Q. testified that one of the men grabbed a stick. Serna testified that the men had knives and bats.
Around this time, defendant obtained his gun from the back of the Honda. He held it in his lap and waited to see what the group of Surenos was going to do. When one of the men threw a bottle towards the car, defendant "let out a shot in the air so [the Surenos] could get scared."
The bullet apparently deflected off the ground and then struck Arturo Venegas in the chest. Venegas managed to walk back to the corner of Kaye Street and Park Place, where he fell down. Emergency personnel arrived soon afterwards and Venegas was transported to the hospital. Venegas suffered a minor abrasion on his chest. Neither his skin nor his shirt had been perforated.
Meanwhile, defendant, Serna and Sells drove to Watsonville. Defendant gave Sells the gun; Sells wiped it down. Defendant parked at a Jack-in-the-Box and went inside to wash his hands. He then put the gun into its case and placed it in the back of the Honda.
Police soon located the Honda and arrested defendant, Serna, and Sells. Defendant was placed in a holding cell, where he was videotaped. Defendant briefly spoke with an Officer Sarifina. Defendant asked if "there was a shooting or somebody got shot?" Officer Sarifina told him, "Yes, someone got shot." Defendant said, "Thats unfortunate."
Videotapes of defendants interview were played for the jury at trial. We have reviewed the videotapes, as well as the transcript of the interview and the testimony at trial regarding the interview.
Defendant was temporarily left alone in the holding cell. He was able to communicate with Serna, who was in a cell nearby. Defendant said to Serna, "I dont know. I shot that fool."
Detective Michael Medina then interviewed defendant. He read defendant the Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436.) Detective Medina asked defendant about the gun the police had found in the Honda. Defendant denied using the gun that day. Detective Medina told defendant, "Im going to be straight up with you and — no ones dead, okay? You didnt kill anyone. Thats good. All right? You feel relieved a little bit?" Defendant sighed in apparent relief when Detective Medina told him that no one had died.
At that point, defendant asked Detective Medina, "You want to know the story? You want to know what really, really happened?" Defendant then recited the events leading up to the shooting. He explained that he "felt like my life was in danger" during the confrontation with the Surenos near Beach Flats Park. When the group was approaching with bottles in their hands, he felt "trapped." He asked for his gun "`just in case." He believed the group was going to throw their bottles in his face. "So I popped one round off. I didnt mean to hit him." He felt that if he hadnt "done something to get out of there," the group was "going to take my life."
Defendant said that he shot towards Venegas "[b]ecause I felt like he was gonna bounce a 40-ounce bottle off my forehead." Detective Medina asked, "Now how did you — were you moving or how did you pull this shot off anyway? I mean, thats a pretty damn good [shot]." Defendant said, "Im a good shot" and noted, "He was 50 yards away from me, too." Detective Medina asked, "So you hit this guy at 50 yards?" Defendant said, "Yeah." Detective Medina stated, "[N]ot everyone can pull a 50-yard shot." Defendant reminded him, "From a moving vehicle."
Detective Medina asked, "[D]id you get a sight picture[?]" Defendant asserted, "I sighted him in." Detective Medina asked, "You sighted him in?" Defendant stated, "Not necessarily sighted him — I didnt really sight him in. I just pulled the trigger off in that direction just to let him know, hey, dont throw these bottles." He said, "I wasnt expecting to hit him. . . . All I wanted to do was get out of there." He further explained, "Thats all I wanted to do was get out of there without them damaging my vehicle, without anybody getting hurt. I didnt want to shoot that guy. I didnt want to hurt him." Later, he reiterated, "They were gonna really do damage is what they were gonna do and I was gonna stop them from doing that damage. Not necessarily by shooting them. Just by scaring them is what I wanted to do. . . . I should have shot it up in the air, but then Im worried its going to come down and kill somebody. I should have shot it in the ground and I felt I was aiming down. I cant believe, I honestly cant believe I hit that guy, to tell you the truth."
Defendant was charged, by information, with attempted murder (count 1, §§ 664, 187, subd. (a)) and assault with a semiautomatic firearm (count 2, § 245, subd. (b)). The information alleged that defendant committed both offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). As to count 1, the information alleged that defendant personally discharged a firearm (§ 12022.53, subd. (c)) and personally used a firearm (§§ 12022.53, subd. (b), 12022.5, subd. (a)(1)). As to count 2, the information alleged that defendant personally used a firearm (§ 12022.5, subd. (a)(1)).
On October 18, 2001, defendant was transported to court for the first day of trial. He was placed on the same "daisy chain" as Venegas, who had been arrested on unrelated charges. Defendant told a deputy sheriff, "`I cant go into Room 1." He explained, "`They chained me to the guy I shot."
At trial, the prosecution argued that defendant intended to kill Venegas, whereas the defense maintained that defendant intended only to fire a warning shot into the ground.
Defendant testified that after the can or bottle of soda was thrown into the car, he was "trying to get away from that situation." When he saw that the Surenos were coming toward him with bottles, he felt "scared" and "trapped." He knew that gangs were violent, and he believed that the Surenos were going to interfere with his vehicle in a way that would cause him to crash — for instance, if they threw their bottles at his windshield. He believed the Surenos then "probably would have pulled me from the car and beat these bottles over my head till I was either dead or unconscious." He spun his wheels to try to scare the Surenos, but it did not work. As he passed Kaye Street, he saw one person (Venegas) standing with a bottle in his hand. He saw many more people ahead of him, on Uhden Street. At that point, he fired the gun "down the middle of the street." He got the reaction he hoped for: the men ran.
Defendant explained that when he initially told Detective Medina that he had "sighted [Venegas] in," he was taking "credit for something I didnt do." He explained that Detective Medina had been "egging me on" and had "made me feel like I was some kind of shot, you know." Defendant asserted that he had not actually aimed at Venegas. "I didnt want to fire up in the air because I didnt want to kill some innocent person walking around, so I fired down towards the ground, thinking that would stop my bullet from hurting anybody, basically." He explained that he fired the shot down Kaye Street, where he saw Venegas jogging with a bottle, instead of towards the larger group of men ahead of him, because "I felt I would have definitely have hit somebody if I had done that."
Defendant requested the trial court instruct the jury on self-defense pursuant to CALJIC No. 5.30 (Self-Defense Against Assault) and related instructions. The trial court indicated it did not believe such instructions were warranted: "It seems difficult to me to get to the place where youre using deadly force in response, even to bottles, when youre in a car." The court later noted: "[T]heres nothing to suggest that they could have been — that they were blocked in, that there was any way that ... that you got to use deadly force. And you know, theyre in a car. Theyve got a gun. The other guys got a knife. These guys at the best have on the other side bottles, and theyre on foot. And theyre in a car. [¶] And theres nothing that suggests theres in any way, shape or form that theyre prevented from leaving the area, other than their, what I would say, unreasonable believe that somehow these people are going to prevent them. [¶] Yes, he testifies could, could break the windshield. Well, you know, a lot of things could happen.... [¶] But when you look at the case law here, that an appropriate factual basis requires it be evidence substantial enough to merit consideration, and thats the question here in my view."
CALJIC No. 5.30 provides: "It is lawful for a person who is being assaulted to defend [himself][herself] from attack if, as a reasonable person, [he][she] has grounds for believing and does believe that bodily injury is about to be inflicted upon [him][her]. In doing so, that person may use all force and means which [he][she] believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent."
When the discussion of self-defense instructions continued later, the trial court gave a further indication of its views: "What Im saying is I dont think the record supports a version of self-defense that could be interpreted in a way that it is a reasonable fear. I think what you have is a situation where they had an actual belief, may have been honest, but it was unreasonable, and what the Court — what my position is, it seems to me based on what we have here thats presented, is then you get that instruction [on unreasonable self-defense] and that can reduce the attempted [murder] to an attempted voluntary manslaughter, but I dont see beyond that you get, then, a general self-defense instruction because the general self-defense instruction says you have to have a reasonable belief, and thats not what the Court sees here...." The trial court then noted: "They dont have any weapons that on the face of it constitute deadly force, such as firearms. Theres nothing in the record that supports that. Theres nothing in the record that supports that their way was blocked, that they were barricaded, that they were without a way to exit the area. They were in a vehicle that was basically protected because of the vehicle structure itself, and they dont have any situation, it seems to me, where they get to say that they have — thats supported by the evidence, any reasonable expectation here."
The trial court declined to give the requested self-defense instructions. However, the trial court did give CALJIC No. 5.17 (Actual But Unreasonable Belief in Necessity to Defend — Manslaughter).
CALJIC No. 5.17 was given as follows: "[A] person who attempts to kill another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury attempts to kill unlawfully, but does not harbor malice aforethought and is not guilty of attempted murder. This would be so even though a reasonable person in the same situation seeing and knowing the same facts would not have had the same belief. Such an actual but unreasonable belief is not a defense to the crime of voluntary manslaughter. [& para;] As used in this instruction, an imminent peril or danger means one that is apparent, present, immediate and must be instantly dealt with or must so appear at the time to the Defendant. However, this principle is not available, and malice aforethought is not negated if the Defendant, by his unlawful or wrongful conduct created the circumstances which legally justified his adversarys use of force, attack or pursuit."
After three days of deliberations, the jury returned its verdicts. In count 1, the jury found defendant not guilty of attempted murder (§§ 664, 187, subd. (a)). It also found defendant not guilty of the lesser-included offense of attempted voluntary manslaughter (§§ 664, 192, subd. (a)). In count 2, the jury found defendant guilty of assault with a semiautomatic firearm (§ 245, subd. (b)); it also found true the firearm use allegation (§ 12022.5, subd. (a)(1)), but it found the criminal street gang allegation not true (§ 186.22, subd. (b)). At sentencing, the trial court imposed the middle term of six years for the assault. It stayed the term for the firearm use enhancement.
II. Discussion
Defendant contends the trial court erred by refusing to give his requested self-defense instructions. We examine this issue under the "independent or de novo standard of review." (People v. Waidla (2000) 22 Cal.4th 690, 733.) "Whether or not to give any particular instruction in any particular case entails the resolution of a mixed question of law and fact that ... is however predominantly legal. As such, it should be examined without deference." (Ibid.)
Self-defense instructions must be given if there is substantial evidence to support a finding that the defendant acted in self-defense. (See People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.) "`To justify an act of self-defense for [an assault charge under Penal Code section 245], the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him [or her]. [Citation.] [Citation.] The threat of bodily injury must be imminent [citation], and `. . . any right of self-defense is limited to the use of such force as is reasonable under the circumstances. [Citation.] [Citations.]" (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065, original italics.)
The reasonableness of a defendants belief in the need to defend is determined from the point of view of a reasonable person in the defendants position. (Id. at p. 1065; see also People v. Humphrey (1996) 13 Cal.4th 1073, 1083.)
`"Imminent peril" . . . means that the peril must have existed or appeared to the defendant to have existed at the very time the fatal shot was fired. In other words, the peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with." (People v. Aris (1989) 215 Cal.App.3d 1178, 1186, italics added, disapproved on other grounds by People v. Humphrey, supra, 13 Cal.4th at p. 1089.)
In his statement to the police, defendant asserted that he shot Venegas because he believed Venegas "was gonna bounce a 40-ounce bottle off my forehead." However, at trial defendant did not testify that he feared imminent bodily injury from Venegas, and defendant does not advance this argument on appeal. Clearly, Venegas did not pose a risk of imminent bodily injury by simply jogging toward defendant while holding a bottle, since there was no evidence to indicate he was threatening to throw the bottle and because defendant was in a moving vehicle driving away from Kaye Street.
Defendant also did not testify that he feared imminent injury from the other two men who were about 20 feet away, on Kaye Street. Instead, defendant testified that he feared that the larger group of Surenos one block away, on Uhden Street, were going to throw bottles at his vehicle, and that by doing so, they might cause him to crash the car. He further believed that if his car crashed, the Surenos "probably would have pulled me from the car and beat these bottles over my head till I was either dead or unconscious." This is, in essence, the theory he advances on appeal.
The evidence does not support a finding that defendant reasonably believed that bodily injury was imminent. As noted above, the peril must appear to be "immediate and present and not prospective or even in the near future"; it must appear to require an instant reaction. (People v. Aris, supra, 215 Cal.App.3d at p. 1186.) Defendant cites several cases where self-defense instructions were warranted, but in each of those cases, an attack had already begun at the time the defendant took action in self-defense. In People v. Elize (1999) 71 Cal.App.4th 605, two women were beating defendant with pipes before he fired his weapon. In People v. King, supra, 22 Cal.3d 12, intruders attempted to break into an apartment, threw a hibachi through the apartment window, and continued their attempts to force their way in even after defendant fired warning shots; only then did the defendant fire his weapon over the heads of the intruders in self-defense. In People v. Leslie (1935) 9 Cal.App.2d 177, the victim had pushed the defendant, knocked him over, started to pummel him and kick him, and was armed with a bottle at the time defendant hit her. In People v. Dawson (1948) 88 Cal.App.2d 85, 91, the victim made "a leaping advance toward" the defendant from about five feet away. Finally, in People v. Mayweather (1968) 259 Cal.App.2d 752, the shooting occurred during a struggle between the defendant and the victim.
Here, there was no imminent peril, as there was no present attack requiring an instant reaction. (People v. Aris, supra, 215 Cal.App.3d at p. 1186.) The group of Surenos holding bottles was one block away, and defendant was in a moving vehicle. There was evidence that one or two of the Surenos had already thrown a bottle at defendants car, but no bottle had struck the car or any of its occupants. The throwing of one or two bottles that did not strike defendant, his vehicle, or his passengers did not constitute a present attack justifying any action in self-defense. Moreover, even assuming that a reasonable person would have believed that the Surenos were going to throw more bottles at the car, any threat of bodily injury was merely speculative. While it would be reasonable to expect some damage to the vehicle, defendants belief that he might have crashed the car and that the Surenos might have pulled him from the car to beat him was purely speculation as to what might happen in the future. Such speculation does not support a finding of a reasonable belief of imminent bodily injury.
Both Sells and Serna so testified. The People argue that this testimony was "patently not credible" because the police found no broken glass at the scene. However, in determining whether self-defense instructions should have been given in this case, we do not "measure the substantiality of the evidence by undertaking to weigh the credibility of the witnesses, a task exclusively relegated to the jury." (People v. Flannel, supra, 25 Cal.3d at p. 684; see also People v. Breverman (1998) 19 Cal.4th 142, 162.) We also note that the police only performed a "brief look" in the area and were not necessarily looking for broken glass.
Even if we assume that defendant had an honest and reasonable belief that bodily injury was imminent, we would need to determine what degree of force was justified under the circumstances. As noted above, "`any right of self-defense is limited to the use of such force as is reasonable under the circumstances. [Citation.] [Citations.]" (People v. Minifie, supra, 13 Cal.4th at pp. 1064-1065.)
In People v. King, supra, 22 Cal.3d 12, the defendant fired warning shots over the heads of oncoming attackers who had already thrown a hibachi through the apartment window and who had disregarded previous warning shots; one of the later shots struck the victim. At trial, the jury was instructed on self-defense with regard to two counts of assault with a deadly weapon, and the defendant was acquitted of those charges. The court held that the jury should have also been instructed that self-defense applied to the charge of possession of a firearm by a felon (§ 12021). The court concluded that when a felon "is in imminent peril of great bodily harm or reasonably believes himself or others to be in such danger, and without preconceived design on his part a firearm is made available to him, his temporary possession of that weapon for a period no longer than that in which the necessity or apparent necessity to use it in self-defense continues, does not violate section 12021." (People v. King, supra, 22 Cal.3d at p. 24.) The court then cautioned: "As in all cases in which deadly force is used or threatened in self-defense, however, the use of the firearm must be reasonable under the circumstances and may be resorted to only if no other alternative means of avoiding the danger are available." (Ibid.)
In this case, defendant disputes that he used deadly force: he claims that firing a warning shot into the ground does not constitute the use of deadly force. Defendants assertion appears to be contrary to the discussion in People v. King, supra, 22 Cal.3d at pages 23 to 24, where the court specifically equated the use of a firearm with the use of deadly force. Moreover, cases from other jurisdictions have specifically held that firing a warning shot from a loaded gun constitutes the use of deadly force. (E.g., Miller v. State (Fla.App. 1993) 613 So.2d 530, 531; People v. Ellis (Ill.App. 1982) 437 N.E.2d 409, 416.) Finally, since a loaded firearm is a deadly weapon as a matter of law (see People v. Pearson (1957) 150 Cal.App.2d 811, 816), it follows that shooting a loaded firearm constitutes use of deadly force as a matter of law.
We note that the evidence supporting defendants "warning shot" theory was weak. In his statement to the police, defendant initially asserted that he aimed his shot directly at Venegas. He later stated that he pulled the trigger in Venegass direction, but "felt" he was "aiming down." At trial, he first testified that he "let out a shot in the air." He later testified that he fired the gun "down towards the ground." The People concede, however, that there was substantial evidence to support a finding that defendant fired only a warning shot into the ground.
Mihara, J., dissenting.
I respectfully dissent. Self-defense instructions were required if the evidence was "sufficient to raise a reasonable doubt" as to whether defendant acted unreasonably under the circumstances as he perceived them. (People v. Lucky (1988) 45 Cal.3d 259, 291; People v. Minifie (1996) 13 Cal.4th 1055, 1068.) Because defendants testimony was sufficient to raise such a reasonable doubt, the trial court prejudicially erred in failing to instruct on self-defense.
Defendant testified that he was very fearful of gang members because he had heard that they "were very violent" and engaged in "drive-by shootings," "carjackings" and "middle of the day stabbings." He had purchased the gun out of fear and for his protection after hearing that some gang members he had encountered in Prunedale wanted to "kick my butt" or "jump me." Nevertheless, defendant spent time with Serna, who very openly presented himself as a Norteno gang member.
Defendant was unfamiliar with Santa Cruz, having only visited the town twice before. Intending to go to the beach near the Boardwalk with Serna and Sells, defendant encountered difficulty finding a parking place. After he saw a vacant space on a one-way street that he could not turn down, he decided to turn on another street and then work his way back to this parking space. As he tried to work his way back to the vacant parking space, he became "lost, in a little maze" of one-way streets and was paying attention to his driving rather than to Sernas actions.
Defendant suddenly noticed that Serna had his arm out the window and was aiming "dirty looks" at a group of Sureno gang members, the rivals of Sernas gang. At this point, defendant suddenly realized he was "in a bad situation." The situation then escalated. Serna called out "What?" at the Surenos. The response was a can or bottle hitting defendants car. Serna then yelled "East Side Salinas," the name of Sernas gang. Seeking to escape this dangerous situation, defendant quickly drove away, but he saw at least ten of the Surenos pursuing him. Even as he got further away, he could see that four or five of them were still running after him "at full speed." Defendant believed that the only exit from the "maze" required him to loop back around to his point of entry. He was frightened by his inability to escape from the Surenos, and he grabbed his gun and a clip and put the clip in the gun.
As he continued to maneuver through the "maze," defendant noticed that three or four of the Surenos had gotten ahead of him and had large bottles in their hands. He felt "trapped" and "scared" because it appeared that the Surenos were trying to "cut us off." Defendant thought that the Surenos were going to throw bottles into his windshield to "cause me to crash" and then "pull[] me from the car and beat those bottles over my head till I was either dead or unconscious." At this point, defendant chambered a round in his gun. Still hoping to convince the Surenos to disperse, defendant "tried to spin my tires and act like I was just going to kind of ram through them." This did not have the desired effect. The Surenos appeared to become "more pissed" and stood their ground. As defendant drove slowly toward the Surenos, they were joined by compatriots so that defendant was now facing ten Surenos.
Defendant described his thoughts at that moment: "[W]hats the safest way to get us out of here without us getting hurt or any of them getting hurt. I figured a warning shot would probably be the best thing. I didnt want to fire up in the air because I didnt want to kill some innocent person walking around, so I fired down towards the ground, thinking that that would stop my bullet from hurting anybody, basically." He fired his gun "into the ground" "down towards the middle of the road where I seen nobody." "I felt like for my safety that was what I needed to do and for their safety, to scare them." His strategy was not completely successful. Although the men ran away and defendant drove away as fast as he could, his shot bounced off the street and struck a bystander.
Whether defendants actions were a reasonable response to the danger he perceived is a factual question that is ordinarily reserved for a jury. The only legal question for the trial court was whether there was evidence that, if believed by the factfinder, could have caused a rational juror to entertain a reasonable doubt as to whether defendants response was unreasonable. This is the only question that we may properly consider. Here, there was clearly evidence that defendant actually believed that he was in imminent danger of serious bodily injury and that he lacked any reasonable alternatives other than firing a warning shot into the ground. He so testified. The issue that a jury would have resolved under self-defense instructions was whether his belief that injury was imminent and that he had no reasonable alternatives was reasonable based on his perceptions of the circumstances.
The majority claims that no rational juror could have entertained a reasonable doubt about the unjustifiability of defendants actions because the evidence did not reflect (1) that the threat of harm to defendant was "imminent" or (2) that defendant utilized a reasonable "degree of force."
The majority insists that the prospect of injury to defendant was not yet imminent because defendants car was still at some distance from the bottle-wielding Surenos and defendants fear of imminent injury was "merely speculative." The majority also asserts that the "degree of force" utilized by defendant was unreasonable under the circumstances because defendant had other reasonable options such as simply "attempt[ing] to drive away."
Defendant testified that he was "trapped" in a "maze" that he believed he could only escape from by driving down a street blocked by ten violent gang members menacing him with large bottles. He knew that these gang members associated him with a rival gang based on Sernas earlier taunts. Defendant was aware that gang members had a propensity to engage in drive-by shootings, carjackings, stabbings and beatings. His car had already been struck by a bottle or can at the commencement of the encounter with these gang members, and the gang members had been pursuing him ever since. His attempt to scare his pursuers away had been unsuccessful. Their apparent anger at him had increased as had their numbers as he slowly drove down the street toward them. Defendant believed that these gang members intended to do him serious injury by pulling him from his car and beating him with their bottles.
"[T]he question is whether a reasonable person in the defendants circumstances would have perceived a threat of imminent injury or death." (People v. Humphrey (1996) 13 Cal.4th 1073, 1088, emphasis added.) The actual imminence of the danger faced by defendant is not a factual question for us to resolve nor was that precisely the question before the jury. The question for the jury was whether defendant reasonably perceived that the prospect of injury was imminent. If the evidence could have supported a reasonable doubt in this regard, instructions were required. It is not our role to dismiss as "speculative" a defendants perception of the imminence of this danger. It is the jurys role to decide whether this perception was reasonable under the circumstances. Similarly, the reasonableness of the "degree of force" is an issue upon which defendant was entitled to a jury decision unless the evidence was insufficient to raise a reasonable doubt about the excessiveness of the force utilized.
A rational juror could have entertained a reasonable doubt about both the lack of imminence and the excessiveness of the force. A juror could conclude that defendant could not have reasonably waited to fire a warning shot until he was closer to the men because this would have been more, rather than less, likely to cause injury. Had defendant simply attempted to "drive away," as the majority suggests he should have, he would have had to contend with the fact that ten armed and violent men were blocking his way. If he drove at the men, he would have been utilizing deadly force (his car) in a manner that was far more dangerous than firing a warning shot into the ground and away from the men. In sum, defendants testimony about his perceptions could have raised a reasonable doubt in the mind of a rational juror about whether defendant was required to more closely approach these menacing pursuers or to wait until a bottle came crashing through his windshield before he took action. And reasonable jurors could have entertained a reasonable doubt as to whether defendants firing of a "warning shot . . . into the ground" was an unjustified degree of force under the circumstances as he perceived them.
Let there be no misunderstanding. I certainly do not condone the use of deadly force even against a perceived danger of great bodily injury. Yet the sole question before us is whether the jury should have been permitted to consider whether defendant actually and reasonably perceived a threat of imminent great bodily injury and used a reasonable degree of force in defending against this perceived threat. Because defendants testimony could have raised a reasonable doubt about whether his conduct was unjustified under the circumstances as he perceived them, the trial court erred in failing to instruct the jury on self-defense.
Due process requires that "criminal defendants be afforded a meaningful opportunity to present a complete defense." (California v. Trombetta (1984) 467 U.S. 479, 485.) Obviously the erroneous denial of instructions on self-defense, a "complete defense," deprived defendant of due process. Consequently, the appropriate standard of review is whether the error was harmless beyond a reasonable doubt. (People v. Flood (1998) 18 Cal.4th 470, 511.) Since the evidence before the jury could have supported a reasonable doubt about whether defendants conduct was unjustified, the trial courts error was not harmless beyond a reasonable doubt and reversal is required.
Under the circumstances of this case, as the trial court concluded, we conclude it was not reasonable for defendant to use deadly force. The only danger defendant faced was the prospect of his vehicle being hit with bottles and possibly other items. Although defendant was on a one-way street, he was in a vehicle and could have resorted to other "means of avoiding the danger" (People v. King, supra, 22 Cal.3d at p. 24) — for instance, he could have attempted to drive away. Defendants speculation as to what might have happened if he continued to drive does not justify his use of deadly force at the point where only one bottle had been thrown at the car, and had not even struck the car or any of its occupants. Clearly, in this case, "the force used exceeded that which was reasonably necessary to repel the attack. [Citations.]" (People v. Clark (1982) 130 Cal.App.3d 371, 380, abrogated on other grounds by People v. Blakeley (2000) 23 Cal.4th 82, 92.)
The California cases defendant relies upon are distinguishable. As explained above, they involved attacks that had actually begun at the time the defendant resorted to the use of deadly force; therefore, the evidence supported a finding that great bodily injury was imminent and that a reasonable person might resort to the use of deadly force. In People v. King, supra, 22 Cal.3d 12, the intruders had used violence to try to force their way in to the apartment, had thrown a hibachi through the window, and had disregarded earlier warning shots. In People v. Elize, supra, 71 Cal.App.4th 610, the attackers had been beating the defendant with lead pipes.
Defendant also cites several out-of-state cases, including People v. Williams (Ill.App. 1965) 205 N.E.2d 749, which, he asserts, is "on all fours" with this case. In Williams, the defendant was driving a taxi cab when he spotted a group of young men beating up an older man, who called to the defendant for help. The defendant told the group to leave the man alone, then drove around the block to approach them. As he did, the group threw a rock or brick, striking the cab. The defendant then fired two shots toward the group, killing one boy. The defendant was convicted of involuntary manslaughter. On appeal, he claimed there was sufficient evidence that he acted in self-defense such that his conviction should be reversed. The court agreed, holding "only ... that when a person comes to the aid of another who has been the victim of a battery, said person has the right to use deadly force, if the parties who were the assailants attack him and if the other requirements of self-defense are met." (Id. at p. 754.) This case did not involve a person who "comes to the aid of another who has been the victim of a battery." (Ibid.)
In sum, we hold that it was not reasonable for defendant to use deadly force to repel a prospective attack where the threat of bodily injury was purely speculative. As there was no substantial evidence to support a finding that defendant honestly and reasonably believed that bodily injury was imminent or that it was necessary to use deadly force under the circumstances, the trial court properly declined to give self-defense instructions with regard to the assault charge.
III. Disposition
The judgment is affirmed.
I CONCUR: WUNDERLICH, J.