Opinion
C080785
02-09-2017
THE PEOPLE, Plaintiff and Respondent, v. JAMES RAY BAGLEY, JR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF151219)
Defendant James Ray Bagley, Jr., appeals from a judgment of conviction for assault of Weston Leming. A jury found defendant guilty of assault with a deadly weapon and found true the allegation that defendant personally caused great bodily injury (GBI). (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a).) Defendant admitted four prior prison terms. (§ 667.5, subd. (b).) He was sentenced to an aggregate term of 10 years in state prison.
Undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.
On appeal, defendant contends that the trial court failed to instruct the jury on defense of property sua sponte. The property at issue was defendant's bicycle. Defendant further contends that the trial court's failure to instruct on defense of property sua sponte violated his right to a fair trial and to present a complete defense under the Sixth and Fourteenth Amendments.
We conclude that there was not substantial evidence to support a defense of property instruction. Defendant's testimony showed that his use of force was not motivated by a perceived need to protect his bicycle from harm or theft; rather defendant said he used force to protect himself while he tried to walk past the victim to retrieve his bike from the place he had left it. That evidence supported instruction on self-defense, which the jury received, but not instruction on defense of property.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Trial Evidence
Defendant represented himself at trial.
The trial court determined that Kelly Hennigan was unavailable and her preliminary hearing testimony was read to the jury.
Kelly Hennigan, the victim's on-and-off girlfriend, testified that she met defendant eight months prior through a friend. Defendant helped her with her car; regarding their relationship, they "kissed a couple times." On the evening of June 2, 2015, she and Leming were outside of Taco Bell and saw defendant. Defendant was riding a bicycle; he approached Leming and Hennigan, "saying 'The time has come,' something to that effect, 'I'm going to get mine.' " After this encounter, Leming and Hennigan walked approximately two blocks to the AM/PM.
At the AM/PM, Leming and Hennigan purchased beers and sat outside with their dog and a few other people. Hennigan testified that defendant suddenly appeared; she looked to her right and noticed defendant approximately 40 feet away, near the front entrance helping a woman clean up garbage from the garbage cans. Defendant began smirking and taunting them. He said to Leming, " 'Come on, Wes. What you got? What you got? You want to show me something? You think you are somebody?' " Leming then responded, " 'She is a woman, you know. What is your point?' " After a few minutes, defendant started patting his right pocket, walked back and forth, and continued taunting Leming by asking, " 'What you got?' " Hennigan testified that at this point, she gave Leming a knife and said, " 'It's coming, it's coming,' " letting Leming know that defendant was going to do something. She described the knife she gave Leming as a multi-tool knife, about an inch and a half long. Defendant came up to them and chest-butted Leming. Hennigan told them to stop.
About a minute or two later, defendant returned. Hennigan and Leming were standing on a ledge; defendant was standing about two feet below them. Defendant told Leming to " '[c]ome down here.' " Hennigan testified that defendant pulled a knife and began "to thrash it." She described defendant's knife as a "drywall blade." Leming then used the knife Hennigan had given him, and defendant and Leming began "thrash[ing] at one another." Defendant said he was " 'going to go get the gun,' " and "disappeared."
Hennigan and Leming stayed at the AM/PM, and defendant returned just minutes later with a two-by-four board in his hand. Hennigan testified that defendant "[r]an up as fast as he could, as hard as he could, with full force, and swung back and hit [Leming] in the arm . . . he swung at his face, but [Leming] put his hand up to protect his face." Defendant used both hands to swing the board. She explained that the board had a nail in it, "[a]pproximately, eight to ten inches down," and that is the portion of the board that injured Leming. Hennigan testified that Leming, after being hit, began to lose his balance and stumbled into AM/PM. Defendant then came to the AM/PM door, looked at Leming, then "looked at the way out," then looked again at Leming, and again "looked at the way out like his mind couldn't conceive whether to end it." Defendant left after a minute or two.
Leming's Testimony
Leming testified that he was familiar with defendant and saw him on a few occasions. "[The] [f]irst time he chased me with a two-by-four. The second time he chased me with a baseball bat. [The] [t]hird time I [saw] him at the Feed, he charged. The fourth time he got me." Leming explained that he did not report the prior incidents to the police because he does not have a good relationship with law enforcement.
Leming was at Taco Bell with Hennigan on June 2, 2015. Defendant rode by on his bike, but Leming did not remember if defendant said anything at that time. Leming and Hennigan then went to the AM/PM.
There were two other people at the AM/PM with Leming—Brad "Poet" Capell and Matt McClain. Leming noticed defendant helping a woman empty the trash. Leming walked around the back to the side of AM/PM where defendant was standing. Defendant told Leming, " 'I'm going to get a gun, [Leming], I'm going to get a gun,' " to which Leming responded, " 'Go ahead and get it. I've been shot before.' " Defendant ran behind the AM/PM.
Leming testified that defendant came back and again threatened that he was going to get a gun. Defendant then "took off again." Hannigan warned Leming that defendant carries a box cutter, so Leming asked Hannigan to hand him his knife from her purse.
Leming further testified that defendant came back again and Leming told him, " 'You know what, I told you . . . you shouldn't be stalking people out here, especially my girlfriend.' " Defendant had his hands in his pocket. Defendant jumped up on the curb where Leming was standing and Leming swung his fist at him, but missed. Leming said the knife he had was in his fist when he swung it at defendant, but he denied that it was open. Defendant swung at Leming but Leming did not see a blade. Leming denied that they had swung knives at each other. Defendant jumped off the curb and went back around the back of the store.
Defendant came back; this time from the front of the store. Defendant had a two-by-four. Defendant approached Leming, but Leming believed defendant wanted to fight him, not hit him with the board. Leming further testified that they were moving towards each other when defendant lifted the board up like he was going to hit him. Leming explained that he put his arm up to protect himself and defendant hit him in the elbow with the two-by-four. Leming began to bleed and went into the store. He ultimately had surgery to implant four screws and a plate in his arm from the injury.
Leming testified that before the incident at the AM/PM that night, he split three beers with Hennigan and smoked marijuana that day, but he did not feel intoxicated at the time of the assault.
Capell's Testimony
Capell is a friend of Leming and Hennigan. Capell testified that he was present when Leming was injured. Capell had observed defendant being rude to Hennigan. Leming stood up to defend Hennigan and defendant "threatened" that he would leave and come back. Capell had the impression that Leming and defendant were fighting over Hennigan. Capell further testified that defendant returned, "riding on a little bike with the two-by-four in his hand." At this point, Leming got up and began to approach defendant on the bike. Defendant then hit Leming with the two-by-four. Capell testified that defendant was still on the bike when he hit Leming with the board. Leming had no weapon when he was hit with the two-by-four.
Christopher Evers's Testimony
Christopher Evers was a customer at the AM/PM on the night of the incident. Evers did not know defendant or Leming. Evers testified that he saw defendant outside the AM/PM "wielding a two-by-four in his hands . . . in a threatening manner." Evers said defendant appeared to be "pissed off." Defendant was on foot at the time. When Evers walked past defendant, he looked back and defendant was walking with a red mountain bike and the two-by-four. Defendant had grabbed the bike from the side of the store and then walked around the corner of the store. While Evers was inside the store, approximately four minutes passed and he heard a commotion outside. Leming came into the store bleeding, and Evers administered first aid. Evers saw defendant walking away with the bike and the two-by-four.
Officer Mark Claar's Testimony
On June 5, 2015, three days after the assault, Officer Mark Claar arrested and interviewed defendant. Defendant claimed he did not know Leming or Hennigan. Defendant claimed to have been at his sister's home on the night of the assault, arriving at 8:00 p.m. and leaving at 1:00 a.m. They played Scrabble and Monopoly while he was there.
Gail Brooks's Testimony
The prosecution called defendant's sister to testify. She testified defendant was not at her home on June 2, 2015. She said that whenever defendant visited, he never came inside.
Defendant's Testimony
Defendant testified that he went to the AM/PM and stopped to help a woman with garbage cans. He placed his bicycle against the building and left it there while he helped her. Defendant testified that he looked over and saw Leming, Hennigan, Capell, and McClain. Defendant further testified that the group was drinking next to his bicycle and he tried to think of a way to avoid them. Defendant then stepped up to the ledge where Leming was sitting. According to defendant, Leming then pulled out a knife and swung the knife at him. Defendant went back around the front of the store.
Defendant said he was frustrated after the knife incident because he could not get to his bicycle. His bicycle was near Leming and he was not able to reach it. Defendant told the jury, "I don't really know what's going on in his head. I don't really know. . . . [¶] I know that he knows that's my bicycle that's sitting there. . . . That he's stopping -- preventing me from getting up there to get to my bicycle." Defendant testified, "I decided I wanted a weapon, and I felt like I needed a weapon to get to my property, to get my bike to get through this crowd." Defendant said he found a "tree stake" and he "smashed it down on the ground" to create a two-foot long "club." Defendant then approached Leming, Hennigan, Capell, and McClain with the two-by-four in hand. Defendant told the jury, "I'm walking towards them with the stick. Now, my only -- my only intention was really just to let them know that I have something in my hand, you know what I mean? I'm trying to get what I'm going to get. I was not there to beat anybody up. I was -- wasn't. I wasn't. It had nothing to do with any of that. [¶] So I'm just trying to get round these guys. And -- and saw Wes Leming at this point[] starts walking towards me." Defendant explained, "I'm not saying anything to him. [¶] . . . [¶] I'm just -- I'm just trying to go get my bike. That's all there was to that." Defendant said Leming came out of his way to come in his direction. Defendant testified that Leming "pulls back with that knife, I pull back with the club." Defendant added, "I -- only thing I -- I feel like I can do is I'm going to swing that, and I'm going to hit him. And that's what I did." After hitting Leming, defendant got his bicycle, rode away, and threw the two-by-four in a dumpster.
On cross-examination, the prosecution asked defendant, "You had the right of self-defense, right?" Defendant replied, "I had the right for self-defense, but I do also have a right to go get my bike. [¶] Now, I don't think its law -- against the law for me to have this in my hand. I didn't threaten anybody with it. I was just going towards my bike. I had that just in case there was the problem and -- and the problem arose." (Italics added.)
Regarding his bike, defendant's testimony was limited to his purported desire to retrieve it. He never testified that he was afraid it would be damaged or stolen by Leming or anybody else.
Defendant's Closing Argument
During defendant's closing argument, he argued that the prosecution "did not prove beyond a reasonable doubt that when I hit Wes Leming with the board that I did not believe that it was a necessity to defense [sic] myself against my property, against harm, theft and -- and great bodily injury to myself." That was the only thing defendant said about defending his property in closing. Defendant further argued that he did not use more force than required under the rule of self-defense, "I only hit him one time . . . I went and got on my bike, and I left." Defendant further argued in his closing that "[t]he law says I don't have to run. . . . I can stand my ground. I can go get my bike, it doesn't matter what was thought. . . . That's my bike over there . . . , that's mine."
As we discuss post, defendant's closing argument is not evidence.
Defendant ended his closing argument by stating, "I'm asking you to find in favor of me of not guilty of assault with a deadly weapon in the fact that I did act in self-defense." (Italics added.)
Jury Instructions Given Concerning Defendant's Defense
The jury instructions given concerning defendant's defense were CALCRIM No. 3470 on the right to self-defense, CALCRIM No. 3471 on the right to self-defense, mutual combat or initial aggressor, and CALCRIM No. 3472 on the right to self-defense may not be contrived.
In pertinent part, CALCRIM No. 3470 instructs the jury: "Self-defense is a defense to assault with a deadly weapon. The defendant is not guilty of that crime if he used force against the other person in lawful self-defense. The defendant acted in lawful self defense if: [¶] 1. The defendant reasonably believed that he was in imminent danger of suffering bodily injury; [¶] 2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger." (As given to the jury in this case.)
CALCRIM No. 3471 instructs the jury, in pertinent part: "A person who engages in mutual combat has a right to self-defense only if: [¶] 1. He actually and in good faith tried to stop fighting; [¶] AND [¶] 2. He indicated, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wanted to stop fighting and that he had stopped fighting; [¶] AND [¶] 3. He gave his opponent a chance to stop fighting." (As given to the jury in this case.)
CALCRIM No. 3472 instructs the jury: "A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force."
No instruction was requested or given on defense of property.
Verdict and Sentencing
The jury found defendant guilty of assault with a deadly weapon. The jury also found that defendant personally inflicted great bodily injury. Defendant admitted he had sustained five prior prison commitments.
The trial court later sentenced defendant to the middle term of three years for the assault with a deadly weapon. The court also sentenced him to serve a consecutive three years for the GBI enhancement. Consecutive one-year sentences were imposed for four prison priors. The aggregate sentence imposed was ten years in prison.
At sentencing the prosecutor advised the court that two of the five prison priors defendant admitted had been served concurrently.
DISCUSSION
I. Claim of Instructional Error Concerning Defense of Property
A. Defendant's Contention
Defendant contends that the trial court erred by not instructing the jury, sua sponte, on the defense of property. He argues that the trial court should have given CALCRIM No. 3476. The People contend that there was not substantial evidence that defendant used force to protect his property from theft or damage. We agree with the People.
B. Analysis
"A trial court must instruct the jury on every theory that is supported by substantial evidence, that is, evidence that would allow a reasonable jury to make a determination in accordance with the theory presented under the proper standard of proof. [Citation.] We review the trial court's decision de novo." (People v. Cole (2004) 33 Cal.4th 1158, 1206.) The trial court's duty to instruct sua sponte on a defense " ' "only [arises] 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." ' " (People v. Maury (2003) 30 Cal.4th 342, 424.)
Thus, we must determine whether there was substantial evidence supporting a defense of property instruction. There is a dearth of case law on the defense of property defense. We shall first look at the law of defense of property, then look to how the substantial evidence requirement applied in one of the few defense of property cases, and then explain why the facts of the instant case do not support a defense of property instruction here.
Defense of property is codified in Civil Code section 50, which states: "Any necessary force may be used to protect from wrongful injury the person or property of oneself, or of a wife, husband, child, parent, or other relative, or member of one's family, or of a ward, servant, master, or guest."
Both parties also mention section 693, but CALCRIM No. 3476 is grounded on Civil Code section 50. (See Judicial Council of Cal., Crim. Jury Instns. (2016) Bench Notes to CALCRIM No. 3476, p. 990.) Section 693, subdivision (2), applies to defense of property, but relates to the prevention of "an illegal attempt by force to take or injure property." (Italics added.) Civil Code section 50 does not require an attempted forcible taking or attempted forcible injury.
In pertinent part, CALCRIM No. 3476 reads: "The owner [or possessor] of (real/[or] personal) property may use reasonable force to protect that property from imminent harm. . . . [¶] Reasonable force means the amount of force that a reasonable person in the same situation would believe is necessary to protect the property from imminent harm. [¶] When deciding whether the defendant used reasonable force, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If defendant's beliefs were reasonable, the danger does not need to have actually existed." (First italics added.)
As can be seen from Civil Code section 50 and CALCRIM No. 3476, defense of property requires that a defendant's use force be motivated by a reasonable belief in the need to protect his or her property from imminent harm. Here, there is not substantial evidence to support a finding that defendant used force for the purpose of protecting his property. Nor was there evidence supporting a finding that there was an imminent threat to his property. At best, defendant's testimony supported a finding that he was attempting to protect himself while he walked to retrieve his bike from the place he purportedly left it. That is self-defense, not defense of property.
In People v. Haag (1954) 127 Cal.App.2d 93 (Haag), the defendant was convicted of assault with a deadly weapon. (Id. at p. 94.) The defendant was a motel manager who seized personal property of the victim's family for not paying rent. (Id. at p. 95.) Thereafter, the victim went to the motel office, where defendant let him inside. (Ibid.) The defendant testified the victim, who was red faced and had his fist clenched, backed the defendant near the location in the office where the defendant had his gun. The defendant said he reached for the gun, the victim grabbed his wrist, and the gun went off. They struggled and the gun went off again. The defendant testified that he then ran out the door. (Id. at p. 96.) A police officer testified that the defendant told him that he answered the victims knock on the office door and the victim entered. The defendant said he was afraid the victim would assault him, so he fired the gun. (Ibid.) A second police officer testified that the defendant told the officer that he was afraid the victim was going to beat him up, and he picked up a gun and shot the victim. (Ibid.)
On appeal, the defendant in Haag argued the trial court erred when it refused to give various instructions he requested concerning his purported right to the victim's property as well as his right to defend that property grounded on Civil Code section 50. (Haag, supra, 127 Cal.App.2d at pp. 96-97.) The Haag court held that the trial court did not err by refusing to give the defendant's requested defense of property instruction. (Id. at pp. 97-98.) The court reasoned, "There was no evidence that [the victim] was making any effort to retake his property; nor was there any evidence that [the defendant] was defending against any purported effort of [the victim] to retake the property. [The victim] and [the defendant] both testified to the effect that [the victim], upon entering the office, made an inquiry as to what had happened. Nothing was said about property while [the victim] was in the office. [The defendant]'s testimony was to the effect that he was defending himself." (Id. at p. 97.) Moreover, two police officers testified that the defendant said he was afraid the victim was going to physically injure him. (Ibid.) The Haag court also noted, "There was no indication that by using the word 'afraid' that [the defendant] meant he was afraid that [the victim] would take the property." (Ibid.) Given these facts, "Any theory that [the defendant] was defending his purported lien-interest in [the victim's] property would be speculative, and a finding that he was so defending would not be supported by the evidence." (Id. at p. 98.)
In the instant case, defendant did not provide testimony supporting a defense of property instruction; nor was there any other evidence supporting this instruction. At trial, the bicycle was mentioned in testimony about defendant riding by Taco Bell. It was mentioned again when Evers testified that he saw defendant, who appeared to be "pissed off," carrying a two-by-four and walking a red mountain bike he had retrieved from the side of the AM/PM. This occurred about four minutes before the commotion Evers heard outside which preceded Leming then stumbling into the store. Further, Capell testified that defendant approached the group on his bicycle with the two-by-four in his hands. In contrast to other witnesses' testimony, defendant testified that his bicycle was near Leming and he did not know what Leming was thinking. Because of this, he decided to arm himself with a two-by-four to get his bicycle. Yet, nobody ever said anything about the bike during any of the altercations between defendant and Leming, and defendant never testified that there was a threat of imminent harm to his bike or that he struck Leming to protect his bike. Nor does the other evidence support a finding of a threat of imminent harm to defendant's bike.
This case is similar to Haag where the defendant testified he was afraid of the victim prior to shooting, but did not testify he shot the victim to defend property. Here, defendant essentially claimed that he obtained a weapon to defend himself as he tried to pass by Leming to retrieve his bike from the location defendant had left it. Further, defendant ended his closing statement asking for the jury to find that he hit Leming in self-defense, not in trying to defend his property.
During his testimony, defendant told the jury, he had the two-by-four "just in case there was the problem and -- and the problem arose." (Italics added.) On appeal, defendant asserts "he wanted to get his bike while avoiding confrontation with Mr. Leming." Essentially, defendant's defense was that he had the right to protect himself from Leming while he tried to get to a location where his bike was purportedly located. This is not defense of property. The right to protect himself is self-defense, and the jury was properly instructed on that defense.
Substantial evidence does not support a defense of property instruction. Consequently, the trial court was not required to instruct sua sponte on this defense theory and there was no error.
II. Harmless Error
Even if the trial court erred in not giving the defense of property instruction sua sponte, the error was harmless. A " 'misdirection of the jury, including . . . wrongly omitted instructions that do not amount to federal constitutional error are reviewed under the harmless error standard articulated' in Watson." (People v. Larsen (2012) 205 Cal.App.4th 810, 830 [the Watson standard was the appropriate standard to determine whether the failure to give a mental disorder instruction to support a mental impairment defense was harmless error].) Under the Watson standard, "a 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) Defendant on the other hand argues that we must measure the prejudicial effect of the purported error under the federal constitutional Chapman standard. A finding of a federal constitutional error requires reversal unless the People can prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. (Chapman v. California (1967) 386 U.S. 18, 23 [17 L.Ed.2d 705, 710] (Chapman).) We need not resolve this conflict, because any error is harmless under either standard. (See People v. Clark (2011) 201 Cal.App.4th 235, 251 [failure to instruct on self-defense as to a particular count was harmless under any standard].)
Here, there is overwhelming evidence that defendant was not trying to protect his bicycle from a threat of harm. Rather, as we have noted, defendant was simply trying to gain access to it. Defendant testified that Leming was in the way of him getting to his bicycle so he could leave, not that he was worried that Leming would damage or take his bicycle. Defendant claimed that Leming, Hennigan, Capell, and McClain were "next to [his] bike." However, he never testified that Leming had possession of his bike, touched his bike, or thought Leming was going to damage the bike. Defendant further testified that Leming had a knife and that is what led him to hit Leming with the two-by-four. Defendant was not worried about his bicycle when he hit Leming; he claimed he was worried that Leming would injure him. In closing, defendant stated that the law allows him to stand his ground and that "[he] can go get [his] bike, it doesn't matter what was thought. . . . That's my bike over there . . . , that's mine." And as we have noted, he testified he armed himself "just in case there was the problem and -- and the problem arose." (Italics added.) The undisputed facts illustrate that defendant was not protecting his property; rather he claimed to have been protecting himself as he proceeded to the location where his property was situated.
Additionally, defendant's version of events is inconsistent with the testimony from multiple witnesses, including the AM/PM customer, Evers, who saw defendant walking the bike around the corner before the commotion that preceded Leming stumbling into the AM/PM. Other evidence demonstrates that defendant created the scenario that ended with him striking Leming with a two-by-four. In addition, defendant provided a false alibi twice. This evidenced a consciousness of guilt inconsistent with any justification defense.
Defendant points to remarks he made during closing about the bicycle. These remarks are, of course, not evidence. Consequently, the truth of the factual assertions made during his closing argument cannot be considered in our review for substantial evidence supporting the instruction or our harmless error analysis. Given the evidence, no jury could have found defendant was justified in using force against Leming based on the defense of property instruction defendant complains was not given to the jury. Consequently, any error was harmless beyond a reasonable doubt.
Therefore, even if the trial court erred in failing to instruct sua sponte on the defense of property, any error was harmless under both the Watson and Chapman standards.
DISPOSITION
The judgment is affirmed.
MURRAY, J. We concur: NICHOLSON, Acting P. J. DUARTE, J.