NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 175083)
A jury found defendant Shawn Martin guilty of second degree murder (Pen. Code, § 187, subd. (a)), being a felon in possession of a firearm (§ 29800, subd. (a)(1)), and shooting at an occupied vehicle (§ 246), together with true findings that he personally and intentionally discharged a firearm causing death (§§ 12022.5, subd. (a), 12022.53, subds. (b), (c) & (d), 12022.7, subd. (a)). The trial court sentenced him to an aggregate term of 40 years to life, consisting of 15 years to life for the second degree murder conviction and 25 years to life for the related firearm use enhancement under section 12022.53, subdivision (d). The trial court stayed the imposition of sentence regarding the remaining convictions and related enhancements.
All further unspecified statutory references are to the Penal Code.
On appeal, defendant claims instructional error and that the trial court's response to a question by the jury requires reversal. We find no error in the jury instructions given. However, the trial court, in responding to the jury's question, failed to clarify or correct the prosecution's misstatement of the law regarding the antecedent threats instruction (CALJIC No. 5.50.1) and the imperfect self-defense instruction (CALJIC No. 5.17). We conclude this was prejudicial error, and we reverse the second degree murder and the shooting at an occupied vehicle convictions and remand for a new trial on these offenses. We affirm the felon in possession of a firearm conviction.
EVIDENCE AT TRIAL
The charges against defendant arose from an incident between defendant and the 21-year-old murder victim, Melissa Martinez. A. Defendant's Altercations with the Victim
1. Initial Altercation
Defendant and the victim were neighbors in an area known for gang activity and gun violence. Along with her parents and her girlfriend, the victim lived in a house behind defendant's apartment.
In early April 2014, defendant had an argument with his landlord in the common area outside of his apartment. The victim's mother joined in support of the landlord; defendant called the victim's mother a "bitch." Later that evening, approximately 10:00 p.m., the victim and her girlfriend were returning home when defendant came out of his apartment and walked toward his car. The victim and her girlfriend were approximately 24 feet behind defendant's car when the victim called out something to the effect of, " 'Let them call my mom a bitch again.' " This statement was not directed at any specific person. The victim "probably" added, " 'The next time, you know, it's going to be bad' " or " 'it's all bad.' " The victim was small in stature; she had short hair and was described as dressing "like a boy." Defendant walked toward the victim and pointed a gun in her face. When defendant realized the victim was a woman, he said, " 'Oh, you're a female' " or " 'you're a bitch,' " then walked away.
2. Second Altercation
On the evening of April 23, 2014, the victim planned to drive over to her cousin's house. She got into her car, but before she could drive away, defendant approached her parked car and shot her twice in the head. Defendant ran back to his apartment and called 911. After calling 911, defendant got in his car and drove away.
The victim's family and her girlfriend rushed outside. They found the victim in her parked car with the engine running. The driver's side door was open, and the victim was sitting in the driver's seat with her left leg hanging out of the car.
Paramedics and police soon arrived. The victim was declared dead at the hospital. B. Defendant's Initial Statements to Police
About two hours after the 911 call, police officers located defendant. As defendant was the original reporting party, he was asked to provide a statement. Also, he was videotaped. During a videotaped interview at the substation, defendant spoke with Officers Blakely and Khem.
Defendant denied involvement in the shooting and signed a written statement that was read into evidence by Officer Khem. In the written statement, defendant said he was in his front yard when he heard two to three gunshots. He ran inside and called the police. He claimed his landlord may have tried to shoot him because of several prior disagreements he had had with her. Defendant did not see who was shooting or who was shot. He first learned the victim's identity when he saw the paramedics pulling the victim out of her car. Defendant did not know the victim and had never spoken to her. However, about a week before the shooting, defendant had gotten into an argument with the victim's mother.
The entirety of defendant's videotaped interview with Officers Khem and Blakely was later played for the jury; transcripts of the interview were provided but not entered into evidence. In the recorded interview, defendant explained that over the course of several weeks, his landlord had been "[i]nvading [his] space" by walking around the exterior of his apartment, bringing in the trash cans, and having his car towed. During one such disagreement, the landlord was with a man who "brandish[ed] a weapon." The same man later told defendant that his landlord had "paid somebody to burn [his] cars." When asked to confirm whether his landlord had hired someone to harm him, defendant recanted and said, "No [I] just feel that [way]. [¶] . . . [¶] It was a faint idea."
Defendant explained that, about a week before the shooting, his landlord brought the victim's mother into his yard and an argument ensued. He claimed the victim's mother had been colluding with his landlord to cause damage to his vehicle.
Defendant initially denied seeing the shooting, but later, without any additional information from police officers, he identified the victim's car. Although he claimed not to know the victim, he was able to describe her physical appearance, which he said was "dudeish" and "really butch."
Defendant initially said he was unable to see the assailant or the color of his clothing but then later said the shooter was a "[g]uy in a beige jacket." Defendant saw the victim's "door fly open like she was about to say something to somebody and shit fire . . . ." Defendant thought the victim might have attempted to directly speak to him. As defendant attempted to approach the victim, he "heard shots" and saw her car "get lit . . . up."
Near the end of the interview, Officers Blakely and Khem administered a gunshot residue (GSR) test. The officers later transported defendant to the downtown station, where he met with Sergeants Calonge and Basa. C. Defendant's Subsequent Statements to Police
At the main police station, Sergeants Calonge and Basa interviewed defendant for approximately four hours. During the first two hours of the interview, defendant continued to deny any involvement in the shooting. Defendant also added additional details to his written statement. For example, he claimed he heard a male voice call out for the victim.
Defendant said he did not own a gun. When confronted with the positive GSR test, defendant claimed he had been lighting fireworks. Once police explained that they " 'kn[e]w everything' " and advised him that they had found his gun, defendant admitted that he shot the victim. Defendant said he shot the victim because she pulled a gun on him first. D. Police Investigation
Police officers interviewed defendant's landlord, who described a number of recent confrontations between defendant and the victim's family. On one occasion, she saw defendant "brandish" a gun at the victim. Police officers interviewed the victim's mother, who told a similar story. Police officers also interviewed the victim's girlfriend several times. Initially, she denied that she had ever seen the victim carry a firearm, but eventually she told the police that she had known the victim to carry a firearm in a small backpack. She had not, however, seen the victim with a firearm on the day of the shooting.
When police officers searched the victim's home, they located a plastic firearm holster, the butt stock of a BB gun, and a gun case. The gun case contained miscellaneous items, but no firearm. Police officers also searched the victim's vehicle and found a canvas gun bag, but no firearm.
The police never found the victim's gun. Police officers searched defendant's residence and found a small shoe bag stashed in his backyard, which contained a revolver and some live ammunition.
An autopsy revealed the cause of death was two gunshot wounds to the victim's head. Both gunshot wounds showed stippling, which indicated the victim was shot at close range. Bullets recovered from the victim's body were linked to the firearm retrieved from defendant's backyard. DNA material obtained from the firearm matched defendant. E. Defendant's Testimony
1. Direct Examination
In early April 2014, before the shooting in this case, defendant was in his apartment when he heard his landlord talking to the victim's mother at his door. He felt uncomfortable because he had not invited them onto his property, so he went outside, called the victim's mother a "bitch," and asked her to leave.
Later, that night, defendant went outside to get something from his car. He had his gun with him because it was after dark. As he sat in his car, defendant heard the victim yell in a "[v]ery aggressive" tone, " 'Say, bruh, you call my mom a bitch, bruh?' " The victim's hands were in her pockets, "just fluffing her jacket and moving around real crazy-like." After hearing the victim's voice, defendant got out of his car. Defendant was much larger than the victim, and, thus, he assumed she would not speak to him as she had unless she were armed. Defendant drew his firearm and approached the victim. When he realized the victim was a woman, he said, " 'I thought you were a fucking dude.' " " 'Go in the house and leave me alone.' "
On the evening of April 23, 2014, defendant was at home when he heard a noise that sounded like someone opening the gate to his property. He went outside to investigate because he thought someone might be "snooping" around his home. He walked about 12 to 15 feet from his front gate when he heard a car door open. He saw the victim getting out of the car. In an aggressive and threatening tone, the victim asked defendant, " 'What are you looking at? You said something? Did you say something? What'd you say?' "
Defendant testified that he was afraid for his life; but he moved toward the victim because she was "addressing [him] in a threatening manner," he saw her digging for what he "thought" was a weapon, and he had "nowhere to run." As he moved closer, he saw the victim partially pull a gun out of her pocket with her right hand. The driver's side door was more than halfway open. Defendant ducked to the left, reached over the car door, and fired a shot. When he saw the victim's right elbow move, he fired a second shot.
Defendant ran back to his apartment and called 911 to report the shooting. He did not tell the operator that he had shot the victim because he was afraid he would not be believed. While on the phone with 911, defendant went back outside and saw the victim's family moving around her car. He saw the victim's father reaching into the car through the passenger side, but he did not see the victim's father with a gun.
Defendant went back inside his apartment, put his gun in a shoe bag, and dropped it in a bush in his backyard. He then walked out the front door and drove away.
On cross-examination, defendant admitted that, for approximately half of his four-hour interview with Sergeants Calonge and Basa, he made false statements and omissions to misdirect their investigation. For example, when the officers asked him whether he had an altercation with the victim on the night of the shooting, he denied having done so but failed to explain that he had had an altercation with the victim earlier in the month. He omitted these and other details because he did not want to be considered a suspect. Defendant also admitted that his statements about his landlord were "[i]n no way" true.
Defendant acknowledged that for the first two hours of questioning, he maintained his role as a concerned bystander. Defendant conceded that he admitted to shooting the victim only after police explained that they " 'kn[e]w everything' " and that they had found his gun.
On cross-examination, defendant further admitted that during the first altercation, before the shooting, he thought the victim was rude and acted "out of pocket" (i.e., "disrespectful") in the way she talked to him. In response, he " 'whipped out on her,' " or pulled his firearm on her. He admitted he had also " 'whipped out on her' " during the April 23 shooting. He told the police the victim was curled up away from the door with her hands down by her side.
Defendant testified that on the night of the shooting, he approached the front bumper of the victim's car and heard her say, " 'You say something to me, bruh[?]' " and he just " 'took it the wrong way.' " He acknowledged that he told the district attorney that he " 'moved a little faster than [he] needed to, because bottom line, she . . . talked the game as if she had it [a firearm], which she did, but she just didn't pursue.' " Defendant added, " 'I mean, she possessed. I didn't look in her car. I didn't notice no gun there.' " He stepped or skipped around the car toward the driver's side door. He did not know whether she was armed and did not wait to find out. The victim's body language suggested to defendant that it was " 'about to be hell fire.' " Defendant " 'just panicked' " and " 'made the biggest mistake of [his] life.' "
Defendant acknowledged on cross-examination that he told the district attorney that he had " 'really fucked up' " and repeated that he had " 'fucked up royally . . . .' " He said he acted in " '[s]tupid haste . . . .' " He added, " 'I felt that I would not have hurt that person as badly if . . . I paid more attention [to] what the hell I was doing . . . .' "
Defendant acknowledged that he had told police officers the victim was not a threat to him during the first altercation and that he had never seen her with a firearm. He acknowledged that the victim actually had reason to be afraid of him as he approached her vehicle with his hand in his pocket because he had previously pulled a gun on her. He also acknowledged that he had told police officers that when he approached the victim's vehicle, her car door was barely open, as though she were simply getting air and not as though she were exiting the vehicle. F. Closing Arguments
1. Prosecution's Closing Argument
The prosecutor urged the jury to reject defendant's self-defense theory, arguing that the victim—not defendant—actually was the person with the right to use deadly force in self-defense. The prosecutor emphasized CALJIC No. 5.50.1, the antecedent threat instruction, and incorrectly told jurors they should substitute the victim's name for the threatened person, and to consider defendant as the source of the prior threat. The prosecutor then read his modified version of the instruction to the jury: "In addition, Melissa Martinez, whose life or safety was previously threatened and assaulted by the defendant, is justified in acting more quickly and taking harsher measures for self-protection from an assault by the defendant." Directing jurors to focus on the first altercation, he argued that once defendant approached the victim on the night of her killing, "the law says that at that point in time Melissa Martinez had an absolute right to self-defense, ha[d] a right to defend herself from being attacked by somebody who ha[d] already assaulted her."
The prosecutor incorrectly urged jurors to focus on the victim's state of mind, arguing that she would be reasonably in fear of defendant based on the earlier incident and because of this fear she had a lawful right to shoot him when he approached her in her car. He argued, "[T]he law says Melissa gets to shoot him. The law says she has a right to self-defense at that point." He further argued defendant had forfeited his own right to self-defense: "The defendant is the aggressor. The defendant is the one who has assaulted somebody before. That person doesn't get to shoot somebody else and say it's self-defense."
2. Argument by the Defense
Defendant's defense theory was that he shot the victim in the actual and reasonable belief that she was going to kill him or cause him great bodily injury. Counsel argued that based on the victim's earlier threat that " 'next time it will be all bad' " and her actions on the night of her death, defendant reasonably believed she was armed and about to shoot him. Counsel argued: "There's no duty to retreat. You don't have to wait for the other side to act. The danger need not necessarily be real. Your belief in it has to be real and it has to be reasonable." Once defendant saw the victim reaching into her jacket as though she were pulling out a weapon, it was reasonable for him to act and "not wait and see if she's successful in pulling out a weapon and firing at him first . . . ."
3. Prosecution's Rebuttal
The prosecutor told the jury: "[Y]ou're going to tell the defendant Melissa Martinez didn't have to take it. She didn't have to take it."
Defendant claims the trial court erroneously instructed the jury on the concepts of self-defense by an aggressor and contrived self-defense. He also contends the trial court, in responding to a question from the jury, prejudicially erred in failing to clarify that—when considering prior threats—the focus is the defendant's state of mind at the time of the crime based on prior threats of the victim. A. Law of Self-defense
Before addressing defendant's claims of error, we provide an overview of the law of self-defense.
Self-defense is perfect or imperfect. (People v. Randle (2005) 35 Cal.4th 987, 994, overruled on another point in People v. Chun (2009) 45 Cal.4th 1172, 1201.) "A homicide is considered justified as self-defense where the defendant actually and reasonably believed the use of deadly force was necessary to defend himself from imminent threat of death or great bodily injury. Under such circumstances, the killing is not a crime. [Citations.] Where the defendant kills while actually but unreasonably believing the use of deadly force was necessary, defendant is considered to have acted in imperfect self-defense. Imperfect self-defense is not a complete defense to a killing, but negates the malice element and reduces the offense to voluntary manslaughter. [Citations.] 'The subjective elements of [perfect] self-defense and imperfect self-defense are identical. Under each theory, the [defendant] must actually believe in the need to defend . . . against imminent peril to life or great bodily injury.' [Citation.]" (People v. Sotelo-Urena (2016) 4 Cal.App.5th 732, 744.)
In self-defense cases, the defendant's state of mind is the primary focus. (People v. Minifie (1996) 13 Cal.4th 1055, 1068.) "[T]he law recognizes the justification of self-defense not because the victim 'deserved' what he or she got, but because the defendant acted reasonably under the circumstances. Reasonableness is judged by how the situation appeared to the defendant, not the victim. . . . 'Because "[j]ustification does not depend upon the existence of actual danger but rather depends upon appearances" [citations], a defendant may be equally justified in killing a "good" person who brandishes a toy gun in jest as a "bad" person who brandishes a real gun in anger.' If the defendant kills an innocent person, but circumstances made it reasonably appear that the killing was necessary in self-defense, that is tragedy, not murder." (Ibid.) B. Instructions Regarding Self-defense by Aggressor and Contrived Self-defense
Defendant contends the trial court improperly instructed the jury on the principles of self-defense by an aggressor and contrived self-defense. He argues that these instructions were not supported by the evidence. He asserts that he was not required to object to these improper instructions, but in the event he was, his failure should be excused because his substantial rights were affected by the giving of the instructions. In the event we conclude he has forfeited these claims, defendant asserts his counsel was ineffective for failing to object to the giving of the challenged instructions.
1. Standard of Review
"A trial court must instruct the jury on every theory that is supported by substantial evidence, that is, evidence that would allow a reasonable jury to make a determination in accordance with the theory presented under the proper standard of proof. [Citation.] We review the trial court's decision de novo." (People v. Cole (2004) 33 Cal.4th 1158, 1206.)
Similarly, "[w]e review de novo whether a jury instruction correctly states the law. [Citations.] Our task is to determine whether the trial court ' "fully and fairly instructed on the applicable law." [Citation.]' [Citation.] When instructions are claimed to be conflicting or ambiguous, 'we inquire whether the jury was "reasonably likely" to have construed them in a manner that violates the defendant's rights.' [Citation.] We look to the instructions as a whole and the entire record of trial, including the arguments of counsel. [Citations.] We assume that the jurors are ' " 'intelligent persons and capable of understanding and correlating all jury instructions . . . given.' " ' [Citation.] If reasonably possible, we will interpret the instructions to support the judgment rather than to defeat it. [Citation.] Instructional error affects a defendant's substantial rights if the error was prejudicial under the applicable standard for determining harmless error." (People v. Franco (2009) 180 Cal.App.4th 713, 720.) "In this regard, '[t]he cases equate "substantial rights" with reversible error' under the test stated in People v. Watson (1956) 46 Cal.2d 818 . [Citation.]" (People v. Felix (2008) 160 Cal.App.4th 849, 857; People v. Mitchell (2008) 164 Cal.App.4th 442, 465.)
"Generally, a party forfeits any challenge to a jury instruction that was correct in law and responsive to the evidence if the party fails to object in the trial court. [Citations.] The rule of forfeiture does not apply, however, if the instruction was an incorrect statement of the law [citation], or if the instructional error affected the defendant's substantial rights. [Citations.] ' "Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim—at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was." ' " (People v. Franco, supra, 180 Cal.App.4th at p. 719.)
2. Self-defense by an Aggressor
The trial court instructed the jury with CALJIC No. 5.54, which provided as follows: "The right of self-defense is only available to a person who initiated an assault, if [¶] [[1.] He has done all the following: [¶] A. He has actually tried, in good faith, to refuse to continue fighting; [¶] B. He has by words or conduct caused his opponent to be aware, as a reasonable person, that he wants to stop fighting; and [¶] C. He has by words or conduct caused his opponent to be aware, as a reasonable person, that he has stopped fighting. [¶] After he has done these three things, he has the right to self-defense if his opponent continues to fight[.]] [, or] [¶] [[2.] [if] [T][t]he victim of simple assault responds in a sudden and deadly counterassault, the original aggressor need not attempt to withdraw and may use reasonably necessary force in self-defense.]" (Sic.)
Defendant argues the trial court erred by instructing the jury with CALJIC No. 5.54 without defining the term "assault" because it has a technical meaning that is peculiar to the law. Without the definition of "assault," he claims the jury could have been confused about whether his actions constituted a " 'simple assault' " and whether the victim's actions rose to the level of a sudden and deadly " 'counterassault.' " He is mistaken.
Authorities regarding the right to self-defense by an initial aggressor commonly substitute the word "assault" with synonyms, e.g., "fight" and "quarrel," which have no technical legal meaning and are commonly understood by those familiar with the English language. (See, e.g., People v. Ross (2007) 155 Cal.App.4th 1033, 1045-1047 [self-defense by an initial aggressor may justify a killing in the course of " 'a duel or other fight' "]; People v. Baker (1999) 74 Cal.App.4th 243, 252-253 [to "fight" is to commit a simple assault, rather than to commit an assault with a deadly weapon or with deadly force]; People v. Sawyer (1967) 256 Cal.App.2d 66, 75, fn. 2 [self-defense by an initial aggressor may apply where " 'a person seeks or induces a quarrel' "].) Indeed, the analogous CALCRIM instruction, No. 3471, does not use the word "assault" at all, but instead describes the right as arising in circumstances where a "defendant started the fight . . . ." (Bench Notes to CALCRIM No. 3471 (2019) p. 1014.)
CALJIC No. 5.54 makes clear that its purpose is to exculpate those who kill after initiating a nondeadly physical altercation if they clearly communicated their desire to stop fighting or if their opponent suddenly escalated to the use of deadly force. Such an analysis does not require the legal definition of "assault."
Moreover, the giving of the self-defense by an aggressor instruction was supported by substantial evidence. The jury could rationally conclude that defendant was the initial aggressor in the second altercation with the victim and that he failed to make a good faith effort to stop fighting, and his words and conduct did not convey to the victim that he wanted to stop fighting and that he had stopped fighting. As described, defendant walked up to the front bumper of the victim's parked vehicle while she was sitting in the driver's seat. The victim then aggressively said, " 'What are you looking at? You said something? Did you say something? What'd you say?' " The victim did not become the initial aggressor because mere words do not rise to the level of an assault. (People v. Wright (2002) 100 Cal.App.4th 703, 716.) Defendant acted as the initial aggressor when he responded to the victim's statement by " 'skipp[ing]' " two steps toward her driver's side door while concealing a firearm in his pocket. (See ibid. [rushing toward another with menacing gestures and with a purpose to strike is an assault]; People v. Baker, supra, 74 Cal.App.4th at pp. 252-253 [a defendant may be guilty of simple assault, rather than assault with a deadly weapon, if he or she is engaged in an altercation while armed but without the present intent to display or use the weapon].)
Immediately afterward, defendant allegedly saw the victim pull a gun partially out of her jacket pocket with her right hand, thereby committing a sudden and deadly counterassault. If believed, defendant's version of the events would have allowed him to use reasonably necessary force to defend himself in that moment.
Because the instruction was legally correct and responsive to the evidence, defendant was not prejudiced and his substantial rights were not implicated. (People v. Franco, supra, 180 Cal.App.4th at p. 719.) For these same reasons, his counsel was not ineffective for failing to object to the giving of the self-defense by aggressor instruction. (See People v. Price (1991) 1 Cal.4th 324, 386-387 [defense counsel is not required to make frivolous objections].)
3. Contrived Self-defense
The jury was instructed with CALJIC No. 5.55, which states that the "right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense."
The jury could rationally conclude defendant provoked the conflict between the victim and himself by approaching the victim's front bumper while she was sitting in the driver's seat. The victim addressed the defendant in a "threatening" and "aggressive" tone. Defendant then moved closer to the driver's side door and shot the victim twice in the head. If the jury determined the victim yelled at defendant in response to defendant's proximity to her and her car, he did not have the right to use deadly force to settle the confrontation he arguably created. This conduct provided a factual predicate for instructing the jury on contrived self-defense. Because the instruction was legally correct and responsive to the evidence, defendant was not prejudiced and his substantial rights were not implicated. (People v. Franco, supra, 180 Cal.App.4th at p. 719.) For these same reasons, his counsel was not ineffective for failing to object to the giving of the contrived self-defense instruction. (See People v. Price, supra, 1 Cal.4th at pp. 386-387 [defense counsel is not required to make frivolous objections].) C. The Trial Court's Response to the Jury's Question
Defendant claims the trial court erred by not correcting the prosecution's misstatement of the law and providing further clarification in response to the jury's question about the interplay of the theories of imperfect self-defense and self-defense arising from antecedent threats.
1. Standard of Review
"The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information. [Citation.] Indeed, comments diverging from the standard are often risky. . . . But a court must do more than figuratively throw up its hands and tell the jury it cannot help. . . . It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given." (People v. Beardslee (1991) 53 Cal.3d 68, 97.) We review for an abuse of discretion any error under section 1138. (People v. Hodges (2013) 213 Cal.App.4th 531, 539.)
"Section 1138 error due to the trial court's failure to adequately answer the jury's question is subject to the prejudice standard of People v. Watson (1956) 46 Cal.2d 818, 836 , i.e., 'whether the error resulted in a reasonable probability of a less favorable outcome. [Citation.] In this context, "reasonable probability" means " 'merely a reasonable chance, more than an abstract possibility,' of an effect of this kind." [Citation.]' [Citation.]" (People v. Hodges, supra, 213 Cal.App.4th at p. 539.) However, when the jury receives a legally incorrect theory, we apply the harmless error test from Chapman v. California (1967) 386 U.S. 18. (People v. Aledamat (2019) 8 Cal.5th 1, 3-4, 7-8.) Under this standard, a "reviewing court must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, it determines the error was harmless beyond a reasonable doubt." (Id. at p. 13.)
2. Additional Background
a. Self-defense Instructions Given
The jury was instructed with a full panoply of self-defense instructions informing it of the right to self-defense if defendant believed he was in peril. These instructions included prior threats by the victim (CALJIC No. 5.50.1) and actual but unreasonable belief in the necessity to defend oneself—manslaughter (CALJIC No. 5.17).
Instructions informing the jury of the right to self-defense included self-defense against assault (CALJIC No. 5.30), justifiable homicide in self-defense (CALJIC No. 5.12), lawful defense of self (CALJIC No. 5.13), charge of murder—burden of proof regarding justification or excuse (CALJIC No. 5.15), assailed person need not retreat (CALJIC No. 5.50), actual danger not necessary (CALJIC No. 5.51), and self-defense when danger ceases (CALJIC No. 5.52).
CALJIC No. 5.50.1, as read by the court, provided as follows: " 'Evidence has been presented that on a prior occasion, the alleged victim threatened or assaulted or participated in an assault or threat of physical harm upon the defendant. If you find that this evidence is true, you may consider that evidence on the issues of whether the defendant actually and reasonably believed that his life or physical safety was in danger at the time of the commission of the alleged crime.
" 'In addition, a person whose life or safety has been previously threatened, or assaulted by another, is justified in acting more quickly and taking harsher measures for self protection [sic] from an assault by that person, than would a person who had not received threats from or previously been assaulted from [sic] the same person.' "
CALJIC No. 5.17, as read by the court, provided as follows: " 'A person who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawful [sic] but does not harbor malice aforethought and is not guilty of murder. This would be so even though a reasonable person in the same situation seen [sic] or knowing the same facts would not have had the same belief. Such an actual but unreasonable belief is not a defense to the crime of voluntary manslaughter, nor is it a defense to the crime of shooting into an occupied vehicle.
" 'As used in this instruction, an "imminent" peril or danger means one that is apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the slayer.
" 'However, this principle is not available, and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversary's use of force, attack, or pursuit.
" 'This principle applies equally to a person who kills in purported self-defense or purported defense of another person.' "
b. Jury Question
On the third day of deliberations, the jury presented the following written question to the court: "If we agree that the early April encounter would justify Melissa taking harsher measures in the encounter with [defendant] 4/23 according to 5.50.1, if she pulls out a gun in response to his approach, does he have a right at that point to defend himself or has he forfeited it per 5.17?"
Outside of the presence of the jury, the court heard argument from the parties. The prosecution argued the jury had made a factual determination that defendant was the initial aggressor, which left only a legal question. The legal question was that if defendant was the initial aggressor, "he no longer ha[d] a self-defense [sic] as specifically stated in [CALJIC Nos.] 5.17 and 5.50.1." The prosecutor maintained CALJIC No. 5.50.1 contained a correct statement of the law, which did not specify whether it applied exclusively to either the defendant or the victim.
Defense counsel argued the jury had confused who, either defendant or the victim, could claim the right of self-defense. Even if the victim did have a right to claim self-defense, her right did not necessarily negate defendant's right to also claim self-defense. As a result, the question was a legal question and the answer was defendant "ha[d] not forfeited the right to self-defense just because [the victim] was entitled to take harsher measures. He was too, because there was an antecedent threat to him." Defense counsel further argued that mutual self-defense was possible and suggested that the trial court reread the given instructions to the jury.
The trial court ruled that rereading the given instructions to the jury was not warranted because the jury showed that it was "familiar with and ha[d] considered the language of both [of] those instructions." "When the jury asks, does he have a right at that point to defend himself, or has he forfeited it, they are asking for a[n] . . . answer to a question of fact," and it "would be inappropriate for [the trial court] to do that."
The trial court submitted the following response, in relevant part: "The last part of your question, '. . . if she pulls out a gun in response to his approach, does he have a right at that point to defend himself, or has he forfeited it per [instruction 5.17]', apparently refers to the third paragraph of instruction 5.17, which reads as follows: '[h]owever, this principle is not available, and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversary's use of force, attack or pursuit.'
"Your question, 'does he have a right at that point to defend himself or has he forfeited it per 5.17', is a question of fact which only you can resolve. It would be inappropriate for me to suggest an answer to this question, as it would invade the province of the jury to determine all questions of fact." (Boldface omitted.)
CALJIC No. 5.50.1 is a pinpoint instruction related to self-defense. Where, as here, the jury is instructed on the general principles of self-defense with CALJIC No. 5.30 [reasonable belief in the necessity to defend against imminent injury] and imperfect self-defense with CALJIC No. 5.17 [actual but unreasonable belief in the necessity to defend against imminent peril of death or great bodily injury may reduce murder to manslaughter], CALJIC No. 5.50.1 expands on factors that might make a reasonable person believe that there is imminent peril.
The jurors' note reflects they were confused about how to apply the antecedent threats instruction and how it related to imperfect self-defense. The confusion is likely the result of less than precise wording in the instruction. The first paragraph of the instruction advised the jury to consider whether the "victim [threatened] . . . the defendant" and the effect of such prior threats on the defendant's state of mind at the time of the crime. The second paragraph, however, advised the jury that "a person" who has been previously threatened "by [another] is justified in . . . taking harsher measures for self protection [sic] from an assault by [that person], than would a person who had not . . . previously been assaulted by the same person." The prosecutor seized on this ambiguity and incorrectly argued that the "person" who had been previously threatened was the victim.
Notably, this ambiguity does not exist in the CALCRIM instructions. There is no direct CALCRIM counterpart to CALJIC No. 5.50.1. Instead, it is subsumed in the imperfect self-defense instruction, CALCRIM No. 571, which advises the jury to consider the defendant's wrongful conduct, as well as whether the "decedent/victim" threatened the "defendant" in the past, "[i]n evaluating the defendant's beliefs . . . ." Given the circumstances of this case, it would have been preferable for the court to have given CALCRIM No. 571, which clearly sets forth the theory of imperfect self-defense and the effect of any prior threats made by a victim against a defendant.
We do not fault the trial court for using the approved CALJIC instruction; this instruction is still legally valid. The fault, however, lies in the prosecutor's incorrect argument and the trial court's failure to correct it.
To the Attorney General's point, defendant's wrongful conduct was relevant in considering whether he was entitled to claim either perfect or imperfect self-defense. (See, e.g., People v. Watie (2002) 100 Cal.App.4th 866, 873 [defendant could not claim self-defense after he confronted victim and threated to "whip his ass"]; People v. Frandsen (2011) 196 Cal.App.4th 266, 275 [no right of self-defense where victim fought back against unlawful imprisonment].) The purpose of considering antecedent threats by the victim, however, is to evaluate the reasonableness of the defendant's state of mind at the time of the crime. The victim's state of mind was simply not relevant in considering whether the defendant reasonably believed he was in imminent peril at the time of the crime. The jury's question suggests that it was conflating the wrongful conduct limitation in CALJIC No. 5.17, which considers a defendant's conduct at the time of the crime, with his prior conduct. (See, e.g., People v. Moore (1996) 44 Cal.App.4th 1323, 1331 [court has primary duty to help jury understand legal principles it is asked to apply].) The trial court was obligated to explain that CALJIC No. 5.50.1 applied to the victim's prior conduct and the wrongful conduct limitation in CALJIC No. 5.17 applied to defendant's conduct at the time of the crime. (See People v. Beardslee, supra, 53 Cal.3d at p. 97.) In light of the prosecutor's erroneous argument and the trial court's failure to correct it and clarify that the relevant antecedent threats were those the victim made against defendant was error. We must decide next whether the error is prejudicial.
In framing its response to the jury, the trial court failed to address the jury's apparent confusion regarding the legal impact of the defendant's prior threats against the victim. As discussed, the prosecutor relied on an invalid legal theory. The prosecutor focused on the victim's state of mind based on defendant's prior threats against her. The wording of the jury instruction permitted this erroneous theory, which the trial court failed to correct. It is entirely possible that the jury believed that the victim had threatened the defendant with a gun but concluded defendant had no right to self-defense because he had previously threatened the victim. The jury's note—asking "if [the victim] pulls out a gun" has the defendant "forfeited" his right to self-defense based on the prior encounter—supports this conclusion.
That the prosecutor made the argument that he did is inexplicable. Whether he did so through ignorance of the law or in bad faith is immaterial as there is no claim of prosecutorial misconduct before us.
The jury's question indicates it was in the process of determining whether defendant's wrongful conduct negated his claim of self-defense. That the jury deliberated for more than four days before reaching its second degree murder verdict suggests this was a close case. (See, e.g., People v. Cardenas (1982) 31 Cal.3d 897, 907 [six hours of deliberations is evidence of a close case].) On this record, we cannot determine the legal error was harmless beyond a reasonable doubt.
In light of the prosecutor's legally incorrect theory, and the trial court's failure to alleviate this confusion when responding to the jury's question, it is also reasonably probable that the jury evaluated defendant's right to self-defense based on his prior conduct toward the victim.
We therefore conclude the trial court abused its discretion in failing to adequately respond to the jury's question and this error was prejudicial under both state and federal standards. D. Sentencing
By reason of this holding, we need not address defendant's claim of cumulative error.
Defendant's claim that the matter should be remanded to allow the court to consider striking the firearms enhancements under section 12022.53, subdivision (h) is moot in light of our conclusion that the judgment must be reversed.
The judgment is reversed in part and affirmed in part. We reverse the second degree murder (§ 187, subd. (a)) conviction and the shooting at an occupied vehicle (§ 246) conviction and remand for a new trial on these offenses. We affirm the felon in possession of a firearm (§ 29800, subd. (a)(1)) conviction. On remand, the trial court is directed to amend the abstract of judgment accordingly and forward the amended abstract to the Department of Corrections and Rehabilitation.
Jackson, J. WE CONCUR: /s/_________
Siggins, P. J. /s/_________