Filed 3/18/14 P. v. Burleson CA4/1

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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D063898

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN290018)

JEFFREY TRAVIS BURLESON,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Richard E.

Mills, Judge. Reversed and remanded for further proceedings.



         Patrick J. Hennessey, Jr., by appointment of the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina, Deputy

Attorney General, for Plaintiff and Respondent.
       A jury convicted Jeffrey Travis Burleson of improper exhibition of a firearm

(count 2: Pen. Code,1 § 417, subd. (a)(2)), a misdemeanor, and acquitted him of assault

with a firearm (count 1: § 245, subd. (a)(2)), a felony. The court placed Burleson on

three years' probation and ordered him to serve 120 days of local custody.

       Burleson appeals, contending his conviction must be reversed because the court

prejudicially erred and denied him his constitutional right to a fair trial by refusing to

instruct the jury on the defense of self-defense. We reverse.

                               FACTUAL BACKGROUND

       A. The People's Case

       On March 29, 2011, at around 8:00 p.m., William Gruytch went to Burleson's

house to serve a subpoena on Burleson's wife, Erin Blanco (Erin).2 It was dark outside

and Gruytch knocked on the front door. After he knocked, he heard dogs barking and

waited before knocking again. He repeated this four or five times over a period of

several minutes, but received no response. As Gruytch began to walk away, he heard the

door close behind him. He was approximately six to 10 feet away from the front door

when he turned around and saw Burleson standing outside the door pointing a shotgun at

him.




1      All further statutory references are to the Penal Code.

2     Erin's maiden name is Erin Blanco. However, she adopted her husband's last
name and goes by Erin Burleson. As Burleson and his wife share the same last name, we
sometimes refer to his wife by her first name. We intend no disrespect.
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       Gruytch walked towards Burleson until he was two to three feet away, said he had

a delivery for Erin, and asked if she was there. Burleson said there was no one there by

that name. Gruytch explained he was a process server and had legal documents for Erin

Blanco. Burleson responded by raising his voice and stating he had never heard of that

person. Burleson became very agitated, put the shotgun towards Gruytch's face, and told

him to "get the fuck off the property." Gruytch testified he was nervous and wanted to

get away from the situation. He threw the legal papers and said, "Fine. You're served."

He then left the scene and called the police.

       At approximately 8:20 p.m., several police deputies arrived at Burleson's

residence, arrested him, and impounded his shotgun.

       B. Defense

       Burleson testified that around 8:00 p.m. on March 29, 2011, he heard knocking on

his front door. At the time, Burleson was bathing his two-year-old daughter and three-

year-old son while his wife fed their infant in the back bedroom. Initially, Burleson

ignored the knocking because he did not want to leave his children unattended in the

bathtub and thought it might have been just a salesperson. The knocking lasted for a

minute, Burleson's dogs barked loudly for another minute and the knocking resumed.

This cycle went on for a few minutes and eventually the knocking escalated to what

Burleson described as "[s]ound[ing] like the fire department [was] trying to tell [him] that

the house was on fire." He became aggravated.

       Eventually, Burleson went to the door and looked through the peephole. He did

not recognize the person and asked who he was, but received no response. Burleson

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described the person as a heavy-set Caucasian male in his mid-50's with a moustache and

wearing a torn T-shirt and torn jeans. According to Burleson, the man did not have a

badge and did not display any identification. Burleson testified that the person "didn't

look like somebody that [he] would want to open the door for." Burleson said he was

fearful for the safety of his family and was afraid of what the person potentially had the

capacity to do and the access he might have. As soon as he realized he did not know the

person, Burleson attempted to call the police, but did not have cell service and his cell

phone froze.

       Burleson retrieved an unloaded shotgun from his bedroom and instructed his wife

and children to stay in the back of the house. He also grabbed shotgun shells and put

them in his pocket, but did not load the shotgun. He brought the shotgun with him to the

front door and asked who was there, but received no response. He looked through the

peephole and saw an individual later identified as Gruytch standing on the side of the

front lawn, approximately eight feet from the front door. Burleson believed Gruytch was

attempting to look through the windows to see if anyone was home. Burleson opened the

door and stepped outside, holding the shotgun with the barrel facing downward toward

the ground.

       Once outside, Burleson asked, "May I help you?" Gruytch approached him until

he was three to four feet away and asked for Erin Blanco. In an aggravated manner,

Burleson denied knowing Erin Blanco and told Gruytch to leave or he would have him

arrested for trespassing.



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       In response, Gruytch laughed at Burleson and said, "You can't have me arrested

for trespassing." Burleson said, "Get the fuck off my property." Gruytch then reached

out with papers in his hand, pulled them back when Burleson reached to grab them,

dropped them in front of Burleson, and left. Burleson testified it was at that point he

realized that the purpose of Gruytch's visit was for legal process, and he was not someone

coming after his wife for some other reason.

       Burleson testified that he felt threatened by Gruytch when Gruytch came towards

him, despite being told to leave and seeing Burleson was armed. He stated Gruytch had a

look in his eyes like "ha, ha, you son-of-a-bitch. You have no idea who you're dealing

with." Burleson wondered if Gruytch was on drugs due to his behavior.

       Burleson denied pointing the shotgun in Gruytch's direction. Burleson testified

that during the confrontation, which lasted approximately 45 seconds, Gruytch never

identified himself as a process server. He also testified that Gruytch never tried to swing

at him, touch him, or pull out a weapon.

       Erin also testified and described Gruytch's knocking as "hinge-rattling pounding"

that lasted 15 to 20 minutes. She stated that Burleson was bathing their children at the

time of the pounding. She heard him lock the back doors, and he told her to stay in their

daughter's room and not come out. After a few minutes, Burleson came back to the

room. Erin asked him if everything was okay, and he said no. Erin testified the situation

was terrifying, and she was scared for her family's safety.

       Michael Andreen, who lives near Burleson, testified about being served by

Gruytch in March 2011. Andreen recalled a very loud banging at his front door at around

                                               5
8:30 p.m. that caused him to move his family to the back of the house because he feared

for their safety. He testified that he wished he had a weapon with him at the time because

he thought there was someone outside that was going to hurt him and his family. When

Andreen opened the door, Gruytch was very confrontational and seemed angry. Gruytch

did not identify himself as a process server during his encounter with Andreen. Gruytch

neither displayed a weapon nor touched or pushed Andreen.

                                        DISCUSSION

                           I. INSTRUCTIONAL ERROR CLAIM

       Burleson contends his misdemeanor conviction must be reversed because the court

prejudicially erred and denied his constitutional right to a fair trial by refusing to instruct

the jury on the defense of self-defense under CALCRIM No. 3470. Specifically, he

contends the court's refusal to give the self-defense instruction was error because the

evidence of Gruytch's pounding on the door at night and refusal to identify himself, along

with his general appearance and the hour in which the confrontation occurred, supported

giving this instruction. Burleson further contends, based on the totality of the

circumstances, that the self-defense instruction was required sua sponte and upon the

specific request by Burleson. We agree.

       A. Background

       After all testimony and presentation of evidence at trial, Burleson's counsel

requested the standard self-defense instruction under CALCRIM No. 3470 as well as

those relating to defense of property and persons under CALCRIM Nos. 3475 and 3476,

respectively. The court denied counsel's request, stating:

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          "The Defendant's testimony is inconsistent with these defenses,
          generally speaking. His testimony was that he did not commit the
          acts in Count 1 and Count 2. And, therefore, self-defense would not
          be relevant.

          "If his testimony had been that he'd committed the acts, then self-
          defense instructions would need to be given. But since he adamantly
          maintains that he did not commit those acts, it would be inconsistent
          to argue self-defense.

          "So I'm finding that there was no evidence of self-defense presented,
          no evidence of self-defense to the two charged crimes [that are]
          presented by the defense.

          "The Defendant said he was afraid, and that is evidence he
          presented. But it doesn't go to—but he said he didn't commit the
          crime. So I should not give these instructions." (Italics added.)

       The instructions for self-defense and defense of property and persons were marked

and kept in the file as not given by the Court, over the objection by the defense.

       B. Applicable Legal Principles

       The trial court must "instruct the jury on all general principles of law relevant to

the issues raised by the evidence, whether or not the defendant makes a formal request."

(People v. Rogers (2006) 39 Cal.4th 826, 866.) Such a duty includes an obligation to

instruct on a defense that the defendant is relying on or a defense that is supported by

substantial evidence and is not inconsistent with the defendant's theory of the case.

(People v. San Nicolas (2004) 34 Cal.4th 614, 669.) In the event there is substantial

evidence of a defense inconsistent with the defense advanced by defendant, the court

should ascertain whether the defendant wants instructions on the alternate theory.

(People v. Elize (1999) 71 Cal.App.4th 605, 615.) It follows the court should give the

instruction on the alternate defense if the defendant requests the instruction. (Ibid.)

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       Substantial evidence means evidence sufficient to deserve consideration by the

jury and from which a jury composed of reasonable persons could conclude the particular

facts underlying the instruction existed. (People v. Wickersham (1982) 32 Cal.3d 307,

325-326, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200-

201.) Where the supporting evidence is minimal and insubstantial, there is no sua sponte

duty to give a defense instruction. (People v. Barnett (1998) 17 Cal.4th 1044, 1152.)

Thus, a trial court's refusal to give self-defense instructions will be upheld on appeal

where the record contains no substantial evidence to support the instructions. (In re

Christian S. (1994) 7 Cal.4th 768, 783; People v. Hill (2005) 131 Cal.App.4th 1089,

1101, disapproved on another ground in People v. French (2008) 43 Cal.4th 36, 48, fn.

5.)

       If there is sufficient evidence of self-defense, the court has a sua sponte duty to

instruct on the defense. (People v. Breverman (1998) 19 Cal.4th 142, 157; People v.

Elize, supra, 71 Cal.App.4th at p. 615; see also CALCRIM No. 3470.) To warrant a self-

defense instruction there must be substantial evidence in the record that the defendant

actually and reasonably feared imminent harm and believed that force was necessary to

prevent great bodily injury. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083; In

re Christian S., supra, 7 Cal.4th at p. 783.) The threat of bodily injury must be imminent,

meaning the peril existed or appeared to exist at the very moment the defendant inflicted

the assault. (In re Christian S., supra, 7 Cal.4th at p. 783; People v. Humphrey, supra, 13

Cal.4th at p. 1094.) The right of self-defense is limited to use of force that is reasonable

under the circumstances. (People v. Minifie (1996) 13 Cal.4th 1055, 1065.)

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       C. Analysis

       We conclude the court erred and denied Burleson's right to a fair trial by refusing

to instruct the jury on the defense of self-defense. The court was obligated to give this

instruction because the record shows it was supported by substantial evidence. (People v.

San Nicolas, supra, 34 Cal.4th at p. 669.)

       Indeed, Burleson described loud banging at his front door on the night of the

incident that escalated over a period of several minutes. When Burleson asked who was

there, Gruytch would not reply. He next looked out the window and observed a large

male in torn clothes, whom he did not recognize. Burleson tried unsuccessfully to call

the police. It was at that point Burleson retrieved the shotgun out of concern for his

family because it appeared this unknown person had no intention of leaving.

       Moreover, the record shows Burleson's testimony was corroborated by Erin's

description of "hinge-rattling pounding" that lasted nearly 20 minutes.   Burleson's

account of Gruytch's threatening behavior was further supported by nearby resident,

Andreen, who had a similar encounter with Gruytch. Andreen testified Gruytch banged

on his door at night so loud Andreen wished he had a weapon. Andreen described

Gruytch's behavior as confrontational and angry.

       We thus conclude on this record a jury could reasonably find from the evidence

presented that Burleson actually and reasonably believed that Gruytch posed an imminent

threat to himself and his family and that Burleson exhibited his shotgun in self-defense.

As such, we further conclude the court erred in refusing Burleson's request to give the

self-defense instruction. (See People v. Breverman, supra, 19 Cal.4th at p. 160 [noting a

                                             9
"jury must be allowed to 'consider the full range of possible verdicts . . . ' . . . to 'ensure

that the verdict is no harsher or more lenient than the evidence merits.' "].) We note that

although the court, in refusing to give that instruction, reasoned that "[Burleson's]

testimony is inconsistent with" the defense of self-defense, on appeal the Attorney

General acknowledges that Burleson "correctly maintains self-defense was not

inconsistent with his admitted brandishing."

       Moreover, we conclude the court's refusal to instruct on self-defense was not

harmless. Error in misdirecting a jury by failing to give an instruction as in this case is

reviewed under the harmless error standard adopted in People v. Watson (1956) 46

Cal.2d 818. (People v. Breverman, supra, 19 Cal.4th at pp. 175-176.) Applying this

standard, we conclude it is reasonably probable that had the self-defense instruction been

given, the result would have been more favorable to Burleson. (See People v. Watson,

supra, 46 Cal.2d at p. 836.)

       There was enough evidence for the jury to consider the defense of self-defense.

By its verdict, the jury demonstrated its rejection of Burleson's theory that he did not

exhibit the shotgun in a rude, angry, or threatening manner. It rejected the principal

charge in count 1 of assault with a firearm (§ 245, subd. (a)(2)), but convicted Burleson

of count 2. However, once the jury determined Burleson's conduct was rude, angry, or

threatening in violation of section 417, subdivision (a)(2), it had no choice but to convict

him because the trial court erroneously refused to give a self-defense instruction. We

cannot say that the jury would have reached this decision if it had known Burleson's

actions may have been justifiable as self-defense.

                                               10
       In light of the entire record, we conclude it is reasonably probable that Burleson

would have obtained a more favorable result if the jury had been instructed on self-

defense. (See People v. Watson, supra, 46 Cal.2d at p. 836.) Accordingly, we conclude

that the failure to give a self-defense instruction was not harmless error, and we reverse

his conviction of section 417.5, subdivision (c).

                                      DISPOSITION

       The judgment is reversed and remanded for further proceedings.


                                                                                 NARES, J.

WE CONCUR:


McCONNELL, P. J.


IRION, J.




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