People v. Elize

Opinion

Defendant Passage Elize worked as an armed security guard at a food market. He was apparently romantically involved with two

During discussion of instructions, defense counsel requested instructions on self-defense, stating: “After some reflection I would ask the court to consider giving self-defense instructions .... I realize that there’s been no testimony from the defendant that he specifically was acting in self-defense, however, I think these instructions relate to legal issues, [and that] the fact finder can make inferences [of self-defense.] ... As the court knows, it seems to be uncontroverted that [defendant] suffered a broken arm during the incident. He testified it was a result of being hit by a pole and so for that reason, I’m asking the court to give self-defense instructions.” The court denied the request, stating there was no factual basis for it because defendant had testified that the gun fired accidentally.

During its opening argument to the jury, the prosecution emphasized that self-defense was not an issue in the case, i.e., that defendant was not claiming that he shot in order to defend himself. Defense counsel also then argued that defendant did not say that he was trying to defend himself after one of the women broke his arm. Defense counsel instead argued that the shot was accidental.

Defendant was convicted and sentenced as noted above.

III. The Court Erred in Refusing Instructions on Self-defense.

Defendant testified that the gun had fired accidentally. He did not testify that he intentionally fired in an effort to stop the attack which had broken his arm. The court refused the self-defense instructions precisely because defendant had testified that the firing was accidental, and had not testified that it was an effort at self-defense. A jury, however, could disbelieve defendant’s testimony that the firing was accidental, and decide instead that he had fired intentionally, either actually attempting to hit one of the women or to shock them into breaking off their attack. In convicting defendant of assault with a firearm, the jury apparently did disbelieve defendant’s testimony that the gun had fired accidentally, and apparently concluded instead that the firing was intentional. Having made the apparent determination that the firing was intentional, and having no instruction regarding an intentional firing in self-defense, the jury was deprived of any further alternative under the instructions given other than to convict. The question is whether the jury should have been given instructions which would have allowed the jury, after reaching its apparent conclusion that the firing was intentional, to consider whether the firing constituted justifiable self-defense.

In Breverman, the defendant shot at a gang of fleeing boys who had vandalized his car and threatened to break into his home. One of his shots killed one of the boys. The defendant testified that he had not aimed at any of the boys and had not intended to hit any of them. The question was whether the court should have instructed on heat of passion manslaughter, notwithstanding the defendánt’s testimony that he had not intended to shoot any of the boys. In answering the question in the affirmative, the Breverman court reviewed the governing principles.

The court noted that “[i]n [People v.] Sedeno [(1974)] 10 Cal.3d 703 [ 112 Cal.Rptr. 1 , 518 P.2d 913 ], we noted that the sua sponte duty to instruct on all material issues presented by the evidence extends to defenses as well as to lesser included offenses . . . , but we drew a sharp distinction between the two situations. In the case of defenses, we concluded, a sua sponte instructional duty arises ‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ . . . Thus, when the trial court believes ‘there is substantial evidence that would support a defense inconsistent with that advanced by a defendant, the court should ascertain from the defendant whether he wishes instructions on the alternative theory.’ ” (People v. Breverman, supra, 19 Cal.4th at p. 157, some italics omitted.) In applying this passage to the instant case, a point of unclarity becomes apparent, It is not clear what the Supreme Court meant in stating that a defendant is “relying” on a defense or in referring to a “defendant’s theory of the case.” In the instant case, the defense counsel attempted to raise the defense of self-defense, since it was so amply supported in the record. The trial court, however, precluded defense counsel from advancing that defense because of defendant’s testimony that the gun had fired accidentally during the struggle. Thus if the nature of defendant’s testimony is what the Supreme Court had in mind in its references to “relying” and “defendant’s theory of the case,” then it would be correct that the trial court in the instant case had

Breverman continued its analysis by referring to People v. Barton (1995) 12 Cal.4th 186 [ 47 Cal.Rptr.2d 569 , 906 P.2d 531 ], in which the “instructional distinction between defenses and lesser included offenses” again arose. (People v. Breverman, supra, 19 Cal.4th at p. 157.) Barton also involved a homicide, one in which the defendant claimed to have fired his gun accidentally. (See also Barton, supra, 12 Cal.4th at pp. 192-193 [“Defendant, testifying on his own behalf, claimed that the shooting was an accident. . . . Defendant denied any intent to shoot.”].) Defense counsel in Barton specifically requested that no instructions be given on heat of passion manslaughter. The trial court nevertheless instructed on heat of passion manslaughter, because substantial evidence supported that lesser included offense. The Supreme Court in Barton affirmed, stating that “ ‘[t]he trial court must instruct on lesser included offenses . . . [supported by the evidence] . . . , regardless of the theories of the case preferred by the parties.’ ” {Breverman, supra, 19 Cal.4th at p. 159.) This conclusion was based on the underlying principle that “. . . the jury must be allowed to ‘consider the full range of possible verdicts — not limited by the strategy, ignorance, or mistakes of the parties,’ so as to ‘ensure that the verdict is no harsher or more lenient than the evidence merits.’ ” (Id. at p. 160.)

Returning to a consideration of how these principles might apply to the instant case, it is clear that had the shot in question hit and killed one of the women, and had defendant been charged with murder, the trial court would not only have had a duty, but indeed a sua sponte duty, to instruct on both heat of passion and unreasonable self-defense manslaughter notwithstanding defendant’s claim that the gun fired accidentally. The fact that defendant testified that the shot was accidental would not have precluded a sua sponte duty to instruct on the lesser included offenses, as Barton makes clear. It is clear that inconsistency between an instruction and a defendant’s testimony is no reason to refuse an instruction, so long as substantial evidence supports the instruction, at least in the case of lesser included offenses.

Returning to the facts involved in Breverman, the Breverman court concluded that “. . . even though defendant insisted in his police statement that he did not ‘aim[]’ or fire ‘at them,’ a jury could reasonably disbelieve that claim and conclude, from all the evidence, that defendant killed intentionally, but while his judgment was obscured due to passion aroused by sufficient provocation.” (People v. Breverman, supra, 19 Cal.4th at p. 164.)

The Sedeño opinion contains a seemingly inconsistent dictum, and also some pertinent guidance in addition to those portions of Sedeño discussed in Breverman. In Sedeño, a mentally disturbed man was attempting to escape police custody, and the police were attempting to subdue the man. The man seized an officer’s gun and shot and killed the officer. He was convicted of first degree murder. On appeal, he contended (among other things) that the trial court should have instructed, sua sponte, on the defenses of unconsciousness and self-defense. The issue thus was the scope of the trial court’s duty to instruct sua sponte, not whether the trial court should have given an expressly requested instruction.

The opinion in Sedeno appears either internally contradictory or outmoded in several respects. In discussing the defense of unconsciousness, Sedeño

Sedeño went on to reject the companion contention that an instruction should have been given on self-defense. The context of Sedeño was an attempted escape involving an attempt by police officers to subdue the would-be escapee. Hence the factual context was far different from that in the instant case. The circumstance of an attempted escape, in which the escapee disarms and shoots an officer attempting to prevent the escape, is hardly conducive to a defense of self-defense, at least absent some unusual circumstances not present in Sedeño. The Sedeño opinion began its discussion of this subject by stating “that there was no substantial evidence to warrant giving instructions on” the defense of self-defense. Just as was the case with regard to the defense of unconsciousness, Sedeño nevertheless went on to consider further the defendant’s contention, that instructions should have been given on self-defense, but not surprisingly — in view of the factual context — rejected it. However, the language used by Sedeño in rejecting the contention, taken out of its context and imported into the instant factual scenario, would support affirming the trial court’s refusal of self-defense instructions in the instant case. In considering whether the factual scenario in Sedeño raised a sua sponte duty to instruct, Sedeño commented on a different issue, stating in dictum that “[i]t is not error to refuse a request for instructions on self-defense when there is no evidence from which it can be inferred that the defendant feared great bodily harm or death at the hands

From Breverman, Barton and the portions of Sedeño cited with approval in Breverman, we can glean several instructive points. First, a lesser included instruction is required even though the factual premise underlying the instruction is contrary to the defendant’s own testimony, so long as there is substantial evidence in the entire record to support that premise. Thus, for example, an instruction on heat of passion manslaughter is required even though the defendant testifies that he had no intent to shoot and that the shot was accidental. Second, the rules regarding when a trial court has a sua sponte duty to instruct differ according to whether the instruction relates to a lesser included offense or to a defense. As to lesser included offenses, the court must instruct, as noted above, whenever there is substantial evidence to support the instruction. As to defenses, such as self-defense, the court must instruct sua sponte only if there is substantial evidence of the defense and the defense is not “inconsistent with defendant’s theory of the case.” (People v. Breverman, supra, 19 Cal.4th 142 at p. 157, quoting from Sedeno.) Third, in the event that there is substantial evidence of a defense inconsistent with the defense advanced by the defendant, the court should ascertain whether the defendant wants instructions on the alternate theory. Implicit in this proposition is the corollary that the court should give the instruction on the alternate defense if the defendant so requests upon being asked by the court. It seems to follow that the court should also give the instruction on the alternate defense without the middle step of the court asking in order to “ascertain” whether the defendant wants the alternate defense instruction, if the defendant simply requests the instruction expressly. Fourth, in determining whether the record contains substantial evidence of a lesser included offense, the court should not consider the credibility of witnesses, instead leaving credibility determinations for the jury. Although this substantial evidence point was made with respect to lesser included offenses, no reason has been suggested why the law of substantial evidence is any different in the case of defenses.

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