IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON ~ cr~ > ~J C—
STATE OF WASHINGTON, ) No 73132-7-I
Respondent, ) DIVISION ONE / cz’ c~’~ V / L~)
EDILBERTO GUZMAN-MORALES, ) UNPUBLISHED ) Appellant. ) FILED: June 20, 2016
Cox, J. — “[A] defendant is entitled to an instruction on self-defense if there
is some evidence demonstrating self-defense.”1 Edilberto Guzman-Morales
appeals his conviction for second-degree assault with a deadly weapon, arguing
that the court abused its discretion by refusing to instruct the jury on self-defense.
Because he failed to produce any evidence indicating that he acted in self-
defense, the court properly denied his request. We affirm.
The State charged Guzman-Morales with second-degree assault with a
deadly weapon based on an altercation in a nightclub. At trial, a security guard
testified that he noticed an argument between Guzman-Morales and a group of
other customers. When the security guard approached him, Guzman-Morales
complained about someone spilling his beer. The guard asked Guzman-Morales
to go outside to talk to him, but Guzman-Morales refused. The guard then
offered to buy Guzman-Morales a beer and to refund his cover charge if he came
1 State v. Werner, 170 Wn.2d 333, 336-37, 241 P.3d 410 (2010). No. 73132-7-1/2
outside. When Guzman-Morales refused again, the security guard placed his
arm on Guzman-Morales to guide him outside. Guzman-Morales then grabbed
the guard’s shirt and told him that he would regret it.
But Guzman-Morales nevertheless began walking towards the exit with
the guard. On their way, Guzman-Morales stopped, turned around, grabbed the
guard, and said “I’m a dangerous man, and this is going to end very badly for
you.” The guard resumed guiding Guzman-Morales to the exit.
A few feet from the door, the guard felt a sensation in his groin like being
hit with a hot hammer. He turned and saw Guzman-Morales had a knife in his
hand. He saw Guzman-Morales moving the knife towards him again, so he
placed Guzman-Morales in a chokehold and tried to avoid the knife.
The guard yelled “he’s got a knife” and “I have just been stabbed.” He
continued struggling with Guzman-Morales and yelling for help until another
guard hit Guzman-Morales in the face, causing him to drop the knife.
An officer responding to the scene arrested Guzman-Morales. Guzman
Morales told the arresting officer that “he was scared because people were
hitting him.” He also mentioned being hit by a bottle.
Guzman-Morales also testified at trial. He testified that he remembered
walking in the nightclub and being hit on the back of the head. He heard “glass
splashing” and was not sure if he had been hit with a bottle or had his beer
knocked out of his hand. After that point, he “lost it” and “blacked out.” He
further testified:
I don’t remember much other than that until when I was in the police car, a few flashbacks that I get in my head from when I was
2 No. 73132-7-1/3
walking from, and I was getting choked, and the next day, I woke up in jail, and I didn’t know what had happened the day before, the night before.~2~
He later testified that he blacked out after the security guard offered to buy him a
drink.
At trial, the State introduced security footage from the nightclub. The
footage shows the security guard escorting Guzman-Morales towards the exit.
As he does so, Guzman-Morales swings his hand towards the guard. The
security guard identified this as the moment he was stabbed. The guard then
puts Guzman-Morales in a chokehold, and the struggle moves outside the exit,
mostly out of the camera’s view.
The footage was consistent with the guard’s description of when and
where he was stabbed. But the footage appeared to show Guzman-Morales
moving his hand towards the guard’s right hip, while the guard’s stab wound was
located on his inner right thigh.
The State’s forensic video analyst explained that the video was taken at
an angle, and “the depth perception and the two dimensional image can be
thrown off.” Thus, the knife blade could “possibly cover that area between the
wound and where we see the hand going to.” This witness also explained that
the guard’s clothing could have changed the knife’s trajectory.
At the close of evidence, Guzman-Morales requested a self-defense
instruction. He argued that because the security footage appeared to show
2 Report of Proceedings (January 14, 2015) at 336-37.
3 No. 73132-7-1/4
Guzman-Morales striking the guard’s hip rather than his thigh, the jury could
conclude that Guzman-Morales stabbed the guard at a different, later point in
time, when he was in a chokehold.
The trial court declined to instruct the jury on self-defense, determining
that there was no evidence of self-defense.
The jury found Guzman-Morales guilty as charged and the trial court
sentenced him.
Guzman-Morales appeals.
SELF-DEFENSE INSTRUCTION
Guzman-Morales argues that the trial court erred by declining to instruct
the jury on self-defense. We disagree.
A defendant is entitled to an instruction on self-defense if some evidence
demonstrates self-defense.3 The defendant bears the initial burden of producing
some evidence that he or she acted in self-defense.4 To establish self-defense,
“‘there must be evidence that (1) the defendant subjectively feared that he was in
imminent danger of death or great bodily harm; (2) this belief was objectively
reasonable; [and] (3) the defendant exercised no greater force than was
reasonably necessary.”5
~ Werner, 170 Wn.2d at 336-37.
~ State v. Riley, 137 Wn.2d 904, 909, 976 P.2d 624 (1999).
~ Werner, 170 Wn.2d at 337 (quoting State v. Callahan, 87 Wn. App. 925, 929, 943 P.2d 676 (1997)).
4 No. 73132-7-1/5
“The trial court is justified in denying a request for a self-defense
instruction only where no credible evidence appears in the record to support a
defendant’s claim of self-defense.”6
When the trial court declines to instruct the jury on self-defense based on
a lack of evidence, we review for abuse of discretion.7
Here, the court properly denied Guzman-Morales’s request for a self-
defense instruction. No evidence suggested that he feared he was in danger of
bodily harm when he stabbed the guard. Additionally, there was no evidence
that such a belief would be reasonable, or that Guzman-Morales’s use of force
was reasonable.
Guzman-Morales argues that his statement “that he was scared,
combined with the fact that he was choked by [the security guard], was sufficient
to raise the issue of self-defense.” This is insufficient because no evidence at
trial suggested that Guzman-Morales stabbed the guard after he was placed in a
chokehold, rather than before.
Guzman-Morales argues that the security footage was evidence that he
stabbed the guard after being placed in a chokehold. This argument is
unpersuasive.
The fact that the security footage does not conclusively show Guzman
Morales stabbing the guard is immaterial. This footage was not evidence
6 State v. McCullum, 98 Wn.2d 484, 488,
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON ~ cr~ > ~J C—
STATE OF WASHINGTON, ) No 73132-7-I
Respondent, ) DIVISION ONE / cz’ c~’~ V / L~)
EDILBERTO GUZMAN-MORALES, ) UNPUBLISHED ) Appellant. ) FILED: June 20, 2016
Cox, J. — “[A] defendant is entitled to an instruction on self-defense if there
is some evidence demonstrating self-defense.”1 Edilberto Guzman-Morales
appeals his conviction for second-degree assault with a deadly weapon, arguing
that the court abused its discretion by refusing to instruct the jury on self-defense.
Because he failed to produce any evidence indicating that he acted in self-
defense, the court properly denied his request. We affirm.
The State charged Guzman-Morales with second-degree assault with a
deadly weapon based on an altercation in a nightclub. At trial, a security guard
testified that he noticed an argument between Guzman-Morales and a group of
other customers. When the security guard approached him, Guzman-Morales
complained about someone spilling his beer. The guard asked Guzman-Morales
to go outside to talk to him, but Guzman-Morales refused. The guard then
offered to buy Guzman-Morales a beer and to refund his cover charge if he came
1 State v. Werner, 170 Wn.2d 333, 336-37, 241 P.3d 410 (2010). No. 73132-7-1/2
outside. When Guzman-Morales refused again, the security guard placed his
arm on Guzman-Morales to guide him outside. Guzman-Morales then grabbed
the guard’s shirt and told him that he would regret it.
But Guzman-Morales nevertheless began walking towards the exit with
the guard. On their way, Guzman-Morales stopped, turned around, grabbed the
guard, and said “I’m a dangerous man, and this is going to end very badly for
you.” The guard resumed guiding Guzman-Morales to the exit.
A few feet from the door, the guard felt a sensation in his groin like being
hit with a hot hammer. He turned and saw Guzman-Morales had a knife in his
hand. He saw Guzman-Morales moving the knife towards him again, so he
placed Guzman-Morales in a chokehold and tried to avoid the knife.
The guard yelled “he’s got a knife” and “I have just been stabbed.” He
continued struggling with Guzman-Morales and yelling for help until another
guard hit Guzman-Morales in the face, causing him to drop the knife.
An officer responding to the scene arrested Guzman-Morales. Guzman
Morales told the arresting officer that “he was scared because people were
hitting him.” He also mentioned being hit by a bottle.
Guzman-Morales also testified at trial. He testified that he remembered
walking in the nightclub and being hit on the back of the head. He heard “glass
splashing” and was not sure if he had been hit with a bottle or had his beer
knocked out of his hand. After that point, he “lost it” and “blacked out.” He
further testified:
I don’t remember much other than that until when I was in the police car, a few flashbacks that I get in my head from when I was
2 No. 73132-7-1/3
walking from, and I was getting choked, and the next day, I woke up in jail, and I didn’t know what had happened the day before, the night before.~2~
He later testified that he blacked out after the security guard offered to buy him a
drink.
At trial, the State introduced security footage from the nightclub. The
footage shows the security guard escorting Guzman-Morales towards the exit.
As he does so, Guzman-Morales swings his hand towards the guard. The
security guard identified this as the moment he was stabbed. The guard then
puts Guzman-Morales in a chokehold, and the struggle moves outside the exit,
mostly out of the camera’s view.
The footage was consistent with the guard’s description of when and
where he was stabbed. But the footage appeared to show Guzman-Morales
moving his hand towards the guard’s right hip, while the guard’s stab wound was
located on his inner right thigh.
The State’s forensic video analyst explained that the video was taken at
an angle, and “the depth perception and the two dimensional image can be
thrown off.” Thus, the knife blade could “possibly cover that area between the
wound and where we see the hand going to.” This witness also explained that
the guard’s clothing could have changed the knife’s trajectory.
At the close of evidence, Guzman-Morales requested a self-defense
instruction. He argued that because the security footage appeared to show
2 Report of Proceedings (January 14, 2015) at 336-37.
3 No. 73132-7-1/4
Guzman-Morales striking the guard’s hip rather than his thigh, the jury could
conclude that Guzman-Morales stabbed the guard at a different, later point in
time, when he was in a chokehold.
The trial court declined to instruct the jury on self-defense, determining
that there was no evidence of self-defense.
The jury found Guzman-Morales guilty as charged and the trial court
sentenced him.
Guzman-Morales appeals.
SELF-DEFENSE INSTRUCTION
Guzman-Morales argues that the trial court erred by declining to instruct
the jury on self-defense. We disagree.
A defendant is entitled to an instruction on self-defense if some evidence
demonstrates self-defense.3 The defendant bears the initial burden of producing
some evidence that he or she acted in self-defense.4 To establish self-defense,
“‘there must be evidence that (1) the defendant subjectively feared that he was in
imminent danger of death or great bodily harm; (2) this belief was objectively
reasonable; [and] (3) the defendant exercised no greater force than was
reasonably necessary.”5
~ Werner, 170 Wn.2d at 336-37.
~ State v. Riley, 137 Wn.2d 904, 909, 976 P.2d 624 (1999).
~ Werner, 170 Wn.2d at 337 (quoting State v. Callahan, 87 Wn. App. 925, 929, 943 P.2d 676 (1997)).
4 No. 73132-7-1/5
“The trial court is justified in denying a request for a self-defense
instruction only where no credible evidence appears in the record to support a
defendant’s claim of self-defense.”6
When the trial court declines to instruct the jury on self-defense based on
a lack of evidence, we review for abuse of discretion.7
Here, the court properly denied Guzman-Morales’s request for a self-
defense instruction. No evidence suggested that he feared he was in danger of
bodily harm when he stabbed the guard. Additionally, there was no evidence
that such a belief would be reasonable, or that Guzman-Morales’s use of force
was reasonable.
Guzman-Morales argues that his statement “that he was scared,
combined with the fact that he was choked by [the security guard], was sufficient
to raise the issue of self-defense.” This is insufficient because no evidence at
trial suggested that Guzman-Morales stabbed the guard after he was placed in a
chokehold, rather than before.
Guzman-Morales argues that the security footage was evidence that he
stabbed the guard after being placed in a chokehold. This argument is
unpersuasive.
The fact that the security footage does not conclusively show Guzman
Morales stabbing the guard is immaterial. This footage was not evidence
6 State v. McCullum, 98 Wn.2d 484, 488, 656 P.2d 1064 (1983).
~ State v. Read, 147 Wn.2d 238, 243, 53 P.3d 26 (2002).
5 No. 73132-7-1/6
suggesting that Guzman-Morales acted in self-defense. Rather it “support[ed],”
without conclusively corroborating, the guard’s testimony that Guzman-Morales
stabbed him before he was put in a chokehold. Thus, this evidence did not
create an inference that Guzman-Morales acted in self-defense.
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
Guzman-Morales filed a statement of grounds for review, arguing that he
received ineffective assistance of counsel. We disagree.
The right to counsel includes the right to effective assistance of counsel.8
One component of an ineffective assistance of counsel claim is deficient
performance.9 This requires showing that counsel’s performance fell below “an
objective standard of reasonableness.”1° Washington courts are “highly
deferential to counsel’s performance.”11 We presume that counsel provided
effective representation and require the defendant to prove that no “legitimate
strategic or tactical reasons” exist.12
Guzman-Morales first argues that his counsel’s performance was deficient
because counsel did not sufficiently examine him on the alleged assault.
8Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Crawford, 159 Wn.2d 86, 97, 147 P.3d 1288 (2006). ~ Strickland, 466 U.S. at 687.
Id. at688. ~ In re Pers. Restraint of Gomez, 180 Wn.2d 337, 348, 325 P.3d 142 (2014). 12 State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).
6 No. 73132-7-1/7
Specifically, he objects to counsel’s failure to ask him why and when he used the
knife.
But Guzman-Morales had already testified that he had “blacked out” and
did not remember the events of the night after the moment when the security
guard offered to buy him a drink. Nothing in the record suggests that it was not a
legitimate tactical decision for counsel to choose not to ask specific questions
about events Guzman-Morales stated he could not remember. Thus, counsel’s
performance was not deficient.
Guzman-Morales also argues that his counsel was deficient because he
failed to investigate or call a witness who was present at the alleged crime. But
the record on appeal is silent on this issue. Thus, we cannot review this issue on
direct appeal.13 “The appropriate means of raising matters outside our record is
through the filing of a personal restraint petition.”14
We affirm the judgment and sentence.
WE CONCUR:
___________ e
13 McFarland, 127 Wn.2d at 337-38.
14 State v. Hart, 188 Wn. App. 453, 466, 353 P.3d 253 (2015).