Filed 2/13/15 P. v. Bernal CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE



THE PEOPLE,                                                              B247231

         Plaintiff and Respondent,                                       (Los Angeles County
                                                                         Super. Ct. No. BA381249)
         v.

JHONATAN BERNAL,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
William C. Ryan, Judge. Reversed.


         Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant
and Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Mary
Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

                                        _________________________
         Appellant Jhonatan Bernal appeals from the judgment entered following his
conviction by jury of voluntary manslaughter (Pen. Code, § 192, subd. (a)). The court
sentenced him to prison for three years. We reverse.
                                  FACTUAL SUMMARY
1. People’s Evidence.
         Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993)
6 Cal.4th 1199, 1206), the evidence established that on the night of February 12, 2011,
appellant and Ana Chirino, appellant’s girlfriend, attended a party at 43rd and Wall in
Los Angeles. Jubal Trinidad (the decedent) was there and was drinking.
         Appellant and Chirino later decided to leave and they entered Chirino’s car;
appellant was the driver. Trinidad asked for a ride. Appellant or Chirino consented and
Trinidad entered the car. Trinidad told appellant to drive into an alley that intersected
43rd between Main and “Woodlong.” (Sic.) The alley was behind Trinidad’s house.
Appellant complied.
         Appellant and Trinidad exited and walked towards the back of the car. Minutes
later, the two were fighting on the ground. Alex Guevara (Alex) was Trinidad’s son.
Flora Lara (Lara) was Trinidad’s wife, and 12-year-old Danny Guevara (Danny) was
Trinidad’s grandson. Alex, Lara, and Danny were inside the house when Trinidad began
screaming. Alex exited through the front door, Lara exited out the back door that led to
the alley, and Danny went towards the alley. Each denied having a knife, but Chirino
testified Alex was holding one. The police found a knife on the ground in the alley where
the incident occurred.1 Chirino was scared. Lara pulled appellant off Trinidad. Lara
testified she saw a girl, near the car’s trunk, say, “Let’s go” and “We’re going to kill
them.”




1
       Appellant testified he recognized the knife the police found as the one Alex was
carrying.


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       Lara, assisted by Alex, picked up Trinidad off the ground. Appellant entered the
car. Chirino told appellant to drive forward, but appellant began backing up and the car
hit Trinidad.
       Alex and Lara yelled to appellant to stop, but the car’s windows were closed.
Alex pounded on the driver’s side window, telling appellant to stop, but appellant
continued driving, dragging Trinidad under the car. Alex and Lara pursued on foot,
pounding on the car’s windows and trunk. At one point the car became stuck and
appellant drove forward and backward over Trinidad three or four times. Appellant
drove backwards out the alley, onto 43rd, then onto Main, dragging Trinidad.
       Appellant was driving forward on 43rd and Main when Alex pulled off the car’s
rear license plate and showed it to appellant. Chirino testified Alex told appellant,
“Look, stupid, what I got.” Appellant then drove backwards and tried to run over Alex,
but Lara pushed Alex out of the way. Trinidad was dislodged from the car. Appellant
drove away, running over Trinidad. At 2:00 a.m. on February 13, 2011, a police officer
saw Trinidad’s body at 43rd and Main. Trinidad died as a result of blunt force trauma.
Police recovered from the alley a knife, an unopened beer can, an open beer can, and
pieces of a broken watch.
       About 10 a.m. on February 13, 2011, Chirino falsely reported her car had been
stolen. Police arrested her that day. In a statement to police, Chirino wrote, inter alia, the
following. A man approached appellant and Chirino at the party, and the man said he
was going to call the police. When, later, appellant drove backwards in the car, it felt like
he ran over the man.
       A detective testified Chirino told him that when appellant and Trinidad were
fighting in the alley, appellant was on top of Trinidad punching and kicking him, and an
older lady and two young males tried to get appellant off Trinidad. Chirino did not tell
detectives she saw anyone with a weapon or knife. Chirino told detectives when
appellant began backing up the car, she felt a bump. Chirino yelled at appellant to stop,
but he cursed at her, told her to shut up, and continued driving backwards. A detective
testified appellant twice fled from police, i.e., once when police came to Chirino’s house


                                              3
to arrest appellant a few days after the incident, and once when police later were
transporting him between police facilities.
2. Defense Evidence.
       In defense, appellant testified he killed Trinidad by accident. According to
appellant, after he drove into the alley, Trinidad asked appellant for a few dollars so
Trinidad could buy more beer. Appellant took out cash from his pocket to give some to
Trinidad. Trinidad tried to grab the cash and it fell. As appellant picked up the money,
Trinidad struck him with a metal container, possibly a beer can. Appellant put the money
in his pocket. Trinidad grabbed appellant’s neck and repeatedly tried to reach into
appellant’s pocket. Trinidad robbed appellant of appellant’s watch. Appellant and
Trinidad struggled and fell. Trinidad robbed appellant of a gold chain. Appellant told
Trinidad to leave appellant alone, but Trinidad replied no and said appellant was not
going anywhere.
       Appellant and Trinidad were on the ground and appellant was facing 43rd when
appellant saw “this guy,” whom appellant later identified during his testimony as Alex,
holding a knife and running towards appellant. Trinidad was grabbing appellant’s pants.
Appellant pushed Trinidad to free himself while Alex was running towards appellant.
Appellant testified he rose, looked back, and saw a lady and young child “coming out
from the apartment building from the fence where [Trinidad was] supposed to [be] going
to get in the apartment.” Appellant also testified, “[w]hen she came out with the other
little kid, and I just told her – I told that little kid, hey, your grandpa’s going crazy. I
don’t know what’s wrong with him.”
       Alex, holding the knife, was still coming after appellant. Appellant testified
appellant opened the car door, looked back, and “the older man [Trinidad] who was
fighting with me, he was already up with the lady, bringing him already in, and the other
guy’s still coming after me. He was coming from the street.” Appellant entered the car
and locked it. Chirino, inside, was screaming, and appellant told her “to come down, just
duck in.” (Sic.) Alex had the knife and was punching on the window. Alex suddenly
looked back and appellant thought Alex might pull out a gun. Appellant was afraid. At


                                                4
some point appellant thought Alex might be a gang member because Alex was wearing
long shorts and white shoes.
       Appellant grabbed the steering wheel, put an arm up to deflect any gunshot,
looked back to Alex, and drove backwards to 43rd, then to Main. When appellant was
backing out the alley, he was focusing on Alex and was not looking to the rear.
Appellant had not tried to hit Trinidad and did not know he had hit Trinidad.
       Appellant also testified Alex, Lara, and Danny entered the alley where the fight
took place, but neither Lara (who was in her mid-50’s) nor Danny was a gang member.
Alex, Lara, and Danny were the only people appellant had seen in the alley other than
Trinidad and Chirino. Appellant denied having known or met Alex, Lara, or Danny
before the night of the incident. Appellant denied telling detectives that when appellant
and Trinidad were fighting, appellant saw three gang members coming at appellant.
Appellant also denied telling detectives “that they were gang members.” Appellant later
admitted he “talked about gang members” but testified he had been referring only to
Alex. The broken watch belonged to appellant.2
3. Rebuttal Evidence.
       In rebuttal, Los Angeles Police Detective Leonardo McKenzie testified that on
February 16, 2011, he interviewed appellant and appellant repeatedly denied knowledge
of a party, giving anyone a ride home, or driving the car that night. McKenzie testified
appellant later told him as follows. Appellant had been at the party. Trinidad was a
“crack head” using drugs at the party. Appellant drove Trinidad into an alley behind
Trinidad’s home. Trinidad indicated if appellant gave him $10, Trinidad would exit the
car. Appellant and Trinidad were later outside the car when Trinidad tried to grab money
appellant possessed and the two began fighting. People ran towards appellant and one

2
       A few days after the incident, appellant went to Chirino’s house. Appellant heard
people screaming outside. Appellant, afraid Alex might have come to kill him, fled out
the back, but stopped when he realized the people were the police. During appellant’s
transportation between police facilities, an officer told appellant that appellant was a
murderer, he would be beaten in jail, and he would be imprisoned for life. Appellant
panicked, escaped, and fled.

                                             5
had a knife. Appellant, afraid, reentered the car, drove backwards to 43rd, then went
south on Main.
       McKenzie testified appellant never said Trinidad choked appellant, grabbed a gold
chain from appellant’s neck, went through appellant’s pockets, or struck appellant on the
head with an object. Appellant said gang members were coming at him and trying to
attack him.
                                          ISSUES
       Appellant claims the trial court (1) erroneously failed to instruct on self-defense or
defense of others and (2) erroneously refused to modify CALCRIM No. 511 to reflect
Alex was a legally adequate source of provocation.
                                       DISCUSSION
The Trial Court Prejudicially Erred by Failing to Instruct on Self-Defense.
       Appellant claims the trial court prejudicially erred by failing to instruct on
justifiable self-defense and defense of others (hereafter, self-defense).3 We agree. A trial
court has a duty to instruct sua sponte on a defense only where (1) it is supported by
substantial evidence and (2) the defendant is relying on the defense or it is not
inconsistent with the defendant’s defense. (People v. Villanueva (2008)
169 Cal.App.4th 41, 49 (Villanueva); People v. Shelmire (2005) 130 Cal.App.4th 1044,
1046, 1058-1059.) “If the defense is supported by the evidence but is inconsistent with


3
        Appellant arguesTrinidad was robbing appellant and, while appellant was fending
off the robbery, Trinidad’s family came running towards appellant from several
directions and pursued appellant. Alex, carrying a knife, chased appellant to the car.
After appellant was inside the locked car, “appellant was assailed on one side by his
panicked, screaming girlfriend and on the other by the man with the knife, who was
yelling and pounding on the car window and possibly reaching for a gun. In his
desperation to get away from his assailants, appellant put his car into reverse and backed
out of the alley, backing into the victim in the process.” The court instructed the jury on
voluntary manslaughter based on sudden quarrel or heat of passion (not based on
imperfect self-defense). The jury convicted appellant of voluntary manslaughter but
found not true an allegation appellant personally used a dangerous or deadly weapon, i.e.,
an automobile, for purposes of Penal Code section 12022, subdivision (b)(1).


                                              6
the defendant’s theory of the case, the trial court should instruct on the defense only if the
defendant wishes the court to do so. [Citation.]” (Villanueva, at p. 49.)
       In People v. Breverman (1998) 19 Cal.4th 142 (Breverman), our Supreme Court,
quoting People v. Sedeno (1974) 10 Cal.3d 703, 717, fn. 7 (Sedeno), stated, “when the
trial court believes ‘there is substantial evidence that would support a defense inconsistent
with that advanced by a defendant, the court should ascertain from the defendant whether
he wishes instructions on the alternative theory.’ ” (Breverman, at p. 157.)4
       Self-defense as a defense to what would otherwise be murder requires that the
defendant commit an intentional act causing death; an unintentional act is insufficient.
(Cf. Villanueva, supra, 169 Cal.App.4th at pp. 50-51 [intentional shooting]; People v.
Curtis (1994) 30 Cal.App.4th 1337, 1359 [self-defense requires “intentional use of deadly
force”].) Self-defense also requires that a defendant not only believe the defendant is in
imminent danger, but perceive such danger “from the victim.”
(Cf. Villanueva, at p. 52, fn. 10; see Sedeno, supra,10 Cal.3d at p. 718.) The doctrine of
self-defense involves various reasonableness requirements.5
       1. The Trial Court Erred by Failing to Instruct on Self-Defense.
       Notwithstanding any defense evidence appellant accidentally killed Trinidad, there
was nonetheless independent substantial evidence (from the People’s case) appellant
intentionally struck him and ran over Trinidad with the car, killing him. Moreover, we
believe there was substantial evidence (1) appellant reasonably believed Trinidad and

4
       “In assessing the evidence to determine whether to give an instruction, the trial
court should not measure the substantiality of the evidence by weighing the credibility of
the witnesses. That duty is within the exclusive providence of the jury.” (People v.
Russell (2006) 144 Cal.App.4th 1415, 1430.)
5
        Appellant concedes CALCRIM No. 505, modified as relevant to this case, sets
forth three pertinent elements involving reasonableness: (1) the defendant reasonably
believed the defendant or someone else was in imminent danger of being killed or
suffering great bodily injury or was in imminent danger of being robbed, (2) the
defendant reasonably believed the immediate use of deadly force was necessary to defend
against that danger, and (3) the defendant used no more force than reasonably necessary
to defendant against that danger.


                                              7
Alex were acting in concert, (2) appellant reasonably believed he was in imminent danger
of being killed or suffering great bodily injury, and/or was in imminent danger of being
robbed, and (3) satisfying the reasonableness requirements of self-defense (see fn. 5,
ante). Appellant did not request a self-defense instruction. Nonetheless, the trial court
should have ascertained from appellant whether he wished instructions on self-defense
(Breverman, supra, 19 Cal.4th at p. 157), and the trial court did not do so. We conclude
the trial court erred by failing to instruct on self-defense.
       2. The Error Was Prejudicial.
       In People v. Salas (2006) 37 Cal.4th 967, 984, our Supreme Court stated it had
“not yet determined what test of prejudice applies to the failure to instruct on an
affirmative defense.” However, in People v. Watt (2014) 229 Cal.App.4th 1215 (Watt),
the court noted the above statement in Salas and observed, “we have not found one
published opinion that embraces the Chapman standard for either the failure to instruct,
or, as here, error in the instruction that was given. Rather, published opinions have
concluded that the [test in People v. Watson (1956) 46 Cal.2d 818 (Watson)] applies.”
(Watt, at p. 1219.) To have received a more favorable result per Watson, Bernal only had
to raise a reasonable doubt as to whether he acted in self-defense.6 For the reasons
discussed below, we conclude the instructional error here was prejudicial under the
Watson standard.



6
       Indeed, in People v. Sanchez (2014) 228 Cal.App.4th 1517, the court stated,
“Errors under California law are prejudicial when ‘it is reasonably [probable] that a result
more favorable to the appealing party would have been reached in the absence of the
error.’ [Watson, supra, 46 Cal.2d at p. 836.] It is clear that ‘ “a ‘probability’ in this
context does not mean more likely than not, but merely a reasonable chance, more than
an abstract possibility.” ’ [Citation.] Further, the courts’ interpretation of a ‘ “result
more favorable” ’ has ‘no significant distinction’ from ‘the phrase[] “a different result,” ’
as ‘[b]oth standards anticipate that the party seeking relief will be in a different, and
necessarily a better, position if relief is granted.’ [Citation.] Thus, ‘[i]t appears that
under the Watson standard a hung jury is considered a more favorable result than a guilty
verdict.’ [Citation.]” (Sanchez, at pp. 1534-1535.)


                                               8
       As mentioned, there was substantial evidence appellant killed Trinidad in self-
defense because appellant reasonably believed Trinidad and the knife-wielding Alex were
acting in concert to kill, inflict great bodily injury, and/or rob appellant. The jury
convicted appellant of voluntary manslaughter, i.e., a criminal homicide mitigated by
provocation from Trinidad. By failing to instruct on self-defense, the court precluded
appellant from relying on that defense, and referring to self-defense instructions, during
jury argument. Appellant was thus precluded from arguing the killing was not merely
mitigated by provocation from Trinidad, but justifiable because of conduct from Trinidad
and Alex, acting in concert, i.e., conduct constituting felonious assault, and/or robbery.
       According to the People’s evidence, Trinidad had been drinking at a party and,
according to appellant, Trinidad was a “crack head.” Appellant, Chirino, and Trinidad
left the party and, shortly thereafter, appellant and Trinidad were fighting in the alley.
       Because the court did not instruct on self-defense, appellant was precluded from
relying on a self-defense instruction to argue various facts presented by the evidence.
Police recovered an unopened beer can and an open beer can. Appellant testified
Trinidad hit appellant with a metal container, possibly a beer can. The fact police found
beer cans, including an unopened one (which would have been heavier if used as a
weapon) was consistent with appellant’s testimony. Police also recovered pieces of
broken watch. Appellant testified they belonged to him, and the pieces were consistent
with his testimony of a struggle between appellant and Trinidad. Further, police
recovered a knife at the scene and, as mentioned, Chirino and appellant testified Alex had
a knife. The recovered knife was consistent with appellant’s testimony he backed away
because a knife-wielding Alex, and other persons, were assaulting appellant.




                                              9
       Appellant testified he thought Alex was a gang member, once appellant was in the
car he thought Alex might pull out a gun, and appellant was afraid. According to
appellant, even a few days after the incident when he was at Chirino’s house, he was
afraid Alex had come to kill him. In sum, we find there was enough evidence in this case
for a juror to have had a reasonable doubt whether the prosecution proved appellant did
not kill Trinidad in self-defense. Therefore, we conclude the trial court’s error in failing
to instruct on self-defense was prejudicial.7
                                      DISPOSITION
       The judgment is reversed.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                     KITCHING, J.

We concur:




                     EDMON, P. J.




                     ALDRICH, J.




7
       In light of the above, there is no need to reach appellant’s claim the trial court
erroneously refused to modify CALCRIM No. 511 to reflect Alex was a legally adequate
source of provocation.

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