Filed 6/12/14 P. v. Delpalacio CA1/5


                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A136148
v.
JOSE CARLOS DELPALACIO,                                              (Sonoma County
                                                                     Super. Ct. No. SCR605144)
         Defendant and Appellant.


         Jose Carlos Delpalacio was convicted by a jury of burglary, assault with a firearm,
and being a felon in possession of a gun. He seeks reversal of his conviction on the
ground that the trial court refused to give requested jury instructions on self-defense or
defense of others. We find no substantial evidence to support the requested instructions.
Accordingly, we affirm.

                            I. FACTUAL AND PROCEDURAL BACKGROUND
         Delpalacio was charged, by information, with one count of burglary (Pen. Code,
§ 459; count 1),1 one count of assault with a firearm (§ 245, subd. (a)(2); count 2), and
one count of being a felon in possession of a gun (former § 12021, subd. (a)(1); count 3).
Count 1 further alleged personal use of a handgun (former § 12022.53, subd. (b)).
Count 2 also alleged personal use of a firearm (former § 12022.5, subd. (a)). Two prior

         1   All further undesignated statutory references are to the Penal Code.


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strike allegations (§ 1170.12) were included, along with a prior serious felony (§ 667,
subd. (a)(1)) and prior prison conviction (§ 667.5, subd. (b)).

                                      Prosecution Case

Matthew H.’s Testimony
       In July 2011, Matthew H. was living in a one-bedroom apartment in Rohnert Park
with his two younger children, Matthew Jr., age 6, and Marcus, age 5. His two
stepchildren, Angelina, age 10, and Eric, age 12, lived there on and off. About once a
week Matthew’s estranged wife, Connie H., spent the night at his apartment so that all
four children could be together.2 Matthew and Connie are legally separated and in the
process of getting divorced. At the time, Connie was dating Delpalacio.
       Late in the evening on July 15, 2011, Connie came to Matthew’s apartment.
Matthew was not expecting Connie and had already gone to bed. Connie asked if she
could spend the night. Matthew agreed and went back to bed. Connie and the children
slept in the living room.
       Around 4:00 a.m., Matthew was awakened by a “real loud” banging on the door.
He did not hear anyone at the door say anything. He got up and began to get dressed to
see what was going on. Intending to protect himself and his family, Matthew went to a
safe in the bedroom, removed a .38-caliber handgun, and started to load it. He heard the
sound of the front door being kicked down. He turned around and saw a gun pointed at
his head. The gun was about six inches from Matthew’s face, and he was afraid that he
was going to be shot.
       Matthew “heard a bunch of just rambling” and he continued to load his gun.
Matthew testified that he “[f]inished loading it, and closed it, and . . . aimed it at




       2
       Because Matthew and Connie share the same last name, we refer to each by first
name only. No disrespect is intended.


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[Delpalacio], too.”3 Connie and their children were standing right behind Delpalacio.
Matthew heard yelling but it “all happened so fast” that he had no clear memory of what
was said. Connie convinced Delpalacio to go outside. Matthew testified, “[S]he got
between us or something, and she pulled [Delpalacio] outside.”
       Matthew followed them to the threshold and fired two shots in the air. Matthew
was concerned about his children and wanted to make sure that Connie and Delpalacio
left. Connie and Delpalacio jumped in a white Nissan Maxima sedan and drove off.
       Eric called 911 and Matthew spoke to the operator. A recording of the call was
played at trial. During the call, Matthew gave conflicting accounts as to the shots fired.
In one instance, he claimed he “just shot in the air.” But, he earlier reported, “I just shot
at the guy.” The police arrived shortly after the call was placed. Matthew thought they
acted as if he were the wrongdoer.4
       On a previous occasion, July 4, 2010, Matthew confronted Delpalacio when he
saw him in Connie’s car.5 Matthew and Delpalacio fought. Matthew’s antipathy for
Delpalacio was not because Matthew wanted to reconcile with Connie, but rather, he did
not like Delpalacio’s relationship with their children. Matthew also was angry because
Connie spent so much of his money.




       3At trial, Matthew testified that he did not know who was holding the gun. He
explained that he was not wearing his glasses and did not get a good look at the man’s
face. He may have previously identified Delpalacio because “[he] didn’t like
[Delpalacio] as it was.” However, it was undisputed that Delpalacio was, in fact, the
person who forced his way into the apartment that evening.
       4 On cross-examination, Matthew acknowledged that he “might have” told the
dispatcher he “shot at the guy” and asked the dispatcher whether he was going to be in
trouble. He believed that police officers in Sonoma County would be prejudiced against
him because he is African American. Matthew did not like cooperating with the police
and appeared in court only because he was served with a subpoena.
       5   Although Connie drove the car, Matthew paid for it and for the insurance.


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Eric’s Testimony 6
       On July 15, 2011, Eric was asleep on the living room couch at his stepfather’s
apartment in Rohnert Park. His mother, stepfather, and three siblings were also there.
Eric did not recall that his mother and stepfather argued that evening. Eric was awakened
by a loud banging on the door. His mother got up and then backed away from the door.
Delpalacio kicked open the door and walked into the apartment.
       Delpalacio appeared angry. He had a small, silver derringer in his hand.7
Delpalacio said something to Connie and then walked “straight into” Matthew’s room.
Matthew was standing in the bathroom. The bathroom door was open and Eric could see
Matthew from where he lay on the couch. Delpalacio pointed the gun at Matthew’s head.
Delpalacio was approximately three or four feet from Matthew.
       Matthew said, “Not in front of my kids, not in front of my kids.” And then, after
Delpalacio put the gun to Matthew’s head, Matthew pulled out a gun. Connie then told
Delpalacio to go outside, and he did. Eric testified that he and his siblings continued to
lay on the couch and the floor during the incident. Delpalacio and Connie went
downstairs, and Matthew went to the door and fired two shots into the air. Matthew then
called 911.

Connie’s Testimony
       Connie testified she and Matthew separated in April 2010. She then began dating
Delpalacio. Connie was upset that she had been subpoenaed to testify. It was difficult
for her to testify because she loves Delpalacio. She told Delpalacio that she would do
“whatever she had to do to help him.”
       Connie lived with Delpalacio for about a year, in Guerneville or Rio Nido, and the
children went “back and forth” between her home and Matthew’s apartment. Eventually
the children stayed mostly with her. Sometimes Matthew told her that, if she wanted to


       6  A police officer told Eric that if he did not come to court his parents would go to
jail, and Eric would go to juvenile hall.
       7   Eric had seen the gun before at Delpalacio’s mother’s home.


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see the children, she would have to come to his apartment because Matthew did not like
Delpalacio. Connie periodically spent the night at Matthew’s apartment so that all the
children could be together. They would watch movies, and she and Matthew would
discuss the children’s schedules. Matthew wanted to get back together with Connie and
brought it up frequently. Matthew called her so often that “[she] would change [her]
number, or . . . hang up the phone, or just turn it off.”
       On July 15, 2011, Connie came to Matthew’s apartment to see the children.8
Although Connie had intended to return to Delpalacio’s house in Rio Nido that evening,
she spent the night with her children because she “felt guilty.” She and the children were
asleep in the living room when she heard Delpalacio knock on the door. As the door was
opened, it was damaged.9
       Delpalacio walked past Connie, and Matthew came in the room and argued with
him. Connie did not see Delpalacio with a weapon. She was “in shock” and “[a]ll [her]
focus was . . . to get him and go home with him.” She grabbed Delpalacio’s arm and
said, “Let’s leave” or “Let’s go home.” They left the apartment and, after they went
down the stairs, she heard one or two gunshots. Connie and Delpalacio got into his car
and started to drive home. She did not see a gun in the car.
       On cross-examination, Connie testified that Matthew hated Delpalacio. Matthew
had difficulty accepting their separation and divorce and he continually talked about
getting back together. Connie quickly got Delpalacio out of the apartment because she
did not want Matthew to do “something bad” to him.




       8  At the time, Connie and Delpalacio “were having . . . problems” and took “a
little space.” However, they did not break up and continued to live together.
       9 Connie was not crying out for help. She did not need any help. She did not call
Delpalacio earlier that evening asking him to come and save her. Nor did she leave him
instructions to come to her aid. She testified, however, “[H]e was worried when I went
over there. . . . [S]o I didn’t come home that night, so he was probably worried about
me.” Delpalacio did not leave her any voicemails that night.


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Rohnert Park Police Sergeant David Welch’s Testimony
        Around 4:30 a.m. on July 15, Welch was dispatched to the apartment based on a
report of shots fired. Welch was also told a woman had been kidnapped at gunpoint.
Matthew described a silver-colored derringer and identified the suspect as his ex-wife’s
boyfriend, “Jose.”
        Welch requested dispatchers broadcast a description of the suspect’s vehicle.
Welch then went into Matthew’s apartment and observed that the door frame was
dislodged from the wall, Sheetrock was torn off around the frame, and the strike plates
were laying inside the apartment. The dead bolt was still in a locked position.

Sonoma State University Police Officer Karl Mortenson’s Testimony
        Around 4:30 a.m. that same morning, Mortenson received a broadcast about
persons in a white Nissan Maxima being involved in a shooting and possible kidnapping.
Mortenson saw a car matching that description and made a traffic stop. Delpalacio was
driving the vehicle, and Connie was in the passenger seat. A silver derringer pistol was
found inside the dashboard console. The pistol was loaded with one live round and one
spent round. The gun appeared to be operable. When stopped, Delpalacio was driving in
the opposite direction of Rio Nido.

                                   Instructions and Verdict
        The trial court denied Delpalacio’s request for instructions on self-defense,
defense of others, antecedent threats, and a felon’s possession of a firearm in self-
defense. The court explained: “[T]he Court believes that, when the defendant is going
to rely on an affirmative defense, that there has to be substantial evidence to support
the defense in order for the instructions to be given. . . . [¶] . . . [¶] And the Court
does not believe that there’s sufficient, substantial evidence to support the affirmative
defense . . . .”
        After closing arguments in which defense counsel argued that Delpalacio did not
intend to commit an assault but, rather, “went to get his girlfriend back,” the jury returned
guilty verdicts on all counts and found the personal use allegations true. At sentencing,


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the trial court exercised its discretion to strike one of Delpalacio’s prior strikes, pursuant
to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and sentenced Delpalacio to
a total term of 28 years. Delpalacio filed a timely notice of appeal.

                                       II. DISCUSSION
       Delpalacio contends that the trial court’s refusal to give his proposed instructions
on self-defense and defense of others, antecedent threats (CALCRIM No. 3470),10 and


       10  CALCRIM No. 3470 states: “Self-defense is a defense to _____ <insert list of
pertinent crimes charged>. The defendant is not guilty of (that/those crime[s]) if (he/she)
used force against the other person in lawful (self-defense/ [or] defense of another). The
defendant acted in lawful (self-defense/ [or] defense of another) if: [¶] 1. The defendant
reasonably believed that (he/she/ [or] someone else/ [or] _____ <insert name of third
party>) was in imminent danger of suffering bodily injury [or was in imminent danger of
being touched unlawfully]; [¶] 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.
[¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is
believed to be. The defendant must have believed there was (imminent danger of bodily
injury to (himself/herself/ [or] someone else)/[or] an imminent danger that (he/she/[or]
someone else) would be touched unlawfully). Defendant’s belief must have been
reasonable and (he/she) must have acted because of that belief. The defendant is only
entitled to use that amount of force that a reasonable person would believe is necessary in
the same situation. If the defendant used more force than was reasonable, the defendant
did not act in lawful (self-defense/ [or] defense of another). [¶] When deciding whether
the defendant’s beliefs were reasonable, 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 the defendant’s beliefs
were reasonable, the danger does not need to have actually existed. [¶] [The slightest
touching can be unlawful if it is done in a rude or angry way. Making contact with
another person, including through his or her clothing, is enough. The touching does not
have to cause pain or injury of any kind.] [¶] [The defendant’s belief that (he/she/ [or]
someone else) was threatened may be reasonable even if (he/she) relied on information
that was not true. However, the defendant must actually and reasonably have believed
that the information was true.] [¶] [If you find that _____ <insert name of victim>
threatened or harmed the defendant [or others] in the past, you may consider that
information in deciding whether the defendant’s conduct and beliefs were reasonable.]
[¶] [Someone who has been threatened or harmed by a person in the past is justified in
acting more quickly or taking greater self-defense measures against that person.] [¶] . . .
[¶] The People have the burden of proving beyond a reasonable doubt that the defendant

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self-defense in the context of possession of a firearm by a felon (CALCRIM No. 2514)11
violated his rights to due process and a fair trial. We disagree.


did not act in lawful (self-defense/ [or] defense of another). If the People have not met
this burden, you must find the defendant not guilty of _____ <insert crime(s) charged>.”
       11 CALCRIM No. 2514 provides: “The defendant is not guilty of unlawful
possession of a firearm . . . if (he/she) temporarily possessed the firearm in (self-defense/
[or] defense of another). The defendant possessed the firearm in lawful (self-defense/
[or] defense of another) if: [¶] 1. The defendant reasonably believed that
(he/she/someone else/ _____ <insert name of third party>) was in imminent danger of
suffering great bodily injury; [¶] 2. The defendant reasonably believed that the
immediate use of force was necessary to defend against that danger; [¶] 3. A firearm
became available to the defendant without planning or preparation on (his/her) part;
[¶] 4. The defendant possessed the firearm temporarily, that is, for a period no longer than
was necessary [or reasonably appeared to have been necessary] for self-defense;
[¶] 5. No other means of avoiding the danger of injury was available; [¶] AND [¶] 6. The
defendant’s use of the firearm was reasonable under the circumstances. [¶] Belief in
future harm is not sufficient, no matter how great or how likely the harm is believed to
be. The defendant must have believed there was imminent danger of great bodily injury
to (himself/herself/ [or] someone else). Defendant’s belief must have been reasonable
and (he/she) must have acted only because of that belief. The defendant is only entitled
to use that amount of force that a reasonable person would believe is necessary in the
same situation. If the defendant used more force than was reasonable, the defendant did
not act in lawful (self-defense/ [or] defense of another). [¶] When deciding whether the
defendant’s beliefs were reasonable, 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 the defendant’s beliefs were
reasonable, the danger does not need to have actually existed. [¶] Great bodily injury
means significant or substantial physical injury. It is an injury that is greater than minor
or moderate harm. [¶] [The defendant’s belief that (he/she/someone else) was threatened
may be reasonable even if (he/she) relied on information that was not true. However, the
defendant must actually and reasonably have believed that the information was true.]
[¶] [If you find that _____ <insert name of person who allegedly threatened defendant>
threatened or harmed the defendant [or others] in the past, you may consider that
information in deciding whether the defendant’s conduct and beliefs were reasonable.]
[¶] [If you find that the defendant knew that _____ <insert name of person who allegedly
threatened defendant> had threatened or harmed others in the past, you may consider that
information in deciding whether the defendant’s conduct and beliefs were reasonable.]
[¶] [Someone who has been threatened or harmed by a person in the past, is justified in
acting more quickly or taking greater self-defense measures against that person.] [¶] [If
you find that the defendant received a threat from someone else that (he/she) reasonably

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       “Self-defense negates culpability for assaultive crimes, whether or not the assault
results in death.” (People v. Adrian (1982) 135 Cal.App.3d 335, 340.) “[T]he
prosecution must prove beyond a reasonable doubt the absence of justification, herein
self-defense, when the issue is properly presented . . . .” (People v. Banks (1976)
67 Cal.App.3d 379, 384, italics added.) “The obligation also applies . . . to instruction on
defenses when they are supported by substantial evidence. [Citation.] [¶] In this context
substantial evidence means evidence which is 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. The trial court is not required to present theories
the jury could not reasonably find to exist.” (People v. Oropeza (2007) 151 Cal.App.4th
73, 78.) Substantial evidence means evidence that, if believed, would be sufficient for a
reasonable jury to find a reasonable doubt as to guilt. (People v. Salas (2006) 37 Cal.4th
967, 982–983.) A trial court “need not give instructions based solely on conjecture and
speculation.” (People v. Young (2005) 34 Cal.4th 1149, 1200.) We review alleged
instructional errors de novo. (People v. Oropeza, supra, 151 Cal.App.4th at p. 78; People
v. Waidla (2000) 22 Cal.4th 690, 733; People v. Guiuan (1998) 18 Cal.4th 558, 569.)
       Delpalacio contends, “Ample evidence supported [the self-defense] instruction
because it showed [Delpalacio] believed he had to arm himself when Connie had not
planned to spend the night at [Matthew’s] apartment and did not inform him of her
change in plans, [Delpalacio] had a prior encounter with [Matthew] in which [Matthew]
was the aggressor and fought him, [Matthew] hated [Delpalacio], and Connie felt as
though she was being stalked by [Matthew], who could not let go of the relationship.”
       A defendant acts in self-defense when he actually and reasonably believes in the
need to defend against imminent bodily injury or death. (See People v. Humphrey (1996)


associated with _____ <insert name of person who was the alleged source of the threat>,
you may consider that threat in deciding whether the defendant was justified in acting in
(self-defense/ [or] defense of another).] [¶] The People have the burden of proving
beyond a reasonable doubt that the defendant did not temporarily possess the firearm in
(self-defense/ [or] defense of another). If the People have not met this burden, you must
find the defendant not guilty of this crime.”

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13 Cal.4th 1073, 1082; see also §§ 197, 198.) “The law [of self-defense] recognizes that
the objective component is not measured by an abstract standard of reasonableness but
one based on the defendant’s perception of imminent harm or death. Because his state of
mind is a critical issue, he may explain his actions in light of his knowledge concerning
the victim. [Citations.] Antecedent threats as well as the victim’s reputation for
violence, prior ‘assaults, and other circumstances [are] relevant to interpreting the
attacker’s behavior.’ [Citations.] While such considerations alone do not establish a
right of self-defense [citation], they illuminate and reflect on the reasonableness of
defendant’s perception of both the imminence of danger and the need to resist with the
degree of force applied. [Citation.] They may also justify the defendant ‘in acting more
quickly and taking harsher measures for [his] own protection in the event of assault,
whether actual or threatened, than would a person who had not received such threats.’
[Citation.]” (People v. Humphrey, supra, 13 Cal.4th at p. 1094.) “ ‘ “[P]revious threats
alone, however, unless coupled at the time with an apparent design then and there to
carry them into effect, will not justify [an] assault . . . .” ’ [Citation.]” (People v. Curtis
(1994) 30 Cal.App.4th 1337, 1359.)
       The problem with Delpalacio’s theory is that both self-defense and defense of
others require a fear of imminent harm. “[T]he fear must be of imminent harm. ‘Fear of
future harm—no matter how great the fear and no matter how great the likelihood of the
harm—will not suffice. The defendant’s fear must be of imminent danger to life or great
bodily injury.’ [Citation.]” (People v. Humphrey, supra, 13 Cal.4th at p. 1082.)
Delpalacio did not testify. Although “ ‘substantial evidence of a defendant’s state of
mind may be found in the testimony of witnesses other than a defendant’ ” (People v.
Oropeza, supra, 151 Cal.App.4th at p. 82), there was no evidence that Delpalacio
appeared afraid of imminent harm to himself or Connie. In fact, it was undisputed that,
after Delpalacio entered Matthew’s apartment, he walked past Connie, who was in no
apparent danger. And, Connie did not testify that Delpalacio pointed a gun at Matthew
only after Matthew drew his or otherwise placed Delpalacio in fear of imminent harm.



                                               10
She only testified that she did not see a gun. Her testimony, if believed, did not describe
an assault in self-defense or defense of others.
       Eric and Matthew testified that Delpalacio broke down Matthew’s door in the
middle of the night, appeared angry, walked past Connie and straight into Matthew’s
bedroom, where he immediately pointed a gun at Matthew’s head. The assault with a
deadly weapon, burglary, and possession of a firearm were complete at this point. And,
the fact that Matthew pointed or fired his weapon thereafter is of no import. “It is well
established that the ordinary self-defense doctrine—applicable when a defendant
reasonably believes that his safety is endangered—may not be invoked by a defendant
who, through his own wrongful conduct (e.g., the initiation of a physical assault or the
commission of a felony), has created circumstances under which his adversary’s attack or
pursuit is legally justified.” (People v. Hill (2005) 131 Cal.App.4th 1089, 1102,
disapproved on other grounds by People v. French (2008) 43 Cal.4th 36, 48, fn. 5.)
       The trial court did not err in refusing CALCRIM No. 3470. Because there is no
substantial evidence of self-defense or defense of others we need not further consider
Delpalacio’s additional requests for instruction.

                                     III. DISPOSITION
       The judgment is affirmed.


                                                    _________________________
                                                    Bruiniers, J.


We concur:


_________________________
Jones, P. J.


_________________________
Simons, J.



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