Filed 4/29/16 P. v. Barnett CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065324

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD249351)

BRIAN BARNETT,

         Defendant and Appellant.


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

Sharon B. Majors-Lewis, Judge. Affirmed.



         Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew

Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury convicted defendant Brian Barnett of assault with a deadly weapon (Pen.

Code,1 § 245, subd. (a)(1); count 1). The jury further found true special circumstance

allegations of personal infliction of great bodily injury (§ 12022.7, subd. (a)) and personal

use of a dangerous or deadly weapon (§ 1192.7, subd. (c)(23)). The jury also found a

prior serious felony conviction (§ 211) and a prison prior conviction (Health & Saf. Code

§ 11352, subd. (a)). The trial court sentenced Barnett to 17 years in prison.

       On appeal Barnett contends the trial court erred by denying his motion under

section 1118.1 for a judgment of acquittal because there was insufficient evidence in the

prosecution's case to support a finding that he did not act in self-defense. In addition,

Barnett contends the trial court prejudicially erred by instructing the jury regarding self-

defense after an attacker is disabled or danger ceases (CALCRIM No. 3474). We are

unpersuaded by these contentions and affirm the judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

Prosecution Evidence

       On the night of June 21, 2013, Barnett and Frederick Morao had a loud argument

at a residential hotel in San Diego. The two men were friends and Barnett was

temporarily staying with Morao. Morao had purchased methamphetamine from Barnett,

and both had consumed "a lot" of "crystal meth" that day. The men argued about money

Barnett claimed Morao owed him for the methamphetamine.




1      Further statutory references are to the Penal Code unless otherwise stated.

                                              2
       Earlier in the day, Morao had witnessed Barnett hit Devon Clements (a friend of

Morao's), with sufficient force to knock him down. During the argument, Morao told

Barnett "I ain't Devon. You ain't going to hit me like Devon." One of the two men said

something like "We'll handle this," or "[l]et's hit the corner" and Morao walked away

from the hotel. Barnett followed behind. Morao carried the bottom part of a pool cue

(approximately two feet long and two inches in diameter) concealed inside his sweater.

He had it with him because he knew Barnett carried weapons, including a serrated knife

with a four- to five-inch blade. When Barnett got close to Morao, Morao turned around,

thinking Barnett was going to "swing, hit me some kind" and "swung too," swinging the

pool cue at Barnett. Barnett was able to disarm Morao of the pool cue before being

struck. Morao then began throwing punches at Barnett, many of which landed.

       Clements followed slowly behind the men and saw Barnett holding a cylindrical

object about a foot and a half long during the fight. Clements initially stated he did not

see Barnett use the object on Morao, but later testified it did make contact with Morao.

Clements originally described the object as looking like a rolling pin and testified it was

wider than the pool cue. Morao felt blows to his chest and stomach during the fight. The

brief fight stopped when Morao felt like he "got enough hits in," and Morao and Barnett

separated.2 Barnett walked away limping and yelling something. Morao joined




2      Based on the video evidence, summarized by San Diego Police Detective
Christopher Tews (Detective Tews), the struggle between the two men lasted between 30
seconds and a minute. However, the videotape documenting the struggle showed only
the "footwork" of the two men during the fight.
                                             3
Clements and said something like "I got him." The two men gave each other "daps," a

celebratory gesture. Morao and Clements then walked back toward the hotel and Morao

realized he was bleeding heavily. After Morao reached the lobby, the hotel security

guard called an ambulance. Morao lost consciousness after the paramedics arrived and

the next thing he remembered is waking up after surgery. Morao remained in the hospital

for a week.

       Morao had multiple stab wounds, at least one to the left side of his stomach and

one on his back. A doctor told Morao there were 14 stab wounds. Clements also recalled

hearing from a police officer that Morao was stabbed 14 to 16 times and might not make

it. In addition, the investigating officer, Detective Tews, recalled hearing from police

officers at the scene that Morao was stabbed 14 times, but was unable to personally verify

the number.

       Detective Tews interviewed Morao. Morao initially told Detective Tews he had

been jumped by two Hispanic men. Morao had prior felony convictions including petty

theft, possession of methamphetamine for sale, petty theft with a prior, and robbery. He

used his "felon mentality" when first speaking with the police. After learning about

surveillance video of the incident, Morao told Detective Tews the truth about what

happened, explaining he made up the initial story because he did not want to be a rat.

       Detective Tews also interviewed Barnett. Barnett denied stabbing Morao. Barnett

told Detective Tews Morao tried to hit him with a pool cue, he took the cue away, Morao

ran and was then attacked from behind by a "Hispanic dude." Barnett admitted he always



                                             4
carried a knife and he had a black, foot-long, serrated knife with him at the time of the

incident, but denied using the knife on Morao.

       On June 21, 2013, Morao was either 5'3" or 5'7" and weighed around 205 or 210

pounds. Barnett is significantly taller than Morao. Morao felt threatened by the size

disparity due to Barnett's advantage of height and "reach." Morao was very soft spoken

and nervous during Barnett's cross-examination. Morao does not like weapons, does not

know anything about knives, and does not need a knife. However, Barnett had promised

to get Morao a knife.

Section 1118 Motion for Acquittal

       At the close of the prosecution's case, Barnett moved for acquittal under section

1118. He argued there was insufficient evidence to show he used a knife. He further

argued evidence showed Morao had a concealed pool cue, which he attempted to strike

Barnett with, Barnett took the cue away from him and Morao swung and hit Barnett 20

times. Barnett asserted he "had an absolute right to defend himself" under those

circumstances. The trial court denied the motion, noting although evidence established

Morao (the smaller individual) initially had a pool cue, any force Morao used after being

disarmed "did not justify the deadly force that [Barnett] used when he stabbed him in the

gut." The court therefore ruled there was sufficient evidence for a reasonable jury to find

Barnett guilty.

Defense Evidence

       Barnett represented himself. Barnett first called Dr. Murphy, a forensic

psychologist, who testified about the fight or flight syndrome and similar responses of

                                             5
people using crystal methamphetamine. Barnett also called San Diego Police Officer

Carlos Munoz (Officer Munoz), who had written a report of the incident stating Morao

was stabbed 14 times. Hospital staff had informed Officer Munoz of the 14 stab wounds,

but the specific source was not identified in his report and he could not recall who it was.

Officer Munoz did not take pictures of any of the stab wounds.3

       Barnett took the stand. He described his relationship with Morao as one in which

Morao depended upon him to "help him out" by supplying crystal methamphetamine and

testified he would come from various locations in Southern California, at his own

expense, to supply Morao. The fight with Morao occurred because Morao was angry that

Barnett's friends would not give him a cheap price on illegal drugs. When Morao said

"Let's go handle it," Barnett anticipated a fistfight and believed he "ain't got no problem,"

as he was "fixing to whip this little chump's ass, you know, for crossing me up, plain and

simple." Barnett was not worried about fighting the younger Morao, a "guy in his

prime," because "[m]ost youngsters these days, they don't even know how to sling the

fist. They can't even fight. You know, I [was] brought up using my hands to defend

myself."




3      Barnett also called other police officers and Detective Tews, focusing on the
content and numbering of various police reports, Morao's clothing, evidence collection
procedures and the investigation of blood evidence to support his theories of investigative
incompetence and "another guy did it." Such testimony is not summarized further as it is
irrelevant to the issue of self-defense.


                                              6
       Barnett was attacked by Morao and "just defended [him]self." After Barnett took

the pool stick away from Morao, Morao ran and Barnett did not pursue him. At the time,

Barnett saw Clements following behind, and thought he was going to try to help Morao,

but was not worried about being "double team[ed]" by the men. Barnett had a gun in one

of his back pockets during the incident, but had no intention of using it. Barnett's "big ol'

knife" was in his other back pocket. Barnett was "hit in the nose" by Morao, and there

was some bleeding.

       Barnett testified he used only his fists on Morao and did not stab him. Instead,

Morao was stabbed by a Hispanic male after Barnett disarmed him and Morao ran off

into the street. After Barnett took Morao's weapon away, Morao "turned around and he

got stabbed."

                                       DISCUSSION

       I. Sufficiency of the evidence as to Self-Defense

A. Introduction

       Barnett moved under section 1118.1 for entry of judgment of acquittal at the close

of the prosecution's case. The trial court denied the motion, finding the prosecution met

its burden of circumstantial and direct evidence, including evidence sufficient for the

issue of self-defense to go to the jury. Barnett contends the trial court erred, because the

prosecution advanced insufficient evidence to show Barnett was not acting in self-

defense. We disagree.




                                              7
B. Standard of review

       " ' "The standard applied by a trial court in ruling upon a motion for judgment of

acquittal pursuant to section 1118.1 is the same as the standard applied by an appellate

court in reviewing the sufficiency of the evidence to support a conviction, that is,

'whether from the evidence, including all reasonable inferences to be drawn therefrom,

there is any substantial evidence of the existence of each element of the offense

charged.' " [Citation.] "The purpose of a motion under section 1118.1 is to weed out as

soon as possible those few instances in which the prosecution fails to make even a prima

facie case." [Citations.] The question "is simply whether the prosecution has presented

sufficient evidence to present the matter to the jury for its determination." ' " (People v.

Maciel (2013) 57 Cal.4th 482, 522.)

       " 'In reviewing a challenge to the sufficiency of the evidence, we do not determine

the facts ourselves. Rather, we "examine the whole record in the light most favorable to

the judgment to determine whether it discloses substantial evidence—evidence that is

reasonable, credible and of solid value—such that a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt." [Citations.] We presume in support of the

judgment the existence of every fact the trier could reasonably deduce from the

evidence.' " (People v. Houston (2012) 54 Cal. 4th 1186, 1215.).

       "Notably, however, '[r]eview of the denial of a section 1118.1 motion made at the

close of a prosecutor's case-in-chief focuses on the state of the evidence as it stood at that

point.' " (People v. Hajek and Vo (2014) 58 Cal. 4th 1144, 1183.)



                                              8
C. Assault with a Deadly Weapon and Self-Defense

       To convict on assault with a deadly weapon, the prosecution must prove "[t]he

defendant did not act (in self-defense/ [or] in defense of someone else)." (CALCRIM

No. 875.) To determine whether self-defense applies, a trier of fact generally must

determine "whether the circumstances would cause a reasonable person to perceive the

necessity of defense, whether the defendant actually acted out of defense of himself, and

whether the force used was excessive." (People v. Clark (1982) 130 Cal.App.3d 371,

378, abrogated on another point by People v. Blakeley (2000) 23 Cal. 4th 82, 92.)

"[A]ny right of self-defense is limited to the use of such force as is reasonable under the

circumstances." (People v. Pinholster (1992) 1 Cal. 4th 865, 966, overruled on other

grounds in People v. Williams (2010) 49 Cal. 4th 405, 459.) "[A]lthough the test is

objective, reasonableness is determined from the point of view of a reasonable person in

the defendant's position. The jury must consider all the facts and circumstances it might '

"expect[] to operate on [defendant's] mind." ' " (People v. Minifie (1996) 13 Cal. 4th

1055, 1065.) In the context of an assault with a deadly weapon, a defendant must show a

reasonable fear of "great bodily injury"—the rule of self-defense in homicide cases

applies equally to cases of felonious assault. (People v. Lopez (1948) 32 Cal.2d 673,

675.) Explained another way, in such cases "[t]he justification of self-defense requires a

double showing: that defendant was actually in fear of his life or serious bodily injury

and that the conduct of the other party was such as to produce that state of mind in a

reasonable person." (People v. Sonier (1952) 113 Cal.App.2d 277, 278.)



                                             9
       Barnett asserts the prosecution failed to prove its case because a defendant must be

allowed to use a weapon other than fists if his own fists are "inadequate to the task" and

he finds himself at risk of serious injury. However, the record does not establish Barnett

was at risk for serious injury during the fight with Morao. On appeal, Barnett argues

"fists can do tremendous damage" and inflict "great bodily injury," citing to boxing

matches and pictures in assault cases, but fails to identify any evidence of Morao

possessing such dangerous fists, or any particular fighting expertise. Barnett further

speculates it was possible Morao could have had a weapon other than the pool cue,

because he was a drug user, dealer and criminal and many people now carry concealed

guns. However, Barnett points to no evidence to support any reasonable belief Morao

was armed after Barnett took the pool cue or Barnett was otherwise under threat of death

or great bodily harm.4

       Under these circumstances, the court properly determined that the prosecutor

presented sufficient evidence to negate Barnett's self-defense claim. The evidence

viewed most favorably to the prosecution establishes Barnett used unreasonable force in

the fight between two friends, defeating his claim of lawful self-defense. Earlier in the

day, Barnett had hit another man hard enough to knock him down. Although Morao

swung at Barnett with part of a pool cue, Barnett disarmed Morao before being struck.

Morao was able to get in a number of punches after being disarmed, but Barnett was


4      Notably, Barnett did not present any evidence at trial as to his state of mind during
the fight to support a self-defense theory. Under Barnett's theory of the case, he took the
pool cue from Morao, Morao ran from him and was stabbed by someone else.

                                            10
taller and had better reach. Morao felt threatened by the size disparity due to Barnett's

advantage of height and "reach." Morao, the smaller man, appeared intimidated by

Barnett at trial. The entire altercation lasted seconds to a minute, yet Morao suffered

multiple stab wounds, including an abdominal wound that left him hospitalized for a

week. Barnett admitted to being in possession of a foot-long knife with a serrated blade.

       On this record, there was substantial evidence for a reasonable trier of fact to

conclude that Barnett used excessive force in stabbing a disarmed Morao, overcoming

any claim of lawful self-defense. The trial court did not err in denying acquittal.

       II. Jury Instruction CALCRIM No. 3474

A. Introduction

       Barrett also claims the court improperly instructed the jury under CALCRIM No.

3474 [Danger No Longer Exists or Attacker Disabled], over Barnett's objection.

Specifically, he argues the instruction had no application to the facts and should not have

been given. Barnett contends the instruction implicated his constitutional rights and

provision of the instruction resulted in prejudicial error. We are not persuaded by his

arguments.

B. Standard of review

       We review a claim of instructional error de novo. (People v. Posey (2004) 32

Cal.4th 193, 218.) "Review of the adequacy of instructions is based on whether the trial

court 'fully and fairly instructed on the applicable law.' [Citation.] ' "In determining

whether error has been committed in giving or not giving jury instructions, we must

consider the instructions as a whole … [and] assume that the jurors are intelligent persons

                                             11
and capable of understanding and correlating all jury instructions which are given."

[Citation.]' [Citation.] 'Instructions should be interpreted, if possible, so as to support the

judgment rather than defeat it if they are reasonably susceptible to such interpretation.' "

(People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)

       "Giving an instruction that is correct as to the law but irrelevant or inapplicable is

error." (People v. Cross (2008) 45 Cal.4th 58, 67.) Although it is error to give an

instruction, which correctly states a principle of law but has no application to the facts of

the case, if it is the only error, it does not implicate federal constitutional rights. (People

v. Guiton (1993) 4 Cal.4th 1116, 1129.) Such error is generally one of state law subject

to the traditional Watson test, which requires reversal if it is reasonably probable the

result would have been more favorable to the defendant had the error not occurred. (Id.

at p. 1130; People v. Watson (1956) 46 Cal.2d 818, 836.) To determine whether there

was prejudice, we examine the entire record, including the facts and the instructions, the

arguments of counsel, any communications from the jury during deliberations, and the

entire verdict. (Guiton, supra, at p. 1130.)

C. Analysis

       Barrett claims it was prejudicial error to instruct the jury with CALCRIM No.

3474. CALCRIM No. 3474 provides, "The right to use force in self-defense continues

only as long as the danger exists or reasonably appears to exist. When the attacker no

longer appears capable of inflicting any injury, then the right to use force ends." Barnett

contends the "instruction had no application to the facts and never should have been

given." In addition, he characterizes the instruction as improperly bolstering the

                                               12
prosecution's argument Barnett "lost his right to self-defense with a knife the moment

Morao lost his pool stick." Barnett asserts that giving the instruction amounts to a

deprivation of his right to due process under the Fourteenth Amendment to the United

States Constitution. Barnett therefore seeks review of any error under the test of

Chapman v. California (1967) 386 U.S. 18, 24, which requires reversal, unless the error

is shown to be harmless beyond a reasonable doubt. Barnett does not maintain

CALCRIM No. 3474 itself is an incorrect statement of law, or that the court misstated the

instruction.

       At trial, CALCRIM No. 3474 was part of a series of instructions relating to self-

defense.5 The court also instructed the jury under CALCRIM No. 3470 [Right to Self-

Defense], which states, as given:

           "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.

           "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. Defendant's
           belief must have been reasonable and he must have acted because of
           that belief. The defendant is only entitled to use that amount of



5      In addition to CALCRIM No. 3470 and CALCRIM No. 3474, the court instructed
the jury with CALCRIM No. 3471 [Right to Self-Defense: Mutual Combat or Initial
Aggressor], but such instruction was not at issue on appeal.
                                             13
          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.

          "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.

          "A defendant is not required to retreat. He or she is entitled to stand
          his or her ground and defend himself or herself and, if reasonably
          necessary, to pursue an assailant until the danger of bodily injury has
          passed. This is so even if safety could have been achieved by
          retreating.

          "The People have the burden of proving beyond a reasonable doubt
          that the defendant did not act in lawful self-defense. If the People
          have not met this burden, you must find the defendant not guilty."

       In addition, the court specifically instructed the jury under CALCRIM No. 200

[Duties of Judge and Jury], which states in pertinent part:

          "Some of these instructions may not apply, depending on your
          findings about the facts of the case. [Do not assume just because I
          give a particular instruction that I am suggesting anything about the
          facts.] After you have decided what the facts are, follow the
          instructions that do apply to the facts as you find them."

       In his closing argument, the prosecutor summarized the elements of CALCRIM

No. 3470 and argued Barnett did not satisfy the requirements for lawful self-defense

based on the following facts: Barnett had already disarmed Morao; Barnett was armed

with three weapons; Morao was fighting with no more than his bare hands; Morao is

smaller than Barnett and has a shorter reach. The prosecutor also referenced CALCRIM




                                             14
No. 3474 and argued Barnett no longer had the right to use self-defense with a weapon

after he had disarmed Morao.

       The jury found Barnett guilty, therefore necessarily finding he did not act in self-

defense. Even if we assume the instruction under CALCRIM No. 3474 was not

adequately supported by the evidence, any error in giving the instruction was harmless.

       The jury was instructed under CALCRIM No. 3470 regarding the elements of self-

defense. The prosecutor referred to both instructions in his closing arguments,

emphasizing CALCRIM No. 3470. Barnett has not pointed to any indication in the

record showing the jury did not understand CALCRIM No. 3470 or otherwise ignored the

instruction because it also received CALCRIM No. 3474. Both instructions correctly

state the law.

       The court instructed the jury, under CALCRIM No. 200, not to assume that all

instructions applied and to "follow the instructions that do apply to the facts as you find

them." "While such an instruction does not render an otherwise improper instruction

proper, it may be considered in assessing the prejudicial effect of an improper

instruction." (People v. Saddler (1979) 24 Cal.3d 671, 684 [concluding error was not

prejudicial, in part, because the jury was instructed under CALJIC No. 17.31 "that they

were to 'disregard any instruction which applies to a state of facts which you determine

does not exist' "].) "Jurors are presumed able to understand and correlate instructions and

are further presumed to have followed the court's instructions." (People v. Sanchez

(2001) 26 Cal.4th 834, 852.) There is nothing here to suggest otherwise.



                                             15
       Moreover, as discussed in the previous section, the prosecution offered ample

evidence for a reasonable jury to find Barnett used unreasonable force. Barnett was

bigger, with better reach. He readily disarmed Morao. He had knocked a man to the

ground earlier in the day with a blow from his fists. Barnett had a foot-long serrated

knife and the fight left Morao with multiple stab wounds and a week-long hospital stay.

The fight lasted only seconds to a minute. Consequently, Barnett must have started using

his knife within seconds after physical contact began.

       In presenting his case, Barnett supplied additional evidence to negate lawful self-

defense: Barnett stated he did not have a "problem" fighting Morao; he planned to "whip

[his] ass," and he was not worried about fighting the younger man because he was

"brought up using my hands to defend myself." Barnett presented no evidence that he

had fear for his life or of great bodily injury during the fight. Although Morao may have

initiated the physical contact and was apparently able to hold his own during the brief

altercation, Barnett's decision to use his knife was not reasonable under the

circumstances.

       Our review of the record shows overwhelming evidence Barnett used excessive

force, precluding lawful self-defense. A reasonable jury would not have reached a

different conclusion even if CALCRIM No. 3474 had not been given. We therefore

conclude any error was harmless under either federal or state standards (Chapman v.

California, supra, 386 U.S. at p. 24; People v. Watson, supra, 46 Cal.2d at p. 836.).




                                            16
                                     DISPOSITION

      The judgment is affirmed.




                                                                     MCCONNELL, P. J.

WE CONCUR:


BENKE, J.


PRAGER, J.*




*       Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
                                           17
