Filed 10/15/14 P. v. Coles CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E057946
v. (Super.Ct.No. RIF1105613)
REGINALD COLES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Richard Todd Fields,
Judge. Affirmed.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C.
Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
1 A jury found defendant and appellant Reginald Coles guilty of second degree
murder (Pen. Code, § 187, subd. (a))1 with the personal use of a knife (§ 12022,
subd. (b)(1)). Defendant was sentenced to a total term of 16 years to life in state prison.
On appeal, defendant contends the trial court prejudicially erred by refusing to instruct
the jury on the habitation defense (CALCRIM No. 506). We reject this contention and
affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On October 22, 2011, defendant and his wife, Stephanie McKaney, lived in an
upstairs apartment in a two-story apartment complex in Moreno Valley. Nicole Patton
and Charla Malbrew lived in the apartment directly below defendant and his wife. On
that day around noon, while taking out the trash, Patton saw defendant sitting on his
porch with a neighbor. Defendant was sharpening a homemade knife, which Patton
called a “shank,” by “raking it back and forth” across the porch’s concrete floor and the
balcony’s metal rail.
Later that evening, McKaney called 911 to report defendant had grabbed and
twisted her arm during an argument and punched a hole in their kitchen wall. Riverside
County Sheriff’s deputies responded to the domestic violence call and convinced
defendant to leave the apartment complex. Two to three hours later, defendant returned,
and McKaney again called 911. McKaney reported that defendant had “destroyed the
1 All future statutory references are to the Penal Code unless otherwise stated.
2 house” and “took a knife and carved a headstone in the wall over [McKaney’s] side of the
bed.” By the time the deputies arrived, defendant had left the apartment. Members of
McKaney’s family subsequently came and picked up McKaney and her two young sons
and they left the apartment.
While the family was at a restaurant, McKaney’s brother, Melvin Jackson, called
and was informed of the incident. Jackson asked if he could spend the night at
McKaney’s apartment with McKaney and her two sons. McKaney and her sons were
dropped back off at McKaney’s apartment; Jackson and his friend Sheldon arrived soon
thereafter. Defendant was not at the apartment. After about 30-40 minutes, Jackson went
downstairs to visit Malbrew. Sheldon stayed upstairs with McKaney and her sons.
Sheldon later came to Patton and Malbrew’s apartment and asked for Jackson to
come upstairs because defendant was out of control and making threats. Jackson and
Sheldon went upstairs followed later by Patton and Malbrew. Defendant sounded
agitated and kept saying he was getting his “shit.” Jackson calmly told defendant to
hurry up so defendant could leave. While Jackson and McKaney were standing near a
couch and Sheldon was in the kitchen, defendant was in front of his television, unhooking
wires. After dealing with the wires for a couple of minutes, defendant pushed the
television back against the wall and stormed out of the apartment with McKaney
following him. McKaney and defendant walked down the stairs while Jackson, Sheldon,
Patton, and Malbrew stood outside at the top of the stairs to McKaney’s apartment.
3 At the bottom of the stairs, defendant asked McKaney for something. McKaney
responded that she did not have anything and told defendant to leave. Defendant then
tried grabbing McKaney’s neck, but because McKaney shrugged back, grabbed her shirt
instead and called her a “Bitch.” Jackson told defendant not to put his hands on his sister.
Defendant then let go of McKaney and rushed up the stairs, saying, “Or what? Or what?
What you going to do about it?” Jackson headed down the stairs and defendant and
Jackson met in the middle of the stairway. Defendant swung a fist at Jackson, and
Jackson kicked defendant, causing defendant to stumble back a couple of steps.
Defendant charged back up the stairs at Jackson. Defendant had an object in his
other hand and swung at Jackson with that hand. When defendant swung the second
time, he hit Jackson and Jackson made an “Oh” sound. The two men tumbled down the
stairs together, with Jackson landing on top of defendant at the bottom of the stairs.
Jackson was yelling, “Oh, he’s stabbing me. Oh, he’s stabbing me. Get him. Get him.”
Defendant continued stabbing Jackson while they were on the ground. Sheldon and the
others eventually pulled defendant away from Jackson. Defendant stood up with the
knife still in his hand and said, “Who’s kicking me in my head?” McKaney said, “You
stabbed my brother.” Defendant responded, “You next, Bitch.” When McKaney and
Patton said they were calling the police, defendant fled.
When deputies arrived, Jackson was still responsive. Jackson reported that
defendant had stabbed him, but lost count of how many times; and that defendant had
said he was going to kill him. Deputies found blood droplets from the middle of the
4 stairway down to a large amount of blood at the bottom of the staircase. Jackson died at
the hospital shortly thereafter. The cause of death was a stab wound to Jackson’s aorta,
causing him to bleed to death.
At the urging of his brother, defendant eventually turned himself into police on
November 1, 2011. He admitted to police that he had stabbed Jackson with a knife, but
refused to provide the location of the knife. In later conversations with his brother,
defendant said Jackson was unarmed.
The defense case consisted of portraying Jackson as a violent person who used
drugs and alcohol on the day of the incident. A toxicologist testified that Jackson had a
blood alcohol level of 0.14 percent, methamphetamine, opiates, cannabinoids, and
benzodiazepines in his blood at the time of death. Two of Jackson’s former girlfriends
testified that Jackson was often violent with them and that there were incidents of
domestic violence between them.
II
DISCUSSION
During the hearing on jury instructions, defense counsel requested that the trial
court instruct the jury on the defense of habitation in accordance with CALCRIM
No. 506. Counsel argued that even though the actual confrontation between defendant
and the victim occurred outside the apartment on the bottom of the stairs, there was
evidence that the victim had been invited to defendant’s apartment to commit some act of
violence against defendant. Counsel also asserted that there was circumstantial evidence
5 to show the victim went upstairs to defendant’s apartment after the friend reported
defendant was out of control to commit an act of violence against defendant. The
prosecutor argued that the habitation defense was designed for situations “where there’s
somebody in his own home and you have some kind of intruder that enters the home,”
giving “you the right to protect the home that you’re in.” The prosecutor also noted that
the altercation occurred outside of the home and that defendant went up the stairs to
engage in an altercation with the victim, not in an attempt to protect his home or himself.
The trial court refused to give the instruction, noting that defendant was not
defending his home or habitation when he stabbed the victim as the victim was walking
away from the home down the stairs. The court explained: “at the time of this incident,
there’s no evidence that the victim was going in the home so the defendant had to come
and protect it. It’s actually the exact opposite. . . . The victim is coming down the stairs
away from the home. The defendant is going up the stairs towards the [victim].” The
court further noted that defendant was challenging the victim after the victim told
defendant to leave his sister alone and then approached the victim as the victim was
coming down the stairs and away from the home. The trial court did instruct the jury on
self-defense and imperfect self-defense in accordance with CALCRIM Nos. 505 and 571
and on first and second degree murder and voluntary manslaughter based on heat of
passion.
6 Defendant contends that the trial court improperly refused to instruct the jury on
the defense of habitation in accordance with CALCRIM No. 506. He argues there was
substantial evidence from which the jury could have determined defendant was acting to
defend himself and his home from the “overly aggressive” victim and that it was for the
jury to either accept or reject the defense. This contention is meritless.
CALCRIM No. 506 provides, in pertinent part, that a defendant is not guilty of
murder if he killed to defend himself [or any other person] in the defendant’s home.
Such a killing is justified, and therefore not unlawful, if:
“1. The defendant reasonably believed that he was defending a home against
[Melvin Jackson], who intended to or tried to commit [a forcible and atrocious crime]2 or
violently, or riotously, or tumultuously tried to enter that home intending to commit an
act of violence against someone inside;
“2. The defendant reasonably believed that the danger was imminent;
“3. The defendant reasonably believed that the use of deadly force was necessary
to defend against the danger; [¶] AND
“4. The defendant used no more force than was reasonably necessary to defend
against the 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 violence to himself. Defendant’s belief must have been reasonable
2The Supreme Court noted, “Examples of forcible and atrocious crimes are murder, mayhem, rape and robbery.” (People v. Ceballos (1974) 12 Cal.3d 470, 478.)
7 and he must have acted only because of that belief. The defendant is only entitled to use
that amount of force that a reasonable person would believe is necessary in the same
situation. If the defendant used more force than was reasonable, then the killing was not
justified. [¶] 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. [¶] . . . [¶] The People have the burden of proving beyond a reasonable
doubt that the killing was not justified. If the People have not met this burden, you must
find the defendant not guilty of murder.” (CALCRIM No. 506; see § 197.)
Errors in jury instructions are questions of law, which we review de novo. (People
v. Guiuan (1998) 18 Cal.4th 558, 569.) “ ‘ “It is settled that in criminal cases, even in the
absence of a request, the trial court must instruct on the general principles of law relevant
to the issues raised by the evidence. [Citations.] The general principles of law governing
the case are those principles closely and openly connected with the facts before the court,
and which are necessary for the jury’s understanding of the case.” [Citation.]’ ” (People
v. Breverman (1998) 19 Cal.4th 142, 154.) This duty “ ‘encompasses an obligation to
instruct on defenses . . .’ ” (People v. Lopez (1992) 11 Cal.App.4th 1115, 1120) that are
“supported by substantial evidence . . . [and] that are not inconsistent with the
defendant’s theory of the case.” (People v. Montoya (1994) 7 Cal.4th 1027, 1047).
8 “[T]he existence of ‘any evidence, no matter how weak’ will not justify
instructions . . . , but such instructions are required whenever evidence . . . is ‘substantial
enough to merit consideration’ by the jury.” (People v. Breverman, supra, 19 Cal.4th at
p. 162.) “ ‘Substantial evidence is evidence sufficient to “deserve consideration by the
jury,” that is, evidence that a reasonable jury could find persuasive.’ ” (People v. Lewis
(2001) 25 Cal.4th 610, 645.) In making this assessment, the court is not to assess the
credibility of witnesses, a task for the jury. (People v. Breverman, supra, at p. 162.)
The habitation defense finds its statutory genesis in section 197, originally adopted
in 1872 in substantially its current form, which states in part: “Homicide is also
justifiable when committed by any person in any of the following cases: [¶] . . . [¶]
2. When committed in defense of habitation, property, or person, against one who
manifestly intends or endeavors, by violence or surprise, to commit a felony, or against
one who manifestly intends and endeavors, in a violent, riotous or tumultuous manner,
to enter the habitation of another for the purpose of offering violence to any person
therein. . . .” (§ 197.)
“Defense of habitation applies where the defendant uses reasonable force to
exclude someone he or she reasonably believes is trespassing in, or about to trespass in,
his or her home. However, the intentional use of deadly force merely to protect property
is never reasonable. Accordingly, a homicide involving the intentional use of deadly
force can never be justified by defense of habitation alone. The defendant must also
show either self-defense or defense of others, i.e., that he or she reasonably believed the
9 intruder intended to kill or inflict serious injury on someone in the home.” (People v.
Curtis (1994) 30 Cal.App.4th 1337, 1360 [Fourth Dist., Div. Two] (Curtis ).) “Like
traditional self-defense, . . . defense of habitation applies only if the defendant’s belief
that a trespass is occurring or about to occur is reasonable.” (Id. at p. 1361.)
The “ ‘right of defending one’s dwelling is in some sense superior to that of the
defense of his person; for in the latter case it is frequently the duty of the assaulted to
flee, if the fierceness of the assault will permit, while in the former a man assaulted in his
dwelling is not obliged to retreat, but may stand his ground, defend his possession and
use such means as are absolutely necessary to repel the assailant from his house, even to
the taking of life.’ ” (People v. Hubbard (1923) 64 Cal.App. 27, 36.)
Section 198.5 provides a presumption to aid in establishing the habitation defense.
It states: “Any person using force intended or likely to cause death or great bodily injury
within his or her residence shall be presumed to have held a reasonable fear of imminent
peril of death or great bodily injury to self, family, or a member of the household when
that force is used against another person, not a member of the family or household, who
unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and
the person using the force knew or had reason to believe that an unlawful and forcible
entry occurred.” (§ 198.5.) The purpose of section 198.5 is “to permit residential
occupants to defend themselves from intruders without fear of legal repercussions, to
give ‘the benefit of the doubt in such cases to the resident . . . .’” (People v. Owen (1991)
226 Cal.App.3d 996, 1005.)
10 “For section 198.5 to apply, four elements must be met. There must be an
unlawful and forcible entry into a residence; the entry must be by someone who is not a
member of the family or the household; the residential occupant must have used ‘deadly’
force (as defined in § 198.5) against the victim within the residence; and finally, the
residential occupant must have had knowledge of the unlawful and forcible entry.”
(People v. Brown (1992) 6 Cal.App.4th 1489, 1494-1495; see People v. Hardin (2000)
85 Cal.App.4th 625, 633, fn. 5.) A defendant, however, “is not entitled to the benefit of
this presumption [where] there [is] no actual entry.” (Curtis, supra, 30 Cal.App.4th at
p. 1362.)
The touchstone of CALCRIM 506’s defense of habitation is reasonableness. On
the facts of this case, in order to demonstrate entitlement to an instruction on the defense
of habitation, defendant must be able to point to substantial evidence in the trial record
showing that he reasonably believed he was defending his home against the victim, who
intended to or tried to commit the forcible and atrocious crime of robbery, murder, or
mayhem, or violently, riotously, or tumultuously tried to enter that home intending to
commit an act of violence against someone inside the home. (CALCRIM No. 506.)
In Curtis, supra, 30 Cal.App.4th 1337, the defendant shot and killed his girlfriend
when she came to his apartment to negotiate the return of her car, which the defendant
had stolen. (Id. at pp. 1342-1343, 1349.) The girlfriend’s brother and uncle went with
her to the defendant’s apartment but stayed outside. When the brother became concerned
about the length of time his sister had been inside with the defendant, he knocked on the
11 door. (Id. at p. 1343.) Defendant testified that he thought his girlfriend’s brother, and
perhaps other members of her family, were about to break down his door and attack him.
He got out his rifle to defend himself. The gun went off, accidentally killing his
girlfriend. (Id. at pp. 1343, 1350.) Unbeknownst to defendant, his girlfriend carried a
tape recorder in her purse, and it captured, albeit imperfectly, what occurred inside the
apartment, including his threats to her and her screams and cries. (Ibid.)
At trial, defendant requested instructions on defense of habitation. The trial court
declined to give the instruction, finding that there was no substantial evidence that the
defendant’s beliefs were reasonable. This court agreed, finding that that there was “no
substantial evidence that defendant’s belief that [the victim’s brother] was about to break
in was reasonable. As the trial court put it, ‘No one was coming in. No one was breaking
in the door.’ . . . Because there was no evidence that a reasonable person in defendant’s
position would have believed [the brother] was about to break in, the trial court had no
duty to instruct on defense of habitation.” (Curtis, supra, 30 Cal.App.4th at pp. 1361-
1362.)
The same reasoning applies here. There was no evidence here to suggest that
defendant reasonably believed he was defending his home against the victim or that the
victim intended to or tried to commit a forcible and atrocious crime, or that the victim
forcibly entered the home intending to commit an act of violence against someone inside
the home. There was also no evidence to suggest that the victim was entering the home
while defendant was outside arguing with his wife or that defendant went up the stairs to
12 protect the home. Rather, as the trial court explained, the evidence showed that the
victim was coming down the stairs away from the home and defendant was going up the
stairs to confront the victim, not to protect the home. The trial evidence does not contain
substantial evidence that the victim entered defendant’s home to rob him or murder him.
Therefore, defendant was not entitled to an instruction on the defense of habitation.
Furthermore, while testimony of the defense witnesses may have supplied
substantial evidence the victim had prior acts of violence, there was no substantial
evidence that defendant charged up the stairs to protect his home or that defendant’s
beliefs were reasonable. In fact, none of the testimony provided any basis for a
reasonable person to believe that the victim wanted to rob, maim, or murder defendant.
Rather, the evidence showed that defendant went up the stairs to challenge the victim
after the victim told defendant to leave his sister alone. Moreover, when defendant
stabbed the victim, he was not defending his home. Defendant had no knowledge that the
victim was armed or was doing anything more than trying to protect his sister. Because
there was no evidence presented that a reasonable person in defendant’s position would
have believed that the victim entered defendant’s home to murder him, maim him, or rob
him, the trial court had no duty to instruct on defense of habitation.
Relying on People v. Hatchett (1942) 56 Cal.App.2d 20 (Hatchett), defendant
argues that when defending his habitation, unlike in ordinary self-defense, he had the
right to pursue the victim until he had secured himself from danger. This case is
inapposite. In Hatchett, supra, 56 Cal.App.2d 20, the defendant testified that the
13 decedent was at her home in a drunken condition and that they had been quarreling.
(Id. at p. 21.) The defendant went into the kitchen for several minutes and upon her
return saw decedent with a “ ‘gun’ ” in his hand. (Ibid.) He pointed the gun at her and
said, “ ‘I am going to shoot you tonight.’ ” (Ibid.) The defendant “ ‘ducked’ ” and ran
into him, and the gun went off. (Ibid.) The defendant knocked the gun to the floor and a
struggle ensued in which the defendant picked up the gun and started toward the rear
door. Remembering that it was locked, she turned and saw the decedent coming toward
her with a metal object in his hand. She pulled the trigger of the weapon, killing him.
Decedent had a bad reputation in the community for peace and quietness. (Hatchett at
pp. 21-21.)
In this context, Hatchett found the instruction that, “a person in the exercise of her
right of self defense not only has a right to stand her ground and defend herself when
attacked, but she may pursue her adversary until she has secured herself from danger,”
was a correct statement of the law. (Hatchett, supra, 56 Cal.App.2d at p. 22.) However,
the statement in the instruction that the defendant could “pursue her adversary” was
inapplicable to the facts, as Hatchett did not discuss the habitation defense; did not
discuss section 197, subdivision 2; and was presented with no evidence that the defendant
in that case pursued the decedent. She shot him as he aggressively approached her with a
metal object. Furthermore, while the victim here had been inside defendant’s apartment
shortly before the victim was repeatedly stabbed, there was no evidence the victim
forcibly entered the apartment; that he committed or attempted to commit an act of
14 violence inside the apartment; or that defendant chased the victim out of the apartment.
In addition, no evidence indicated that defendant acted in the belief there was imminent
danger to himself or others. Thus, defendant was not entitled to an instruction on defense
of habitation.
Even if the trial court erred in failing to instruct on defense of habitation, that
instruction was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386
U.S. 18, 24.) The trial court instructed the jury on self-defense and imperfect self-
defense with CALCRIM Nos. 505 and 571. Having convicted defendant of second
degree murder, the jury rejected defendant’s self-defense claim. As we explained in
Curtis, “[A] homicide involving the intentional use of deadly force can never be justified
by defense of habitation alone. The defendant must also show either self-defense or
defense of others, i.e., that he or she reasonably believed the intruder intended to kill or
inflict serious injury on someone in the home.” (Curtis, supra, 30 Cal.App.4th at
p. 1360, italics in original.) There was no evidence that defendant was defending his
habitation from the victim at the time that he stabbed and killed the victim outside
defendant’s home.
15 III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J. We concur:
KING J.
MILLER J.