THE PEOPLE v. TONY EVANS TAYLOR (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant Tony Evans Taylor appeals from the judgment entered following a jury trial in which he was convicted of voluntary manslaughter with a finding of personal firearm use.   Defendant contends instructional errors require reversal.   We affirm.

BACKGROUND

A little after 5:30 p.m. on August 2, 2008, Jasmine Denson was shot in the head and fell from the second story of defendant's Altadena home onto a driveway.   Jasmine was defendant's girlfriend and lived in defendant's house.   (All date references pertain to 2008.)   The deputy medical examiner testified that the primary cause of Jasmine's death was the damage caused by a medium-caliber bullet that entered the right side of her forehead on a very nearly horizontal trajectory, ricocheted off the back of her skull, and eventually exited at a lower point on the back of her head.   The absence of soot and stippling indicated that the muzzle of the gun was more than three feet away from Jasmine's forehead when the gun fired.   A secondary cause of death was blunt force trauma that caused multiple skull fractures on the top, base, and forehead areas of her skull.   These fractures were consistent with falling from a second-story window, hitting a roof, then the ground.

Defendant testified at his trial that he and his brother Michael, who lived in a separate house at the back of defendant's property, picked Jasmine up at her parents' home in Los Angeles earlier on August 2. After they returned to defendant's house, defendant and Michael sat on the porch drinking liquor.   Jasmine went inside, but later emerged and walked past them to the nearby bus stop.   Defendant rode his bicycle to the bus stop and asked Jasmine where she was going.   She said she wanted to go back to Los Angeles.   Defendant did not want her to leave, and they argued.   Jasmine walked down the street to the next bus stop, which was outside a meat market.   Defendant followed her.   When he arrived, Jasmine yelled at him to go home.   They argued.   Jasmine's purse fell over and her curling iron fell out.   Defendant purposely smashed the curling iron.   Jasmine climbed over the back of the bus bench, which fell over, knocked defendant off his bicycle, leaped on top of him, and tried to punch him.   He grabbed her wrists to restrain her.   Some of Jasmine's hair extensions were caught between defendant's hands and Jasmine's wrists.   Defendant denied that he struck Jasmine.   Eventually, Jasmine got up and crossed the street to the U-Haul facility where defendant kept his large truck.   Defendant followed and saw Jasmine throw a 12-inch by 12-inch “boulder” against the windshield of defendant's truck.   Jasmine looked at defendant and ran home.   Defendant followed on his bicycle.

Defendant testified that when he got home he went upstairs and saw Jasmine sitting on the bed with her purse hanging from her shoulder.   She yelled at him and said she was tired of living.   She ran to the window, which was missing several panes of glass that she had broken several weeks earlier.   Defendant followed her.   Jasmine pulled defendant's .38-caliber revolver out of her purse and sat down on a file cabinet near the window.   She pointed the gun at defendant and said she was going to “go out” the window.   Defendant was “very uncomfortable” and “a little afraid” when Jasmine pointed the gun at him because he knew it was loaded.   Defendant walked toward Jasmine.   She threw her purse out the window and stood on the file cabinet.   Defendant tried to grab her, but she had already climbed out onto the roof.   Using both of his hands, defendant grabbed the gun and pulled backward to try to get it away from Jasmine.   Jasmine pulled in the opposite direction.   Defendant “managed to get the gun,” though Jasmine still had one hand on it.   She put her other hand on the post in the middle of the window.   Defendant pulled backward into the room, Jasmine gave him “a jolt” in his stomach area, and he fell backward onto the floor.   When he looked up, Jasmine was gone.   Defendant testified that he was unaware the gun had fired, did not intentionally pull the trigger, and did not push Jasmine out the window.   But defendant admitted that when the gun fired, it was in his hands and he “had gained control over the gun.”

Defendant testified that he ran downstairs, put the gun on the kitchen counter, went outside, and saw Jasmine lying facedown on the driveway.   He shook her and called her name, then went to tell Michael, who was still on the front porch, to call 911.   Michael's wife Agnes and daughter Natalia ran out to Jasmine.   A police car arrived.   Defendant went back into the kitchen, put the gun in his pocket, got his bottle of brandy, and went back outside.   He thought he would be arrested, but did not want to talk to the police with a gun in his pocket because he did not want the police to take it away from him.   When the second police car arrived, defendant walked across the street and turned on a side street.   He threw the gun into bushes outside a house he passed.   Two law enforcement officers arrived and detained him.

Defendant testified that on a prior occasion Jasmine kicked him in the ribs.   Natalia testified that sometime in July defendant showed her and her father a bruise on his ribs and said Jasmine had kicked him.   He also told them that Jasmine had broken windows and things in the house.   Natalia had heard glass breaking sometime in July and noticed that windows in defendant's house were broken.   She often heard defendant and Jasmine arguing.

Detective Peter Hecht and his partner interviewed defendant soon after his arrest.   Defendant reeked of liquor but was able to answer their questions.   Defendant repeatedly asked them what had happened to “the girl.”   He admitted they had argued and grabbed one another at the bus stop, but claimed that when he returned home afterward, he sat on the porch with Michael and did not go into the house.   He denied possessing a handgun and denied knowing anything about what happened to “the girl.”   Defendant told the detectives that she frequently entered and exited the house through the upstairs window.

Several days later, after Jasmine's autopsy established that she had been shot in the head, the detectives interviewed defendant again.   Because defendant was not “really cooperating” or being “helpful,” the detectives suggested that Jasmine had committed suicide.   Defendant then said that Jasmine had killed herself “up to a certain degree.”   He said she was “trying to ․ jump out the window” and must have fallen out.   After the detectives said that they knew Jasmine had been shot and suggested that Jasmine and defendant struggled over the gun, defendant said Jasmine was holding his gun in her hand when he arrived in the bedroom.   She pointed the gun at defendant, said she was going to kill herself, and tried to jump out the window with the gun.   They wrestled for the gun, it fired, and Jasmine fell out the window.

Irma Vega witnessed the altercation between defendant and Jasmine outside the meat market where she worked.   Vega heard them arguing, heard the bus bench overturn, and saw Jasmine and defendant rolling on the ground.   Vega testified that defendant punched Jasmine with closed fists, pulled out her hair extensions, and repeatedly banged Jasmine's head on the sidewalk.   Vega phoned 911, and the recording of her call was played at trial.   Vega testified that at some point Jasmine “flipped on [defendant] and pinned him down” with one hand while punching him with her other hand.   Eventually, Jasmine got up.   Defendant stomped on a hair appliance that fell out of Jasmine's bag and broke it.   Jasmine walked across the street, into the U-Haul facility.   Defendant followed, and Vega lost sight of them.

Michael testified that when Jasmine walked back after her trip to the bus stop, she looked upset, mumbled something, and went inside.   Defendant arrived and appeared calm, but slammed the door as he entered the house.   As Michael walked back toward his own house, he heard a “rumble” and two “thumps” coming from the roof of defendant's house.   Michael ran back and saw Jasmine lying on the ground.   He ran to his house and alerted Agnes and Natalia, who called 911.

Michael told the detectives that Jasmine was crying when she arrived home from the bus stop and told him that defendant might try to hurt her.   Michael described the “thumps” that he heard as “a pow and a bang.”   After he ran back, he saw defendant standing over Jasmine's body, and defendant told him, “It don't look too good here.   So go ahead and call the paramedics.”   Defendant also said, “I done messed up.”

Sheriff's Deputies Shauna Roseborough, Ebe, Eric Rodriguez, and Brett Binder responded to Vega's 911 call, but did not see anyone matching the descriptions given by Vega. While they were outside the U-Haul premises, they were dispatched to defendant's house.   As Rodriguez ran up the driveway toward Jasmine's body, he saw defendant walk down the front steps of the house.   Roseborough noticed defendant standing near a car at the end of the driveway.   She saw him walk slowly down the street, cross the street, and turn on a side street.   After the paramedics arrived, a young woman who had been standing near the body told Roseborough that the victim had been in a fight with her boyfriend and pointed to defendant.   Roseborough and Ebe drove in the direction defendant had walked, found him, and detained him.   Defendant was holding a bottle of brandy and had a fiber hanging from his beard that matched the hair extensions Roseborough had seen next to the overturned bus bench in front of the meat market.   Roseborough and Ebe drove defendant to the meat market, where Vega identified him as the man she saw beating the girl in front of her store a little earlier that day.

The jury acquitted defendant of murder, but convicted him of voluntary manslaughter.   It found that in the commission of the offense, defendant personally used a handgun.   The court sentenced defendant to 21 years in prison.

DISCUSSION

1. Refusal to instruct upon self-defense and unreasonable self-defense

Defendant requested instructions upon self-defense, unreasonable self-defense, and heat of passion.   The trial court instructed upon accident and upon heat of passion as a basis for a voluntary manslaughter verdict, but refused to instruct upon self-defense or unreasonable self-defense.   Defendant contends the court erred by refusing the requested instructions.

A trial court must give a requested instruction regarding a defense only if substantial evidence, considered in the light most favorable to the defendant, could establish that defense.  (People v. Mentch (2008) 45 Cal.4th 274, 290;  In re Christian S. (1994) 7 Cal.4th 768, 783.)   Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence a reasonable jury could find persuasive.  (People v. Cunningham (2001) 25 Cal.4th 926, 1008.)

Self-defense requires an actual and reasonable belief in the need to defend against an imminent danger of death or great bodily injury.  (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.)   Although the ultimate test of the reasonableness of the defendant's belief is objective, the trier of fact must consider what would appear to be necessary to a reasonable person in the position of defendant, with the defendant's knowledge and awareness.  (Id. at pp.   1082-1083.)   Deadly force or force likely to cause great bodily injury may be used only to repel an attack that is likely to cause death or great bodily injury.  (People v. Hardin (2000) 85 Cal.App.4th 625, 629-630.)   The right to exercise self-defense endures only as long as the real or apparent danger.  (People v. Pinholster (1992) 1 Cal.4th 865, 966, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459.)

Defendant cites People v. Villanueva (2008) 169 Cal.App.4th 41 (Villanueva ) in support of his argument that he was entitled to a self-defense instruction.   In Villanueva, the evidence showed that Manzano and Villanueva had oral and physical fights and Manzano said he would kill Villanueva the next time he saw him.   Manzano left, then returned, but remained in his van.   Villanueva approached Manzano's van, pointed a gun at Manzano, and told Manzano to leave.   Villanueva testified that Manzano said he was “ ‘born to die,’ ” and stepped on the accelerator.   Villanueva testified his gun then fired accidentally.   The trial court refused to instruct on self-defense and unreasonable self-defense, and the jury convicted Villanueva of attempted murder.  (Id. at pp.   45-48.)   The appellate court observed that “a defendant's assertion of accident may be disregarded by the jury in an appropriate case, and will not foreclose jury instruction on self-defense when there exists substantial evidence that the shooting was intentional (and met other requirements of self-defense).”  (Id. at p. 51.)   It concluded that the evidence was sufficient to require instruction upon self-defense and unreasonable self-defense because, given Manzano's conduct and his threat to kill Villanueva, the jury could have concluded that Villanueva intentionally fired in self-defense because he feared that Manzano was trying to run over him.  (Id. at pp.   52-53.)

Similarly, in People v. Elize (1999) 71 Cal.App.4th 605 (Elize ), two of the defendant's girlfriends came together to his workplace and attacked him with an object.   One of the girlfriends, defendant, and an eyewitness all testified that a physical altercation occurred between the defendant and the two women, and it was undisputed that defendant suffered a broken wrist.   The girlfriend claimed she hit defendant with a cell phone, while defendant testified that both women struck him repeatedly with iron pipes.   The defendant, who was an armed guard, claimed that the girlfriend attempted to grab his gun, they struggled for it, he pointed it upward, and it fired accidentally.   The girlfriend denied attempting to grab the gun and testified that defendant pulled the gun from his holster and fired it toward her chest.   The uninvolved eyewitness did not see the gun.  (Id. at pp.   607-609.)   The trial court refused to instruct on self-defense because the defendant had testified that the shot was fired accidentally.   The appellate court reversed, stating, “In the instant case, a jury could find from the evidence presented that defendant was sought out and attacked by two angry women much larger than he, that he was being beaten with pipes, that this beating accounted for his broken wrist, that one of the women tried to take his handgun, and that he struggled with that woman while the other continued to beat him.   A jury could disbelieve defendant's testimony that the gun fired accidentally during this struggle.   A jury could find that defendant fired the gun intentionally, hoping to end the attack upon him either by hitting one of his assailants or by firing into the air to scare off his attackers.”  (Id. at pp.   615-616.)

Here, although defendant had a right to defend himself by attempting to grab the gun away from Jasmine, substantial evidence did not support a theory that he was acting in self-defense at the time Jasmine was actually shot, and the jury rejected his claim that the gun accidentally fired during or as a result of the struggle over the gun.   A self-defense theory would require evidence supporting a finding that at the moment defendant fired the gun at Jasmine, he actually and reasonably believed she posed a threat of imminent death or great bodily injury to defendant, and he needed to fire the gun to defend himself.   But if defendant had sufficient control of the gun to intentionally fire it at Jasmine, she no longer posed a threat of imminent death or great bodily injury to him, as far as the record reveals.   Defendant admitted in his testimony that when the gun fired, it was in his hands and under his control.   Defendant argues that Jasmine had hit him with her fists in the earlier fight at the bus stop and on a prior occasion she had kicked him in the ribs and broken things in the house.   But the possibility that Jasmine would hit or kick defendant or break an object did not threaten him with imminent death or great bodily injury.   And, as far as the record reveals, there was only one weapon present during the fatal confrontation between defendant and Jasmine.   Jasmine posed a threat of death or great bodily injury to defendant only when she had control of the gun and was pointing it at defendant.   When defendant had control of the gun and it was pointed at Jasmine (as it necessarily was when it fired the shot into her forehead), she did not pose a threat to him sufficient to warrant the use of deadly force.   This distinguishes the present case from Villanueva, in which the victim was “armed” with a moving vehicle and thus posed a threat of death or great bodily injury to Villaneuva at the moment Villanueva's gun fired, and Elize, in which the victim had been beating the defendant with an object that may have been a pipe, then attempted to grab his gun, presumably to use it in her ongoing attack upon the defendant.   In each case, the right to use deadly force in self-defense existed at the moment of the shooting.   Here, defendant's right to use deadly force terminated before the shooting.

If a jury accepts a theory of unreasonable self-defense, the crime committed is voluntary manslaughter.  (People v. McCoy (2001) 25 Cal.4th 1111, 1116.)   The jury convicted defendant of voluntary manslaughter on a heat of passion theory.   Thus, no possible prejudice resulted from the trial court's refusal to instruct upon unreasonable self-defense.   We thus need not further address the contention.

2. Flight instruction

Over defendant's objection, the trial court instructed the jury with CALCRIM No. 372, which told the jury that flight or attempted flight immediately after the commission of a crime would support an inference of consciousness of guilt.   The court also instructed the jury with CALCRIM Nos. 362 and 371, which told the jury that consciousness of guilt could also be inferred from making false or misleading statements and hiding evidence.

Defendant contends there was no substantial evidence of flight.   He argues that his “actions, at worst, demonstrate preemptive action to avoid contact with the police and not action designed to avoid apprehension after the known commission of a crime.”

A flight instruction is proper and required where the evidence shows that defendant departed the crime scene under circumstances suggesting his movement was motivated by a consciousness of guilt.  (Pen.Code, § 1127c;  People v. Bradford (1997) 14 Cal.4th 1005, 1055.)   Flight requires neither running nor distance;  it simply requires an apparent purpose to avoid being observed or arrested.  (Bradford, at p. 1055.)  “To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence.”  (People v. Bonilla (2007) 41 Cal.4th 313, 328.)

The record showed that after the first sheriff's patrol car arrived at defendant's house, he walked back inside, retrieved his gun from the kitchen counter, and put it in his pocket.   After the second sheriff's patrol car arrived at the house, defendant walked away from his house, crossed the street, and turned onto a different street, all the while carrying the gun in his pocket.   He threw the gun into bushes somewhere along his route, and he was still walking away from his house when Deputy Roseborough and her partner located and detained him.   These circumstances amply supported an inference that defendant's departure from his home was motivated by his consciousness of guilt.   Defendant's testimony provided a somewhat differing explanation for his departure, but the trial court was still required to give the flight instruction.

We further note that the instruction left it up to the jury to determine whether defendant's conduct constituted flight and, if so, what the “meaning and importance” of that conduct was.   Thus, if the jury did not find that defendant's departure from the scene of the robbery constituted flight immediately after the commission of a crime, it would simply disregard CALCRIM No. 372 and would not infer consciousness of guilt.   But if the jury found flight, the instruction provided defendant some protection by informing the jury it could not infer guilt from flight alone.   The court also instructed the jury that some instructions may not apply, and it should not assume that the inclusion of an instruction suggested anything about the facts.  (CALCRIM No. 200.)   The trial court did not err by instructing with CALCRIM No. 372.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

We concur:

ROTHSCHILD, J. CHANEY, J.