Filed 1/30/15 P. v. Campbell CA3
                                           NOT TO BE PUBLISHED
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                   C073456

                   Plaintiff and Respondent,                                     (Super. Ct. No. 10F06759)

         v.

JERMAINE CAMPBELL et al.,

                   Defendants and Appellants.




         Defendants Jermaine John Campbell and Jonathan Steven Hudson appeal from
judgments following their murder convictions. They raise instructional claims, a
complaint that a sheriff’s deputy sat near Campbell during his testimony, and a complaint
that Campbell’s mother was not allowed to speak at sentencing. We shall affirm.
                        FACTUAL AND PROCEDURAL BACKGROUND
         Defendants were charged together with former codefendant Antoine Lee Taylor
with the first degree murder and robbery of James Walker, a robbery-murder special
circumstance, and various firearm enhancements.

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        The contentions raised on appeal do not require a lengthy discussion of the
evidence heard at defendants’ separate trials. It is enough to say that Campbell’s and
Hudson’s juries each heard evidence that on the night of October 17-18, 2010, the duo
robbed taxi driver James Walker; Campbell testified he shot Walker, who was found dead
in his cab. We shall detail additional facts as relevant to defendants’ claims in our
discussion post.
         Campbell’s jury found him guilty of murder and robbery, sustained the robbery-
murder special circumstance, and found he was armed with and personally discharged a
firearm. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17), 211, 12022, subd. (a)(1),
12022.53, subd. (d).)1 The trial court sentenced Campbell to life without parole plus 25
years to life, and Campbell timely appealed.
        Hudson’s jury found him guilty of murder and robbery, rejected the special
circumstance, but found a principal was armed with a firearm. (§§ 187, subd. (a), 211,
12022, subd. (a)(1).) The trial court sentenced Hudson to 26 years to life, and Hudson
timely appealed.
        Taylor’s jury found him not guilty on all counts.
                                        DISCUSSION
                                               I
                                      Campbell’s Claims
        A. Self-Defense Instruction
        Campbell faults the trial court for including the “initial aggressor” limitation to the
self-defense instructions, and contends this lowered the People’s burden to prove
defendant did not act in self defense. We disagree.




1   Further undesignated statutory references are to the Penal Code.

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       The trial court instructed that if Campbell acted in self defense, he was not guilty
of murder, and the People had to prove beyond a reasonable doubt that Campbell did not
act in self defense. Over objection, the trial court added the following modified
instruction (see CALCRIM No. 3471):
       “A person who is the initial aggressor has the right to self-defense only if, one, he
actually and in good faith tried to stop the assault or aggressive conduct, and, two, he
indicates by words or conduct in a way that a reasonable person would understand, that
he wanted to stop the aggressive conduct and that he stopped it.”
       Campbell contends this instruction is designed for cases of mutual combat or
physical fighting, and has no application to all aggressive acts, with the result that it
lessened the People’s burden to disprove the defense theory of self defense by depriving
him of the ability to argue that he had the right to stand his ground and not retreat. He
claims this went to the “heart” of the defense because the “omitted element - his right to
stand his ground - was critical, since he did not state that he tried to stop a fight (there
was no fight to stop) or that he left the scene before firing. A reasonable jury might have
relied on the erroneous instruction in finding that the prosecutor carried his burden on the
self defense issue because appellant did not cease a fight or retreat. Because this issue
was so central to the case, the trial court’s error in giving the instruction was prejudicial.”
We disagree.
       In California there is no duty to retreat from an assailant, instead: “The person
attacked may ‘stand his ground’ and defend by deadly force if necessary.” (1 Witkin &
Epstein, Cal. Crim. Law (4th ed. 2012) Defenses, § 77, p. 518.) However, “The person
who wrongfully attacks, or who voluntarily engages in a fight, and is met by a
counterattack, has no privilege to stand his ground and defend.” (Id., § 78, p. 519; see
People v. Bolton (1979) 23 Cal. 3d 208, 215 [“Appellant was clearly the aggressor in the
evening's quarrel. He pointed his gun at Hollister at a time when Hollister made no



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immediate threat against him. When Hollister reached as for a gun, appellant as the
aggressor was bound to retreat and not to stand his ground.”].)
       As we now explain, the evidence relied on by Campbell--his own trial testimony--
belies his appellate claim, because it shows Campbell threatened Walker with a gun
before Walker made the movement Campbell testified he perceived as a deadly threat
towards Campbell.
       Campbell testified he shot Walker with Campbell’s own gun. Before they got in
the taxi, Campbell gave Hudson Campbell’s bulletproof vest to wear, and Hudson sat in
the front seat. After the driver (victim Walker) quoted him a fare, Campbell tried to
negotiate a lower fare. Walker turned in his seat to face Campbell, who was seated in the
rear of the taxi. Campbell testified he then drew his gun because he thought Walker was
speaking in an aggressive manner and did not seem to fear his assailants. Campbell
testified that he also sensed Walker might have a gun. He demonstrated to the jury how
he held the gun “where [Walker] could see it. And then when I pulled it out, he just
threw his hands up.” He did this “To pump fear in him.” When Campbell got out of the
taxi and waited for Hudson to get out, Walker then dropped “his left arm like he’s gonna
reach for somethin’. [¶] And when he did that, I snatched Hudson out the car” then “just
leaned, popped him twice.” He believed Walker was reaching for a gun, and shot him
twice, not to kill him, but aimed for his arm “to slow him down.”
       The jury could rationally find that Campbell had been the initial aggressor by
drawing his gun so Walker could see it. Contrary to Campbell’s claim in the reply brief
that no evidence supported the claim that Campbell exhibited the gun to frighten Walker,
Campbell testified his purpose in displaying the gun was to “pump fear into” Walker,
whereupon Walker “threw his hands up.” This transformed what Campbell characterized
as a business negotiation into a threatening (and criminal) act, namely, brandishing a
firearm at Walker. (See People v. McKinzie (1986) 179 Cal.App.3d 789, 794
[brandishing under section 417 “complete on exhibition of the weapon in a rude, angry,

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or threatening manner”].) The jury could rationally find that Walker understood he was
being robbed at that point. Indeed, it is difficult to conceive that any rational jury would
not so interpret Campbell’s own testimony. Thus Campbell’s self-defense instructions
were properly limited by the initial-aggressor rule.
       Accordingly, substantial evidence supported the initial-aggressor instruction, and
the trial court did not err by providing it to the jury.
       B. Courtroom Security
       Campbell contends it was prejudicial error for the trial court to allow a uniformed
sheriff’s deputy to sit near him during his testimony, because no individualized showing
was made to justify this security arrangement. The point is forfeited; further, it fails to
persuade.
       Before Campbell took the stand, outside the presence of the jury, his attorney
asked “that the deputy not stand behind the defendant. [¶] I understand that there is a
case authority requiring a finding before a deputy needs to stand near or by a testifying
defendant. [¶] I don’t know what the Court is inclined to do in that regard.” The trial
court asked the bailiff: “Are they fine sitting in the seat nearby, rather than just
standing?” and the bailiff replied, “They normally will sit next to him, not in the same
well but next to the jury box, but they have to be in that general area.” The trial court
then placed on the record the layout of the courtroom, and concluded: “What’s being
proposed or requested by the deputy is there is seat placed on floor level, which is again
several feet away but adjacent to the jury box, but not really in [the jurors’] line of sight.
[¶] So that is what’s being proposed. Do you wish to make any further statement, Mr.
[Campbell’s counsel]?” Campbell’s counsel answered no, except that he wanted the jury
admonished not to consider the fact that Campbell was in custody for any purpose, and
the trial court agreed to so instruct the jury.
       The trial court gave such an instruction before Campbell testified, as follows: “I
did want to just point out something that’s a matter of standard court procedure, which is

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as you have been advised, we have sheriff’s deputies present in court. [¶] There is a
deputy in the far corner of the courtroom. At this time, this is a standard procedure. [¶]
You’re not to hold that against the defendant it any way. It’s what happens in every trial
when there is an in-custody witness that testifies.”
       We agree with the People that Campbell’s appellate claim is forfeited. Although
his trial counsel referenced the need for an individualized finding regarding the presence
of a deputy who would stand near Campbell, after the trial court described the courtroom
and exactly where the deputy would sit, and invited further comment, trial counsel asked
for--and later received on behalf of his client--an admonitory instruction. Thus, the
specific objection to courtroom security argued on appeal was not ever made in the trial
court. “Defendant’s failure to object and make a record below [forfeits] the claim here.”
(People v. Tuilaepa (1992) 4 Cal.4th 569, 583; see People v. Majors (1998) 18 Cal.4th
385, 406.)
       Moreover, the contention lacks merit. Our Supreme Court has rejected
Campbell’s essential claim, as follows: “We recently considered whether the stationing
of a uniformed deputy at the witness stand during a defendant's testimony is such an
inherently prejudicial procedure that it must be subjected to heightened scrutiny. Like the
Court of Appeal majority in this case, the defendant in [another case] characterized the
deputy as a ‘ “human shackle” ’ whose presence at the witness stand improperly focused
the jury’s attention on his custodial status. [Citation.] We rejected this argument and
held that a security officer’s presence near a testifying defendant is not inherently
prejudicial. [Citation.] We observed, ‘so long as the deputy maintains a respectful
distance from the defendant and does not behave in a manner that distracts from, or
appears to comment on, the defendant's testimony, a court’s decision to permit a deputy’s
presence near the defendant at the witness stand is consistent with the decorum of
courtroom proceedings.’ [Citation.] [¶] However, despite our conclusion that this
practice is not inherently prejudicial, we cautioned that ‘the trial court must exercise its

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own discretion in ordering such a procedure and may not simply defer to a generic
policy.’ ” (People v. Hernandez (2011) 51 Cal.4th 733, 742, italics in original
(Hernandez).)
       Even assuming--as Campbell does--that the trial court simply deferred to a general
policy here, the result was not inherently prejudicial, although contrary to our Supreme
Court’s mandate that the trial court exercise its own discretion. (See Hernandez, supra,
51 Cal.4th at p. 742.) However, contrary to Campbell’s speculation that the trial court’s
admonition exacerbated any prejudice, we instead presume the trial court’s admonition
dispelled any adverse inferences the jury might otherwise have drawn from the deputy’s
presence. (See People v. Vang (2009) 171 Cal.App.4th 1120, 1129-1131). We see no
reasonable probability that a different result would have been obtained had the trial court
acted differently. (See Hernandez, supra, 51 Cal.4th at p. 746).
       C. Mother’s Sentencing Statement
       Campbell contends that because Walker’s wife spoke at sentencing, Campbell had
a reciprocal due process right to have his mother speak at sentencing. We disagree.
       Section 1191.1, originally adopted by the People, in the exercise of their reserved
initiative powers as one section of Proposition 8, The Victim’s Bill of Rights, provides in
part that the next of kin of a deceased victim has “the right to appear, personally or by
counsel, at the sentencing proceeding and to reasonably express [his or her] views
concerning the crime, the person responsible, and the need for restitution. The court in
imposing sentence shall consider the statements of . . . next of kin made pursuant to this
section and shall state on the record its conclusion concerning whether the person would
pose a threat to public safety if granted probation.” (See People v. Sewell (1989) 210
Cal.App.3d 1447, 1449-1450.)
       Relying on broad language in cases involving other criminal procedure contexts,
Campbell contends due process requires parity: If the victim’s family can speak at
sentencing, so, too, may a defendant’s family. In particular, Campbell relies on

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Wardius v. Oregon (1973) 412 U.S. 470 [37 L.Ed.2d 82], a case involving an Oregon
discovery rule requiring the defendant to give notice if an alibi defense is to be raised,
holding that “the Due Process Clause of the Fourteenth Amendment forbids enforcement
of alibi rules unless reciprocal discovery rights are given to criminal defendants. Since
the Oregon statute did not provide for reciprocal discovery, it was error for the court
below to enforce it against petitioner, and his conviction must be reversed.” (Id. at p. 472
[37 L.Ed.2d at p. 86].) Wardius observed in a footnote that the federal high court had
become “particularly suspicious of state trial rules which provide nonreciprocal benefits
to the State when the lack of reciprocity interferes with the defendant’s ability to secure a
fair trial.” (Id. at p. 474, fn. 6, italics added [37 L.Ed.2d at p. 87]; see Izazaga v.
Superior Court (1991) 54 Cal.3d 356, 372-377 [acknowledging that discovery must
provide a balance of forces between the state and the accused and upholding Proposition
115, the Crime Victims Justice Reform Act against a Wardius challenge].)
       Here, by the time of sentencing, the trial itself was over, and its fairness could not
have been affected by exclusion of Campbell’s mother’s statement to the court.
       Nor do we see how defendant was prejudiced. Defendant was represented by
counsel and had the opportunity to present mitigating information to the court by way of
the probation report. (See People v. Murray (2012) 203 Cal.App.4th 277, 290 [“Murray
does not contend how having his mother or grandfather address the trial court would have
added anything material to the letters or that it would have led the trial court to impose a
lesser sentence”], disapproved on another point by People v. Gutierrez (2014) 58 Cal.4th
1354, 1369-1371, 1387; People v. Ornelas (2005) 134 Cal.App.4th 485, 489.)
       Campbell’s probation report reflected his youth and eighth grade education, his
admission that he shot Walker along with his statement to the probation officer that he
thought Walker might have been armed, and his belief that paranoia he was experiencing
at that time may have contributed to his actions. A delinquency study in 2007 reflected
that his mother then claimed he had ADHD and was prescribed Adderall, and defendant

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“reported taking unknown medications while in custody,” but he stopped taking them
several months before sentencing. Although he used alcohol, cocaine, and heroin, he told
the probation officer this “was never a problem.” The report also reflects Campbell was
on both juvenile and adult probation (multiple grants) at the time of the murder. And we
observe that a neuropsychologist testified at trial about Campbell’s “full scale I.Q.” of 75
viewable as borderline mental retardation, resulting in impaired communication and
behavioral-control skills.
       Campbell’s mother could have spoken to the probation officer, or offered the
probation officer a written statement about her son, for inclusion in the probation report,
or defense counsel could have included pertinent information from her as part of a written
study of Campbell’s “background and personality.” (§ 1204) Thus, there were other
avenues for Campbell’s mother’s views and knowledge about her son to be considered.
We also note that Campbell’s mother remains free to provide prison professionals
whatever information about his background she believes will assist them in evaluating
and treating any conditions he has. That information would not and could not have
changed the sentence to be imposed, because here the trial court had no discretionary
sentencing calls to make. The life sentence was mandatory given the nature of the crimes
and convictions therefore. Thus for multiple reasons, no prejudice appears.
                                               II
                                        Hudson’s Claim
       Hudson claims he was entitled to a duress instruction, based on evidence that he
was afraid of Campbell. We disagree.
       A trial court must instruct on a defense “only if substantial evidence supports the
defense.” (People v. Shelmire (2005) 130 Cal.App.4th 1044, 1054.) “On review, we
determine independently whether substantial evidence to support a defense existed.” (Id.
at p. 1055.) “Evidence of a defense is sufficiently substantial to trigger a trial court’s
duty to instruct on it sua sponte if it is sufficient for a reasonable jury to find in favor of

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the defense.” (People v. Hanna (2013) 218 Cal.App.4th 455, 462; see People v. Petznick
(2003) 114 Cal.App.4th 663, 677 (Petznick).) “Defendant needs to raise only a
reasonable doubt that he acted in the exercise of his free will.” (Petznick, supra, at p.
676.)
        Among the persons deemed incapable of committing a crime are “Persons (unless
the crime be punishable with death), who committed the act . . . under threats or menaces
sufficient to show that they had reasonable cause to and did believe their lives would be
endangered if they refused.” (§ 26, par. Six.) “An essential component of this defense is
that the defendant be faced with a direct or implied demand that he or she commit the
charged crime.” (People v. Saavedra (2007) 156 Cal.App.4th 561, 567.) “ ‘The common
characteristic of all the decisions upholding [a duress defense] lies in the immediacy and
imminency of the threatened action: each represents the situation of a present and active
aggressor threatening immediate danger; none depict a phantasmagoria of future harm.’ ”
(People v. Vieira (2005) 35 Cal.4th 264, 290 (Vieira).)
        As defendant’s proposed instruction (CALCRIM No. 3402) set forth, duress is not
a defense to murder, as such, but in cases such as this one, where felony-murder is an
available theory, duress can be used to negate the required elements of the underlying
felony. (See People v. Anderson (2002) 28 Cal.4th 767, 784.)
        In pretrial statements, Hudson said had known Campbell, who was older, for
years, grew up like brothers and only recently learned they were not actually blood-
related. On the night in question, Campbell gave him a bulletproof vest to wear before
they called for a taxi, warning Hudson that the driver would be armed, and Hudson would
be in the passenger seat, subject to the driver’s line of fire. Hudson did not need a gun
because either Taylor or Campbell would draw on the driver from the back seat.
Campbell made the comment “you tryin to rack up demons, alright.” Hudson said,
“because . . . the way [Campbell] is towards people, I feel like if I run, he’s gonna do
sumpin like to try to shoot me or I’m gonna end up gettin shot goin to my house.” After

                                             10
Walker quoted a fare, there was a discussion about the change, and Taylor gave Campbell
a gun. Hudson turned away because he was “not into killin” and did not like to see
blood, “nuthin like that.” When shots were fired, Hudson ran away; during their flight
Campbell said he should slap or shoot Hudson because he was too slow. Hudson then
gave the vest back to Campbell. But when later asked if he feared Campbell, Hudson
said “Not really fear of [Campbell]. Just fear of my life. I didn’t expect anything like
this.”
         First, we disagree with the Attorney General’s suggestion that no evidence
supported a duress defense due to Hudson’s decision not to testify. As Hudson correctly
points out, testimony by a defendant is not required to support a duress defense. (Cf.,
e.g., People v. Anderson (1983) 144 Cal.App.3d 55, 62 [rejecting claim that defense of
reasonable belief required defendant’s testimony; “The flaw in the argument is that it
assumes a person’s state of mind can only be shown by direct evidence”].) But absent
direct testimony about his state of mind, Hudson must rely on circumstantial inferences
from the evidence--including his pretrial statements--that he actually and reasonably
believed his life was in immediate danger if he did not help Campbell rob Walker.
         Instead, we find the evidence insufficient because, viewing it in its totality, no
rational jury could find that Hudson reasonably believed he was in imminent danger if he
backed out of the planned robbery. “Rather, the evidence points strongly to the fact that
[Hudson’s] participation in the murders was not principally motivated by a fear for his
life, but rather stemmed from his belief in [Campbell] as a figure of authority.” (Vieira,
supra, 35 Cal.4th at p. 290.) “Even if defendant was reluctant to participate, that is not
enough to support a finding that he participated in the crimes as a result of a present and
active threat of imminent danger.” (Petznick, supra, 114 Cal.App.4th at p. 677.)
         Although Hudson first made the comment that he did not back out of the plan and
run because Campbell might shoot him then or later, he did not identify any immediate
threat by Campbell to harm him. He later clarified he did not fear Campbell. More

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importantly, Hudson thereafter participated fully in the robbery, by entering the
passenger seat of the taxi and remaining there, although he claimed he turned away once
he realized Walker’s murder was imminent.
       It is true, as Hudson points out, that an explicit threat is not required, and menace
may be inferred from the circumstances. (See People v. Steele (1988) 206 Cal.App.3d
703, 706 [“direct or implied demand” required]; accord, People v. Aispuro (2007) 157
Cal.App.4th 1509, 1513 [menace for purposes of felony false imprisonment; “Threats can
be exhibited in a myriad number of ways, verbally and by conduct”].) But given
Hudson’s longstanding and close relationship with Campbell and his statement that he
did not fear Campbell, but was in fear only due to his vulnerable positioning in the
passenger seat, no rational jury could find that Hudson’s will was overcome merely based
on his comments that he had a generalized fear of retribution from Campbell if he had
tried to abort his own participation in the crimes.
       Finally, Hudson’s statement that Campbell threatened to slap or shoot him during
the flight after the crimes is of no relevance, because those purported threatening
statements came after the robbery and could not have induced Hudson to commit it.
       Thus, the trial court properly refused to instruct on duress.
                                      DISPOSITION
       The judgments are affirmed.


                                                         DUARTE                , J.


We concur:

      RAYE                  , P. J.

      ROBIE                 , J.




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