THE PEOPLE v. ARTURO AVILA (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Arturo Avila appeals from the judgment entered following his conviction by jury for assault with a deadly weapon (Pen.Code, § 245, subd. (a)(1)) with infliction of great bodily injury (Pen.Code, § 12022.7, subd. (a)).  The court sentenced appellant to prison for seven years.   We affirm the judgment.

FACTUAL SUMMARY

1. People's Evidence.

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6Cal.4th 1199, 1206), the evidence established that in February 2010, Efrain Simental and appellant lived in separate apartments in the apartment building located at 8108 Langdon in Los Angeles County.   Simental's apartment (No. 204) was down the hall from appellant's apartment (No. 203), and a hallway door separated the two apartments.

About 7:00 or 8:00 p.m. on February 6, 2010, Simental and appellant were drinking in appellant's apartment with a person named Herman who lived with Simental.   When appellant drank, he became aggressive.   The three became drunk.   About an hour and a half later, Simental and Herman returned to their apartment.   Leo Gomez (the victim) lived in Simental's apartment and was inside.

Simental was upset and indicated to Gomez that Simental was tired of drinking with appellant and could not stand him.   About 10 minutes after Simental returned to his apartment, appellant knocked on the door of Simental's apartment for two or three minutes.   Simental and Herman answered the door, and eventually the three began arguing.   Appellant was angry because he had been left to drink alone.

Simental told appellant to leave and tried to close the door, but a fight ensued.   Simental was at his door's threshold and appellant was a few feet outside the door.   Simental hit appellant two or three times with a broom.   Simental also swung a chair which hit appellant and Gomez.   After the fight ended, appellant said he was going to get a knife, said, “ ‘Now, I'm going to kill you,’ “ and left.   Simental said he too would get a knife, and Simental entered his apartment.   Appellant fled into his apartment, which was 12 or 20 feet away.

Seconds later, Simental and Gomez were in the hallway when appellant returned with a large butcher knife with a six-inch blade.   Appellant stabbed Gomez with the knife.   Gomez grabbed the knife, broke off its blade, and threw the blade towards Simental's apartment door.   Appellant eventually fled.   During the incident, neither Simental nor Gomez went past the hallway door to the side of the hall where appellant's apartment was located.   Gomez was taken to the hospital.

About 8:45 p.m. on February 6, 2010, Los Angeles Police Officer Carlos Barrios received a call about the stabbing and went to the apartment building.   Gomez was inside Simental's apartment and Gomez was bleeding from an abdominal wound.   A broken knife handle was on the hallway floor perhaps seven feet from Simental's door.   A small amount of blood was perhaps three or four feet outside that door and blood was on a wall adjacent to the door.

Police went to appellant's apartment and banged on the door about 30 times before Carmen Ruiz, appellant's girlfriend, answered.   Appellant was not home.   Police recovered a knife inside the apartment.   The knife was on a table near the door.   The knife was under clothing but the knife's blade was visible.   There was blood on the knife's handle and fresh blood on the knife's blade.   Barrios saw no signs of a struggle at or inside appellant's apartment and Barrios saw no blood at appellant's apartment.

Barrios went to the hospital to interview Gomez and, while there, Barrios received information on his radio that a person allegedly named Luis Sosa was reporting that an assault with a deadly weapon had occurred at the same location where the stabbing had occurred.   Barrios called Sosa, who said he lived in apartment 203 at 8108 Langdon.   Sosa told Barrios that Sosa had been jumped and beaten by three males with a chair.   Barrios told Sosa to go to the police station and report the crime.   Sosa did not come to the station that day.

However, about 4:00 a.m., on February 7, 2010, appellant came to the police station.   Appellant told Barrios that appellant was the person to whom Barrios had spoken the day before, and appellant provided his true name.   Appellant told Barrios the following happened on the evening of February 6, 2010.   Appellant was drinking with Simental and another person, but Simental and that other person left to return to their apartment.   Appellant's dog followed the two and might have entered their apartment.   Appellant went to get his dog, but three males assaulted him, chased him to his apartment, and hit him on the head with a chair when he was in front of his apartment.   One of the assailants assaulted appellant at appellant's apartment door.   Appellant retrieved a knife from his kitchen and stabbed one of his assailants in self-defense.¹

2. Defense Evidence.

In defense, Ruiz testified that during the afternoon of February 6, 2010, perhaps at 4:00 p.m., Simental and Herman, both of whom had been drinking, came to appellant's apartment.   Simental, Herman, and appellant drank beer for several hours.   Ruiz stayed about two hours, then entered the bedroom with her child.   Simental eventually became loud and challenged appellant to fight.

At some point, Simental and Herman left the apartment, and appellant entered the bedroom.   Appellant was in the bedroom with Ruiz for about 30 minutes, then he left to watch television.   Later, perhaps about 8:00 p.m., Ruiz heard sounds like someone was trying to break down appellant's apartment door.   Ruiz testified she heard the voices of Simental, Herman, and Gomez “saying to get out, that he wanted to kill him.”   Ruiz testified she exited the bedroom but appellant told her to “ ‘get into the bedroom because they're going to kill us.’  “ Ruiz returned to the bedroom.   She did not see anyone enter the apartment because she was in the bedroom, but she could hear voices of people in the apartment.   Ruiz testified appellant was saying, “ ‘Don't kill me.’   “ She later exited the bedroom and saw blood around the living room.   She testified she “came out in front of the door” and saw a chair leg that belonged to a chair that did not come from appellant's apartment.   Ruiz testified she told appellant to leave because “they were screaming ․ that they were going to kill [him].”   Appellant left.

About 10 minutes after appellant left, police arrived.   Ruiz did not tell police what happened because police asked her if she had seen anything, and she replied no because she had been in the bedroom.   Ruiz showed the officers the blood on the floor.

Appellant testified that about 7:30 or 8:00 p.m. on February 6, 2010, Simental and Herman left appellant's apartment.   About 10 or 20 minutes later, appellant watched television in the living room.   Perhaps 15 minutes later, appellant noticed his dog was missing.   The dog would always leave with Simental and Herman.   Appellant went to Simental's apartment and knocked.   He could hear arguing, and his dog barking, inside.

A woman opened the door and greeted appellant, and Gomez asked what appellant wanted.   Appellant indicated he wanted his dog.   Simental, using profanity, told Gomez to tell appellant to leave and that Simental could not stand him.   Appellant's dog came to appellant and he stooped to pick up his dog.   When appellant stood, Simental broke a chair over his head.   Gomez began hitting appellant.   Appellant was outside Simental's apartment.   Simental assaulted appellant for about 10 minutes, and during that time Simental was saying he was sick of appellant and would kill him.   Herman came out and hit appellant with a broom.   Appellant was hit twice in the back with a heavy object as he fled to his apartment.

Simental and Herman chased appellant to his apartment, prevented him from closing his apartment door, and entered appellant's apartment.   Gomez later entered.   Simental struck appellant and appellant fell.   Appellant held onto a little bar that was next to the kitchen.   A knife was at the bar, and appellant picked it up because he wanted to defend himself.   Before appellant picked up the knife, Simental said he wanted to kill appellant.   Appellant was afraid for the lives of himself, Ruiz, and the child.   Simental was holding a chair leg and tried to hit appellant with it.   Herman was holding a broom handle.

After appellant picked up the knife, Gomez and Herman tried to stop Simental.   Appellant had the knife in his right hand.   Appellant demonstrated in court how he held the knife and the prosecutor represented, “[appellant] is holding his hand, fist clenched, little bit above shoulder height, 90–degree angle at the elbow.”

Appellant denied making any motions or movements with the knife towards anyone.   Appellant testified he was “just holding it up.”   Appellant told the men that if they did not leave, anything could happen.   Appellant meant by that that he could hurt them.

Simental swore at appellant and tried to hit the knife with the “chair” Simental was holding.   Simental hit the knife, it broke, and its blade fell.   Appellant kept the handle.   Simental started hitting appellant with the chair while Gomez and Herman tried to stop Simental.   Gomez picked up the blade.   Simental, Gomez, and Herman later left.   Appellant never had another knife in his hands.

The parties stipulated to the effect Ruiz possessed a chair leg when she arrived with appellant at the police station on February 7, 2010, and she retained the chair leg.   In December 2009, Ruiz reported to police that appellant had committed an act of domestic violence, but she testified at the present trial that she had fabricated the report.

3. Rebuttal Evidence.

In rebuttal, Barrios testified that when he and other officers responded to the apartment building, the officers banged on appellant's apartment door with their hands, then with their batons, until Ruiz opened the door.   A small child was sleeping on the couch in the living room.   Barrios asked Ruiz if she had seen appellant at any time prior to the time Barrios had been banging on the door.   Ruiz said she had been asleep for awhile so she had not seen appellant.   Barrios also asked Ruiz if she knew what had happened, and Ruiz replied she had been asleep the whole time.   During the time Barrios was in appellant's apartment, Barrios never saw blood anywhere except on the knife Barrios recovered.

ISSUE

Appellant claims the trial court erred by failing to instruct sua sponte on the mandatory rebuttable presumption of Penal Code section 198.5.

DISCUSSION

The Trial Court Had No Duty to Instruct Sua Sponte on the Penal Code Section 198.5 Presumption.

1. Pertinent Facts.

The trial court failed to give, and appellant did not request that the court give, CALCRIM No. 3477, pertaining to the “Presumption That Resident Was Reasonably Afraid of Death or Great Bodily Injury.” ²  This presumption is based on Penal Code section 198.5.³

However, the trial court gave to the jury the following standard instructions:  (1) CALJIC No. 2.90 on the presumption of innocence and the burden of proof beyond a reasonable doubt, (2) CALJIC No. 9.02 on assault with a deadly weapon or by force like to produce great bodily injury or death, and (3) CALJIC No. 9.00 on the definition of assault.⁴  That definition required, inter alia, that a person willfully and “unlawfully” commit an “act” which by its nature would probably and directly result in the application of physical force on another person.   The court also gave CALJIC No. 5.30 on self-defense against assault,⁵ and other standard self-defense instructions.

2. Analysis.

Appellant claims the trial court erred by failing to instruct sua sponte on the mandatory rebuttable presumption of Penal Code section 198.5.   Appellant argues the trial court should have given CALCRIM No. 3477 or a similar instruction.   The claim is unavailing.   Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.  (Cf. People v. Palmer (2005) 133 Cal.App.4th 1141, 1156 (Palmer ).)   The given instructions correctly stated the law on assault with a deadly weapon and, importantly, self-defense, and were responsive to the evidence.   To the extent Penal Code section 198.5 implicates self-defense principles, appellant waived his instructional issue by failing to request appropriate clarifying or amplifying language.  (Cf. Palmer, at p. 1156.)

Even if the instructional issue was not waived, we reject appellant's claim for two reasons.   First, the People's evidence established appellant assaulted Gomez by stabbing him outside Simental's apartment.   Indisputably, that evidence did not support the giving of CALCRIM No. 3477.   Based on appellant's testimony, appellant picked up a nearby knife and held it up because he wanted to defend himself.   The record does not reflect which way the knife blade was pointed.   Appellant denied making any motions with the knife towards anyone, but instead gave them a warning to the effect they should leave and anything could happen if they did not.   Simental then struck the knife.

The court properly instructed on assault, assault with a deadly weapon, and self-defense.   The assault instruction (CALJIC No. 9.00) told the jury that proof of assault required proof that, inter alia, “1. A person ․ committed an act which by its nature would probably and directly result in the application of physical force on another person” and “2. The person committing the act was aware of facts that would lead a reasonable person to realize that as a direct, natural and probable result of this act that physical force would be applied to another person.”   If appellant did not commit an act satisfying the above two enumerated requirements, there was no occasion to instruct on assault or self-defense.   Based on appellant's testimony, appellant never committed the requisite “act.”   There was therefore no need to instruct on whether the requisite act was (1) unlawful or (2) lawful as done in self-defense.   Appellant was not a “person using force intended or likely to cause death or great bodily injury” within the meaning of Penal Code section 198.5.

Contrary to appellant's testimony in court, the People's evidence established that when Barrios interviewed appellant, appellant told him that appellant had stabbed one of appellant's assailants in self-defense.   However, there was no evidence appellant told Barrios that this happened inside appellant's apartment.   The trial court was under no obligation to give CALCRIM No. 3477 or a similar instruction because there was no substantial evidence to support such an instruction.  (Cf. People v. Tufunga (1999) 21 Cal.4th 935, 944.)

Second, the court instructed the jury on the presumption of innocence and the People's burden of proof beyond a reasonable doubt.   The court also instructed on the elements of assault with a deadly weapon, including the definition of assault.   The definition of assault required, inter alia, that a person “unlawfully” (CALJIC No. 9.00) commit the requisite act.   The court further instructed on self-defense, and the instruction indicated, inter alia, that it was “lawful” (CALJIC No. 5.30) for an assaulted person to defend himself from attack “if, as a reasonable person, he has grounds for believing and does believe that bodily injury is about to be inflicted upon him” (CALJIC No. 5.30) and the assaulted person uses reasonably necessary force.

“[T]he effect of [Penal Code] section 198.5 was to create a presumption that defendant, by having a reasonable fear of death or great bodily injury, acted properly in self-defense or defense of another.”  (People v. Owen (1991) 226 Cal.App.3d 996, 1004 (Owen ).)   As a result of section 198.5, the burden, therefore, is on the People to prove beyond a reasonable doubt that a defendant did not have a reasonable fear of imminent peril of death or injury to himself when the defendant killed the victim.  (Id. at p. 1004.)

However, in light of the facts, and instructions given, in this case, any trier of fact concluding (as the present jury did) that the People had rebutted the presumption of innocence and had proven beyond a reasonable doubt that appellant acted “unlawfully” would also conclude the People had rebutted the presumption codified in section 198.5 and had proven beyond a reasonable doubt that appellant did not properly act based on a “reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household” within the meaning of that section.   The trial court properly instructed the jury on the elements of appellant's offense, the trial court had no duty to give sua sponte CALCRIM No. 3477 or a similar instruction (cf.   Owen, supra, 226 Cal.App.3d at pp. 1004–1007) and no constitutional error occurred.

Finally, in light of the instructions given, the strength of the People's case, and the fact the jury reasonably could have concluded that much of the defense evidence was fabricated, any instructional error was harmless.  (Cf. People v. Watson (1956) 46 Cal.2d 818, 836.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Appellant provided a written statement which said in relevant part, “ ‘My name is Arturo Avila.   I was calm, drinking in my home with a neighbor.   And when he went home, my dog went with him.   And I went to knock on his door.   And ․ they opened it up, I asked about my dog.   Leonardo answered back to me with an attitude.   And I asked him, “What is going on?”   And his friends came and began to beat me up.   And they broke a chair on my head.  [¶] ․ [¶] I ran toward my house, but they came, and I had to defend myself with a knife.   They took out another one, and I had to run because they were pursing me.’ “.  FN1. Appellant provided a written statement which said in relevant part, “ ‘My name is Arturo Avila.   I was calm, drinking in my home with a neighbor.   And when he went home, my dog went with him.   And I went to knock on his door.   And ․ they opened it up, I asked about my dog.   Leonardo answered back to me with an attitude.   And I asked him, “What is going on?”   And his friends came and began to beat me up.   And they broke a chair on my head.  [¶] ․ [¶] I ran toward my house, but they came, and I had to defend myself with a knife.   They took out another one, and I had to run because they were pursing me.’ “

FN2. CALCRIM No. 3477, states, in pertinent part, “The law presumes that the defendant reasonably feared imminent death or great bodily injury to (himself/herself) [, or to a member of (his/her) family or household,] if:  [¶] 1. An intruder unlawfully and forcibly (entered/ [or] was entering) the defendant's home;  [¶] 2. The defendant knew [or reasonably believed] that an intruder unlawfully and forcibly (entered/ [or] was entering) the defendant's home;  [¶] 3. The intruder was not a member of the defendant's household or family;  [¶] AND [¶] 4. The defendant used force intended to or likely to cause death or great bodily injury to the intruder inside the home.  [¶] ․ [¶] The People have the burden of overcoming this presumption.   This means that the People must prove that the defendant did not have a reasonable fear of imminent death or injury to (himself/herself) [, or to a member of his or her family or household,] when (he/she) used force against the intruder.   If the People have not met this burden, you must find the defendant reasonably feared death or injury to (himself/herself) [, or to a member of his or her family or household].”.  FN2. CALCRIM No. 3477, states, in pertinent part, “The law presumes that the defendant reasonably feared imminent death or great bodily injury to (himself/herself) [, or to a member of (his/her) family or household,] if:  [¶] 1. An intruder unlawfully and forcibly (entered/ [or] was entering) the defendant's home;  [¶] 2. The defendant knew [or reasonably believed] that an intruder unlawfully and forcibly (entered/ [or] was entering) the defendant's home;  [¶] 3. The intruder was not a member of the defendant's household or family;  [¶] AND [¶] 4. The defendant used force intended to or likely to cause death or great bodily injury to the intruder inside the home.  [¶] ․ [¶] The People have the burden of overcoming this presumption.   This means that the People must prove that the defendant did not have a reasonable fear of imminent death or injury to (himself/herself) [, or to a member of his or her family or household,] when (he/she) used force against the intruder.   If the People have not met this burden, you must find the defendant reasonably feared death or injury to (himself/herself) [, or to a member of his or her family or household].”

FN3. Penal Code section 198.5, states, in pertinent part, “Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.”.  FN3. Penal Code section 198.5, states, in pertinent part, “Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.”

FN4. CALJIC No. 9.00 read, in relevant part, “In order to prove an assault, each of the following elements must be proved:  [¶] 1. A person willfully and unlawfully committed an act which by its nature would probably and directly result in the application of physical force on another person;  [¶] 2. The person committing the act was aware of facts that would lead a reasonable person to realize that as a direct, natural and probable result of this act that physical force would be applied to another person;  and [¶] 3. At the time the act was committed, the person committing the act had the present ability to apply physical force to the person of another.”  (Italics added.).  FN4. CALJIC No. 9.00 read, in relevant part, “In order to prove an assault, each of the following elements must be proved:  [¶] 1. A person willfully and unlawfully committed an act which by its nature would probably and directly result in the application of physical force on another person;  [¶] 2. The person committing the act was aware of facts that would lead a reasonable person to realize that as a direct, natural and probable result of this act that physical force would be applied to another person;  and [¶] 3. At the time the act was committed, the person committing the act had the present ability to apply physical force to the person of another.”  (Italics added.)

FN5. CALJIC No. 5.30 read, in relevant part, “It is lawful for a person who is being assaulted to defend himself from attack if, as a reasonable person, he has grounds for believing and does believe that bodily injury is about to be inflicted upon him.   In doing so, that person may use all force and means which he believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent.”  (Italics added.).  FN5. CALJIC No. 5.30 read, in relevant part, “It is lawful for a person who is being assaulted to defend himself from attack if, as a reasonable person, he has grounds for believing and does believe that bodily injury is about to be inflicted upon him.   In doing so, that person may use all force and means which he believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent.”  (Italics added.)

KLEIN, P. J. ALDRICH, J.