California Court of Appeal Aug 18, 2015 No. D065728Unpublished
Filed 8/18/15 P. v. Leiper CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D065728
Plaintiff and Respondent,
v. (Super. Ct. No. SCD239747)
EDWARD LEIPER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Frederic L.
Link, Judge. Affirmed.
Raymond Mark DiGuiseppe, 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, Eric A. Swenson and Ryan H.
Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Edward Leiper of second degree murder (Pen. Code,1 § 187,
subd. (a); count 1) and three counts of exhibiting a deadly weapon (§ 417, subd. (a)(1);
counts 2-4). The jury also found that Leiper used a deadly and dangerous weapon (a
knife) in the commission of count 1. (§ 12022, subd. (b)(1).)
The superior court sentenced Leiper to prison for 15 years to life, plus an
additional year for the weapon enhancement to count 1.
No. 505); and the right to self-defense only exists in the presence of danger (CALCRIM
No. 3474).
Here, Leiper takes issue with CALCRIM No. 3474, which states: "The right to
use force in self-defense or defense of another continues only as long as the danger exists
or reasonably appears to exist. When the attacker withdraws or no longer appears
2 Diaz admitted to have been in custody at the central jail on February 8, 2012 after he was arrested for selling marijuana. However, he testified that he did not recall having made any comments about the stabbing at that time. 11
capable of inflicting any injury, then the right to use force ends." We note that Leiper's
trial counsel did not object to any of the instructions provided to the jury. Nor did he
request any specific instruction relating to imperfect self-defense that the court refused to
give. The first time Leiper challenges any jury instruction is on appeal.
By failing to object to or request a specific jury instruction at trial, Leiper forfeited
this claim on appeal, unless the claimed error affected Leiper's substantial rights. (See
§ 1259; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.) "Ascertaining whether
claimed instructional error affected the substantial rights of the defendant necessarily
requires an examination of the merits of the claim -- at least to the extent of ascertaining
whether the asserted error would result in prejudice if error it was." (People v. Andersen
(1994) 26 Cal.App.4th 1241, 1249.) We conclude that Leiper has not shown that the
claimed error affected his rights; thus, he has forfeited his claim.
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.' " (People v. Ramos (2008) 163
Cal.App.4th 1082, 1088.) In determining whether error has been committed in giving
jury instructions, we consider the instructions as a whole and assume jurors are intelligent
persons, capable of understanding and correlating all jury instructions which are given.
(Ibid.) " 'Instructions should be interpreted, if possible, so as to support the judgment
rather than defeat it if they are reasonably susceptible to such interpretation.' " (Ibid.)
"The crucial assumption underlying our constitutional system of trial by jury is that jurors
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generally understand and faithfully follow instructions." (People v. Mickey (1991) 54
Cal.3d 612, 689, fn. 17.)
Here, Leiper does not maintain that CALCRIM No. 3474 is an incorrect statement
of law. Nor could he. The right to the use of force continues only as long as the danger
reasonably appears to exist. (People v. Martin (1980) 101 Cal.App.3d 1000, 1010;
People v. Perez (1970) 12 Cal.App.3d 232, 236.) This is precisely what CALCRIM No.
3474 tells the jury.
However, Leiper claims here, for the first time, that CALCRIM No. 3474 was
"erroneous on its face insofar as it implies that any claim of self-defense (whether a claim
of perfect self-defense or simply a claim of imperfect self-defense) is cut off unless the
continuing nature of the perceived threat is real or objectively reasonable." (Original
italics.) He points out that the jury could have been confused by CALCRIM No. 3474
and would have not given "proper consideration to the doctrine of imperfect self-defense
since that would have necessarily involved applying a subjective standard in assessing the
continuing nature of the threat." (Original italics.) Put differently, Leiper argues that
CALCRIM No. 3474 somehow undermines the imperfect self-defense jury instruction
the court provided, which, had the jury properly considered, it could have found him
guilty of voluntary manslaughter, instead of murder. (See People v. Thomas (1990) 219
Cal.App.3d 134, 145 (Thomas).)
Manslaughter is a lesser included offense of murder. (People v. Lewis (2001) 25
Cal.4th 610, 645.) A defendant who kills in an actual but objectively unreasonable belief
that he was in imminent danger of death or great bodily injury is said to have done so
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while acting in imperfect self-defense. (Ibid.) However, such a person, in spite of his
actual belief in the act's necessity, nevertheless " 'kills unlawfully.' " (Thomas, supra,
219 Cal.App.3d at p. 145.) "[T]he 'imperfect self-defense' instruction is not a self-
defense instruction at all. It merely removes the element of malice aforethought" from
the murder charge, reducing the crime to voluntary manslaughter. (Ibid.) In contrast, to
constitute "perfect self-defense," i.e., to exonerate the person completely, a defendant
must actually and reasonably believe in the need to defend himself. (See People v.
Humphrey (1996) 13 Cal.4th 1073, 1082 (Humphrey).) Put differently, a person who
kills in perfect self-defense has not violated the law, but a person who kills, under an
imperfect self-defense theory, has acted unlawfully. Therefore, a person has the right to
engage in perfect self-defense, but no such right to engage in imperfect self-defense.
CALCRIM No. 3474 speaks to the right of self-defense. A person no longer has
that right once an assailant stops the attack, flees, or no longer appears capable of
attacking. (People v. Martin, supra, 101 Cal.App.3d at p. 1010; People v. Perez, supra,
12 Cal.App.3d at p. 236.) Because CALCRIM No. 3474 addresses a defendant's right to
engage in self-defense and when that right ceases to exist, it only pertains to perfect self-
defense. (Cf. Humphrey, supra, 13 Cal.4th at p. 1082 ["For killing to be in self-defense,
the defendant must actually and reasonably believe in the need to defend."].) As such,
CALCRIM No. 3474 does not impact a defendant's claim of imperfect self-defense
whatsoever.
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At trial, the court instructed the jury under CALCRIM No. 571 [Voluntary
Manslaughter: Imperfect Self-Defense or Imperfect Defense of Another -- Lesser
Included Offense], which states in relevant part:
"A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense. [¶] If you conclude the defendant acted in complete self-defense, his action was lawful and you must find him not guilty of any crime. The difference between complete self- defense and imperfect self-defense depends on whether the defendant's belief in the need to use deadly force was reasonable. [¶] The defendant acted in imperfect self-defense if: 1. The defendant actually believed that he was in imminent danger of being killed or suffering great bodily injury; [¶] AND [¶] 2. The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger; [¶] BUT [¶] 3. At least one of those beliefs was unreasonable. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. [¶] In evaluating the defendant's beliefs, consider all the circumstances as they were known and appeared to the defendant. [¶] . . . [¶] The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self- defense. If the People have not met this burden, you must find the defendant not guilty of murder."
Accordingly, the jury was properly instructed regarding imperfect self-defense.
Leiper has not pointed to any indication in the record that the jury did not understand
CALCRIM No. 571 or otherwise ignored that instruction because it also received
CALCRIM No. 3474.
CALCRIM No. 3474 correctly states the law. It does not diminish, alter, or
otherwise undermine CALCRIM No. 571. As discussed above, we consider the
instructions as a whole and assume jurors are intelligent persons, capable of
understanding and correlating all jury instructions which are given. (People v. Ramos,
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supra, 163 Cal.App.4th at p. 1088.) CALCRIM No. 571 instructed the jury about
imperfect self-defense. The jury rejected this theory and found the prosecution proved
that Leiper stabbed Bazan with requisite intent and malice to be guilty of second degree
murder. Leiper does not challenge the sufficiency of the evidence to support that
conviction. On the record before us, we find no error.
Because the jury instructions were correct as given, we see no grounds on which
to determine Leiper received ineffective assistance of counsel for his trial counsel's
failure to object to any of the instructions or request a clarifying instruction.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
McDONALD, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not err in its jury instructions, as CALCRIM No. 3474 correctly states the law regarding the right to self-defense and does not undermine the separate instruction on imperfect self-defense.
Issues
Whether the trial court committed reversible error by instructing the jury with CALCRIM No. 3474 regarding the duration of the right to self-defense.
Whether CALCRIM No. 3474 improperly conflicts with or undermines the instruction on imperfect self-defense (CALCRIM No. 571).
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The right to use force in self-defense or defense of another continues only as long as the danger exists or reasonably appears to exist.”
“CALCRIM No. 3474 does not impact a defendant's claim of imperfect self-defense whatsoever.”