People v. Silvey

58 Cal. App. 4th 1320, 68 Cal. Rptr. 2d 681, 97 Cal. Daily Op. Serv. 8430, 97 Daily Journal DAR 13613, 1997 Cal. App. LEXIS 894

• Court: California Court of Appeal
• Decided: October 31, 1997
• Docket: G018175
• Status: Published

Opinions

Opinion

BEDSWORTH, J.

Lonnie Ray Silvey appeals his conviction for voluntary manslaughter, contending: (1) The evidence established self-defense as a matter of law; (2) the trial court erroneously failed to instruct the jury sua sponte that Silvey was presumed to have feared the infliction of death or great bodily injury; and (3) trial counsel was incompetent for having neglected to request such an instruction. We affirm.

Pamela Corry lived for about four years with her boyfriend, Rodney Robinson, in her mobilehome. Robinson was a small man, about 130 pounds. He was a heavy drinker and verbally abusive, but she testified he had never been violent. In July 1994, Corry and Robinson broke up, but since Robinson had little money and no place to go, Corry let him continue living in her trailer with her and her sister.

In less than a month, the relationship deteriorated and Robinson’s angry outbursts resulted in property damage and an attempt to slap Corry’s sister. Finally, in a scene familiar to every devotee of bad drama, Corry demanded Robinson return her key, they hugged, cried, and Robinson left, but not before trying to pick a fight with Corry’s friend Lonnie Ray Silvey.

Silvey was an occasional guest at the Corry trailer and had been given a key. He lived in a small room at his worksite, and, since it did not provide shower facilities, Corry allowed him to shower once a day at her trailer and occasionally sleep over if he worked late. Thus he and Robinson had known each other for years, and he was surprised when Robinson shoved him, yelled at him, and rather cryptically accused him of talking about Robinson to Corry’s friends. He was not, however, frightened by it.

The next evening, Corry went to a bar to compete in a dart tournament. Having just thrown her usual partner, Robinson, out of her life, she asked Silvey to accompany her and be her partner if necessary. Robinson competed against her in the tournament and became increasingly nasty to her as the evening progressed, he drank, and she won. When she tried to leave, Robinson grabbed her by the arms and neck, which hurt and upset her. A few minutes later, Robinson found her and Silvey at another bar and “flipped [them] off’ before leaving.

The next night, around 9:20 p.m„ Silvey was at Corry’s trailer, drinking and playing dice, when Robinson arrived. He was very drunk (his blood-alcohol level was .34) and began banging on the door, even though it was open and he could have walked through. When Corry went to the door, he insisted on finding out “what boyfriend” she had over, and refused to believe her when she said no one was there but Silvey. He told her to “Move out of the way, bitch,” and pushed past her into the trailer.

Finding Silvey seated on the couch, he resurrected the previous night’s imbroglio, blaming Silvey for the fact his life was “falling apart,” and punctuating his words by poking Silvey in the chest. After about two minutes, Silvey said, “We don’t have to put up with this anymore. Just call 911 and just ask them to come and help get him out.” Corry questioned whether this was really necessary, but Silvey repeated his urging and she complied.

While she was doing so, Silvey pulled a gun. Apparently he had secreted it under the couch without Corry’s knowledge and against her wishes. He pointed the gun at Robinson and ordered him to go. Instead, Robinson slid across the couch and lunged at him, trying to get the gun. He held Robinson off with his foot, continuing to point the gun at him and ordering him to back off, but the drunken Robinson was unimpressed. He urged Silvey to use the gun, saying he wanted to die.¹

Tragically, albeit not surprisingly, those were Robinson’s last words. Silvey shot him. Five times. Robinson died from four chest wounds and one to the forehead. The shots were fired from at least two feet away, although Corry testified Robinson was six inches to a foot from Silvey when he was shot.

I

Silvey contends the evidence established self-defense as a matter of law. Although this could be viewed as a close case, we disagree.

When the sufficiency of the evidence is challenged, the court is not required to “ ‘ “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” [Citation.] Instead the relevant question is whether, after viewing the evidence in the light most favorable to tiie prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.]” (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255].)

“In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court ‘must. . . presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citations.] The court does not, however, limit its review to the evidence favorable to the respondent. . . . ‘[0]ur task ... is twofold. First, we must resolve the issue in the light of the whole record—i.e., the entire picture of the defendant put before the jury—and may not limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of each of the essential elements ... is substantial it is not enough for the respondent simply to point to “some” evidence supporting the finding, for “Not every surface conflict of evidence remains substantial in the light of other facts.” ’ [Citation.]” (People v. Johnson, supra, 26 Cal.3d at pp. 576-577.)

Silvey extends an invitation to decide the sufficiency of evidence as a matter of law, relying on People v. Louis (1986) 42 Cal.3d 969 [232 Cal.Rptr. 110, 728 P.2d 180] and reasoning that because the facts were essentially undisputed, we should make the determination of reasonableness as a matter of law. Louis is inapposite as it did not deal with sufficiency of the evidence, and the Supreme Court has not indicated the case affects the sufficiency of evidence analysis as we have set it out. In any event, reasonableness, at least in the context of self-defense, is “ ‘an inquiry that is “essentially factual,” [citation]—one that is founded “on the application of the fact-finding tribunal’s experience with the mainsprings of human conduct” . . . . ” (People v. Louis, supra, 42 Cal.3d at p. 987.) As such it should be reviewed under the “clearly erroneous” standard {ibid.), which is not unlike the standard set forth in People v. Johnson, supra, 26 Cal.3d 557.

Using that standard, we conclude substantial evidence supported the verdict. Even if we were to assume Silvey bore Robinson no ill will from Robinson’s prior abuse or his conduct just before the shooting, and that Silvey acted out of an actual fear for his life, a rational jury could still find Silvey acted unreasonably. Although Robinson barged into the trailer against Corry’s wishes, and was drunk and verbally abusive, he had not harmed or threatened to harm Corry or Silvey, both of whom had known him through years of essential nonviolence. A jury could certainly conclude Silvey had no need to pull the gun and acted unreasonably in doing so. The jury could also conclude that even after Silvey took out the gun, he had no need to use it.

Even if we thought we might have reached a different verdict, we would not be prepared to substitute our judgment for the jury’s. Although a reasonable jury could have concluded Robinson appeared ready to take the gun and use it on Silvey, an equally reasonable conclusion is that it was only drunken bravado. The circumstances of this incident are undeniably tragic, but they do not justify usurping the fact-finding prerogatives of the jury.

II

Silvey urges that “the trial court erroneously failed to instruct the jury that the use of deadly force by a resident against an intruder is presumed to be reasonable.” He contends such an instruction is supported by Penal Code section 198.5, and should have been given even though it was not requested. The problem with this argument is that it was never suggested Silvey was a resident.

California law declares to be justifiable, homicide committed in reasonable defense of habitation (Pen. Code, § 197; People v. Gleghorn (1987) 193 Cal.App.3d 196, 200 [238 Cal.Rptr. 82]), but it extends the presumption of “a reasonable fear of imminent peril of death or great bodily injury” only to residents (Pen. Code, § 198.5). This makes sense. It is a judgment rooted in our veneration of home and our recognition that the resident is in the best position to assess an ostensible threat to the home, consider any extenuating circumstances, and determine what response is necessary.

Therefore, Penal Code section 198.5 creates a rebuttable presumption that anyone who employs deadly force against an intruder “within his residence” has done so in reasonable fear of imminent peril of death or great bodily injury.² By its terms, the presumption benefits only residents defending their homes. Whatever might now be said about Silvey’s status as a resident, it was not clear enough at trial to merit this instruction sua sponte.

The trial court has a sua sponte obligation to instruct the jury on general principles of law relevant to the issues of the case. (People v. Hood (1969) 1 Cal.3d 444, 449 [82 Cal.Rptr. 618, 462 P.2d 370].) These are usually described as those which are “commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case. [Citations].” (People v. Montoya (1994) 7 Cal.4th 1027, 1047 [31 Cal.Rptr.2d 128, 874 P.2d 903].) Penal Code section 198.5 was not a principle of law which can be so described.

Silvey was never shown to be, nor did he ever claim to be, a resident. According to Corry, Silvey lived in a small room at his worksite which had no shower facilities, and she . . told him he could come over once a day and take a shower. And then on occasion, when he came home really late at night, I told him it was okay for him to sleep on the ³ This certainly does not sound like any kind of residency the law has previously recognized, and we can discern no indication the Legislature wanted to extend the protection of the presumption to guests.⁴

Indeed, it is difficult to imagine a case which more clearly illustrates the wisdom of the legislative decision to apply the statute only to residents. The resident here, Corry, had lived with Robinson four years and had never known him so much as to get into a fistfight. When urged to call the police to deal with his conduct, she hesitated and expressed doubt even that was necessary. Clearly, she was in the best position to assess any threat to her home, and she was reluctant to take any action, much less authorize dangerous or deadly force.

Silvey, however, had apparently secreted a gun in Corry’s trailer, without her consent and against her wishes. He resorted to this after only two minutes of trying to deal with Corry’s longtime paramour, and despite the fact no blow had yet been struck. Query who was the bigger threat to the resident of the mobilehome that night: the 130-pound abusive drunk who never threw a punch, or the visitor who had smuggled a gun into her home contrary to her wishes and chose to use it upon minimal provocation?

On the night of the killing, Silvey happened to be at the mobilehome, drinking and playing dice. By all indications, he was no more than a guest. He would therefore not be covered by Penal Code section 198.5, and it could hardly have seemed remarkable to the seasoned trial court that no one requested an instruction under that statute.

Our dissenting colleague insists that Silvey’s status as a resident was an issue for the jury, and marvels that we have “conclude[d] no jury could find persuasive evidence he was.” (Dis. opn., post, at p. 1335.) We conclude no such thing. We opine only that there was not enough in this record to alert the trial judge to the issue. It was “not one that the evidence would strongly illuminate and place before the trial court. On the contrary, it was so far under the surface of the facts and theories apparently involved as to remain hidden from even the defendant until the case reached this court on appeal.” (People v. Wade (1959) 53 Cal.2d 322, 335 [1 Cal.Rptr. 683, 348 P.2d 116], overruled on other grounds, People v. Carpenter (1997) 15 Cal.4th 312, 381 [63 Cal.Rptr.2d 1, 935 P.2d 708].)

There simply was not “‘substantial evidence supportive of’” such an instruction (People v. Wickersham (1982) 32 Cal.3d 307, 326 [185 Cal.Rptr. 436, 650 P.2d 311]), before the trial court. Had Silvey requested it, and been able to marshal facts supporting such an argument,⁵ he might have been entitled to it. (Cf. People v. Owen, supra, 226 Cal.App.3d 996.) But to require the trial court to have determined the instruction was necessary on the facts actually before it would require a prescience not previously attributed to the mortal bench.⁶

HI

Finally, Silvey assails the competence of trial counsel for failing to request an instruction under Penal Code section 198.5. We decline to address this issue.

Ineffective assistance of counsel claims are rarely cognizable on appeal. “As [the Supreme Court] explained in [People v.] Pope [(1979)] 23 Cal.3d 412, 426 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1], because, in general, it is inappropriate for an appellate court to speculate as to the existence or nonexistence of a tactical basis for a defense attorney’s course of conduct when the record on appeal does not illuminate the basis for the attorney’s challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a habeas corpus proceeding, in which the attorney has the opportunity to explain the reasons for his or her conduct. ‘Having afforded the trial attorney an opportunity to explain, courts are in a position to intelligently evaluate whether counsel’s acts or omissions were within the range of reasonable competence.’ (Id., at p. 426, fn. omitted.)” People v. Wilson (1992) 3 Cal.4th 926, 936 [13 Cal.Rptr.2d 259, 838 P.2d 1212].

Since we can find no indication the instruction urged by appellate counsel was warranted, we find no basis in the record for a challenge to the competence of trial counsel. If there is a basis which does not appear, it can be raised by way of writ. “Because claims of ineffective assistance are often more appropriately litigated in a habeas corpus proceeding, the rules generally prohibiting raising an issue on habeas corpus that was, or could have been, raised on appeal [citations] would not bar an ineffective assistance claim on habeas corpus.” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267 [62 Cal.Rptr.2d 437, 933 P.2d 1134].)

The judgment is affirmed.

Rylaarsdam, J., concurred.

1 At trial, Corry testified Robinson also said if he got the gun from Silvey he would shoot him, but it was established she never told the police that when she spoke with them.

2 Penal Code section 198.5 provides: “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 ... 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.

“As used in this section, great bodily injury means a significant or substantial physical injury.”

3 When asked who had lived at the mobilehome other than she and Robinson, Corry named only her sister and occasional out-of-town guests. In arguing CALJIC No. 5.40 (right of an occupant to eject a trespasser) to the jury, Silvey’s attorney correctly described him as a “visitor.” No one ever suggested he was a resident.

4 We note the use of the term, “residential occupant," in People v. Owen (1991) 226 Cal.App.3d 996 [277 Cal.Rptr. 341], and People v. Brown (1992) 6 Cal.App.4th 1489 [8 Cal.Rptr.2d 513]. This, of course, is not the terminology of the statute, and we are unable to find any use of this phrase anywhere in the legislative history of Penal Code section 198.5. Indeed, the bill’s author used the term “resident” as a synonym for “homeowner” (People v. Owen, supra, 226 Cal.App.3d 996, 1005), indicating an understanding of the statute even more restrictive than that we adopt. We have concluded the term “residential occupant” was meant not to expand the category of persons entitled to the presumption, but rather to emphasize that the presumption applies only to residents actually occupying the home at the time of the intrusion, a point worth making in both cases.

5 Unlike the dissent, we do not think hiding your gun in someone’s home supports your claim of residency there.

6 This is especially true since, had he somehow anticipated the issue, the trial judge would have found that Owen holds, on facts the dissent admits to be utterly indistinguishable from ours, that the instruction is not required sua sponte. Our dissenting colleague has misgivings about the Owen decision, some of which we share. But trial judges as good as the one who heard this case discipline themselves not to second-guess appellate decisions. Even the most conscientious and scholarly trial judge, faced with a recent, indistinguishable, unquestioned decision from the Court of Appeal explicitly so holding, would have concluded no instruction under Penal Code section 198.5 was necessary here.