Filed 4/29/16 P. v. Barnett CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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
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