PEOPLE v. MANLEY

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Ronald Eugene MANLEY, Defendant and Appellant.

No. D014845.

Decided: July 14, 1992

Rebecca Donaldson, San Diego, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Frederick R. Millar, Jr., and Laura Whitcomb Halgren, Deputy Attys. Gen., for plaintiff and respondent.

Ronald Manley appeals from his jury conviction for being a felon in possession of a firearm (Pen.Code,1 § 12021, subd. (a)), claiming numerous prejudicial jury instructional errors.   Because we conclude on the specific facts of this case the trial court prejudicially erred in refusing to give Manley's requested self-defense instructions to his possession of a firearm as a convicted felon (CALJIC No. 12.50), we reverse.

FACTUAL AND PROCEDURAL HISTORY

On December 15, 1990, Manley was arrested for shooting Sean Miller in the leg on Manley's property, a home on Clairemont Mesa Boulevard in San Diego, California, called “The Chosen Few.”   The home was a type of half-way house, or ministry, where Manley allowed people who wanted to change their lives to stay.

Because of the shooting, Manley was charged in a three count information with assaulting Sean with a firearm (§ 245, subd. (a)(2)), with committing mayhem against Sean (§ 203), and with being a felon in possession of a firearm.   As to the assault and mayhem counts, it was alleged Manley used a firearm within the meaning of sections 12022.5, 12022.7 and 1192.7, subdivision (c)(8).   Manley was also alleged to have previously been convicted of the felony sale of marijuana, and to have been granted probation for that prior conviction (Health & Saf.Code, § 11360, subd. (a)).2

At trial, Sean Miller testified he was a convicted felon with a drug problem, admittedly addicted to crystal methamphetamine (meth), who was trying to clean up his act.   To help do so, in about April 1990 he moved into “The Chosen Few,” Manley's Christian ministry, where his brother Jason Miller, along with other people recovering from alcoholism and/or drug addiction, lived and were provided work.   The house rules specifically did not allow anyone who returned to using alcohol or drugs to remain at the ministry.

Sean said he had lived at the home for several months, performing work and contributing some money for living expenses, when he started using drugs again.   He voluntarily left the home when Manley asked him to leave.   After almost a month, Sean asked Manley if he could come back to the home;  Manley gave him a second chance.   However, within a week Sean began using drugs again, and Manley again asked him to leave.

Sean testified he then spent some time on the street trying to improve himself before coming back to Manley again to talk about the possibility of him returning to the home.   He said Manley refused to let him come back.   At one point, when he approached the ministry to talk to Manley about returning, he saw police in the area and “took off” to avoid arrest.

Back on the streets Sean heard from some people on December 14, 1990, that Manley had telephoned the police about him.   Angry, Sean, who was using some meth that day, decided to confront Manley about why he made the telephone call.

The next day at about 3 p.m., Sean, who admitted he was under the influence of meth at that time, went to “The Chosen Few” to question Manley about the call.   When he arrived, he met Manley on the front lawn of the ministry and then talked with Manley in front of the garage.

Sean's version of the confrontation which resulted in his injury differed dramatically from the version Manley would later give in self-defense.   Sean stated he did nothing except call Manley a “snitch,” while Manley told him to get off the property twice, stating, “I have something for you,” at which time he left the area, returning shortly wearing a black trench coat and holding a rifle pointing down, but towards Sean.

Sean, who claimed he had no weapons on him, said he smiled when Manley pulled the gun out, but froze when he pulled the trigger twice with the gun angled down and then again, hitting him in the leg.   Sean said he fell to the ground and Manley just walked off.

Sean said he was in the hospital for 30 days, in a convalescent home for two additional weeks thereafter, and was still undergoing physical therapy at the time of trial.   When he testified, he was using crutches and was unable to straighten his leg.   Medical witnesses testified Sean might not totally recover the use of his leg as a result of the injury.

Additional prosecution witnesses testified about the nature of the gun used in the shooting (a Winchester 30–30 rifle), the type of bullets used and how the rifle worked, described the crime scene and where the rifle was found after the shooting, and discussed what was observed by police, rescue workers, and witnesses at the scene of the shooting.   The prosecution closed its case by entering into evidence a certified copy of the records of Manley's earlier felony conviction.

Manley testified on his own behalf.   Claiming self-defense, he described the events leading up to the shooting.   Before embellishing those of the final days before the shooting, Manley corroborated Sean's description of his ministry and the facts behind Sean's stay there.   Manley gave further details of his halfway type home and his upstairs apartment office two houses down.

Manley testified that after he told Sean to leave the home for the second time, Sean refused and began acting in ways that frightened him.   During the first week of December 1990, Manley repeatedly told Sean, who was obviously on drugs, to leave, but he kept returning to the house to see his brother and other men who lived there.   As matters worsened, Manley called Sean's probation officer to report Sean for violating his probation terms by continuing to use drugs.

Sean's probation officer told Manley to call the police to report the violation and to ask them to come out and arrest him.   Manley called the police, but Sean was gone by the time they arrived.

At about 1:30 a.m. on the Tuesday before the shooting, Sean came to the home at a time when Manley was there.   Manley told him to leave.   In response, Sean, together with his brother Jason, went outside and yelled obscenities and threats at Manley.   Sean screamed, “You are going to pay,” and “You know what we do to snitches.”   He pounded on the door and told Manley, “We are going to stick you and we are going to thrash you.”   Manley locked the door to the home and telephoned Sean's probation officer again to report the threats.

Manley said he was afraid for his life at that time, because he believed Sean carried a knife in either his back pocket or his backpack.   He had heard from some of the men living in the home that Sean usually carried a concealed weapon, and had himself seen Sean with a knife and a club, and had observed Sean in heated arguments at the ministry.   Manley also related stories about other times that week when he asked Sean to leave and Sean merely defied him.

On the Thursday before the shooting, John Bickman, a blind man who lived in Manley's apartment office, told Manley that the night before, when Manley was not at the home, Sean and his brother came looking for Manley, pounding on the door of his office apartment and threatening to “blow off” Manley's head with a gun Sean said he had.   Manley said that because of all the other threats and encounters with Sean that week, he increasingly feared for his life, the lives of the residents of the house, and for the lives of his wife and children who lived within one mile of the home.

On Friday, the day before the shooting, Sean again came over to the house and made more threats to Manley.   Again Manley telephoned the police.   He was frantic at that time, telling the dispatcher to please hurry as Sean was kicking at the door and might have a knife.   This time it took the police 45 minutes in which to respond, and Sean was again no longer in sight.

In light of the threats, and the fact Sean's probation officer and the police had not provided him any security, Manley believed he needed to protect himself and the others, and asked his wife to purchase a rifle.   She did so that night.

The next day, December 15, 1990, at about 3 p.m., Manley was at the home when he saw Sean in the yard.   Sean appeared to be under the influence of meth and made more threats to Manley.   Although Manley could not see any knife or other weapon in Sean's hands, Manley believed he might have his knife or a gun as Bickman had told him about earlier.   Manley said he was frightened when he asked Sean to leave as Sean refused, spewing out more threats that Manley was a “snitch” and screaming Manley was going to pay.   His fear was also heightened because he did not know where Jason was lurking.   He had seen him about 10 minutes earlier in front of the ministry and he did not know whether Jason was somehow involved with Sean in this confrontation.

In this frightful state, Manley left Sean standing in the driveway, quickly walked to his office apartment where he picked up the rifle his wife had purchased, loaded it with three rounds of ammunition, put on a long black trenchcoat, hurriedly walked down the alley back to the ministry and into the garage where he again confronted Sean. Manley stated the rifle was pointed down at the ground when he waved away another man and asked Sean to again leave.   Sean then walked into and around the garage, which was full of tree-trimming tools easily accessible to him, and laughed.   Manley said his fear intensified when he noticed Sean's eyes rolling.   He said, “It was like some demon from hell was in the boy.”

Intending to fire a warning shot, Manley clicked the rifle.   However, because it was not loaded properly, it did not fire;  it was a dry round.   Sean again laughed.   After the second dry shot, Sean appeared to turn to leave when he immediately spun around and lunged toward Manley.   Although Manley was eight to twelve feet away, he became frightened because of Sean's crazed, drug-induced state and known violent character and habit of concealing weapons.   He felt as if he were being attacked.   Manley quickly pulled the trigger a third time, aiming at Sean's leg as he did not want to hit him in the torso or head.   After Sean fell to the ground, Manley walked back to his apartment office and telephoned 911, telling the dispatcher he had just shot a man and to send an ambulance.

Manley's testimony was prefaced with the fact he had suffered an earlier felony conviction for buying marijuana, had pleaded guilty to a lesser charge and was promised the court would consider dropping the felony status to a misdemeanor if he met certain probation conditions.   Manley stated he had heard his codefendant's conviction in that earlier case had been dropped to a misdemeanor, so he assumed his had been also.

On cross-examination, Manley was thoroughly quizzed about his prior conviction.   Manley said because of his ignorance, he did not know he was a convicted felon and not allowed to possess a gun until recently.   At the time of this incident he was under the belief his earlier felony conviction had been reduced to a misdemeanor.

Also in the defense case, John Bickman testified about the threats to Manley's life shortly before the shooting.   Although blind, Bickman knew Sean's and Jason's voices from daily contact with residents of the home.   Bickman said he couldn't believe it when he heard them yelling threats and kicking at his door.   He said he specifically heard Sean say he had a gun and was coming into the apartment to blow Manley's head off.   Bickman told Manley about the incident the next day.

A neighbor, who lived two houses down the street from the ministry and who was in her front lawn area having a garage sale, testified she heard yelling and screaming coming from the front yard of the ministry on December 15, 1990, at around 3 p.m.   Looking towards the commotion, the neighbor saw Sean screaming in Manley's face in front of the garage.   The neighbor then saw Sean move closer to Manley, within about one and a half feet, with his hands up and fists closed.   Distracted by a sale, the neighbor turned away.   Within a few minutes, the neighbor heard a loud bang, which she thought was just a car backfiring.   Within five minutes she then heard and saw firetrucks, paramedics and police arrive at the ministry.

Manley also presented character witnesses who testified he was “extremely truthful,” non-violent and trustworthy.   In addition, a resident of the ministry testified he had previously seen Sean with a large knife he kept concealed in his backpack or back pocket of his pants.   The resident opined Sean was a violent and dishonest person.

A psychiatrist testified on the acute and chronic effects of meth.   It was the psychiatrist's opinion a person who had ingested meth within an hour of an incident would be aggressive and not in touch with reality.   The trauma surgeon at the hospital emergency room who treated Sean testified Sean stated openly to him and to the nurses there he had ingested meth one hour before the shooting.

In rebuttal, the prosecution presented a forensic scientist experienced in firearms who testified about the characteristics and use of the rifle Manley used to shoot Sean.

Throughout the trial the court entertained questions from the jurors and answered those questions with the concurrence of counsel.   At one point a juror asked whether Manley's felony was to have been reduced to a misdemeanor and, if not, why not?   After a discussion out of the presence of the jury, the trial court, without objection, told the jury that as a matter of law Manley's prior conviction was a felony and “any evidence concerning ․ belief that it was a misdemeanor should be disregarded.”   The court advised the jury that belief a conviction was other than a felony was no defense to the charge of being an ex-felon in possession of a gun.

At the close of all evidence, outside the jury's presence, counsel and court discussed the proposed jury instructions.   Although counsel for Manley requested a modified version of CALJIC No. 5.17 in regard to his defense of an honest but unreasonable belief in the necessity to defend himself concerning the mayhem charge, and CALJIC No. 12.50 in regard to his defense of self-defense to being a convicted felon in possession of a firearm, after heated discussion the court denied both.

The court then instructed the jury on the law of the case, fully instructing on Manley's defense of self-defense to the assault with a firearm and mayhem charges.   As to the charge of possession by a convicted felon of a firearm, the court instructed the jury no consideration could be given to Manley's understanding or knowledge of his status as a convicted felon because such was not an element of the offense.

In closing argument, Manley relied upon self-defense as to the mayhem and assault with firearm charges and presented no defense, other than his belief in his status, to the ex-felon in possession charge.   The prosecution argued the defense of self-defense could only apply to the victim in this case, not Manley.

After due deliberation, the jury returned verdicts finding Manley not guilty of assault with a deadly weapon and mayhem, but found him guilty of being an ex-felon in possession of a firearm.

At the time of sentencing, the court granted Manley 3 years probation conditioned upon, among other things, 132 days of custody to be served in work furlough, less 42 days of pre-sentence and good time credits, for a total of 90 days.   The court also set restitution fines.

Manley timely appealed.

DISCUSSION

On appeal, Manley contends the trial court committed prejudicial error in instructing the jury on the law concerning his being an ex-felon in possession of a firearm.   He specifically argues the court failed to sua sponte instruct on the necessity defense to such charge, erroneously told the jury a mistake of fact is never a defense to such violation, gave instructions which were tantamount to a directed verdict, and prejudicially refused his request to give CALJIC No. 12.50, self-defense instructions to such charge.   Because we find merit in his last argument, determining the court prejudicially erred in failing to instruct the jury under CALJIC No. 12.50 and reverse his conviction, we do not address his other arguments.   We explain.

 In a criminal trial, a defendant has a constitutional right to have the jury decide every material factual matter presented by the evidence.   (People v. Sedeno (1974) 10 Cal.3d 703, 720, 112 Cal.Rptr. 1, 518 P.2d 913, overruled on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684–685, 160 Cal.Rptr. 84, 603 P.2d 1.)   Hence a trial court has a duty to instruct on general principles of law relevant to issues raised by the evidence in the case (People v. Saddler (1979) 24 Cal.3d 671, 681, 156 Cal.Rptr. 871, 597 P.2d 130), and should give specifically requested instructions that direct the attention of the jury to evidence “from a consideration of which a reasonable doubt of [a defendant's] guilt could be engendered” and “relating particular facts to any legal issue” (People v. Sears (1970) 2 Cal.3d 180, 190, 84 Cal.Rptr. 711, 465 P.2d 847).

Although the trial court in this case gave self-defense instructions as to the assault with a deadly weapon and mayhem counts, it refused Manley's requested self-defense instructions regarding his charge of being an ex-felon in possession of that same deadly weapon.   After reviewing the standard jury instruction on the matter, CALJIC No. 12.50,3 the trial court determined there was no version of the evidence adduced at trial which would permit the jury to find other than Manley had a “preconceived design” to have the rifle available for his use, and thus could not claim self-defense.   However, whether any version of the evidence is to be believed is normally a factual issue within the province of the jury, not the court.  (People v. Lemus (1988) 203 Cal.App.3d 470, 475, 249 Cal.Rptr. 897.)

Because the jury found Manley not guilty of the assault and mayhem charges, it must have believed his version of the facts and accepted his theory he shot and injured Sean in self-defense.   Inherent in such finding is that the jury found the shooting to be an incident involving imminent peril to Manley or the others he was protecting in the house.   The only question is whether there were sufficient facts adduced in the evidence before the jury to show his possession of the rifle during this period of “imminent peril” was “without preconceived design” in order to entitle Manley to his requested self-defense instruction.   We thus return to the source of the defense of self-defense as it applies to a section 12021 violation for guidance in finding an answer to this question and a just result in this case.

In People v. King (1978) 22 Cal.3d 12, 148 Cal.Rptr. 409, 582 P.2d 1000, our Supreme Court considered the history of section 12021, from the adoption of its forerunner in 1923 (Stats.1923, ch. 339, § 2, p. 696) through its enactment in 1953 as part of the Dangerous Weapons Control Law (Stats.1953, ch. 36, § 1, p. 654), its scope in light of existing Penal Code statutes (§§ 692 and 694, regarding the right to use force in appropriate circumstances in defense of self and others;  §§ 197 and 198, regarding justifiable homicides) and Civil Code section 50, concerning rights to protect persons and property from wrongful injury.   The court found “that the Legislature did not intend [section 12021] to restrict a felon's right of self-defense except to the extent necessary to fulfill the legislative purpose that persons affected by section 12021 not have concealable firearms readily available lest the weapons be used for crimes of violence or other unlawful purposes.   [Citations.]”  (People v. King, supra, 22 Cal.3d at p. 23, 148 Cal.Rptr. 409, 582 P.2d 1000.)

Based on its analysis section 12021 did not conflict with any of the provisions concerning self-defense and defense of others, the court in King concluded “that the prohibition of section 12021 was not intended to affect a felon's right to use a concealable firearm in self-defense, but was intended only to prohibit members of the affected classes from arming themselves with concealable firearms or having such weapons in their custody or control in circumstances other than those in which the right to use deadly force in self-defense exists or reasonably appears to exist.”  (People v. King, supra, 22 Cal.3d at p. 24, 148 Cal.Rptr. 409, 582 P.2d 1000.)

In King, the defendant, an ex-felon, was attending a party at an apartment when intruders attempted to force their way in.   The attack was such as to cause fear in the defendant and near “hysteria among other persons in the apartment․”  (People v. King, supra, 22 Cal.3d at p. 26, 148 Cal.Rptr. 409, 582 P.2d 1000.)   Under the circumstances, where defendant was handed a gun by another guest and shot the gun only to frighten and not in an attempt to kill the intruders, the court found the evidence sufficient to satisfy all the statutory prerequisites for self-defense or defense of others “since a jury could find the fears reasonable and the force not excessive under the circumstances.”  (Ibid.)  The court noted that the defendant there charged with assault with a deadly weapon thus had a right to instructions on self-defense on that charge and “[a] fortiori, if the defendant had a right to instructions on self-defense as a defense to the assault with a deadly weapon charges, he had a right to an instruction that if his possession of the weapon in question was solely for the purpose of self-defense, and was not preplanned, and did not continue beyond the existence of the circumstances giving rise to the right to self-defense, that possession was not proscribed by section 12021.”  (Ibid.)

Although King concerned section 12021 before it was amended to include all firearms and not just those that were concealed, its rationale is applicable here.4  Because Manley was entitled to self-defense instructions as to the assault with a deadly weapon and mayhem charges involving the confrontational transaction with Sean, like the defendant in King, he should thus also be entitled to instructions on self-defense as to his possession of the rifle purchased and used solely for the purpose of self-defense in this episode.   However, the attorney general's office, as had the trial court and prosecutor below, concentrates on the phrase in King, “without preconceived design,” arguing such limits or prevents Manley from entitlement to a self-defense instruction for his weapon possession because he possessed the rifle before the emergency or “imminent peril” arose.

Neither King, nor any case subsequent to King, has definitively defined the phrase “without preconceived design.”   Although King used the phrase interchangeably with “not preplanned,” it viewed the circumstances surrounding the situation to determine whether the defendant there came into possession of the weapon used in that case before the emergency which made it appear to the defendant that he had the right to use self-defense.  (People v. King, supra, 22 Cal.3d at p. 26, 148 Cal.Rptr. 409, 582 P.2d 1000.)  People v. McClindon (1980) 114 Cal.App.3d 336, 170 Cal.Rptr. 492 found the phrase meant that possession of a weapon must be for only a brief time and without predesign or prior possession.  (Id. at p. 340, 170 Cal.Rptr. 492.)   In McClindon, the defendant had obtained a gun for general protection and had kept it near his bed for about five months before the incident in that case.  (Ibid.) People v. Mizchele (1983) 142 Cal.App.3d 686, 692, 191 Cal.Rptr. 245 found the facts that the defendant, during a heated argument with his wife, removed a gun from her jacket, knowing it was there and being afraid of it in her possession, fired it and shot her without the intention to do so warranted self-defense instructions based on the rationale of King.5

From these cases and the analysis in King, it can be gleaned that it is the emergency situation or “imminent peril” which triggers whether the possession of a weapon is preconceived or preplanned.   If the weapon is obtained for general protection without an emergency situation, it is preplanned.   However, a jury could determine in this case the weapon was obtained for the specific emergency situation and thus find it was not preconceived.

 The analysis in any case where self-defense to the possession of a firearm is claimed necessarily includes a consideration of all of the circumstances surrounding the obtaining of the weapon.   In this case, the threats leading up to the final shooting incident took place all within the span of two weeks.   Like a volcano building up pressure to climactic explosion, Sean threatened Manley and others at the ministry continually and relentlessly, culminating in the intense fear which caused Manley to ask his wife the night before the shooting to purchase a weapon and his retrieving it and using it during the confrontation by a drug-crazed Sean the next day.   Manley had tried to defuse the emergency situation by retreating and calling Sean's probation officer and the police numerous times, but to no avail.   Sean kept coming back.   Under these circumstances, there were sufficient facts in the record from which a reasonable jury could have determined Manley was only in possession of the rifle for a brief time in order to deal with the “imminent peril” created by Sean.

Thus the court should have given the requested instructions to the jury to determine that issue.   As stated in King:

“Properly instructed as to the section 12021 count the jury might have found that [Manley's] brief use of the [rifle] was reasonable under the circumstances, and that he did not come into possession of the [rifle] he used prior to the exigency which made its use reasonably appear to be necessary.”   (People v. King, supra, 22 Cal.3d at p. 26, 148 Cal.Rptr. 409, 582 P.2d 1000.)

Because Manley's use of the rifle, obtained only for defense of self and others in the emergency situation created by Sean, might not be the type of possession prohibited by section 12021, it was error for the trial court to fail to instruct the jury about the self-defense defense as requested.   As the factual issues that would have been posed by these instructions were not resolved adversely to Manley under other instructions (rather the jury acquitted him of the other charges, finding he was justified in using the rifle in self-defense), he has been denied the right to have the jury determine substantial issues material to his guilt.  (People v. Sedeno, supra, 10 Cal.3d 703, 720–721, 112 Cal.Rptr. 1, 518 P.2d 913.)

DISPOSITION

The judgment is reversed.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   This allegation was incorrect as Manley had pleaded guilty in 1983 to a lesser included offense, violation of Health and Safety Code section 11357, subdivision (a).   However, no harm stemmed from this inaccuracy as the lesser offense was still a felony.

3.   CALJIC No. 12.50, USE OF FIREARM BY CONVICTED FELON—SELF–DEFENSE, states:  “You are instructed that a person previously convicted of a felony does not violate Section 12021 of the Penal Code by being in possession of a firearm if:  [¶] 1.[He] as a reasonable person had grounds for believing and did believe that [he] was in imminent peril of great bodily harm;  and [¶] 2. Without preconceived design on [his] part a firearm was made available to [him];  and [¶] 3.[His] possession of such firearm was temporary and for a period of time no longer than that in which the necessity or apparent necessity to use it in self-defense continued;  and [¶] 4. The use of the firearm was reasonable under the circumstances and was resorted to only if no alternative means of avoiding the danger were available.”

4.   Section 12021 was amended in 1989 to shorten the description of the weapon to “any firearm.”  (Stats.1989, ch. 254, § 1, ch. 1044, § 3.)

5.   Federal circuit cases cited by the attorney general's office, United States v. Garcia (7th Cir.1980) 625 F.2d 162, 168 and United States v. Fountain (7th Cir.1981) 642 F.2d 1083, 1096, limit the use of a self-defense defense for prison inmates who arm themselves for general protection while incarcerated and do not readily apply under the facts of this case.

HUFFMAN, Associate Justice.

WORK, Acting P.J., and NARES, J., concur.