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People v. Carter

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
Mar 29, 2017
A145062 (Cal. Ct. App. Mar. 29, 2017)

Opinion

A145062

03-29-2017

THE PEOPLE, Plaintiff and Respondent, v. FRANK EARL CARTER, III, Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05-140397-1)

On the night before Thanksgiving 2011, defendant Frank Earl Carter, III embarked on a deadly rampage during which he fatally stabbed Richard Stratton (the stepfather of defendant's girlfriend), stabbed the family dog, and assaulted Stratton's roommate and defendant's own girlfriend. A jury found him guilty of second degree murder, assault with force likely to produce great bodily injury, and assault with a deadly weapon. On appeal, defendant asserts two arguments: the trial court committed reversible error by failing to instruct the jury on imperfect self-defense as a lesser included offense of murder, and there is no substantial evidence he assaulted Stratton's roommate with force likely to produce great bodily injury. We disagree, and we affirm.

EVIDENCE AT TRIAL

Tanya Johns

Twenty-two-year-old Tanya Johns and 19-year-old defendant began dating in August 2011. On November 23, 2011, the day before Thanksgiving, they traveled from Oakland to Pacheco to visit Johns's parents, Ana Castro and Richard Stratton. Defendant was "very distraught" on the trip to Pacheco. Johns described him as "different," "emotional," and "crying on the bus ride" there.

Though Stratton was Johns's stepfather, he was frequently referred to as her parent.

Johns and defendant arrived at the Castro-Stratton home around 2:00 p.m. Castro was home, as was Johns's two-year-old son, Miko, who had been staying with his grandmother. Stratton was out walking the family's two dogs. Pao Katkuoy, a roommate, was home in his bedroom.

Castro greeted Johns and defendant upon their arrival. Defendant did not return the greeting, however, instead entering the house and walking around to look through every room and out into the backyard. Castro became "really upset" and "angry" at defendant's behavior, so Johns attempted to diffuse the situation by asking if she and defendant could take a nap, hoping everything would calm down.

After about two hours in a bedroom, Johns and defendant went into the living room and sat down on the couch. As they were sitting there, Stratton, who had returned from walking the dogs while they were resting and was preparing to take a shower, walked into the living room wearing just a towel. Defendant became upset, saying in a "pretty loud" voice that it was disrespectful for Stratton to appear in front of Johns wearing nothing but a towel. According to Johns, this was not the first time defendant had gotten upset about her being around other men.

Castro became angry about defendant's comment, so Johns took him back into the bedroom to get him to relax. She told him she wanted them to be with her family on Thanksgiving and he needed to apologize to her mother so they could stay. They came out after about an hour, and defendant apologized to Castro.

Castro decided that to relieve the tension, they would have dinner and play poker in the dining room. As they began to play cards, they also started drinking alcohol. Stratton made mixed drinks for Johns, Castro, and himself, but defendant insisted on drinking his alcohol on the rocks without a mixer. Stratton objected to defendant drinking like that, but defendant insisted, and the tension in the group continued to rise. A little while later, defendant asked for a second drink, and Castro told him he needed to slow down.

While they were playing poker, Castro told defendant that Johns should not be in a relationship with him because she was young and should be having fun with other men. Defendant got upset about Castro's remarks but kept playing cards and drinking. Stratton felt uncomfortable so he left the house to buy cigarettes, and the card game came to an end. By the time they stopped playing poker, defendant appeared intoxicated.

When Stratton returned, he and Johns stepped outside to talk and smoke a cigarette. As they were outside, Johns heard defendant and Castro arguing inside. The argument got louder, so Johns and Stratton went inside, where they found Castro repeatedly yelling at defendant, "You guys need to leave. He needs to leave. He has to leave." Defendant responded that he was going to handle it, and Castro started to approach him "as if to hit him." Instead, she said she was going to call 911.

Johns went into the bedroom to get her and defendant's belongings. She walked back into the living room, told defendant they were leaving, and walked out of the house and down the driveway, screaming at defendant, "Let's go." When she noticed he had not followed her, she quickly returned to the house. The other three were standing in the living room, her mother still yelling at defendant to get out. Defendant responded that he was going to stay and "fight" or "finish this." Stratton told defendant that it was time for him to go. Castro aggressively approached defendant as if she were going to hit him, and Stratton stepped in front of her and pushed her back. Defendant turned and punched Stratton in the face, continuing to punch him as they both fell to the ground. Everyone was yelling at defendant to stop but he did not. Castro grabbed Johns by her hair and started hitting her, but Johns broke free from her mother and tried to pulled defendant off Stratton.

At that point, Katkuoy, who had been in his bedroom, entered the room and tried to restrain defendant, who was still on the ground. Katkuoy ended up on his back on the ground with defendant on top of him with his back to Katkuoy's chest. Katkuoy had one arm around defendant's neck and shoulders and the other around his waist. Defendant freed himself from Katkuoy's hold and went into the kitchen and grabbed a knife. Asked on cross-examination if she believed defendant thought he was under attack at that moment, Johns answered affirmatively.

Castro told Katkuoy to call the police and get Miko out. She, Stratton, and Johns followed defendant into the kitchen and yelled at him to let go of the knife. They attempted to get the knife out of his hand, Castro by biting his hand, Stratton by trying to grab the knife away, and Johns by placing her hand on the top of the knife to keep it from injuring anybody. As they struggled with defendant, they fell to the floor while still holding onto defendant's arm, and defendant remained standing with the knife in his hand. Defendant started punching Stratton, and Johns intervened by positioning herself between the two of them. Defendant then hit her in the face multiple times. Everyone got up, and Stratton and Castro retreated to the back of the house. As defendant and Johns remained behind in the kitchen for a moment, defendant picked up a piece of pizza and said, "This ain't a movie. This is reality."

Johns went in search of her parents, walking to the back of the house towards the bedrooms. As she approached one of the bedrooms, she encountered defendant, who grabbed her by her hair and held the knife to her stomach, saying, "I thought you loved me. I thought you cared about me. I thought you loved me more than anybody else. I thought I was your only one. I thought you loved me more than your step dad." Johns was terrified and thought defendant was going to stab her.

At that point, one of the family dogs (a pit bull) started barking, jumped up, and bit Johns on the back of her arm. She fell to the ground, and defendant "got more pissed off" and stabbed the dog. Stratton, who was standing in the doorway of a bedroom, pulled Johns and the dog into the bedroom, closed the door over defendant's resistance, and leaned against the door to keep it closed. Defendant started stabbing the door, stabbing it so hard he stabbed Stratton through the door.

Johns decided she needed to get out of the room to stop the fight, so she opened the door and immediately encountered defendant. Stratton stepped in front of her and pushed her out of the way to protect her, and defendant stabbed Stratton in the stomach and then walked into the living room.

Stratton and Johns left the bedroom and passed through the living room, where they saw Castro and Miko. The dog continued to bark at defendant, who stabbed the dog again.

Stratton and Johns walked out the front door and down towards the driveway, but they realized Castro and Miko were not outside so they turned around. They walked back to the front door, and as Stratton reached for the door, defendant opened it from the inside. Stratton pushed Johns out of the way. Defendant told Stratton to get his hands off of her and then stabbed him in the stomach again.

Stratton, in pain and unable to breathe, walked down the driveway and collapsed. Johns stayed with him while she spoke with the 911 operator. As she was sitting with him, she saw defendant walk up to the front door, look out, and then close the door. She never saw him again.

Pao Katkuoy

Katkuoy confirmed he was sleeping in his room on the afternoon of November 23, 2011 when he was awoken by a disturbance. He could hear an argument about a towel, and after it persisted for a few minutes, he went into the living room, where he saw Johns, Castro, Stratton, and defendant arguing. He saw Stratton point to the door and politely tell defendant they would like him to leave, a request Stratton repeated multiple times. Defendant ignored Stratton, so Katkuoy also told defendant to leave. Defendant ignored him as well. They then tried to "guide him out" the door. As Katkuoy described it at trial, "[W]e kind of push[ed] his back a little bit to walk forward out the door . . . ." As he described it at the preliminary hearing, Stratton was "grabbing him. Tried to like give him a sign that we want you to leave."

Everyone continued to argue and then there was "grabbing, pushing going on" between defendant and Stratton. Katkuoy tried to break it up by grabbing defendant, but defendant grabbed his neck with his hand and choked him. Katkuoy's testimony as to precisely how and where this assault happened was unclear. Asked where they were standing when defendant grabbed him, Katkuoy responded, "In front of the stove, next to the fridge." Describing the choking, Katkuoy said it lasted "for like eight seconds, seven seconds, I [could] barely breathe." When he was being held by the neck, he could feel "[s]cratch[ing] and chok[ing]." He was left with a scratch on his neck.

At first Katkuoy was unable to get away from defendant's grip, but then he pushed and kicked defendant and was able to free himself. After Katkuoy broke free, defendant took a few steps back into the kitchen and grabbed a knife. Everyone was yelling at defendant to stop. Katkuoy left in a panic to call 911. Unable to find his phone, he went to a neighbor's house, knocked on the window, and yelled to call 911.

Katkuoy returned to the house through the side door, and saw defendant in front of his bedroom and Castro with her arms up and yelling, "No, no." Defendant was walking with the knife held above his head. Katkuoy did not believe defendant was going to hurt Castro, so he retreated to the porch and walked down to the driveway, where he waited with neighbors who were starting to gather.

Everyone came out of the house, and Katkuoy could see that Stratton had been stabbed. Defendant walked out the front door and gave a "victory speech . . . something familiar like, I win and you lose. Don't mess with me, something like that." Another neighbor testified that defendant yelled, "That's what you get for fucking with an angry black man."

Defendant went back inside and closed the door. Katkuoy saw him leave the house through the side door and hop the fence.

Ana Castro

Castro's description of the ordeal was very similar to that of Johns and Katkuoy, although it varied on some minor details. She testified that Johns and defendant came to visit on the afternoon of November 23. When they arrived, Stratton was out walking the family dogs, and Katkuoy was in his bedroom. Upon hearing a knock at the front door, Castro opened the door. Without saying hello or giving her any kind of greeting, defendant walked into the house and through all of the rooms. She was confused by his behavior, so Johns followed defendant out the back door to talk to him.

At some point that afternoon, Stratton was doing a load of laundry. The machines were in a narrow hallway, and Johns had to "rub towards" Stratton to get past him. Defendant became upset, telling Johns she was being disrespectful by rubbing past Stratton and she should have said excuse me instead.

Things settled down after that, until later in the afternoon when Johns and defendant were sitting in the living room and Stratton walked by wearing only a towel on his way from his bedroom to the bathroom. Defendant again became upset, commenting in an "unfriendly tone" that Stratton was being very disrespectful. Castro and defendant exchanged words, and she told him she was not going to allow his behavior and they should go home. Stratton came out of the bathroom and tried to diffuse the situation and keep everyone there.

After everyone calmed down, Stratton suggested they play poker. Before they started playing, either he or Castro began to mix drinks for everyone. Defendant wanted his drink straight up, so Stratton poured him about two fingers of whiskey, which defendant "downed." They all settled in to drink their beverages and play cards. While they were playing, there was a second round of drinks, and again defendant drank his straight up. It appeared to Castro that he wanted to get drunk fast.

At some point, they took a break in the poker game, and Johns and Stratton went outside to smoke a cigarette. Castro and defendant remained inside, and defendant commented that it was not normal for Johns and Stratton to be talking alone. Castro became upset and said that her husband had been raising Johns since she was four years old and there was nothing wrong with them smoking together outside. She told defendant that if he had a problem with that, it would be best for him to leave.

Johns and Stratton came back inside, and they again started to play poker. Castro noticed that defendant was not being friendly, so she told him she did not feel comfortable anymore and it would be best if they left. Defendant responded, "Fuck not, I'm not leaving." Castro was scared and picked up a phone, saying she was going to call the police if they did not leave. Johns grabbed the phone from her and when Castro tried to grab it back, Johns's hair got tangled in Castro's hand and it appeared as if Castro was pulling her hair.

Defendant began punching Stratton, who put his arms over his head to try to protect himself. Castro and Johns tried to shield Stratton from defendant's blows, and they were all walking backwards until defendant reached over and grabbed a knife out of the kitchen. The three of them grabbed defendant's arm that was holding the knife, and they ended up on the floor. As they were struggling over the knife and pleading with defendant to stop, Castro bit defendant's hand so he would let go of the knife.

Defendant broke free of their hold, and Castro saw Katkuoy with his hands around defendant's neck and defendant's hands around his neck. She told him to call the police. She then saw Miko in the dining room, so she grabbed him and ran out the front door. She intended to run to a nearby firehouse, but she saw police cars approaching so she ran back to the driveway, where she saw Stratton lying face down.

Stratton's Fatal Injuries and Defendant's Arrest

Stratton died shortly thereafter from three stab wounds to his abdomen and one to his right chest. In addition to the fatal wounds, he suffered blunt force injuries to his head, lacerations to his scalp, bruising and abrasions to his arms, hands, chest, legs, and feet, and seven defensive wounds to his extremities.

Defendant was apprehended early the following morning on the grounds of a nearby refinery. He had superficial scratches to his abdomen, forearm, and hand.

PROCEDURAL BACKGROUND

On February 21, 2014, the District Attorney of Contra Costa County filed an indictment charging defendant with Stratton's murder with a special allegation that he personally used a deadly and dangerous weapon during the commission of the murder. (Pen. Code, §§ 187, subd. (a), 12022, subd. (b)(1).) It also charged two counts of assault, one on Katkuoy with force likely to produce great bodily injury, the other on Johns with a deadly weapon. (Id., § 245, subd. (a)(1).)

Following a jury trial, defendant was found guilty of second degree murder with the personal use of a knife and both assault charges. He was sentenced to 20 years to life in state prison.

This timely appeal followed.

DISCUSSION

The Trial Court Did Not Err in Rejecting Defendant's Request That It Instruct the Jury on Imperfect Self-Defense

Background to the Issue

At a conference on jury instructions, defendant's counsel requested that the court instruct the jury on involuntary and voluntary manslaughter as lesser included offenses of murder. While counsel submitted without argument as to involuntary manslaughter, argument ensued as to voluntary manslaughter, with the court asking counsel to "convince me that we didn't need testimony from your client, or somebody, . . . because imperfect self-defense requires that they have an honest but unreasonable belief. And how do you get to what the belief is without some testimony?" Counsel gave this lengthy response:

"Well, I think—and I'm not being glib here—that we can establish that testimony, not only through direct testimony, for example, having somebody—having [defendant] testify about it, but that—but what also can be inferred from the testimony of other individuals. For example, when Ms. Johns testified, she testified, and I made sure to kind of go through this point with Ms. Johns, that one of the issues was she believed that [defendant] felt he was under attack. I don't mean to kind of digress significantly into the facts of the case leading up to the stabbing, but as the Court knows, there were a number of varied accounts given from Ms. Johns, from Mr. Katkuoy, and from Ms. Castro.

"But beginning with Ms. Johns, she testified that prior to [defendant] ever taking the knife, before getting—going into the kitchen, [Katkuoy] had placed him in a choke hold, and described in a very specific way that [defendant] was facing away from [Katkuoy], on top of [Katkuoy], and [Katkuoy] had [defendant] in a choke hold, escaped that choke hold. It was at that point that Ms. Johns testified that it was her belief that [defendant] felt he was under attack, and that's when he went to the kitchen, grabbed the knife. There was, of course the altercation, over the knife, and that's when the biting occurs by Ms. Castro of [defendant's] hand.

"So at that point we have multiple times where [defendant] has suffered some sort of physical assault at the hands of individuals involved in this altercation.

"What Ms. Johns also testified to, that I think gives significant import and provides context, is that she and her mother also get into an altercation as [defendant] and Mr. Stratton, at least at the outset, are involved in this fight, or this altercation.

"And I think that provides important context, because when you consider all of that, that goes to what [defendant] might have been thinking, might have been considering, when he grabs the knife and ultimately stabs Mr. Stratton.

"The other thing that's important that I haven't discussed here is there has been this sense, at least based on all the testimony, of kind of this elongated time line regarding the altercation. What we know, based on the testimony, that the altercation, from start to finish, happened very quickly. We're talking about . . . between 9:15—approximately 9:15 the altercation starts. The police are called around 9:20 or 9:21 and arrive by 9:24. So we're talking just a matter of minutes that this altercation takes place within. So all these things are happening very quickly in a compressed time frame.

"It should also be noted that when Mr. Katkuoy testified he testified that . . . Mr. Stratton placed his hands first on [defendant], that he initiated the physical contact. Whether that's enough for the jury to believe that that is—that that qualifies as perfect self-defense, it certainly would demonstrate that [defendant], perhaps, had this actual, even if it's unreasonable, belief that Mr. Stratton was going to attack him. And, again, this is all part of the ongoing altercation that occurs just prior to [defendant] stabbing Mr. Stratton.

"So I think both, when we're considering it within the framework of perfect self-defense and imperfect self-defense, I think there's quite a bit of evidence that establishes both of those defenses, and certainly for enough for the instructions to be presented to the jury."

The prosecution disputed that there was evidence of imperfect self-defense: "With regard to imperfect self-defense there—and Mr. Banks [defense counsel] has said he opened with telling this jury this is going to be a case about self-defense. That is immaterial to this Court's analysis as to whether or not there is evidence before this Court and before this jury, more specifically, which would give rise to giving an imperfect self-defense instruction. And under the objective standard we have heard nothing about [defendant's] subjective belief. We have heard different things in passing about what other people may have thought or perceived, but nothing about [defendant's] subjective belief. And that is entirely what imperfect self-defense hinges upon. And without any testimony regarding what he believed at the time it cannot be given."

Defense counsel disagreed:

"I think when the Court looks at, when we all look at, the elements for imperfect self-defense, number one, that the defendant actually believed he was in imminent danger of being killed or suffering great bodily injury, I think the evidence supports that, based on what took place when he was being choked, and frankly, when he was being bitten by Ms. Castro. There are clear injuries. There's clear testimony about those, those injuries.

"The second is whether [defendant] actually believed that immediate use of deadly force was necessary to defend against that danger. This all happens, as I said before, very quickly. He grabs the knife and the stabbing occurs shortly thereafter.

"The third consideration, the third element, is that in order for it to be imperfect self-defense one of those two beliefs has to be unreasonable, and that's the question here. There is certainly an argument that [defendant] had those actual beliefs based on the testimony and the evidence we have here. There's, frankly, evidence that, based on Mr. Stratton's involvement, one of those two beliefs could have been unreasonable. I think it's, based on the evidence, it's very clear, and I think it's incumbent upon the Court to instruct on the imperfect self-defense."

The court denied defendant's request, reasoning as follows: "I think there's a large piece missing here, and I think in order for the jury to get to imperfect self-defense they would have to speculate about what was going on in [defendant's] head. And other people, even those who know him, can't fill in those pieces. They can talk about his demeanor, and . . . [¶] . . . [¶] Ms. Johns can say that he was apprehensive or appeared fearful or appeared upset, but that doesn't fill in the gap that's necessary for imperfect self-defense. There has to be testimony from the individual about what their fear was, and then the jury can evaluate that, whether it was reasonable or unreasonable at the time. Particularly for unreasonable, that critical piece is missing. I think it asks the jury to speculate as to what was going on in his head, and I don't think that under these circumstances I can legitimately give that instruction.

"I think it is different than self-defense. And we can talk more about it if we need to. But imperfect self-defense is a narrowly carved out, I don't want to call it an exception, but it's a carved out theory, and—but it relies on certain pieces of information being plugged in. And I don't think we can ask the jury to speculate as to some of those important pieces . . . ."

Against that background, the trial court instructed the jury on self-defense but not imperfect self-defense.

Analysis

The doctrine of imperfect self-defense negates the element of malice and reduces a homicide to voluntary manslaughter. (People v. Genovese (2008) 168 Cal.App.4th 817, 829 ["One who kills in imperfect defense of another—in the actual but unreasonable belief he must defend another from imminent danger of death or great bodily injury—lacks malice and is guilty only of manslaughter."].) A defendant acts in imperfect self-defense where (1) defendant actually believes that he or she is in imminent danger of being killed or suffering great bodily injury, and (2) he or she actually believes that the immediate use of deadly force is necessary to defend against the danger, but (3) at least one of those beliefs is unreasonable. (CALCRIM No. 571; People v. Randle (2005) 35 Cal.4th 987, 996-997; see also 1 Witkin, Cal. Criminal Law (4th ed. 2012) Crimes Against the Person, § 245, p.1071.) Defendant contends the trial court erred in failing to instruct on imperfect self-defense as a lesser included offense of murder. We independently review defendant's claim of instructional error (People v. Waidla (2000) 22 Cal.4th 690, 733; People v. Cooksey (2002) 95 Cal.App.4th 1407, 1411), and we conclude there was no error.

This is distinguished from perfect self-defense, which renders a homicide justified and thus not criminal. (People v. Randle, supra, 35 Cal.4th at p. 994; Pen. Code, §§ 197, subd. (1), 199, 694.) For a killing to be in perfect self-defense, defendant's acts causing the victim's death must be motivated by an actual and reasonable belief or perception that he was in imminent danger of death or great bodily injury, that his acts were necessary to prevent the injury, and that a reasonable person in the same circumstances would have had the same perception and acted similarly. (People v. Randle, supra, at p. 994; People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) --------

The trial court has a duty to instruct on lesser included offenses "whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed. [Citations.]" (People v. Breverman (1998) 19 Cal.4th 142, 162; accord, People v. Campbell (2015) 233 Cal.App.4th 148; People v. Salas (2006) 37 Cal.4th 967, 982 [substantial evidence is "evidence sufficient for a reasonable jury to find in favor of the defendant"].) Here, there was no substantial evidence establishing that defendant actually believed he needed to use lethal force to protect himself from imminent harm.

Defendant did not testify at trial and made no out-of-court statements indicating that he believed lethal force was necessary to defend his life or avoid great bodily injury. As defendant correctly notes, this does not necessarily preclude an instruction on imperfect self-defense. (People v. Hill (2005) 131 Cal.App.4th 1089, 1102; People v. De Leon (1992) 10 Cal.App.4th 815, 824.) But there must be other substantial evidence of defendant's state of mind. Such evidence is missing here.

The only testimony about what defendant was feeling or thinking on the day of the murder came from Johns. She testified that he was "very distraught" as they traveled from Oakland to her parents' home in Pacheco, describing him as "different," "emotional," and "crying on the bus ride" there. She also testified that when defendant moved into the kitchen and grabbed a knife following the struggle in the living room, she believed he "thought he was under attack at that moment." That is the sum total of testimony regarding what defendant was potentially thinking at the time of the murder. Significantly, that testimony did not include an opinion that defendant thought he was in mortal danger and needed to use lethal force to protect himself from Stratton—the critical element of an imperfect self-defense claim.

There was, however, other testimony reflective of defendant's state of mind, and it is not helpful to defendant. Johns testified that when her mother was yelling at defendant to leave the house, he responded that he was going to stay and "fight" or "finish this." She also testified that after everyone fled the kitchen, defendant paused for a bite of pizza and stated, "This ain't a movie. This is reality." And she testified that she then walked to the back of the house, she again encountered defendant, who pulled her hair, held a knife to her stomach, and said, "I thought you loved me. . . . I thought you loved me more than your step dad." Katkuoy testified that after defendant had stabbed Stratton at the front door and Stratton and Johns had walked down to the driveway, defendant walked out the front door and gave a "victory speech," yelling something like, "I win and you lose. Don't mess with me . . . ." Another neighbor testified that defendant yelled, "That's what you get for fucking with an angry black man." Even under the most charitable construction of the record, these do not manifest a person who fears for his safety, but rather one who is acting out of anger and vengeance.

Nor does evidence concerning the circumstances support an inference that defendant actually believed he needed to resort to deadly force against Stratton in order to protect himself from imminent harm. The acts of aggression against defendant, as he would have us believe they were, consisted of the following: first, Stratton and Katkuoy attempted "to guide" or "push" defendant out of the house when he ignored their requests that he leave; second, Castro aggressively approached him as if to strike him (although Stratton intervened and pushed her back, preventing her from hitting defendant); third, Katkuoy placed him in a headlock to restrain him from further beating Stratton; and fourth, Castro bit defendant's hand in an attempt to get him to drop the knife. No reasonable jury could conclude that that physical contact—most of which was done by Castro and Katkuoy—placed defendant in an actual fear that Stratton, who had done nothing more than attempt to guide defendant out of the house, was going to inflict serious bodily injury upon him.

But even if we were to agree with defendant that there was substantial evidence he actually feared for his safety at the time he grabbed the knife because he was, as he puts it in his opening brief, "fighting alone against four other people and a pit bull," the chronology of the events leading to Stratton's stabbing negates any possible inference that defendant actually believed he faced an imminent threat of harm. This is so because any acts of aggression towards defendant were removed in time from his assault on Stratton. The imminent threat permitting one to act in self-defense or imperfect self-defense must be " 'immediate and present . . . . [O]ne that, from appearances, must be instantly dealt with.' " (People v. Aris (1989) 215 Cal.App.3d 1178, 1187, 1189; accord, In re Christian S. (1994) 7 Cal.4th 768, 783.) That was not the case here.

After the struggle over the knife—which is when defendant claims he felt under attack—the parties separated, with Castro taking Miko outside, Stratton heading to the back of the house, and Katkuoy already outside seeking help in calling 911. Johns and defendant momentarily remained in the kitchen, where defendant took a bite of pizza and said, "This ain't a movie. This is reality." He then followed Johns to the back of the house, where he pulled her hair and assaulted her with the knife. Given this uncontradicted testimony that the turmoil in the living room and kitchen had terminated, defendant's "attackers" had fled, and he had become the pursuer, no reasonable juror could conclude that defendant actually feared an imminent threat from Stratton. (See Menendez v. Terhune (9th Cir. 2005) 422 F.3d 1012, 1028 [evidence that a defendant paused to reload before completing a murder was evidence that he did not fear imminent death or great bodily injury].) While defendant contends there was "considerable inconsistency in the evidence as to the sequence in which events unfolded," the evidence was absolutely consistent that there was a gap between the struggle in the living room and kitchen and defendant's pursuit and stabbing of Stratton.

Further, the evidence clearly showed that Stratton was trying to escape from defendant. He had fled to a bedroom and was using his body to barricade the door to keep defendant from entering the room, only to have defendant stab him through the door. And when Johns opened the door, he pulled Johns out of defendant's way to protect her, never displaying any aggression towards defendant.

Defendant's final blow to Stratton came as Stratton was standing at the front door, intending to reenter the house to find his wife and grandson. While defendant argues that "it is plausible that [defendant] perceived Stratton trying to come back into the house as an imminent threat," we disagree. Not only is this speculation not "plausible," but "plausible" speculation is insufficient to require a jury instruction on a lesser included offense. (People v. Breverman, supra, 19 Cal.4th at p. 162 ["the existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense"].)

People v. Oropeza (2007) 151 Cal.App.4th 73, a case cited by defendant, proves our point. There, the defendant, who did not testify at trial, was convicted of first degree murder and other crimes after he shot and killed a passenger in another car in a road rage incident. (Id. at pp. 76-77.) The Court of Appeal rejected his claim that the trial court had a duty to instruct on voluntary manslaughter based on self-defense. (Id. at pp. 81-82.) As the court observed, "[N]o witness testified appellant fired out of fear or testified appellant appeared fearful. No witness to the incident, not even Lopez [who was driving the truck in which defendant was a passenger] in any of his various versions of the incident, stated they believed deadly force was necessary to protect them. Lopez went no farther than to state that the mutual acts of 'road rage' in which he was admittedly engaged were 'scary.' The only substantial evidence of appellant's state of mind is found in testimony concerning his aggressive and provocative behavior. It suggests only that he fired the shot as an act of aggression." (Id. at p. 82.) Likewise here: there was no testimony that defendant was afraid for his life when he stabbed Stratton, and the evidence concerning the chain of events suggested only that defendant stabbed him as an act of aggression.

In attempt to persuade us that reversal is warranted, defendant complains that the trial court's ruling was contradictory: "By concluding that there was substantial evidence to support instructing the jury on perfect self-defense, and thus implicitly finding sufficient evidence that [defendant] had the subjective 'honest belief required for self-defense, the court also necessarily found sufficient evidence that [defendant] had the mental state required [for] imperfect self-defense." The court in People v. De Leon, supra, 10 Cal.App.4th at p. 824, addressed an identical situation: "[A]ppellant points to an instruction that was given: self-defense. It follows, he argues, that if the trial court found substantial evidence of self-defense (not imperfect self-defense) there was, necessarily, substantial evidence of imperfect self-defense. This is so because self-defense requires both an honest and reasonable belief in imminent peril while imperfect self-defense requires only an honest belief. [¶] It is hard to fault appellant's logic. If there was substantial evidence of his 'honest belief' for self-defense purposes, there was substantial evidence of his 'honest belief' for imperfect self-defense purposes. [¶] But we are satisfied, and so hold, there was not substantial evidence of 'honest belief' for either self-defense or imperfect self-defense." We reach the same conclusion here: there was not substantial evidence of an actual belief of imminent harm for either self-defense or imperfect self-defense. (See also People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1270 [defendant cannot prove the trial court erred in refusing to instruct on imperfect self-defense by arguing that the trial court instructed on perfect self-defense without showing substantial evidence that defendant had the requisite belief in the need to defend from an imminent threat of harm].)

The Jury's Finding That Defendant Assaulted Katkuoy With Force Likely to Produce Great Bodily Injury Was Supported by Substantial Evidence

In his second argument, defendant contends the jury's finding that he assaulted Katkuoy with force likely to produce great bodily injury was not supported by substantial evidence. On a challenge to the sufficiency of the evidence, we "must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We conclude there was substantial evidence that defendant assaulted Katkuoy with force likely to produce great bodily injury.

"Great bodily injury" means "bodily injury which is significant or substantial, not insignificant, trivial or moderate." (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) The term " ' "likely" ' " in this context means " ' "more probable than not." ' " (People v. Russell (2005) 129 Cal.App.4th 776, 787.) The defendant need not use a weapon; an assault with hands or fists will violate the statute if the defendant used force that "was likely to produce great bodily injury." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) Finally, no actual injury is required. (Ibid.)

In seeking to persuade us that his assault on Katkuoy was not likely to produce great bodily injury, defendant discusses two cases—People v. Duke (1985) 174 Cal.App.3d 296 (Duke) and People v. Covino (1980) 100 Cal.App.3d 660 (Covino)—both of which considered whether the evidence concerning a choking incident was sufficient to support a conviction for assault with force likely to produce great bodily injury. In Duke, the court found the evidence to be insufficient (Duke, supra, at pp. 302-303), while the court in Covino reached the opposite conclusion. (Covino, supra, at pp. 667-668.) Defendant contends "[t]he instant case is far closer to Duke than to Covino . . . ." We disagree.

In Duke, defendant grabbed a woman around the neck and touched her breasts through her sweater. She screamed, got loose, and ran off. According to the Court of Appeal, the charge was "based on appellant's use of a headlock to hold his victim while he touched her breast. The headlock made her feel 'choked' but did not cut off her breathing. She could still scream, and she did get away. The victim did not describe an attempt to choke or strangle her." (Duke, supra, 174 Cal.App.3d at p. 302.) The court concluded "that a reasonable jury could not find beyond a reasonable doubt that the headlock used on [the victim] constituted force likely to produce great bodily injury. [Defendant] only grabbed her momentarily and released her almost immediately. She was in no danger from the force actually exerted on her body." (Id. at p. 303.)

In Covino, defendant drove the victim to a secluded location and assaulted her when she refused to perform a sexual act on him. He began to strangle her and she fought back. A deputy sheriff came upon them at that moment and saw defendant "squeezing her neck, his thumbs in the area of her larynx, and she appeared to be gasping and choking, her tongue protruding about an inch and her eyes bulging and her face red." (Covino, supra, 100 Cal.App.3d at pp. 664-665.) The court held that while the victim did not suffer great bodily injury, the evidence concerning "the symptoms she exhibited would support a reasonable inference by a rational trier of fact that the force of appellant's assault, the choking, was likely to produce a serious injury." (Id. at pp. 667-668.)

Unlike Duke but like Covino, there was evidence here that defendant choked Katkuoy and that he was in danger from the force exerted on him. According to Katkuoy's testimony, the choking lasted for seven to eight seconds, during which time he could barely breathe. This was not akin to the momentary headlock described in Duke, as defendant would have us believe. We conclude this testimony would a support a conclusion by a reasonable juror that defendant's assault on Katkuoy was likely to produce a serious injury.

Defendant points to what he claims were the "relative positions" of defendant and Katkuoy to support his argument that the force exerted on Katkuoy was de minimis. As he describes it, "During the 7-8 seconds that [defendant] grabbed backwards at Katkuoy's throat with his right hand, [defendant's] position allowed him to exert minimal leverage: Katkuoy was behind [defendant] with Katkuoy's chest pressed against [defendant's] back. From this awkward position, there was little possibility of [defendant] causing Katkuoy great bodily injury by gripping his neck with only one hand." This argument fails for two reasons. First, their positions at the time of the choking was the subject of varied testimony. While Johns described them as struggling on the ground with defendant on his back on top of Katkuoy, Katkuoy testified they were standing in front of the stove when defendant choked him. Thus, under Katkuoy's version of the assault, defendant had easy access to his neck and could exert significant force when choking him. And we must construe the evidence in the light most favorable to the judgment. (People v. Moon (2005) 37 Cal.4th 1, 22.) Second, Katkuoy testified that defendant grabbed his neck for seven to eight seconds, during which time he could barely breathe. This is evidence that defendant did indeed grip Katkuoy's neck with sufficient force, despite defendant's hypothesis that it was not possible.

DISPOSITION

The judgment of conviction is affirmed.

/s/_________

Richman, Acting P.J.

We concur:

/s/_________

Stewart, J.

/s/_________

Miller, J.


Summaries of

People v. Carter

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
Mar 29, 2017
A145062 (Cal. Ct. App. Mar. 29, 2017)
Case details for

People v. Carter

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. FRANK EARL CARTER, III, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

Date published: Mar 29, 2017

Citations

A145062 (Cal. Ct. App. Mar. 29, 2017)