Filed 8/28/13 P. v. McGilbery 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             NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                      A136554
                   v.
SUMARTRA LAKISA McGILBERY,                                               (Contra Costa County
                                                                         Super. Ct. No. 05-110700-2)
          Defendant and Appellant.

          Defendant Sumartra Lakisa McGilbery (appellant) appeals from the judgment
entered following her conviction after jury trial of assault (Pen. Code, § 241, subd. (a)),
misdemeanor child abuse (Pen. Code, § 273a, subd. (b)), and leaving the scene of an
injury accident (Veh. Code, § 20001, subd. (a)). She contends the trial court erred in
declining her request to recall a witness and to instruct the jury on self-defense. We
affirm.
                                      PROCEDURAL BACKGROUND
          In May 2011, an information was filed in the Contra Costa County Superior Court
charging appellant with assault with a deadly weapon and by means of force likely to
produce great bodily injury (Pen. Code, former § 245, subd. (a)(1); now § 245, subd.
(a)(1) & (4)), felony child abuse (Pen. Code, § 273a, subd. (a)), and leaving the scene of
an injury accident (Veh. Code, § 20001, subd. (a)). In April 2012, a jury found appellant
guilty of simple assault (Pen. Code, § 241, subd. (a)), misdemeanor child abuse (Pen.

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Code, § 273a, subd. (b)), and leaving the scene of an injury accident (Veh. Code,
§ 20001, subd. (a)). In June, the trial court placed appellant on probation for four years.
This appeal followed.
                                FACTUAL BACKGROUND
       The victim, Christine King, was driving on the Carquinez Bridge on March 24,
2010, at approximately 8:15 a.m. King noticed in her rear view mirror a dark car darting
in and out of traffic. She moved her car to the right lane because she intended to exit the
freeway, and she braked as she approached the exit. King was rear-ended by the dark car
as King was taking the off ramp. King’s car went into a cement wall and she was injured
in the crash. It is undisputed that appellant was the driver of the car that struck King’s
car. King did not interact with appellant before the collision.
       Travis Swafford and Barbara Romero were also driving on the Carquinez Bridge
the morning of March 24, 2010. Swafford observed appellant’s car tailgating other cars
and swerving into various lanes. Romero observed two cars speeding, the car behind
(driven by appellant) looked like it was chasing the front car. Both Swafford and Romero
observed King’s car brake, causing appellant’s car to brake as well. Both Swafford and
Romero then observed appellant’s car accelerate, hit King’s car from the rear, and leave
the scene. Swafford saw King’s car spin from the impact and hit the guard rail. Romero
followed appellant’s car to a school, where a female passenger who looked about 12
years old exited the vehicle.
       California Highway Patrol Officer Don Johnson located appellant, who told
Johnson that King had driven next to her and given her the finger. King then cut in front
of appellant and hit the brakes, causing appellant to hit her.
       At trial, appellant provided the same basic description of the accident. She
acknowledged she was darting in and out of traffic before she encountered King’s car,
she was always behind King’s car, and King’s car was exiting the freeway at the moment
of the collision. Appellant did not exchange words with King and she did not see a
weapon in King’s possession.


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       A third eyewitness, Robert George, testified for the defense that appellant’s car
was very close to King’s car and struck King’s car when King’s car braked.
                                       DISCUSSION
       Appellant first contends the trial court erroneously denied her request to recall the
victim, King, as a witness after the conclusion of appellant’s testimony during the
defense case. We need not decide whether the trial court erred, because any error was
harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
Appellant explains she wanted “to question King about restitution and a statement she
had provided an insurance company,” as well as “a civil lawsuit she had filed against
appellant.” She asserts, “These matters all bore on King’s credibility in general and a
motivation to lie about the incident in particular.” However, even assuming the proffered
inquiry would have undermined King’s credibility, there is no probability it would have
changed the outcome of the trial because the key prosecution witnesses were Swafford
and Romero. Both of those uninterested eyewitnesses testified that appellant accelerated
into the rear of King’s car; King’s testimony was not the strongest evidence supporting
appellant’s conviction on any of the counts.
       Appellant also contends the trial court erred in refusing to instruct the jury on self-
defense. The trial court properly denied the request to instruct on self-defense because
substantial evidence did not support the giving of the instruction. (People v. Villanueva
(2008) 169 Cal.App.4th 41, 49; see also People v. Blair (2005) 36 Cal.4th 686, 744-745
[substantial evidence means “evidence from which a jury composed of reasonable
persons could conclude that the facts underlying the particular instruction exist.”].)
“[B]oth self-defense and defense of others, whether perfect or imperfect, require an actual
fear of imminent harm.” (People v. Butler (2009) 46 Cal.4th 847, 868; see also In re
Christian S. (1994) 7 Cal.4th 768, 783 [“The defendant’s fear must be of imminent
danger to life or great bodily injury.”].) In the present case, there is no evidence
appellant feared harm when she hit King’s vehicle. It is undisputed appellant’s car was
behind King’s car and King’s car was exiting the freeway at the time of the collision, and
there is no evidence King had a weapon or threatened appellant. Appellant’s opening

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brief on appeal fails to cite to any evidence of a fear of imminent harm, and respondent’s
brief points out the absence of such evidence. Nevertheless, appellant’s reply brief still
fails to refer to any evidence of a fear of imminent harm. The trial court did not err in
refusing to instruct on self-defense.
                                        DISPOSITION
       The trial court’s judgment is affirmed.




                                                  SIMONS, J.



We concur.




JONES, P.J.




BRUINIERS, J.




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