Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA061597, Harvey Giss, Judge. Affirmed.
Sunnie L. Daniels, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Rodolfo Estrada Ramirez appeals from a judgment of conviction entered after a jury trial. The jury found defendant guilty of inflicting corporal injury on a spouse or cohabitant (Pen. Code, § 273.5, subd. (a); count 1), assault with a deadly weapon (§ 245, subd. (a)(1); count 2), and dissuading a victim from reporting a crime (§ 136.1, subd. (b)(1); count 3). The jury also found to be true the allegation that in the commission of the spousal abuse, defendant personally used a deadly weapon, a knife (§ 12022, subd. (b)(1)).
All further statutory references are to the Penal Code.
On count 1, the trial court sentenced defendant to the midterm of three years in state prison plus one year for the weapon enhancement. On count 2, the trial court imposed the midterm of three years and then stayed the term pursuant to section 654. As to count 3, the trial court imposed the high term of three years, to be served concurrently with the sentence imposed on count 1.
On appeal, defendant challenges the trial court’s failure to instruct on self-defense and accident. We find no grounds for reversal and affirm the judgment.
FACTS
Prosecution
Defendant and Alma Figueroa (Figueroa) had recently moved to California from Mexico with their three children: six-year-old Anthony, four-year-old Amelia, and two-year-old Ramon. Amelia and Ramon were defendant’s biological children, Anthony was Figueroa’s son. The family was temporarily staying with a friend in Canyon Country.
On August 22, 2008, defendant got into a heated argument with Figueroa, who was taking care of her friend’s children. Defendant had been drinking and the argument escalated when he started yelling and pushed Anthony to the floor. Figueroa tried to calm down defendant.
Figueroa went into the kitchen to get an apple for Ramon. Defendant followed her, still arguing. Using a knife with a five-inch handle and a seven-inch blade, Figueroa sliced an apple for Ramon. During the argument, defendant grabbed the knife and swung it within a few inches of her face, telling her that he was going to do something to her that would remind her of him. As he swung, she raised both hands to prevent being stabbed in the face. She grabbed the blade of the knife, cutting both her hands. Defendant did not let go of the knife.
During this time, Figueroa did not hit defendant. She did not wave the knife or anything else at him. She did not threaten him.
Figueroa dialed 911 on the telephone near the kitchen, but defendant ordered her not to do so, took the receiver from her, and hung up the phone. He beat her on the head and back with a 15-inch metal serving spoon. She tried again to dial 911, but he warned her she would have “problems” if she called the police. He took the phone from her and broke it into pieces.
Figueroa left the house with Anthony, because defendant had hit Anthony in the past. She ran down the block and approached some neighbors. She was crying and in distress; the neighbors could tell that she had been assaulted and had a cut on her hand. They let her use their phone to call 911.
Deputy Christian Lopez responded to the neighbor’s residence. Deputy Lopez noticed the cuts on Figueroa’s hands, which were still bleeding. She had a one-inch laceration on the inside of her left middle finger and another cut on the inside of her right palm, by the middle finger.
Deputy Lopez spoke with Figueroa and took her back to her friend’s residence. Figueroa showed him the telephone that she used in an effort to call 911. He saw blood smears on the phone. He also found the knife used in the assault in the living room, near the front door.
About 30 minutes after Figueroa returned home, defendant returned with the two younger children. Deputy Lopez noticed that defendant did not have any injuries and asked him about the incident. He admitted the argument and stated he grabbed a knife from the kitchen sink and waved it at Figueroa but denied cutting her. He said he did not know how she got cut or how the blood got on the telephone.
Defendant had previously assaulted Figueroa three times while they were living in Mexico, beginning in 2004.
Defense
Defendant lived with Figueroa for five years, and while Anthony was not his biological child, he loved him like the other children. He had never hit Anthony. He admitted being physical with Figueroa once in Mexico.
Defendant claimed that Figueroa started the argument by yelling at him in the kitchen, while she was cutting an apple for Ramon. He denied hitting Figueroa, grabbing her, or touching her in any way. He also denied hitting her with the serving spoon.
Defendant first denied that he touched or had the knife in his hand at any time during the argument. Later, he acknowledged that he “took the knife away from [Figueroa]” and said he placed it next to the sink when she “tried to slap [him] in the face with it.” He then stated that Figueroa slapped him in the face-with her hand, not the knife-and that he took the knife away from her. He added that Figueroa slapped him with one hand while holding the knife in the other.
Defendant did not know if Figueroa would hit him with the knife, so he took it from her. He admitted that when he took the knife, Figueroa resisted. He denied ever holding the knife up to Figueroa’s face and saying that he was “going to do something to her that would always remind her of [him].”
Defendant did not know how Figueroa could have ended up with cuts on the inside both her hands. He did not see that her hands were wounded, but if he had noticed the cuts on her hands, he “would have taken pictures of her hands.”
Defendant did not touch the telephone, try to take it from Figueroa, or break it. He did tell her not to call 911 because he might get in trouble. When asked why he thought he might be “in trouble” if he had not done anything wrong, defendant answered that “there are many people in jail” for domestic violence.
According to defendant, when he returned to the house with the children, he told Deputy Lopez only one thing: “I told him that I had had a verbal argument. My wife was aggressive. And I decided to leave to calm down my children.” He denied telling Deputy Lopez that he had a knife and used it in an aggressive manner. He also denied telling Deputy Lopez that Figueroa started the physical altercation or used the knife in a threatening manner, because he did not want to get her in trouble.
Defendant gave conflicting accounts of domestic violence in Mexico. On one hand, he testified that he had hit Figueroa on a number of occasions and that Figueroa had called the police after he beat her in Mexico. Later, he said that he had never hit Figueroa at any time in Mexico. He said it was “just some tugging and pulling” or “shoving and pulling.” He claimed that it occurred “only once.” He reiterated that on August 22, 2008, he was not physically violent or aggressive with Figueroa.
Defendant admitted that during an interview three days after the incident, he told Detective Juan Carrillo that he became “very angry” with Figueroa during the argument. He did not say that Figueroa had slapped him or that he had taken the knife away from her because he thought she might hit him with it.
Defendant denied telling Detective Carrillo that he had picked up the knife, warned Figueroa to stop cursing at him, and dropped the knife because he realized what he was doing was wrong. He also denied telling Detective Carrillo that he had ever hit or abused Figueroa in the past.
Rebuttal
On August 25, 2008, Detective Carrillo interviewed defendant. During the interview, defendant stated that he became upset during an argument with Figueroa, picked up a knife, and warned her to stop cursing. He stated that he realized that what he was doing was wrong. He dropped the knife and walked out of the house with the children. During the interview, defendant never said anything about Figueroa slapping him during the argument and said he had never hit her in the past. He also denied doing anything to prevent her from calling the police.
DISCUSSION
Failure to Instruct on Self-Defense
In general, the trial court has the duty to instruct the jury sua sponte as to the principles of law relevant to the issues raised by the evidence. (People v. Wims (1995) 10 Cal.4th 293, 303.) This duty includes the duty to instruct on defenses where it appears the defendant is relying on those defenses or there is substantial evidence supportive of the defenses. (People v. Breverman (1998) 19 Cal.4th 142, 157.)
The trial court is required to instruct the jury on a defense relied upon by the defendant only if the defense is supported by substantial evidence. (People v. Watson (2000) 22 Cal.4th 220, 222.) Substantial evidence is that which is reasonable, credible and of solid value. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Although all reasonable inferences must be drawn in support of the defense, the court “may not ‘go beyond inference and into the realm of speculation in order to find support for [the defense]. A finding... which is merely the product of conjecture and surmise may not be affirmed.’ [Citations.]” (People v. Memro (1985) 38 Cal.3d 658, 695, overruled on another ground in People v. Gaines (2009) 46 Cal.4th 172, 181.)
To warrant instructions on self-defense, there must be substantial evidence that the defendant was in actual fear of imminent harm and force was necessary to prevent great bodily injury or death. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083; People v. Middleton (1997) 52 Cal.App.4th 19, 30, disapproved on another ground in People v. Gonzalez (2003) 31 Cal.4th 745, 752-753, fn. 3.) “Imminent peril” means peril that existed or appeared to exist at the very moment that the defendant inflicted the assault. (Humphrey, supra, at pp. 1094-1094.) On appeal, a trial court’s failure to give self-defense instructions will be upheld where the theory was not supported by substantial evidence. (People v. Hill (2005) 131 Cal.App.4th 1089, 1101, overruled on another ground in People v. French (2008) 43 Cal.4th 36, 48, fn. 5; People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1269-1270).
Defendant never claimed that he waved the knife in Figueroa’s face because he believed it was necessary to repel an imminent attack. He first testified that he never hit her, never grabbed her, never touched her, never touched the knife, and never had the knife in his hand at any time. In later testimony, defendant indicated that he took the knife away because he “feared she would slap [him] with it.”
While defendant did testify that he was “concerned” that Figueroa “might” decide to use the knife she was holding, he did not testify that he actually believed that she was going to inflict bodily injury upon him or that any peril was “imminent.” There was no evidence that Figueroa was coming at him with the knife or that defendant believed it was necessary to use the knife to prevent an injury to himself.
Moreover, defense counsel did not seek a self-defense instruction and did not argue to the jury that the evidence presented showed that his client had acted in self-defense. The defense was simply that the assault did not occur.
The cases on which defendant relies to support his claim that the trial court had a sua sponte duty to instruct on self-defense are distinguishable. In People v. Elize (1999) 71 Cal.App.4th 605, the prosecution presented evidence that the defendant was fighting with two women. When one hit him with a cell phone, the defendant pushed her away, pointed a gun at her and fired. The defendant testified that the two women attacked him with iron pipes. One grabbed his gun, and when he tried to point it away it fired accidentally. (Id. at pp. 608-609.) On appeal, the court held it was error to refuse the defendant’s request to instruct the jury on self-defense; even though the defendant testified that his gun went off accidently, the jury could have disbelieved defendant’s testimony that the firing was accidental and decided instead that defendant had fired intentionally in self-defense. (Id. at pp. 615-616.)
In the instant case, any claim that defendant grabbed the knife and attacked the victim with it in self-defense would have been completely inconsistent with his theory of the case that he did not attack or assault her at all. In addition, there was simply no evidence presented that the victim presented an imminent threat to defendant.
People v. Villanueva (2008) 169 Cal.App.4th 41 is also inapposite. In Villanueva, the evidence showed that the defendant and the victim had fought earlier, the victim was intoxicated, defendant tried to end the dispute peacefully and the victim threatened to kill defendant the next time they met. The victim got into his car; as he was trying to drive away, the defendant shot him. (Id. at pp. 46-47.) The defendant testified he got his gun to scare the victim into leaving. When the victim accelerated, defendant stepped back to avoid being hit and his gun discharged accidentally. (Ibid.) On appeal, the court held that despite defendant’s claim of accident, he was entitled to a requested self-defense instruction because there was sufficient evidence that he shot the victim intentionally in self-defense. (Id. at p. 52.) Based on the evidence of the victim’s prior threat and apparent attempt to run defendant over, the jury could have found the defendant intentionally shot the victim in self-defense. (Ibid.)
Again, in the instant case, there was no evidence Figueroa threatened defendant or attempted to harm him. Thus, there was no evidence that would support the self-defense instruction.
Failure to Instruct on Accident
Defendant contends that the trial court’s failure to instruct on accident was error. Again, we disagree.
In discussing the instructions to be given, the trial court noted that both sides had agreed that accident instructions were not warranted in this case, because any argument that the injuries were accidentally inflicted was purely speculative. The court explained, “there was no accident, and there [were] no facts to establish an accident.” Defense counsel remarked that she did not concede defendant was not advancing an accident defense. The trial court proposed the following: “There is one thing we could do. We could listen to your argument [to the jury], and I could add it....” Defense counsel agreed to the court’s offer. During closing argument to the jury, defense counsel did not assert the defense of accident. Rather, she argued that defendant did not assault the victim at all, and her cuts were not shown to have been caused by anything defendant did.
Although the People do not argue it, there is a basis on which to conclude, under the circumstances, that defendant forfeited his claim of error by failing to argue it to the jury. (Cf. People v. Benavides (2005) 35 Cal.4th 69, 94.)
As indicated above, in the absence of a request, a trial court’s obligation to instruct sua sponte on a defense is required only if the defendant is relying on such a defense or the defense is supported by substantial evidence. (People v. Dominguez (2006) 39 Cal.4th 1141, 1148; People v. Maury (2003) 30 Cal.4th 342, 424.) Instructions on accident are not warranted, if the defense is supported only by evidence that is “‘“minimal and insubstantial, ”’” as opposed to substantial evidence. (People v. Middleton, supra, 52 Cal.App.4th at p. 33; see People v. Lewis (2001) 25 Cal.4th 610, 645.)
Defendant did not present evidence of accident or rely on such a defense; his defense was that he did not commit an assault and inflicted no injuries. He did not testify that he hit, struck, or cut Figueroa accidentally. When asked, both by Deputy Lopez at the scene and at trial on cross-examination, how Figueroa could have cut herself on the inside of both hands, defendant replied “I don’t know.” He suggested that the injuries were not sustained during the argument and, if he had seen the cuts, he would have taken pictures of them.
Defendant testified that Figueroa was flapping her hands in his face while he forcefully took the knife from her hand and the incident happened very fast. However, Figueroa’s hands were cut on her palms. These injuries would not have occurred if she was holding the knife in one hand by the five-inch handle when defendant grabbed it and took it away. The physical evidence of the injuries and the ultimate location of the knife by the front door, the inspection of Figueroa’s hands by Deputy Lopez, the blood on the wall phone, were all consistent with Figueroa’s account of having grabbed the long knife by the blade with both hands to ward off defendant’s attack. They were inconsistent with her injuries having occurred by accident. Hence, there was no substantial evidence that warranted the giving of an accident instruction.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., WOODS, J.