People v. Lemus

• Decision Date: 01 August 1988
• Docket Number: Nos. D005206,D005766,s. D005206
• Citation: 249 Cal.Rptr. 897,203 Cal.App.3d 470
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Teodoro LEMUS, Defendant and Appellant. The PEOPLE, Plaintiff and Respondent, v. Juan LEMUS, Jr., Defendant and Appellant.

Page 897

249 Cal.Rptr. 897

203 Cal.App.3d 470

The PEOPLE, Plaintiff and Respondent, v. Teodoro LEMUS, Defendant and Appellant.

The PEOPLE, Plaintiff and Respondent, v. Juan LEMUS, Jr., Defendant and Appellant.

Nos. D005206, D005766.

Court of Appeal, Fourth District, Division 1, California.

Aug. 1, 1988.

Review Denied Nov. 17, 1988.

[203 Cal.App.3d 472] Jerome P. Wallingford and William K. Mueller, under appointment by the Court of Appeal, for defendants and appellants.

Harvey R. Zall, State Public Defender, Therene Powell, Deputy State Public Defender, as amici curiae for defendants and appellants.

Jack Funk and California Public Defenders Ass'n, as amici curiae for defendants and appellants.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Peter Quon, Jr., Supervising Deputy Atty. Gen., and Gil P. Gonzalez, Deputy Atty. Gen., for plaintiff and respondent.

OPINION ON REHEARING

KREMER, Presiding Justice.

Defendants Teodoro Lemus and Juan Lemus appeal their convictions after a jury found them both guilty of assault with a deadly weapon (PEN.CODE, § 245)¹ and Teodoro guilty of false imprisonment ( § 236). Both Teodoro and Juan contend the trial court erred in failing to instruct the jury regarding self-defense and in entering convictions of lesser included offenses after the jury had acquitted them of the greater charges. Juan further contends the evidence was insufficient to support the jury's verdict. We conclude Teodoro's and Juan's contentions are correct as to the failure of the court to instruct on self-defense. Accordingly, we reverse on that ground.

FACTUAL AND PROCEDURAL BACKGROUND

We recount the facts of the case in the light most favorable to the judgment.

At about 4 p.m. on February 26, 1986, shortly after finishing work in the asparagus fields, Silviano Franco visited a bar in Calexico, California. While there, Franco played several games of pool and drank beer until he became intoxicated. At about 7 p.m., Mary Helen Hernandez, Teodoro's wife, entered the bar. Before going to the bar, Mary Helen had quarreled with Teodoro and she was angry with him. Upon arriving at the bar, Mary Helen sat and drank beer with Franco. She was a former lover of Franco's and had previously had a child by him.

A little while later, Teodoro entered the bar alone, drank beer for about 10 minutes, and left. Within 20 minutes, Teodoro re-entered the bar, this time accompanied by his brother, Rigoberto Lemus, and his cousin, Juan Lemus, who was holding a handgun. Together, they approached the table where Mary Helen and Franco were seated. Teodoro hit Franco in the face and Franco tried unsuccessfully to stand up. Rigoberto kicked Franco in the legs, causing him to fall back into the chair. Franco again tried to get to his feet and Teodoro stabbed him three times, in the chest, elbow, and eyebrow, with a lettuce knife. Mary Helen picked up a cuestick and attempted to strike Juan but did not because she was afraid he would shoot her. Teodoro, Juan, and Rigoberto then left the bar, threatening Mary Helen that she would be next if she called the police.

A week later, at 7 p.m. on March 4, 1986, Mary Helen saw Teodoro on a Calexico street. Knowing he was wanted for questioning regarding the stabbing incident, she called the police. A few minutes later, she again saw Teodoro, this time near the Mexican border. She followed him into an alley and attempted to detain him until the police arrived. When she caught up with Teodoro, he forced her, at gunpoint, to get on a bicycle he was riding. With the gun in her back, he forced her to accompany him, still riding the bicycle, across the border to his sister's house in Mexicali. He kept her there against her will until March 6, 1986, when she was able to escape and return to Calexico.

Teodoro and Juan were charged as follows: in count one, both were charged with attempted murder ( §§ 664, 187) with an allegation Teodoro personally used a deadly weapon (a knife) ( § 12022, subd. (b)). It was further alleged regarding count one that Teodoro inflicted great bodily injury within the meaning of section 12022.7. In count two, Juan was charged with assault with a firearm ( § 245, subd. (a)(2)) with an allegation he personally used a firearm When the jury began its deliberations, it was given the following verdict forms, in pertinent parts, as to both defendants regarding count one:

within the meaning of section 12022.5. In count three, Teodoro was charged with kidnapping ( § 207, subd. (a)).

"Guilty of ... ATTEMPTED MURDER ... as charged in Count I...."

"Guilty of ... ATTEMPTED VOLUNTARY MANSLAUGHTER ..., a lesser included offense to the crime charged in Count I...."

"Guilty of ... ASSAULT WITH A DEADLY WEAPON, ... a lesser included offense to the crime charged in Count I...."

"NOT Guilty of Count I."

As to count three, regarding only Teodoro, the jury was given the following verdict forms, in pertinent parts:

"Guilty of ... KIDNAPPING ... as charged in Count III...."

"Guilty of a misdemeanor ... FALSE IMPRISONMENT, a lesser included offense to the crime charged in Count III...."

"NOT Guilty of Count III."

The court instructed the jury that only one verdict form could be signed and returned for each count. The court further instructed that if the jury unanimously agreed the greater charges had not been proven, it could convict on the lesser offenses.

The following verdict forms were returned as to Teodoro: not guilty of count one, guilty of the lesser included offense of assault with a deadly weapon; not guilty of count three, guilty of the lesser included offense of false imprisonment. Both allegations against Teodoro concerning count one were found to be true.

The jury returned the following verdict forms as to Juan: not guilty of count one, guilty of the lesser included offense of assault with a deadly weapon; not guilty of count two. The allegation against Juan concerning count two was found to be untrue.

On count one, Teodoro was sentenced to prison for the middle term of three years, plus a three-year enhancement under section 12022.7; on count three, one year of local custody was ordered to run concurrently with the sentence imposed on count one. The court, however, ordered him housed in the California Youth Authority pursuant to Welfare and Institutions Code section 1731.5, subdivision (c). Juan was sentenced to three years in prison on count one; the sentence was suspended and he was granted probation on the condition he serve one year in the county jail.

DISCUSSION

I

Teodoro and Juan contend the trial court erred in refusing to instruct the jury on self-defense as to count one. ² For reasons discussed below, we agree.

Before 1975, the rule regarding a trial court's duty to instruct was that expressed in People v. Burns (1948) 88 Cal.App.2d 867, 200 P.2d 134: "It is elementary that the court should instruct the jury upon every material question upon which there is any evidence deserving of any consideration whatever. [Citations.] The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon. [Citations.] That is a question within the exclusive province of the jury. However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true. [Citations.]" ( Id. at p. 871, 200 P.2d 134.) This standard was endorsed by the Supreme Court in People v. Carmen (1951) 36 Cal.2d 768, 773, 228 P.2d 281. The rule was moderated, however, in People v. Mayberry (1975) 15 Cal.3d 143, 125 Cal.Rptr. 745, 542 P.2d 1337, when the court observed that "[a]s an obvious corollary, where there is 'no substantial evidence of In an attempt to clarify the Carmen rule and end its misapplication, Justice Tobriner, writing for the court in People v. Flannel (1979) 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1, noted that "[m]any cases cite, often without elaboration, language in Carmen, supra, 36 Cal.2d 768, or in People v. Modesto (1963) 59 Cal.2d 722, 729 [31 Cal.Rptr. 225, 382 P.2d 33] [citations], to the effect that jury instructions must be given whenever any evidence is presented, no matter how weak. To the extent that a decision of any court interprets these cases to require instructions without evidence substantial enough to merit consideration, it is disapproved. (See, e.g., People v. Thornton (1974) 11 Cal.3d 738, 769, fn. 20 [114 Cal.Rptr. 467, 523 P.2d 267] [citations]; People v. Sedeno, supra, 10 Cal.3d 703, 716-717 [112 Cal.Rptr. 1, 518 P.2d 913]; People v. Cantrell (1973) 8 Cal.3d 672, 685 [105 Cal.Rptr. 792, 504 P.2d 1256] [citations].)" (People v. Flannel, supra, 25 Cal.3d at pp. 684-685, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1; italics in original). ³ Nonetheless, "[d]oubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused." ( Id. at p. 685, 160 Cal.Rptr. 84, 603 P.2d 1, quoting People v. Wilson (1967) 66 Cal.2d 749, 763, 59 Cal.Rptr. 156, 427 P.2d 820; see also People v. Rodriguez (1969) 274 Cal.App.2d 487, 497, 79 Cal.Rptr. 187.) The question thus becomes whether there was evidence to support Teodoro's version of the case substantial enough to warrant his requested instruction on self-defense.

diminished capacity' the court does not err in refusing to give instructions based on that defense." ( Id. at p. 151, 125 Cal.Rptr. 745, 542 P.2d 1337, quoting People v. Bandhauer (1967) 66 Cal.2d 524, 528, 58 Cal.Rptr. 332, 426 P.2d 900.)

Teodoro's testimony was in direct conflict with evidence adduced by the People. He testified that he and Mary Helen arrived at Mike's Place together, that he left the bar alone for a short time to exchange dollars for pesos, and when he returned, Mary Helen was sitting with a man he did not know, Franco. Teodoro further testified Franco forcibly restrained Mary Helen from going home with Teodoro and that Franco told him she was not...