Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. BA324603 William N. Sterling, Judge.
Richard L. Rubin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.
PERREN, J.
Angered by the manner in which his mother's boyfriend treated him, Javelle Walton walked away from an argument, returned shortly thereafter armed with a double-barreled sawed-off shotgun, and shot and killed the boyfriend. On appeal, he claims, among other errors, that the trial court failed to adequately instruct the jury on self-defense by failing to include a pinpoint instruction allowing the jury to consider past threats in evaluating the defense.
Javelle Walton appeals the judgment following his conviction for second degree murder. (Pen. Code, §§ 187/189.) The jury found true allegations of various firearm enhancements. (§ 12022.53, subds. (b), (c), (d).) He was sentenced to 15 years to life for the murder, and a consecutive term of 25 years to life for personally discharging a firearm causing death. (§ 12022.53, subd. (d).) The trial court stayed sentence on the other enhancements. Walton contends the trial court committed instructional error by failing to give antecedent threat and heat of passion instructions, and in instructing the jury that flight and suppression of evidence may show awareness of guilt. He also claims abuse of discretion in the trial court's denial of a mistrial motion, and that imposition of a 25 year to life term on the section 12022.53, subdivision (d) enhancement constituted cruel and unusual punishment. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTS
At the time of the offense, Walton, Walton's mother Tony'a Brown, and her boyfriend Jerome Stallworth were living together. Stallworth's uncle Al lived on the same street. Walton, who was 17 years old, did not get along with Stallworth. Stallworth was married and divided his time between Brown and his wife. Walton sometimes stayed with his mother's cousin, David Robinson.
On the afternoon of March 22, 2007, Walton and Robertson went to visit "Uncle Al." Stallworth, Tony'a Brown, and Deonte Riley were also at Al's house. They all sat around drinking alcohol and smoking "weed."
Walton left with Robertson to run an errand. When Walton returned, Tony'a Brown and Stallworth were arguing. Brown went to her house a few doors down the street and began throwing Stallworth's clothes into a trash can. Walton and Robertson could see what Brown was doing from Al's house. They stood on the sidewalk laughing.
Walton, Stallworth, Robertson, Riley, and another person walked to Brown's house. Brown and Stallworth continued their argument. Brown stated that she was getting rid of Stallworth's dogs, and Stallworth went to gather his dogs from the backyard. Stallworth, Brown and Walton started shouting and arguing.
Walton went inside Brown's house and brought out a Samurai sword. Walton, who was angry at Stallworth, slammed the sword on the deck and bent it. Everyone walked towards the front of the house. Walton yelled to Stallworth that he was "not going to disrespect me in my motherfucking hood" and threatened to kill Stallworth. Stallworth told Robertson he was not going to "fuck" with Walton but had a son Walton's age and, if necessary, Stallworth would ask his son to deal with Walton.
Stallworth left the scene but returned riding a bicycle. He rode up and down the street a few times looking at Brown. Walton began walking in Stallworth's direction. Stallworth got off his bicycle and walked towards Walton who was standing on the sidewalk. Stallworth's hands were at his sides. Walton pulled out a sawed-off shotgun he had in his possession and fired twice at the unarmed Stallworth, killing him.
Walton ran past Robertson and Brown and yelled to them not to "call my name." Walton went to his home and shaved off his corn rows. Later in the day, Walton told Robertson that he was going to run away to Arizona, but changed his mind shortly thereafter, and surrendered to the police. Before surrendering to the police, Walton asked Robertson not to testify against him, but Robertson stated that he would not lie.
In his own defense, Walton testified that Stallworth had threatened to kill him shortly before the Samurai sword incident, and that the threat frightened him and made him angry. He testified that after that threat he went to a friend's house and borrowed a shotgun to protect himself. As he walked back after getting the shotgun, Walton saw Stallworth get off a bicycle and walk towards him. Walton thought Stallworth might have a weapon because his hands were in his pockets. Walton testified that, as Stallworth walked towards him, Stallworth was angry and, again, threatened to kill him. In response, Walton "blanked out" and shot Stallworth. He denied threatening Stallworth or telling Robertson to lie for him. He testified that he did not have a "problem" with Stallworth in general.
DISCUSSION
No Error in Failing to Instruct on Antecedent Threats
The trial court instructed the jury on Walton's claims of self-defense and imperfect self-defense. Walton contends that the trial court erred in refusing to include in those instructions pinpoint instructions that the jury may consider past threats by the victim in determining the merits of the defenses. We disagree.
A trial court is required to instruct a jury on the general principles of law closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case. (People v. Breverman (1998) 19 Cal.4th 142, 154-155.) The duty to instruct extends to defenses when there is sufficient evidence from which a reasonable juror could find the defense applicable. (People v. Martinez (2010) 47 Cal.4th 911, 953.)
"Pinpoint instructions" relate specific facts to a legal issue in the case so as to highlight or "pinpoint" the crux of a defendant's case. (People v. Saille (1991) 54 Cal.3d 1103, 1119.) Upon request, a pinpoint instruction must be given when supported by substantial evidence unless the instruction would duplicate other instructions. (People v. Bolden (2002) 29 Cal.4th 515, 558-559.)
It is settled that a homicide defendant who asserts self-defense is entitled to a pinpoint instruction on the effect of a victim's antecedent or past threats against the defendant if there is sufficient evidence to support such an instruction. (People v. Minifie (1996) 13 Cal.4th 1055, 1065, 1068-1069; People v. Garvin (2003) 110 Cal.App.4th 484, 488; People v. Gonzales (1992) 8 Cal.App.4th 1658, 1663-1664.) The instruction is required because the occurrence of such threats may affect the reasonableness of the defendant's use and degree of force or the defendant's belief in the necessity of using force. (Garvin, at p. 489.)
Here, the trial court instructed the jury on the defense of justifiable homicide based on self-defense (CALCRIM No. 505) and on reduction of murder to voluntary manslaughter based on imperfect self-defense. (CALCRIM No. 571.) The standard form instructions also include optional bracketed pinpoint instructions on antecedent threats. The paragraphs in the self-defense instruction state: "If you find that [the victim] threatened or harmed others in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable.... [¶] Someone who has been threatened or harmed by a person in the past, is justified in acting more quickly or taking greater self-defense measures against that person." (CALCRIM No. 505.) The paragraph in the imperfect self-defense instruction states: "If you find that the defendant knew that [the victim] had threatened or harmed others in the past, you may consider that information in evaluating the defendant's beliefs." (CALCRIM No. 571.)
The version of CALCRIM No. 505 given by the trial court provides in relevant part: "The defendant is not guilty of murder or manslaughter if he was justified in killing someone in self-defense. The defendant acted in lawful self-defense if: [¶] 1. The defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily injury; [¶] 2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of great bodily injury to himself. Defendant's belief must have been reasonable and he must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the killing was not justified. [¶] When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed. [¶] The defendant's belief that he was threatened may be reasonable even if he relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true."
The version of CALCRIM No. 571 given by the trial court provides in relevant part: "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense. [¶] If you conclude the defendant acted in complete self-defense, his action was lawful and you must find him not guilty of any crime. The difference between complete self-defense and imperfect self-defense depends on whether the defendant's belief in the need to use deadly force was reasonable. [¶] The defendant acted in imperfect self-defense if: [¶] 1. The defendant actually believed that he was in imminent danger of being killed or suffering great bodily injury; [¶] AND [¶] 2. The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger; [¶] BUT [¶] 3. At least one of those beliefs was unreasonable. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. [¶] In evaluating the defendant's beliefs, consider all the circumstances as they were known and appeared to the defendant."
Defense counsel asked the trial court to include these paragraphs in the instructions based on Walton's testimony that Stallworth had threatened to kill him earlier in the day causing Walton to feel afraid. The trial court denied the request.
The trial court interpreted the phrase "in the past" as referring to a threat that was made on "another occasion, " not a threat made no more than approximately an hour earlier during the same course of events that included the killing itself. The court indicated agreement with the prosecutor's argument that any fear from the threat earlier in the day continued "throughout his subsequent conduct leading up to the shooting." We agree.
The cases establishing the right to a pinpoint instruction on antecedent threats or assaults involve evidence of threats or assaults made on separate occasions at least days prior to the charged offense. (See, e.g., People v. Gonzales (1992) 8 Cal.App.4th 1658, 1660; People v. Pena (1984) 151 Cal.App.3d 462, 468, 470; People v. Bush (1978) 84 Cal.App.3d 294, 296-300.) But, the cases establish no bright line rule, and the totality of circumstances must be considered in each case.
A threat within hours of the killing might qualify if there was no continuing interaction between the killer and the victim prior to the killing. In such a case, the jury might believe it could not consider such a threat without the pinpoint instruction. The same reasoning, however, does not apply where, as here, the prior threat constituted an integral part of the events that culminated in the fatal shooting. Based on Walton's version of the facts, there was a relatively continuous interaction between Walton and Stallworth. At first, Walton, Stallworth and others socialized. Then, Walton became antagonistic towards Stallworth and Stallworth threatened to kill Walton. Finally, Walton got a shotgun, and Walton shot Stallworth after Stallworth made a second threat on Walton's life. Under these circumstances, jurors did not need a pinpoint instruction to understand the significance of Stallworth's first threat in evaluating Walton's defenses. The standard CALCRIM self-defense and unreasonable self-defense instructions given to the jury were fully consistent with the concept of antecedent threats and were sufficient to cover the topic. (See People v. Garvin, supra, 110 Cal.App.4th at p. 489.) In fact, the concept of self-defense is embellished by the language given so as to allow the defense to be more robust.
As stated in People v. Gonzales, supra, 8 Cal.App.4th at page 1665, "[t]he concept at issue here is closer to rough and ready common sense than abstract legal principle. It is also fully consistent with the otherwise complete self-defense instructions given by the court. It is unlikely the jury hearing the evidence, the instructions given and the argument of counsel would have failed to give the defendant's position full consideration." (Fn. omitted.)
Even if failure to give the antecedent threat instruction were considered error, the error was harmless. (People v. Wharton (1991) 53 Cal.3d 522, 571 [applying Watson test to failure to give pinpoint instruction]; accord, People v. Gonzales, supra, 8 Cal.App.4th at pp. 1663-1665.) The jury was properly instructed on self-defense and imperfect self-defense theories, including instructions to consider all the circumstances as they were known to and appeared to Walton in evaluating the reasonableness of his conduct or his actual belief. Also, defense counsel argued both threats in support of Walton's reasonable and imperfect self-defense theories. There is no reasonable probability that the jury would have reached a result more favorable to Walton if such instructions had been given. (People v. Watson, supra, 46 Cal.2d at pp. 835-836.)
(People v. Watson (1956) 46 Cal.2d 818.)
No Error in Refusing Heat of Passion Instruction
Walton contends the trial court erred in failing to instruct the jury, sua sponte, on voluntary manslaughter based on heat of passion. We disagree.
As we have stated, a trial court must instruct on general principles of law closely and openly connected to the evidence. (People v. Breverman, supra, 19 Cal.4th at pp. 154-155.) This duty extends to instructions on lesser included offenses supported by substantial evidence, which is evidence from which a reasonable jury could find the defendant guilty of the lesser offense, but not the charged offense. (People v. Moye (2009) 47 Cal.4th 537, 556.)
A defendant who intentionally kills in a "sudden quarrel or heat of passion" is guilty of manslaughter rather than murder. (§ 192, subd. (a); People v. Moye, supra, 47 Cal.4th at p. 549.) The heat of passion theory has an objective and subjective component. (Moye, at p. 549.) To satisfy the objective component, the defendant's passion must be due to "sufficient provocation" caused by the victim. (Id. at pp. 549-550.) "Sufficient provocation, " requires victim conduct which would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. (Id., at p. 550.) To satisfy the subjective component, the defendant must have killed while actually in a heat of passion which was caused by objectively sufficient provocation. (Ibid.)
The defense theory in this case was that Walton killed in self-defense, or imperfect self-defense. There is no substantial evidence of a killing in the heat of passion. By his own testimony, Walton was preparing to defend himself against Stallworth. Walton testified that he feared Stallworth, armed himself because of that fear, and shot when Stallworth threatened him a second time. This evidence may show Walton was angry and to some extent "provoked" when he bent the Samurai sword but he reacted, not out of a heat of passion, but by walking down the street to get a sawed-off shotgun from a friend, and walking back to rejoin the group. (People v. Moye, supra, 47 Cal.4th at p. 550 ["'"if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter"...'"].) The evidence did not support a finding that the events would have aroused the passion of the ordinarily reasonable person faced with the same situation. (See People v. Garvin, supra, 110 Cal.App.4th at p. 489.)
Walton's reliance on Breverman is misplaced. As discussed by our Supreme Court in a later case, nothing in Breverman suggests an instruction on heat of passion is required in every case in which the only evidence of heat of passion is that a defendant is threatened and consequently fears for his life. (People v. Moye, supra, 47 Cal.4th at p. 555.) Breverman involved an angry group of at least a dozen men who "'taunted the defendant, then used a baseball bat and other implements to batter his automobile.... Defendant fired several shots through a window pane in the front door, then came outside and fired further shots toward the fleeing vandals...'" hitting one of them. (Id. at p. 554.)
Even if there was error in failing to instruct, the error was harmless. (People v. Breverman, supra, 19 Cal.4th at pp. 177-178 [Watson standard applicable to instructional errors].) The duty to instruct on a lesser included offense arises if there is substantial evidence the defendant is guilty of the lesser offense, but not the charged offense. In deciding whether evidence is sufficiently substantial to require a lesser included offense instruction, the court determines only its bare legal sufficiency, not its weight. (People v. Moye, supra, 47 Cal.4th at p. 556.) "'Appellate review under Watson, on the other hand, takes an entirely different view of the evidence. Such posttrial review focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration....'" (Moye, at p. 556.) Based on the evidence as a whole, we conclude that there is no reasonable probability the trial court's failure to instruct on heat of passion affected the result.
No Error in Denial of Motion for Mistrial
Walton contends the trial court erred in denying his motion for mistrial based on testimony that he was a "Harlem Hood" and was known as "B.K. Thrasher." Walton argues that these words identified him as a gang member. We conclude that the trial court did not abuse its discretion.
A trial court must grant a motion for mistrial when a party's chances of receiving a fair trial have been irreparably damaged. (People v. Avila (2006) 38 Cal.4th 491, 573.) Although most motions for mistrial involve prosecutorial or juror misconduct, a witness's volunteered statement may also provide the basis for a finding of prejudice. (People v. Wharton, supra, 53 Cal.3d at pp. 565-566.) "'Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.'" (Avila, at p. 573.) We review a trial court's ruling under the abuse of discretion standard. (People v. Wallace (2008) 44 Cal.4th 1032, 1068.)
Prior to trial, the court denied a prosecution request to admit a reference to his gang membership contained in a threat made by Walton. During trial, however, witness Robertson testified that Walton "used some expletives" and, when the prosecutor asked for the specific words, Robertson replied that Walton yelled that he was "Harlem Hood." The prosecutor interrupted, stating, "No. Expletives, just the expletives." There was also testimony from witness Deonte Riley who referred to Walton as "B.K. Thrasher" when identifying him from a photograph.
The parties agree that "Harlem Hood" is the name of a gang and that "B.K. Thrasher" is Walton's gang moniker, but there was no evidence identifying the words as gang related. Although possible, the likelihood the jury would have interpreted the words as gang related is speculative. There was no other mention of gangs during trial and no mention of gang activity.
In addition, the brief and fleeting references to a possible gang membership and gang moniker could have been cured by an admonition. The trial court offered to admonish the jury in that regard, but noted that an admonition after such a brief and obscure reference might highlight the statement. Apparently for tactical reasons, defense counsel did not request an admonition.
No Error in Instructing on Suppression of Evidence and Flight
The trial court instructed the jury that the suppression of evidence or flight immediately after the crime may show an awareness of guilt. Walton contends these instructions invaded the jury's fact-finding role and lowered the prosecution's burden of proof by creating a mandatory or burden-shifting presumption that he was guilty, thereby violating his constitutional right to a fair trial. We disagree.
The trial court instructed the jury with CALCRIM No. 371 as follows: "If the defendant tried to hide evidence or discourage someone from testifying against him, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself." The trial court further instructed the jury with CALCRIM No. 372 as follows: "If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself."
Walton acknowledges that our Supreme Court has repeatedly rejected constitutional challenges to the CALJIC instructions that preceded the CALCRIM instructions. (People v. Lynch (2010) 50 Cal.4th 693, 761; People v. Zambrano (2007) 41 Cal.4th 1082, 1159; People v. Howard (2008) 42 Cal.4th 1000, 1020-1021; People v. Mendoza (2000) 24 Cal.4th 130, 180-181; see CALJIC Nos. 2.06 & 2.52.) He also acknowledges that constitutional challenges to the CALCRIM instructions given in this case have been rejected by our Court of Appeal. (People v. Rios (2007) 151 Cal.App.4th 1154, 1158-1159; People v. Paysinger (2009) 174 Cal.App.4th 26, 30-31.)
Walton's argument that the instructions presume the crime was committed is not supported by the language of the instructions. The instructions provide that "if" the defendant tried to hide evidence or flee, the jury "may" consider these facts as showing awareness of guilt. It is highly unlikely a reasonable juror would have understood the instruction as dictating that the crime was committed or as lowering the prosecution's burden of proof. (People v. Paysinger, supra, 174 Cal.App.4th at p. 30; People v. Rios, supra, 151 Cal.App.4th at p. 1159.) Also, the instructions caution the jury that suppression of evidence or flight evidence "cannot prove guilt by itself."
Section 12022.53, Subdivision (d) Enhancement is not Cruel or Unusual Punishment
Appellant contends that imposition of a 25 years to life enhancement pursuant to section 12022.53, subdivision (d) violates the constitutional prohibition against cruel and unusual punishment. (Cal. Const., art. I, § 17; U.S. Const., 8th Amend.) Walton has forfeited this claim because he failed to raise it in the trial court. (People v. Norman (2003) 109 Cal.App.4th 221, 229; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) The claim also fails on its merits.
Walton argues that the enhancement fails to recognize gradations of culpability depending on the severity of the offense, fails to consider mitigating factors, and arbitrarily imposes severe punishment for use of a firearm but not other deadly weapons. We disagree.
Under the California Constitution, "a sentence may be cruel or unusual if it is 'so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.'" (People v. Martinez (1999) 76 Cal.App.4th 489, 494.) Because fixing the penalty for crimes is the province of the Legislature, only in the rarest of cases will a court consider declaring that the length of a sentence established by statute is unconstitutionally excessive. (Ibid., citing Harmelin v. Michigan (1991) 501 U.S. 957, 998 and People v. Dillon (1983) 34 Cal.3d 441, 477.) This is not such a case.
We agree with prior cases rejecting the argument that the enhancement fails to recognize significant gradations of culpability and improperly distinguishes between firearms and other weapons. (People v. Martinez, supra, 76 Cal.App.4th at pp. 494-495; accord, People v. Gonzales (2001) 87 Cal.App.4th 1, 16-18; see also People v. Zepeda (2001) 87 Cal.App.4th 1183, 1212-1215.) "Section 12022.53 as a whole represents a careful gradation by the Legislature of the consequences of gun use in the commission of serious crimes. The section is limited, in the first place, to convictions of certain very serious felonies. The statute then sets forth three gradations of punishment based on increasingly serious types and consequences of firearm use in the commission of the designated felonies.... Furthermore, the provision in question is an enhancement to the base term for the underlying conviction; a trial court retains flexibility as to fixing the underlying base term...." (Martinez, at pp. 494-495, fn. omitted.)
The Legislature's determination that use of firearms in the commission of designated felonies justifies substantially longer prison sentences is also constitutionally permissible. (People v. Martinez, supra, 76 Cal.App.4th at p.497.) "The ease with which a victim... could be killed or injured if a firearm is involved clearly supports a legislative distinction treating firearm offenses more harshly than the same crimes committed by other means...." (Id. at pp. 497-498.)
For the same reasons, the sentence is not grossly disproportionate as applied under federal standards. (See Harmelin v. Michigan, supra, 501 U.S. at p. 1001.) The United States Supreme Court has upheld statutory schemes that result in life imprisonment for recidivists upon a third conviction for a nonviolent felony. (See Ewing v. California (2003) 538 U.S. 11, 19-21, 28-30; Lockyer v. Andrade (2003) 538 U.S. 63, 66-67, 73-77.) Walton's use of a firearm poses at least an equivalent danger to the public as the recidivism that triggers a 25 years to life sentence under the three strikes law.
The judgment is affirmed.
We concur: YEGAN, Acting P.J., COFFEE, J.