Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF131103 W. Charles Morgan, Judge.
Richard De La Sota, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Scott Taylor, and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster Acting P.J.
A jury found defendant guilty of attempted voluntary manslaughter (Pen. Code, §§ 664/192, subd. (a)), as a lesser included offense of attempted murder (Pen. Code, §§ 664/187) (count 1), and assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) (count 2). As to both counts, the jury found true allegations that defendant personally used a deadly or dangerous weapon (§ 12022, subd. (b)(1)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)). The court sentenced defendant to state prison for a term of seven years. Defendant contends (1) the trial court erred by not instructing the jury that there is a rebuttable legal presumption that a defendant reasonably feared imminent death or great bodily injury to himself or his family if an intruder unlawfully and forcibly entered a defendant’s home (§ 198.5; Judicial Council of Cal. Crim. Jury Instns., CALCRIM No. 3477); and (2) the trial court erred by sentencing defendant for the enhancement of personally using a dangerous or deadly weapon during the commission of assault with a deadly weapon. The People concede defendant is correct as to his second contention. We affirm the judgment with directions.
All further statutory references will be to the Penal Code unless otherwise indicated.
FACTS
1.
BACKGROUND FACTS AND EVENTS PRECEDING THE ALTERCATION
Alicia, Alicia’s two children, defendant, defendant’s girlfriend, and defendant’s child lived in an apartment in Riverside. Defendant and Alicia were co-signators on the apartment lease agreement. On June 27, 2006, Alicia arrived home at approximately 11:00 p.m. When Alicia came home, Alicia’s 15-year-old daughter, defendant, and defendant’s 18-year-old girlfriend went to the store to purchase alcohol. Alicia’s daughter’s friend, Francisco, was also at the apartment, but did not go to the store. When the three arrived back at the apartment, Alicia was outside the apartment talking to the victim, who is a male friend of Alicia’s. Alicia and the victim talked outside for approximately one or two hours. The victim never went inside the apartment during that period of time. The victim had seen defendant “from a distance” on prior occasions when the victim and Alicia would talk outside the apartment. At approximately midnight, Alicia put her seven-year-old son to bed and told the victim goodbye.
When Alicia was inside the apartment she noticed that her daughter was drunk. Alicia’s daughter eventually passed out in the bedroom she shares with Alicia and her brother. Alicia used a key to lock the door to the bedroom, after her daughter passed out inside. Defendant smelled of alcohol. Defendant’s girlfriend was drunk, lying on the floor of the apartment, unable to speak. Alicia asked defendant why he allowed her daughter to drink alcohol. Defendant told Alicia that he was “sorry [and would] never do it again.” Alicia was angry with defendant.
Alicia contacted the victim on the telephone to ask if he had arrived home. While Alicia talked to the victim, defendant “would follow [her] and then he would push [her].” Alicia tried to leave the apartment in order to get away from defendant, but he blocked her path. Defendant told Alicia “to hang up the phone so he could explain why they were drinking.” Over the telephone, the victim heard defendant and Alicia arguing. Alicia told the victim, “[Defendant] keeps bothering me. He follows me and follows me.” Alicia testified that the victim did not say he was planning to return to Alicia and defendant’s apartment, but Alicia thought to herself “once . . . he knows about the fight that we’re having, then he’s going to come back.”
The victim’s brother, Mr. Campos, who was driving the victim home from Alicia’s apartment, testified that the victim told Alicia on the telephone that he was returning to her apartment.
Alicia was eventually able to leave the apartment, and defendant followed her outside to talk to her; however, Alicia told defendant to talk to her when he was sober. Alicia hung up the telephone with the victim. The victim and his brother arrived at Alicia and defendant’s apartment less than 10 minutes later. When the brothers arrived, defendant looked nervous “because [he] thought [the victim] was going after him.” Defendant began running towards the apartment and said, “Go fuck your mother and that’s where you’re going to stay.” The victim replied, “What did you say, asshole?” Defendant continued to run upstairs. Defendant told Alicia that she would not be able to get her children. Defendant then entered the apartment. The victim asked Alicia, “[w]hat’s going on?” and “[a]re the kids okay?” Alicia said she did not know and that she was going to go upstairs. Alicia asked the victim to help her get her children out of the apartment.
2.
DIFFERING ACCOUNTS OF THE EVENTS TAKING PLACE DURING THE ALTERCATION
At this point, the testimony regarding the details of the altercation between defendant and the victim begins to diverge. We give a separate summary of each witness’s relevant testimony.
A. Alicia’s Account of the Events
Alicia testified that she and the victim walked upstairs to the apartment and the victim’s brother followed them after they did not return to his truck. When the three arrived at the front door of the apartment, the door was closed and locked. Alicia knocked on the door, and then the victim knocked on the door to be let inside, but defendant would not open the door.
Alicia testified that Francisco, Alicia’s daughter’s friend, came outside prior to defendant closing and locking the front door of the apartment. Alicia stated that she gave Francisco a key and told him to go inside the apartment, because she did not want her daughter to be alone in the apartment with defendant. Francisco went inside the apartment, but he could not get inside the bedroom for an unknown reason, and then he exited the apartment immediately.
Alicia testified that while she, the victim, and the victim’s brother stood outside the locked apartment door, the victim said to defendant, “Open up the door, buddy. Let me just get the kids, Alicia’s kids.” Alicia heard defendant inside the apartment say, “if he would come in, he was going to beat the shit out of him and that he was going to send him to -- and that if he would come in, he was going to hit him on the dick.” Alicia called the police. Alicia testified that after 20 minutes, defendant opened the front door approximately one foot and said, “Go ahead, asshole, and get the kids out.” When the door opened, Alicia saw defendant “leaning on the wall from [sic] the bathroom,” he was not near the front door. Alicia could see defendant’s hands, and he did not have anything in them, but his hands were behind his back. Alicia and the victim’s brother stayed outside while the victim entered the apartment. Alicia saw defendant’s girlfriend passed out on the floor of the apartment.
A diagram of the apartment was not offered at trial; therefore, it is not possible to determine the exact dimensions of the apartment.
When the victim entered the apartment he walked towards Alicia’s bedroom. The victim reached the door of Alicia’s bedroom, but then turned back to walk towards Alicia because he needed the key to open the bedroom door. When the victim turned to walk towards Alicia, defendant stabbed the victim with a knife.
B. The Victim’s Account of the Events
The victim testified that he went upstairs with his brother and Alicia to retrieve Alicia’s children. While the three stood outside, the victim knocked on the door and said, “Please open the door.” From inside the apartment, defendant yelled, “go to hell, that he was not going -- he was not about to open the door.” The door remained locked for two or three minutes, but then defendant opened the door wide so that it was touching the wall. When defendant opened the door, the victim saw him go “all the way to the back” towards the bathroom. Defendant’s hands were behind his back and he appeared “drunk [or] drugged” and “desperate for [the victim] to leave.” After defendant reached the back of the apartment, defendant said, “come in quickly and get the kids.” The victim entered the apartment alone, while his brother and Alicia remained outside.
The victim walked towards the bedrooms, but because he had not been in the apartment before he did not know which bedroom Alicia shared with her children. The victim turned back to ask Alicia where to find her children. Immediately after the victim turned around, defendant stabbed the victim.
C. Mr. Campos’s Account of the Events
On direct examination, the victim’s brother, Mr. Campos, testified that he went upstairs to the apartment after the victim and Alicia did not return to his truck. When Mr. Campos arrived at the apartment, he heard defendant and the victim arguing through the closed door. Defendant said to the victim, “You son-of-a-bitch. Get the hell out of here.” The victim said to defendant, “Hey, you son-of-a-bitch. Open up the door. Let me get the kids out.” After approximately seven seconds, the door opened approximately three inches and the victim “grabbed the opportunity” to go inside. Mr. Campos did not know how the door opened, but neither he, Alicia, nor defendant opened the door.
When the door opened, Mr. Campos saw defendant in the living room. Defendant looked “drunk or drugged, nervous, [and] desperate.” When the victim walked into the apartment, Mr. Campos heard defendant say, “You son-of-a-bitch. Where are you going?” and “You’re going to see, you . . . motherfucker. I’m going to kill you.” The victim did not reply and continued to advance towards the bedrooms, at which point defendant grabbed the victim and the two began struggling and fighting. After approximately 10 seconds of punching and fighting, defendant pulled a knife from his pants pocket and stabbed the victim. Mr. Campos remained outside the apartment with Alicia until the victim was stabbed and then he entered to take the victim downstairs.
During cross-examination of Mr. Campos, the following exchange took place:
“[Defendant’s trial counsel]: And isn’t it true, when you got up [to the apartment], the door was already cracked open?
“[Mr. Campos]: It was closed.
“[Defendant’s trial counsel]: Didn’t you tell Officer Derouin, when you got upstairs, the door was cracked open?
“[Mr. Campos]: Yes. It was reinforced. Yes, it was shut. It was closed.
“[Defendant’s trial counsel]: Did [the victim] push the door open when he got up there?
“[Mr. Campos]: No. They were trying to open the door.
“[Defendant’s trial counsel]: Didn’t you tell Officer Derouin that [the victim] forced the door open?
“[Mr. Campos]: No. Because [defendant] had total control of the door.
“[Defendant’s trial counsel]: Was [defendant] on the other side, holding the door closed?
“[Mr. Campos]: Yes.
“[Defendant’s trial counsel]: And the door was cracked open; correct?
“[Mr. Campos]: Yes. Yes.
“[Defendant’s trial counsel]: And your brother pushed the door open with his shoulder; correct?
“[Mr. Campos]: I don’t know how it happened. But the door was shut, and then the door opened, maybe like 2, 3 inches.
“[Defendant’s trial counsel]: So your brother pushed open the door with his shoulders?
“[Mr. Campos]: Yes. And he went in towards the direction by where the kids were.
“[Defendant’s trial counsel]: So you did see him shoulder the door open?
“[Mr. Campos]: Yes.
“[Defendant’s trial counsel]: And when he got inside, that’s when [defendant] said, ‘What are you doing in here?’ Correct?
“[Mr. Campos]: Yes.
“[Defendant’s trial counsel]: And you walked in behind him; isn’t that correct?
“[Mr. Campos]: Yes.
“[Defendant’s trial counsel]: So you didn’t stay outside. You actually went inside the apartment also?
“[Mr. Campos]: Well, yes. I was standing outside. But once my brother went in, I went in.
“[Defendant’s trial counsel]: Okay. And then Alicia went in behind you; correct?
“[Mr. Campos]: Yes.
“[Defendant’s trial counsel]: And that’s when the physical fighting started occurring; correct?
“[Mr. Campos]: Yes.”
D. Officer Derouin’s Account of Mr. Campos’s Statement
Police Officer Derouin testified that on the night of the incident, he spoke with Mr. Campos. Mr. Campos informed Police Officer Derouin that when Alicia, the victim, and Mr. Campos went upstairs to retrieve the children, the door to the apartment was slightly ajar. The victim tried to push the door open, while defendant was inside trying to push the door closed. The victim then used his shoulder to force the door open. Once the victim entered the apartment, the altercation between defendant and the victim ensued.
3.
FACTS RELATED TO EVENTS OCCURRING AFTER THE ALTERCATION
After the victim was stabbed, Alicia and Mr. Campos took the victim downstairs. When the three left, defendant immediately closed the front door of the apartment. Alicia went back upstairs hoping defendant would open the door and allow her to get her children. The police arrived and asked defendant to open the door, but defendant did not answer, and the police kicked the door open. The knife defendant used to stab the victim was found under the kitchen sink.
4.
FACTS RELATED TO DEFENDANT’S TRIAL
The court held a portion of the discussion regarding jury instructions off the record. On the record, defendant objected to the court’s indicated ruling not to instruct the jury with CALCRIM No. 3477 regarding the rebuttable legal presumption that a defendant had a reasonable fear of death or great bodily injury when he used deadly force against the victim, if the victim unlawfully and forcibly entered the defendant’s residence. Defendant argued the evidence suggested that the door of the apartment was pushed open and that the victim unlawfully and forcibly entered the apartment.
CALCRIM No. 3477 reads: “The law presumes that the defendant reasonably feared imminent death or great bodily injury to himself, or to a member of his family or household, if:
In response, the court ruled: “As I said off the record, [defendant’s trial counsel], I do not believe this applies in this instance whatsoever. This instruction is for that occasion where, by inadvertence or purposefully, someone physically comes into and forces their way into one’s residence and that -- ‘a man’s home is his castle’ concept -- that you may defend yourself at that point. There’s a presumption there. This is not the scenario at all. This is somewhat -- however you want to phrase it -- whether the door was pushed or not, because there’s considerable evidence that it wasn’t as well -- that [the victim] [¶] . . . [¶] was invited to come in by another co-signator on the lease and was refused entrance, and then obtained entrance, whether because the door was opened or [he] pushed his way in. And it does not apply. You’re going to get your self- -- the presumption doesn’t apply there. You’re going to get your self-defense instruction that -- I think there is a -- you’re going to argue that, and there is some evidence to support that. So that’s why I’m not giving it.”
The jury was instructed with laws concerning (1) imperfect self-defense, which if found true allows for a verdict on the lesser included offense of voluntary manslaughter (§ 192; CALCRIM No. 571); (2) self-defense or defense of another, which if found true allows for a verdict of justifiable homicide (§ 197; CALCRIM No. 505); and (3) self-defense or defense of another, which if found true would have allowed for a not guilty verdict on the assault with a deadly weapon charge (CALCRIM No. 3470).
Defendant argued the theory of self-defense during closing arguments. Defendant was charged with attempted murder for stabbing the victim; however, as noted ante, the jury found defendant guilty of attempted voluntary manslaughter, as a lesser included offense of attempted murder.
DISCUSSION
1.
JURY INSTRUCTION
Section 198.5 codifies the rebuttable legal presumption that a defendant had a reasonable fear of death or great bodily injury when he used deadly force against the victim, if the victim unlawfully and forcibly entered the defendant’s residence. (People v. Owen (1991) 226 Cal.App.3d 996, 1005 (Owen).) The presumption in section 198.5 affects the People’s burden of proof by requiring “the People to prove beyond a reasonable doubt that defendant did not have a reasonable fear of imminent peril of death or injury to himself” or his family when he used deadly force upon the victim. (Owen,at p. 1005.) CALCRIM No. 3477 instructs the jury regarding this legal presumption. Defendant contends the trial court erred when it denied his request to instruct the jury with CALCRIM No. 3477. We agree, but find the error to be harmless.
A. The Court Erred by Not Instructing the Jury With CALCRIM No. 3477
“It is settled that, even in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case. [Citations.] The trial court is charged with instructing upon every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant’s theory of the case.” (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) “In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether ‘there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.’ [Citations.]” (People v. Salas (2006) 37 Cal.4th 967, 982-983.) “‘[The] testimony of one witness . . . may constitute substantial evidence . . . to warrant a requested jury instruction . . . [citation], and doubts as to the sufficiency of the evidence must be resolved in favor of the accused [citation].’” (People v. Lemus (1988) 203 Cal.App.3d 470, 477.)
“For section 198.5 to apply, four elements must be met. There must be an unlawful and forcible entry into a residence; the entry must be by someone who is not a member of the family or the household; the residential occupant must have used ‘deadly’ force (as defined in § 198.5) against the victim within the residence; and finally, the residential occupant must have had knowledge of the unlawful and forcible entry.” (People v. Brown (1992) 6 Cal.App.4th 1489, 1494-1495.) The right to respond with deadly force depends upon the circumstances as they would appear to a reasonable person in defendant’s position. (People v. Curtis (1994) 30 Cal.App.4th 1337, 1361-1362.) We address each element in turn.
(i) Unlawful and Forcible Entry
Unlawful entry is defined in section 602.5, subdivision (a): “Every person . . . who enters or remains in any . . . apartment . . . without consent of the owner . . . is guilty of a misdemeanor.” “The ordinary meaning of ‘forcible entry’ is that given in Code of Civil Procedure section 1159: ‘Every person is guilty of a forcible entry who . . . [¶] 1. By breaking open doors, windows, or other parts of a house, or by any kind of violence or circumstance of terror enters upon or into any real property . . . .’” (People v. Brown, supra,6 Cal.App.4th at p. 1500, italics omitted.)
The evidence was undisputed that Alicia asked the victim to help her retrieve her children. It was also undisputed that the victim said to defendant through the door of the apartment that he wanted to enter in order to take Alicia’s children. Nevertheless, the victim and witnesses provided conflicting accounts of how the victim entered the apartment. Police Officer Derouin testified that Mr. Campos informed him that the victim and defendant struggled over the door, and the victim used his shoulder to force the door open. Mr. Campos testified that defendant said through the door, “Get the hell out of here.” Mr. Campos also testified that he was unsure how the door initially opened, but that the victim used his shoulder when opening the door. None of the witnesses explained why they did not open the door with the key Alicia had given to Francisco. Furthermore, defendant was not present when Alicia asked the victim to help her retrieve her children. Defendant only witnessed Alicia complain about his behavior on the telephone, and then saw two men arrive at the apartment less than 10 minutes later and proceed to follow defendant to his apartment.
We conclude that the witnesses’ testimony is substantial evidence that, if believed by the jury, would support a conclusion that, from the perspective of a reasonable person in defendant’s position, the victim entered the apartment forcibly and unlawfully, because a reasonable person could have concluded that the victim was using Alicia’s children as an excuse to gain access to the apartment in order to harm defendant for bothering Alicia while she was speaking on the telephone.
We disagree with the trial court’s opinion, and the People’s argument, that Alicia’s permission justified the victim’s entry. A “co-tenant wishing to open the door to a third party has no recognized authority in law or social practice to prevail over a present and objecting co-tenant . . . .” (Georgia v. Randolph (2006) 547 U.S. 103, 114 [discussing searches by police officers].) Moreover, an entry “even though authorized by a co-occupant, may be so intrusive that it belies the conclusion that the parties assumed or even contemplated the risk of its occurrence by deciding to jointly inhabit the subject residence.” (People v. Haskett (1982) 30 Cal.3d 841, 857 [discussing searches by police officers].) The victim’s brother told Officer Derouin that the victim forced his way into the apartment while defendant attempted to stop him from entering by pushing the door closed. The victim’s brother also testified that defendant said to the victim through the front door, “Get the hell out of here.” The evidence, if believed by the jury, suggests the victim’s entry was made over defendant’s objections and that the violent intrusion went beyond the risk assumed in a cotenancy. Accordingly, the victim had no right to enter despite Alicia’s consent.
Furthermore, the record does not support an inference that the victim was entering the apartment due to exigent circumstances, because Alicia believed defendant might harm her children. Nothing in the record indicates that Alicia believed her children were in distress. Alicia’s lack of concern is evidenced by her decision to exit the apartment in order to talk to the victim on the telephone. Alicia told Francisco to go into the apartment because she wanted her daughter to have another person with her; however, Alicia had locked her children in their bedroom. There was no evidence that defendant planned or attempted to access the bedroom Alicia shared with her children.
We also disagree with the argument that the victim’s entry into the apartment was similar to a police entry because Alicia asked defendant to help her retrieve her children. (See generally People v. Bishop (1996) 44 Cal.App.4th 220, 239, [co-occupants who have joint access or control to property assume the risk police may be authorized to search by a co-occupant that shares the property].) If the trier of fact concludes that the victim entered the apartment forcibly and unlawfully, then it could also reasonably infer that the victim entered the apartment with the intent of harming defendant, because defendant had been bothering Alicia while she spoke to the victim on the telephone. Accordingly, we conclude that if the jury believes the victim entered the apartment forcibly and unlawfully then it could also reasonably conclude that the victim’s entry was less like an entry by police and more like an entry by a burglar or trespasser.
(ii) Non-member of the Family or Household
The victim was a friend of Alicia’s that had never before been inside the apartment. The victim testified that he had never spoken to defendant before and had only seen defendant “from a distance” on prior occasions. The evidence indicates, however, that defendant likely saw the victim speaking with Alicia outside the apartment when he returned from the store with the alcohol. Nevertheless, the victim was not a family member or a household member. We note that section 198.5 “does not require the intruder to be a stranger to the resident; he or she need only be a nonmember of the family or household who unlawfully or forcefully enters the residence.” (Owen, supra, 226 Cal.App.3d at p. 1004.)
(iii) Deadly Force
The force used by defendant must have been “intended or likely to cause death or great bodily injury,” which is defined as “significant or substantial physical injury.” (§ 198.5.) The victim testified that he was stabbed in his side and hospitalized for two months. Due to the victim’s extended hospitalization, we conclude that the use of force by defendant was intended or likely to cause death or great bodily injury.
(iv) Defendant’s Knowledge
Defendant must have had knowledge of the unlawful and forcible entry. The testimony regarding an unlawful and forcible entry by the victim is disputed; however, the following evidence, if believed by a jury, would support a finding that defendant was aware the victim entered the apartment forcibly and unlawfully. Officer Derouin testified that Mr. Campos informed him that defendant tried to push the front door of the apartment closed while the victim tried to push the door open. The victim eventually forced the door open with his shoulder. The victim testified that defendant looked desperate for the victim to leave. When the victim entered the apartment, defendant asked the victim, “Where are you going?” Although these facts are disputed, we conclude the evidence, if believed by the jury, would support a finding that defendant knew the victim entered the apartment forcibly and unlawfully.
(v) Conclusion
In sum, there was substantial evidence provided at trial that, if believed by the jury, would support a finding that defendant used deadly force within the apartment because he was aware that the victim entered the apartment forcibly and unlawfully. Accordingly, we conclude the trial court erred by not instructing the jury with CALCRIM No. 3477.
When the trial court denied defendant’s request that the jury be instructed with CALCRIM No. 3477, the court essentially reasoned that defendant is not the type of individual that section 198.5 was intended to protect, because the victim was not an unknown burglar, robber or trespasser. We agree with the trial court that the facts of this case are distinguishable from the conventional unknown intruder scenario that is typically associated with the presumption set forth in section 198.5. Nevertheless, on its face the statute applies, as concluded ante. The statute does not require that the victim be an unknown stranger; “he or she need only be a nonmember of the family or household who unlawfully or forcefully enters the residence.” (Owen, supra, 226 Cal.App.3d at p. 1004.) Accordingly, while we understand the reasoning of the trial court, we must conclude that it erred.
B. Harmless Error
The People essentially contend the trial court’s error is harmless because the presumption set forth in CALCRIM No. 3477 is encompassed within the presumption of innocence and various self-defense instructions given at defendant’s trial. The People rely heavily on the reasoning in the case of Owen, supra,226 Cal.App.3d 996, to support this argument. Additionally, the People argue that the jury already concluded defendant did not act reasonably in using deadly force because it found defendant guilty of attempted voluntary manslaughter which necessarily means the jury concluded defendant did not have a reasonable fear of death or imminent injury. We agree.
“[A]n instructional error that improperly describes or omits an element of an offense, or that raises an improper presumption or directs a finding or a partial verdict upon a particular element, generally is not a structural defect in the trial mechanism that defies harmless error review . . . such an error, like the vast majority of other constitutional errors, falls within the broad category of trial error subject to Chapman review.” (People v. Flood (1998) 18 Cal.4th 470, 502-503.) In People v. Salas (2006) 37 Cal.4th 967, 984, our Supreme Court assumed that the Chapman standard applied to similar instructional errors concerning affirmative defenses. We apply the same assumption in the instant case. Accordingly, we must determine “whether it appears beyond a reasonable doubt that the error did not contribute to this jury’s verdict.” (People v. Flood, supra, at p. 504, citing Chapman, supra, 386 U.S. at p. 24.)
Chapman v. California (1967) 386 U.S. 18 (Chapman).
(i) People v. Owen
We begin our analysis with the People’s argument that the trial court’s error is harmless because the presumption set forth in CALCRIM No. 3477 is subsumed by the various self-defense instructions given in defendant’s case.
In regard to self-defense, the jury was informed of the following laws: (1) imperfect self-defense, which if found true allows for a verdict on the lesser included offense of voluntary manslaughter (§ 192; CALCRIM No. 571); (2) self-defense or defense of another, which if found true allows for a verdict of justifiable homicide (§ 197; CALCRIM No. 505); and (3) self-defense or defense of another, which if found true would have allowed for a not guilty verdict on the assault with a deadly weapon charge (CALCRIM No. 3470). Additionally, the jury was instructed with laws concerning the presumption of innocence and the prosecution’s burden to prove defendant’s guilt beyond a reasonable doubt. (CALCRIM No. 220.)
As explained in Owen, the purpose of CALCRIM No. 3477 is to inform the jury that it is the prosecution’s burden to “prove that the defendant did not have a reasonable fear of imminent death or injury to [himself] . . . when [he] used force against the [victim].” (CALCRIM No. 3477; see Owen, supra, 226 Cal.App.3d at p. 1005.) The jury is informed of this same burden via the instructions listed ante. (Owen, at pp. 1005-1006.) The burden of proof instruction and the self-defense instructions explain to the jury that it is the prosecution’s burden to prove every element of the offense, and that if the defendant reasonably or unreasonably feared the victim then he is not guilty of the greater offense. Accordingly, “this burden already rested upon the prosecution independently of the presumption created by section 198.5—and the jury was so instructed in the instant case.” (Owen, at p. 1005.) Consequently, it appears beyond a reasonable doubt that the error of not instructing the jury with CALCRIM No. 3477 did not contribute to this jury’s verdict, and therefore the error is harmless.
(ii) Voluntary Manslaughter
Next, we address the People’s argument that the trial court’s error is harmless due to the jury’s finding that defendant is guilty of attempted voluntary manslaughter.
In reaching a verdict of attempted voluntary manslaughter, the jury rejected a finding that defendant was justified in stabbing the victim. (§ 197; CALCRIM No. 505.) The jury’s verdict reflects a finding that it was not reasonable for defendant to fear the victim. (§ 192; CALCRIM No. 571.) Consequently, if the jury had been instructed with CALCRIM No. 3477, and if it found true the evidence that the victim forcibly and unlawfully entered the apartment, then, based upon its voluntary manslaughter verdict, the jury would also have found that the prosecution successfully met its burden to rebut the presumption that defendant was justified in stabbing the victim. Accordingly, it appears beyond a reasonable doubt that the error did not contribute to this jury’s verdict, and therefore the error is harmless.
C. Weapon Enhancement
Defendant contends that the enhancement for personally using a deadly or dangerous weapon (§ 12022, subd. (b)(1)) during the commission of assault with a deadly weapon (§ 245, subd. (a)(1)) must be stricken because use of a deadly or dangerous weapon is an element of the substantive offense. The People support defendant’s contention. We agree.
“A conviction under section 245, subdivision (a)(1) cannot be enhanced pursuant to section 12022, subdivision (b). [Citation.]” (People v. Summersville (1995) 34 Cal.App.4th 1062, 1070.) Accordingly, the enhancement for personally using a deadly or dangerous weapon (§ 12022, subd. (b)(1)) during the commission of assault with a deadly weapon (§ 245, subd. (a)(1)) must be stricken.
DISPOSITION
The trial court is directed to strike the enhancement for personally using a deadly or dangerous weapon (§ 12022, subd. (b)(1)) during the commission of assault with a deadly weapon (§ 245, subd. (a)(1)), and modify the abstract of judgment accordingly. In all other respects, the judgment is affirmed. The court is further directed to prepare an amended abstract of judgment that reflects the judgment as modified and to forward copies of that amended abstract to the appropriate agencies and entities.
We concur: Gaut J., Miller J.
1. An intruder unlawfully and forcibly entered or was entering the defendant’s home;
2. The defendant knew or reasonably believed that an intruder unlawfully and forcibly entered or was entering the defendant’s home;
3. The intruder was not a member of the defendant’s household or family;
AND
4. The defendant used force intended to or likely to cause death or great bodily injury to the intruder inside the home.”