Lopez v. State
| Decision Date | 16 September 2020 |
| Docket Number | No. 3D18-2217,3D18-2217 |
| Citation | 307 So.3d 857 |
| Parties | Daniel LOPEZ, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region of Florida, and Jacqueline Rae Brandt, Assistant Regional Counsel, for appellant.
Ashley Moody, Attorney General, and Asad Ali, Assistant Attorney General, for appellee.
Before FERNANDEZ, LINDSEY and GORDO, JJ.
Daniel Lopez appeals his conviction and sentence for aggravated assault with a firearm and possession of a firearm by a convicted felon. On appeal, Mr. Lopez argues the trial court erred by denying his request for the standard Justifiable Use of Non-Deadly Force Jury Instruction, instruction 3.6(g). See Fla. Std. Jury Instr. (Crim.) 3.6(g). We agree, reverse and remand for a new trial.1
On September 29, 2017, Mr. Lopez and the two victims, Wanderley Suiero and Anathalia Castellanos, were involved in an incident. Mr. Lopez and the State presented different accounts of the facts and circumstances that preceded the incident in question. The parties agree, however, that the disagreement culminated in an encounter in a parking lot.
Mr. Lopez testified that he approached Mr. Suiero's vehicle in traffic and observed a gun inside of the car. Mr. Lopez then returned to his truck, and, as he was driving away, heard a loud noise in the bed of his truck, as if something had been thrown in there. Mr. Lopez posited that Mr. Suiero threw a gun into his truck bed. Mr. Lopez pulled into a nearby parking lot to speak with his girlfriend, Lisette Morera,2 who was in a nearby vehicle. Once in the parking lot, Mr. Lopez noted that Mr. Suiero and Ms. Castellanos had followed him into the lot. Mr. Lopez testified that because he had seen a gun in Mr. Suiero's car, he feared for his and Ms. Morera's safety. This prompted him to look for something in his truck bed with which he could defend himself. It was then that Mr. Lopez discovered that there was a gun in the bed of his truck. He testified, and so did Ms. Morera, that upon discovering the gun, he ran over to Ms. Morera's car in an attempt to get rid of the firearm.
According to the State, it was at that point that Mr. Lopez took the firearm from the bed of his truck and assaulted the victims. Mr. Lopez was subsequently charged with aggravated assault with a firearm, possession of a firearm by a convicted felon and fleeing or attempting to elude a law enforcement officer. At trial, the State corroborated its theory by presenting a video, recorded on one of the victims’ cell phones, that depicted the alleged assault by Mr. Lopez.
Although Mr. Lopez's theory of defense was, in part, to deny the use of force entirely, he presented testimony that supported a self-defense theory in the alternative. Mr. Lopez testified as follows:
In closing, defense counsel reiterated that prior to finding the gun in the back of his truck, Mr. Lopez was "worried for himself [and Ms. Morera]." The closing argument made clear that Mr. Lopez was arguing that he felt he needed to defend himself after having seen a gun in Mr. Suiero's car. Mr. Lopez further testified that he possessed the gun solely for the purpose of disposing of it. Both he and Ms. Morera testified, and his counsel argued, that he never pointed the firearm at the victims. Additionally, Mr. Lopez never testified or conceded that he used force or threatened to use force against Mr. Suiero and Ms. Castellanos.
At the charging conference, the defense specifically requested that the jury be read the standard justifiable use of nondeadly force instruction, instruction 3.6(g). It argued The State objected to the trial court reading the nondeadly force instruction.
The State's argument for the reading of the standard deadly force instruction, instruction 3.6(f), was that an officer "made the firearm safe" when she retrieved it from Mr. Lopez's truck bed. It further posited that the video supported the fact that Mr. Lopez used deadly force.3 The State concluded its argument by stating that it was unaware of a "[single] case that says a projectile has to be expelled in order for it to be deadly force." The court stated that it was going to give the jury only the deadly force instruction requested by the State. The defense then reiterated its objection.
The jury found Mr. Lopez guilty of aggravated assault with a firearm and possession of a firearm by a felon. The trial court sentenced Mr. Lopez to five years for the aggravated assault and eight years for possession of the firearm, to run concurrently, followed by five years of probation. This appeal followed.
"[W]e review a trial court's decision to exclude a requested jury instruction for an abuse of discretion ...." Rodriguez v. State, 147 So. 3d 1066, 1068 (Fla. 3d DCA 2014) (citing Carpenter v. State, 785 So. 2d 1182, 1199–200 (Fla. 2001) ; Martin v. State, 110 So. 3d 936, 938 (Fla. 1st DCA 2013) ). However, the trial court's discretion in whether to give a jury...
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