Reset A A Font size: Print

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

The PEOPLE, Plaintiff and Respondent, v. Teodoro LEMUS, Defendant and Appellant.

The PEOPLE, Plaintiff and Respondent, v. Juan LEMUS, Jr., Defendant and Appellant.

Nos. D005206, D005766.

Decided: March 10, 1988

Jerome P. Wallingford and William K. Mueller, San Diego, under appointment by the Court of Appeal, for defendants and appellants. John K. Van De Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Peter Quon, Jr., Supervising Deputy Atty. Gen., and Gil P. Gonzalez, Deputy Atty. Gen., San Diego, for plaintiff and respondent.

Defendants Teodoro Lemus and Juan Lemus appeal their convictions after a jury found them both guilty of assault with a deadly weapon (Pen. Code,1 § 245) and Teodoro guilty of false imprisonment (§ 236).   Both contend the trial court erred in failing to instruct the jury regarding self-defense and in entering convictions of lesser included offenses after the jury had acquitted them of the greater charges.   Juan further asserts there was insufficient evidence to support the jury's verdict.   We conclude both Teodoro's and Juan's contentions are without merit and accordingly affirm.


At approximately 4 p.m. on February 26, 1986, shortly after finishing work in the asparagus fields, Silviano Franco visited a bar in Calexico, California.   While there, Franco played several games of pool and drank beer until he became quite intoxicated.   At approximately 7 p.m., Mary Helen Hernandez, Teodoro's wife, entered the bar.   Before going to the bar, Mary Helen had quarreled with Teodoro and she was angry with him.   Upon arriving at the bar, Mary Helen sat and drank beer with Franco.   She was a former lover of Franco's and had previously had a child by him.

Shortly thereafter, Teodoro entered the bar alone, drank beer for approximately 10 minutes, and left.   Within 20 minutes, Teodoro re-entered the bar, this time accompanied by his brother, Rigoberto Lemus, and his cousin, Juan Lemus, who was holding a handgun.   Together, they approached the table where Mary Helen and Franco were seated.   Teodoro hit Franco in the face and Franco tried unsuccessfully to stand up.   Rigoberto kicked Franco in the legs, causing him to fall back into the chair.   Franco again tried to get to his feet and Teodoro stabbed him three times, in the chest, elbow, and eyebrow, with a lettuce knife.   Mary Helen picked up a cuestick and attempted to strike Juan but did not because she was afraid he would shoot her.   Teodoro, Juan, and Rigoberto then left the bar, threatening Mary Helen that she would be next if she called the police.

Approximately one week later, at 7 p.m. on March 4, 1986, Mary Helen spotted Teodoro on a Calexico street.   Knowing he was wanted for questioning regarding the stabbing incident, she called the police.   A few minutes later, she again spotted Teodoro, this time near the Mexican border.   She followed him into an alley and attempted to detain him until the police arrived.   When she caught up with Teodoro, he forced her, at gunpoint, to get on a bicycle he was riding.   With the gun in her back, he forced her to accompany him across the border, still riding the bicycle, to his sister's house in Mexicali.   He kept her there against her will until March 6, 1986, when she was able to escape and return to Calexico.

Teodoro and Juan were charged as follows:  in count one, both were charged with attempted murder (§§ 664, 187) with an allegation Teodoro personally used a deadly weapon (a knife) (§ 12022, subd. (b)).  It was further alleged regarding count one that Teodoro inflicted great bodily injury within the meaning of section 12022.7.   In count two, Juan was charged with assault with a firearm (§ 245, subd. (a)(2)) with an allegation he personally used a firearm within the meaning of section 12022.5.   In count three, Teodoro was charged with kidnapping (§ 207, subd. (a)).

When the jury began its deliberations, it was given the following verdict forms, in pertinent parts, as to both defendants regarding count one:

“Guilty of ․ ATTEMPTED MURDER ․ as charged in Count I․”

“Guilty of ․ ATTEMPTED VOLUNTARY MANSLAUGHTER ․, a lesser included offense to the crime charged in Count I․”

“Guilty of ․ ASSAULT WITH A DEADLY WEAPON, ․ a lesser included offense to the crime charged in Count I․”

“NOT Guilty of Count I.”

As to count three, regarding only Teodoro, the jury was given the following verdict forms, in pertinent parts:

“Guilty of ․ KIDNAPPING ․ as charged in Count III․”

“Guilty of a misdemeanor ․ FALSE IMPRISONMENT, a lesser included offense to the crime charged in Count III․”

“NOT Guilty of Count III.”

The court instructed the jury that only one verdict form could be signed and returned for each count.   The court further instructed that if the jury unanimously agreed the greater charges had not been proven, it could convict on the lesser offenses.

The following verdict forms were returned as to Teodoro Lemus:  not guilty of count one, guilty of the lesser included offense of assault with a deadly weapon;  not guilty of count three, guilty of the lesser included offense of false imprisonment.   Both allegations against Teodoro concerning count one were found to be true.

The jury returned the following verdict forms as to Juan Lemus:  not guilty of count one, guilty of the lesser included offense of assault with a deadly weapon;  not guilty of count two.   The allegation against Juan concerning count two was found to be untrue.

On count one, Teodoro was sentenced to state prison for the middle term of three years, plus a three-year enhancement under section 12022.7;  on count three, one year of local custody was ordered to run concurrently with the sentence imposed on count one.   The court, however, ordered him housed in the California Youth Authority pursuant to Welfare and Institutions Code section 1731.5, subdivision (c).   Juan was sentenced to three years in state prison on count one;  the sentence was suspended and he was granted probation on the condition he serve one year in the county jail.



 Teodoro and Juan contend the trial court erred in refusing to instruct the jury on self-defense as to count one, attempted murder.2  For reasons discussed below, we disagree.

Before 1975, the rule regarding a trial court's duty to instruct was that expressed in People v. Burns (1948) 88 Cal.App.2d 867, 200 P.2d 134:  “It is elementary that the court should instruct the jury upon every material question upon which there is any evidence deserving of any consideration whatever.  [Citations.]   The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon.  [Citations.]   That is a question within the exclusive province of the jury.   However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true.  [Citations.]”  (Id. at p. 871, 200 P.2d 134.)   This standard was endorsed by the Supreme Court in People v. Carmen (1951) 36 Cal.2d 768, 773, 228 P.2d 281.

The rule was moderated, however, in People v. Mayberry (1975) 15 Cal.3d 143, 125 Cal.Rptr. 745, 542 P.2d 1337, when the court observed that “[a]s an obvious corollary, where there is ‘no substantial evidence of diminished capacity’ the court does not err in refusing to give instructions based on that defense.”  (Id. at p. 151, 125 Cal.Rptr. 745, 542 P.2d 1337, quoting People v. Bandhauer (1967) 66 Cal.2d 524, 528, 58 Cal.Rptr. 332, 426 P.2d 900;  italics added.)

In an attempt to clarify the Carmen rule and end its misapplication, Justice Tobriner, writing for the court in People v. Flannel (1979) 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1, noted that “[m]any cases cite, often without elaboration, language in Carmen, supra, 36 Cal.2d 768 [228 P.2d 281], or in People v. Modesto (1963) 59 Cal.2d 722, 729 [31 Cal.Rptr. 225, 382 P.2d 33], to the effect that jury instructions must be given whenever any evidence is presented, no matter how weak.   To the extent that a decision of any court interprets these cases to require instructions without evidence substantial enough to merit consideration, it is disapproved.  (See, e.g., People v. Thornton (1974) 11 Cal.3d 738, 769, fn. 20 [114 Cal.Rptr. 467, 523 P.2d 267];  People v. Sedeno, supra, 10 Cal.3d 703, 716–717 [112 Cal.Rptr. 1, 518 P.2d 913];  People v. Cantrell (1973) 8 Cal.3d 672, 685 [105 Cal.Rptr. 792, 504 P.2d 1256].)”  (People v. Flannel, supra, 25 Cal.3d at pp. 684–685, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1;  italics in original).3  Nonetheless, “[d]oubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused.”  (Id. at p. 685, 160 Cal.Rptr. 84, 603 P.2d 1;  quoting People v. Wilson (1967) 66 Cal.2d 749, 763, 59 Cal.Rptr. 156, 427 P.2d 820;  see also People v. Rodriguez (1969) 274 Cal.App.2d 487, 497, 79 Cal.Rptr. 187.)

Applying the above guidelines to this case, we conclude it was not error for the trial court to refuse to instruct the jury on self-defense.   There was no evidence adduced at trial to support Teodoro's theory of self-defense except his own self-serving testimony.   For the use of deadly force in self-defense to be justified, the actor must have “reasonable ground to believe and does believe that there is imminent danger that the other person will kill him or cause him great bodily harm” and “a bare fear of death or great bodily harm is not sufficient.”  (CALJIC No. 5.12.)   Here, there was no evidence Franco even had a knife or gun, much less put Teodoro in imminent danger with such a weapon.   Moreover, it appears Teodoro had drawn his knife before the alleged threat by Franco.   Mary Helen Hernandez, who was sitting with Franco, testified Franco never threatened Teodoro and never reached into his pocket.   Another customer in the bar, Sebastian Luna, testified Teodoro was the aggressor and that he provoked the confrontation.   All the evidence presented at trial is contrary to Teodoro's claim of self-defense;  indeed, the evidence establishes that Teodoro was, in fact, the aggressor.   As the People correctly point out, “[a] man has not the right to provoke a quarrel, go to it armed, take advantage of it and then convert his adversary's lawful efforts to protect himself into grounds for further aggression against him under the guise of self-defense.”  (People v. Garcia (1969) 275 Cal.App.2d 517, 523, 79 Cal.Rptr. 833.)

To allow a criminal defendant an automatic right to any instruction based on his theory of the case, no matter how tenuous and unsupported by the evidence that theory may be, would put our trial courts in the untenable position of having to give instructions that are potentially confusing to the jury and possibly in direct conflict with the evidence.   Accordingly, we conclude the trial court was correct in its assessment the evidence was insufficient, as a matter of law, to warrant an instruction on self-defense.4


Both the Lemuses further assert the two verdict forms returned by the jury as to count one are “inherently inconsistent.”   They argue that count one subsumes all lesser included offenses and therefore any further verdict on a lesser included offense is inconsistent with the finding of not guilty of count one.   We find no support for this contention either in law or logic.

The Lemuses rely on People v. Soto (1985) 166 Cal.App.3d 428, 212 Cal.Rptr. 425, for the proposition that when the trial court permits inconsistent verdicts of guilty and not guilty to be entered, the accused is entitled to an acquittal.   We conclude Soto is inapposite here.

The defendant in Soto was charged, inter alia, with murder.   The jury returned a verdict form of “ ‘not guilty of murder as charged in count I ․ and fix[ed] the degree of the offense as murder in the second degree.’ ”  (Id. at p. 436, 212 Cal.Rptr. 425.)   Both counsel and the trial court assumed the verdict was one of guilty of second degree murder.  (Id. at pp. 432–33, 212 Cal.Rptr. 425.)   After the jury had been dismissed, the court noticed the ambiguity in the verdict forms noted above.   The court “ordered the jury reimpaneled to clear up the ambiguity;  the jury then found appellant guilty of second degree murder.”  (Id. at p. 433, 212 Cal.Rptr. 425.)

On appeal, the court reversed as to the murder charge, concluding the trial court had no authority to reimpanel the jury after it had been discharged.   Thus, the verdict of guilty of second degree murder returned after the jury had been reimpaneled was a nullity.   The court, in considering the legal effect of the original verdict forms, cited People v. Tilley (1901) 135 Cal. 61, 62–63, 67 p. 42:  “[T]he Supreme Court, after noting that the form of the verdict is to be regarded as immaterial if ‘the intention to convict of the crime charged be unmistakably expressed ’ (italics added), then noted Penal Code section 1162 which states ‘no judgment of conviction can be given unless the jury expressly finds against the defendant upon the issue,․’  (Italics added.)”  (People v. Soto, supra, 166 Cal.App.3d at p. 437, 212 Cal.Rptr. 425.)   Concluding there had been no express finding against the defendant of second degree murder, the court reversed his conviction.

The Lemuses' analysis of Soto is correct as far as it goes, but crucial to their application of that case here is the assumption that the verdict forms returned in this case were, in fact, inconsistent.   We find that assumption to be unsupported by the facts and fatal to their argument.

 In 1927, section 954 was amended with the express intent to nullify the inconsistent verdict rule of People v. Andrusky (1925) 75 Cal.App. 16, 241 P. 591.5  Since the time of that amendment “․ any verdict of guilty which is sufficiently certain is a valid verdict even though the jury's action in returning it was, in a legal sense, inconsistent with its action in returning another verdict of acquittal or guilt of a different offense.”   (People v. Lopez (1982) 131 Cal.App.3d 565, 570, 182 Cal.Rptr. 563, quoting Witkin, Cal.Criminal Procedure, § 549, p. 560.)

 Here, the jury expressly found both Teodoro and Juan guilty of assault with a deadly weapon and Teodoro guilty of false imprisonment but both not guilty of count one and Teodoro not guilty of count three.   The verdict forms concerning the offenses of attempted murder, attempted voluntary manslaughter, assault with a deadly weapon, and false imprisonment all began with the words, “We find the defendant Guilty of ․;”   the only verdict form that contained the language “NOT Guilty” was that one stating, “We find the defendant NOT Guilty of Count I.”   Apparently the jury was not instructed that it could add the word “NOT” to “Guilty” to amend an existing verdict form to conform with its findings.   The jury was instructed, pursuant to CALJIC No. 17.10, that it should find a defendant not guilty of a greater charge before convicting on a lesser included offense.6  Thus, the only choice available to find the defendants not guilty of attempted murder, (and Teodoro not guilty of kidnapping), without physically altering one of the forms, was “NOT Guilty of Count I” (and Teodoro “NOT Guilty of Count III”).

In fairness to the jury, we note the instructions regarding the use of the verdict forms were less than pellucid and undoubtedly contributed to the jury's unfortunate choice of verdict forms to express its findings.   We have no difficulty, however, ascertaining that the jury's intent was to convict on the lesser included offenses and that, in the totality of the circumstances, the verdicts returned were not inconsistent.

 As to the Lemuses' speculations regarding the possible reasons the jury returned the verdicts it did, we agree with the observation of the court in People v. Crawford (1953) 115 Cal.App.2d 838, 841–42, 252 P.2d 963:  “We think it useless to follow appellants through their highly-ingenious analysis, for error must be affirmatively shown by the record and cannot rest upon speculation.”


 Lastly, Juan contends there was not substantial evidence to support the jury's verdict of guilty of assault with a deadly weapon.   We disagree.

In People v. Johnson (1980) 26 Cal.3d 557, 575–579, 162 Cal.Rptr. 431, 606 P.2d 738, our Supreme Court reviewed, for clarification, the appropriate standard for appellate review of whether substantial evidence supports a conviction.   Noting the California standard is consistent with the federal standard expressed in Jackson v. Virginia (1979) 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, the court “reaffirm[ed] the basic principles which govern judicial review of a criminal conviction challenged as lacking evidentiary support:  the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which 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. Johnson, supra, 26 Cal.3d at p. 578, 162 Cal.Rptr. 431, 606 P.2d 738.)

Having reviewed the record mindful of the above principles, we conclude there was ample evidence from which the jury could find Juan guilty of assault with a deadly weapon.   Putting aside for a moment any evidence that Juan had a firearm, it is certainly plausible the jury believed that when Teodoro returned to the bar with Juan and Rigoberto they all intended to assault Franco.   Juan, as an aider and abetter, was just as guilty as Teodoro, even though he personally never stabbed anyone.

 Further, it was completely within the jury's province to find that Juan was not guilty of using a firearm in the alleged assault on Mary Helen, but that he was guilty of assault with a deadly weapon on Franco, where the deadly weapon was not the gun but a knife wielded by Teodoro.   In other words, the fact that the jury found untrue the allegation regarding Juan's use of a firearm in count two has no bearing on the other charge in which there was a different weapon and a different set of circumstances.


The judgment is affirmed.



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.   Juan was charged as an aider and abetter.   He argues that if the jury had been allowed to find Teodoro acted in self-defense, no criminal liability could therefore attach to Juan as an aider and abetter.

3.   The Lemuses rely on People v. Pena (1984) 151 Cal.App.3d 462, 198 Cal.Rptr. 819 to support their argument that any evidence in accord with defendant's theory requires an instruction on that defense.   We note the court's failure in Pena to heed the admonition of Flannel on this point.   In Pena, the court, relying in part on People v. Carmen (1951) 36 Cal.2d 768, 773, 228 P.2d 281, held the defendant was entitled to an instruction “on the effect of antecedent threats known by a defendant.”  (People v. Pena, supra, 151 Cal.App.3d at p. 475, 198 Cal.Rptr. 819.)   While we agree with that result, we disagree with the court's reasoning to the extent that it relies on Carmen.   Rather, we believe, that instruction should have been given because there was substantial evidence presented at trial to support defendant's theory of the case, precisely the standard articulated in People v. Flannel (1979) 25 Cal.3d 668, 684–685, footnote 12, 160 Cal.Rptr. 84, 603 P.2d 1.  (See discussion, infra.)

4.   Even assuming, arguendo, it was error for the trial court to refuse to instruct on self-defense, we conclude that error was harmless.   As our Supreme Court has observed, “aside from errors affecting fundamental rights, ‘there is a strong presumption that any other errors that might have occurred are subject to harmless error analysis.’ ”  (People v. Lee (1987) 43 Cal.3d 666, 675, 238 Cal.Rptr. 406, 738 P.2d 752, quoting Rose v. Clark (1986) 478 U.S. 570, 106 S.Ct. 3101, 3107, 92 L.Ed.2d 460.)   We believe the appropriate standard here is the “harmless beyond a reasonable doubt” test for federal constitutional error as established in Chapman v. California (1967) 386 U.S. 18, 21, 87 S.Ct. 824, 826, 17 L.Ed.2d 705.   Applying the Chapman test here, we conclude beyond a reasonable doubt the jury would not have reached a verdict more favorable to the defendants if instructed on self-defense.  (See discussion, supra, concerning the complete lack of evidence to support Teodoro's contention that he acted in self-defense.)

5.   Section 954 was amended to include the following language, in pertinent part:  “An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts․   An acquittal of one or more counts shall not be deemed an acquittal of any other count.”

6.   This instruction was in keeping with the Supreme Court's holding in Stone v. Superior Court (1982) 31 Cal.3d 503, 183 Cal.Rptr. 647, 646 P.2d 809.   The court in Stone held that a trial court is constitutionally obligated to afford the jury “an opportunity to return a not guilty verdict on the greater offense regardless of whether or not the jury is able to reach a verdict on a lesser included or lesser related offense.”  (CALJIC No. 17.10 (4th ed. Jan. 1987 Pocket Part), Use Note, p. 76.)   Close on the heels of Stone, CALJIC No. 17.12 was formulated.   It expressly states that an accused must be found not guilty of the greater offense before he or she can be convicted of a lesser included offense.   We note that much of the confusion surrounding the verdicts in this case might have been avoided had the trial court given CALJIC No. 17.12.  Although the use note to CALJIC No. 17.10 indicates that 17.10 should preclude 17.12, (ibid.) the two are not inconsistent with each other.   Indeed, there are occasions (as here) when 17.10 would complement 17.12 rather than obviate it.

SCHERER, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

KREMER, P.J., and BENKE, J., concur.

Copied to clipboard