People v Murphy, 2005 Cal. App. Unpub. LEXIS 5623 (CA Ct. App. 2005)

State:
Date: June 28, 2005
Defendant: Murphy

People v Murphy, 2005 Cal. App. Unpub. LEXIS 5623 (CA Ct. App. 2005)

Court of Appeal of California, Fourth Appellate District, Division Two

June 28, 2005, Filed

E035003

2005 Cal. App. Unpub. LEXIS 5623; 2005 WL 1516885

THE PEOPLE, Plaintiff and Respondent, v. ZELIA MERIAN MURPHY III, Defendant and Appellant.

Counsel: Linn Davis, under appointment by the Court of Appeal; Appellant Defenders, Inc. and Anita P. Jog for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Deana L. Bohenek, Deputy Attorney General, for Plaintiff and Respondent.

Judges: King, J.; Richli, Acting P.J., Gaut, J. concurred.

Opinion by: King

INTRODUCTION

Defendant was charged with assaulting Craig Young by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1); count 1) 1 and with battery of Young resulting in serious bodily injury ( § 243, subd. (d); count 2). It was further alleged that defendant inflicted great bodily injury on Young in count 1 ( §§ 12022.7, subd. (a) & 1192.7, subd. (c)(8)), and had one prior strike conviction ( §§ 667, subds. (c) & (e)(1) & 1170.12, subd. (c)(1)).

A jury found defendant guilty on count 1 and found the great bodily injury allegation true, but found defendant not guilty on count 2. The trial court found defendant’s prior strike conviction true, and sentenced defendant to the middle term of three years on count 1, doubled to six years for the prior strike conviction, plus three years for the great bodily injury enhancement, for a total term of nine years.

Defendant appeals. He contends that the trial court had a duty to sua sponte instruct on self-defense, and that his trial counsel was ineffective for failing to request adequate instructions on self-defense. He further contends that the trial court’s preclusion of closing argument on self-defense and its instruction to the jury that it could not consider self-defense deprived him of the right to present a defense and relieved the prosecution of its burden to prove him guilty of assault beyond a reasonable doubt. He maintains that these errors were structural and require automatic reversal of his assault conviction and great bodily injury enhancement.

We affirm. We agree that the trial court had a duty to sua sponte instruct the jury on the defense of self-defense, and that defense counsel’s performance was deficient for failing to timely request instructions on self-defense. Nevertheless, we conclude that the failure to instruct on self-defense does not require automatic reversal, because it was not structural error. The error was harmless beyond a reasonable doubt under the Chapman 2 standard of review.

FACTS AND PROCEDURAL HISTORY

Generally, when reciting the facts underlying a defendant’s offenses, we present the facts in the light most favorable to the judgment. (See People v. Valencia (2002) 28 Cal.4th 1, 4.) But where, as here, the defendant’s right to instructions on self-defense is the central issue on appeal, “our recital of the evidence introduced at trial is necessarily one emphasizing matters which would justify such instructions.” (People v. King (1978) 22 Cal.3d 12, 15-16, 148 Cal. Rptr. 409.)

A. Prosecution Evidence

In May 2003, defendant’s stepmother, Doris, and stepsister, Felicia, lived in Doris’s house in Riverside. Young was Felicia’s former boyfriend. Young stayed at Doris’s house on Thursday and Friday, May 15 and 16. Young was supposed to leave Doris’s house on Saturday morning, May 17, to stay with a relative in Perris. Defendant was present at Doris’s house on May 17.

Young testified that he left the house on Saturday, drank about “two, three beers,” and returned to the house between 6:00 and 7:00 p.m. to pick up some clothes and shoes he had left behind. Doris answered the door and told Young he did not have any belongings there. Felicia also came to the door. Young had an imitation, chrome-colored semiautomatic handgun in his pocket. As Young began to leave, defendant started to follow him. Young then pulled out his imitation handgun. Young said that, as he left the house that morning, defendant had looked at him “like he wanted to do something to [him].” Doris and Felicia told defendant to come back. Defendant did so, and Young kept walking away from the house. Doris called the police.

Young said that he then walked around the corner to a Greyhound bus station to make a phone call to get a ride. The police pulled up and arrested him. Initially, he denied calling Felicia. But when police told Young that the phone number he called from showed up on Doris’s phone, he said he may have called but denied threatening Doris or calling her a “bitch.” The police confiscated the imitation handgun, put Young in a police car, and drove him to Doris’s house. There, the police told the family that the gun was a fake. Young was then taken to the police station and released about three hours later. The police returned two unopened cans of beer to him.

Young testified that, after he was released, he went back to the Greyhound bus station and called Felicia. Doris answered the phone. She told him Felicia was asleep and that he could not speak to her. Young denied making any threats. About 15 minutes later, he decided to call a friend to get a ride. As he was making that call, defendant came up behind him. He said that as he turned to see who it was, defendant hit him and he fell to the ground. Defendant hit him again as he tried to get up. He tripped over the curb and broke his ankle. He “balled up in a knot” to protect himself. He said defendant hit him a total of four or five times. He said he never hit defendant because he never had a chance. He also denied saying anything to defendant, or that defendant said anything to him. A man from a nearby motel “ran [up] hollering,” and defendant left the scene.

Young was taken by ambulance to a hospital. He sustained a head injury, lacerations to his face requiring numerous stitches, fractured bones around his right eye, and a fractured ankle. His blood alcohol content was 0.30 percent. The emergency room doctor testified that there was no way a person could have had a 0.30 percent blood alcohol content by drinking only three 12-ounce beers over five hours. The doctor also said that a person with a 0.30 percent blood alcohol content would be severely impaired, but a person who was a regular heavy drinker would show less impairment than a person who did not often drink.

At the time of the incident, Carlos Becerra was driving on University Avenue toward Brockton. As he slowed for a red light, he saw two men walking toward each other. He said Young was walking in the same direction Becerra was driving, and defendant was walking in the opposite direction. Becerra said defendant suddenly swung at Young, knocking him to the ground. Becerra called 911, made a U-turn, and faced his car toward the men. He said that, when Young tried to stand up, defendant repeatedly hit him again. Young fell by the curb. Defendant then walked away. Becerra said Young never hit defendant. He could not tell whether Young and defendant exchanged any words before defendant hit Young.

B. Defense Case

Doris testified that Young called her house five or six times on the day in question, demanding to speak with Felicia. Felicia did not want to speak to him. Doris said Young was rude, used profanity, and was drunk. Doris told him not to call back. Defendant was present when the calls were made. At approximately 9:00 p.m., Young showed up at Doris’s door. Doris refused to open the door and told him to leave. Felicia came to the door and opened it. Young was waving a gun. Doris closed the door and called the police. Young walked away. Defendant was at the doorway when this happened. Defendant did not leave the house.

Doris testified that Officer Chris Williams responded to her 911 call. He stayed with Doris while other officers looked for Young. He later told Doris that she could “rest easy” because the other officers had located Young and he would be kept in jail overnight so he could sober up. 3 Doris testified that about an hour later Young called again and told her everyone had better leave the house because he was going to burn it down. Doris feared for her life and the lives of Felicia and defendant, and called 911 again. The police came to the house and told Doris they were unable to hold Young because the gun was not real. Defendant was present when the police said the gun was not real. Young called Doris three or four more times asking to speak to Felicia. Doris was upset and crying. About 20 minutes later, the police returned to Doris’s house and told her that “somebody beat the crap out of Mr. Young. ” The police arrested defendant at Doris’s house.

Defendant testified that he was visiting Doris and Felicia on May 17 to help them pack boxes and move. During the day, Young called the house several times, and Doris was becoming irritated. At approximately 10:00 p.m., defendant heard a knock at the back door and heard Doris tell Young to go away. Young asked to speak to Felicia. Felicia opened the door. Doris was behind Felicia, and defendant was behind Doris. Doris told Felicia to get back. Defendant could see a silver-colored handgun.

Defendant said Doris became hysterical and called 911. Defendant tried to calm her down. The police arrived, and Officer Williams said Young had been arrested. About 30 minutes later, defendant heard the phone ring again. He heard Doris yell, “Oh, my God, he’s not in jail. They didn’t arrest him. He’s back. We got to get out of here.” Doris called 911 again. Young called the house one or two more times after that. Defendant was concerned that Doris and Felicia could be killed or seriously injured.

Defendant left the house looking for Young. He believed Young was nearby and decided to check the nearest pay phones. He walked to University Avenue and Brockton and saw Young on the corner. He and Young were walking toward each other. He said to Young, “Man, why the hell you tripping with my mom and my sister? You got everybody upset. You need to go sleep it off and try to talk to them tomorrow.” Young responded, “Didn’t I tell you I was going to kill you, nigger?” At that point, defendant hit Young in the left eye. Young fell to the ground. Young got up and “[came] towards [defendant] with his hands up,” so defendant hit him a couple more times. After Young went down again, defendant said, “Do not come back over to the house.” Defendant then left and returned to Doris’s house, where the police arrested him.

Defendant said he hit Young to protect himself, because Young had just said he was going to kill him and he did not know what Young’s next move would be. He was also concerned about Young’s threat to burn Doris’s house down. He did not believe Young was armed, however, because he thought the police had taken whatever handgun Young had away from him. When an officer asked defendant whether he wanted to make a statement, he responded, “You guys are arresting me and he had the gun?”

C. Procedural History

In his opening statement, defense counsel told the jury the evidence would show that defendant’s actions in hitting Young were justified, because defendant was protecting his stepmother and sister (defense of others). Defense counsel did not mention or allude to the defense of self-defense. Defendant indicated in his testimony, however, that he struck Young in self-defense immediately after Young threatened to kill him. He also indicated that he repeatedly struck Young because Young got back up and raised his hands toward defendant.

After defendant testified in the defense’s case-in-chief, but before the prosecutor finished cross-examining defendant, the trial court, defense counsel, and the prosecutor discussed jury instructions. The defense requested CALJIC Nos. 5.32 (Use of Force in Defense of Another), 5.43 (Force That May Be Used in Defense of Property), and 5.44 (Presumption of Fear of Death/Great Bodily Injury). The trial court set aside these instructions “for discussion later.” Defense counsel said, “If I could categorize, [these instructions] deal with the defense of others and self-defense.” The trial court responded, “I understand that, Counsel.” The trial court agreed to give CALJIC No. 9.00 (Assault–Defined), which the People requested.

Later during the same day and after the close of the evidence, the trial court resumed the discussion concerning jury instructions. At that time, the trial court agreed to give CALJIC No. 5.32 (Use of Force in Defense of Another), 4 over the People’s objection. 5 The trial court refused to give CALJIC No. 5.43 (Force That May Be Used in Defense of Property), 6 because there was no evidence that an injury to property, that is, to Doris’s residence, was imminent. The trial court also refused to give CALJIC No. 5.44 (Presumption of Fear of Death/Great Bodily Injury), 7 because it applied only to the use of force within a residence.

There was no further discussion concerning CALJIC No. 9.00 (Assault–Defined). The trial court did not indicate that it was going to strike the reference to self-defense in the final paragraph of CALJIC No. 9.00, which, in its unredacted form, 8 instructs the jury that the use of force is not unlawful when used in self-defense or in defense of others. As given, CALJIC No. 9.00 omitted any reference to self-defense. 9 At no time, however, did defense counsel request any instructions on self-defense, including CALJIC No. 5.30 (Self-Defense Against Assault). 10

During closing argument, defense counsel read to the jury the final paragraph of CALJIC No. 9.00, with the reference to self-defense, which the trial court had not given. Next, defense counsel said: “So in other words, if you believe — if you have a reasonable doubt that the defendant in this case, Mr. Murphy, had a right to use physical force to protect himself or others, the law makes it very clear to you, and the judge will help you with any ambiguity in understanding this.” (Italics added.)

At this point, the trial court called defense counsel and the prosecutor to sidebar, reminded defense counsel that he had not requested self-defense instructions, and asked him where he was going with the argument. Defense counsel said he thought the self-defense portion of CALJIC No. 9.00 had been given. The trial court explained that the self-defense portion was in brackets and had been excluded because no self-defense instructions had been requested. Defense counsel said he had assumed that the self-defense portion would be given, based on defendant’s testimony that, immediately before he struck Young, Young said, “Nigger, I’m going to kill you,” or something to that effect. The trial court responded that it would have to instruct the jury “to ignore the argument on self-defense.”

Before defense counsel resumed his argument, the trial court instructed the jury as follows: “Ladies and gentlemen, the defense instruction that was read to you dealt with defense of others. Defense counsel has talked about self-defense, but you have not been instructed on self-defense. Those instructions were not requested and they have not been given. So the defense you should focus on is defense of another, not self-defense.” Thereafter, defense counsel focused on the defense of others, and further emphasized that defendant’s conduct was reasonable in view of Young’s conduct on the day in question.

Following defendant’s conviction on count 1, defense counsel moved for a new trial on the ground the trial court failed to sua sponte instruct the jury on self-defense. ( § 1181, cl. 5.) Counsel argued that, before defendant testified, he submitted a checklist of requested instructions and inadvertently omitted CALJIC No. 5.30 on self-defense. He also argued that the trial court had a duty to sua sponte instruct the jury on self-defense.

The trial court denied the motion for new trial. It reasoned that, if counsel had made it clear he was relying on self-defense rather than defense of others, it would have instructed the jury on self-defense based on defendant’s testimony that Young had threatened to kill him. The trial court said defense counsel made it “tactically clear,” however, that the defense was relying on defense of others rather than self-defense, and opined that it would have been “detrimental” to the defense to rely on both defenses. The trial court further opined that defendant used excessive force, and that no reasonable jury would have found defendant was entitled to defend himself after he hit Young the first time, knocking him to the ground.

DISCUSSION

THE TRIAL COURT ERRED IN FAILING TO GIVE ANY SELF-DEFENSE INSTRUCTIONS, BUT THE ERROR WAS HARMLESS

A trial court has a duty to instruct sua sponte on a defense “‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ [Citation.] Thus, when the trial court believes ‘there is substantial evidence that would support a defense inconsistent with that advanced by a defendant, the court should ascertain from the defendant whether he wishes instructions on the alternative theory.’ [Citation.]” (People v. Breverman (1998) 19 Cal.4th 142, 157; People v. Gonzales (1999) 74 Cal.App.4th 382, 389.)

The trial court’s inquiry of defense counsel will ensure that defense counsel has not overlooked the alternative defense theory. (People v. Sedeno (1974) 10 Cal.3d 703, 717, fn. 7, 112 Cal. Rptr. 1, overruled in part on other grounds in People v. Breverman, supra, 19 Cal.4th at p. 149, and disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12, 160 Cal. Rptr. 84.) Indeed, “the duty of counsel to a criminal defendant includes careful preparation of and request for all instructions which in his judgment are necessary to explain all of the legal theories upon which his defense rests. . . .” (People v. Sedeno, supra, at p. 717, fn. 7.)

Here, defense counsel did not adequately apprise the trial court of the defense’s intention to rely on self-defense at any time before argument, or before the instructions were completed and given. Defense counsel did not request any instructions on self-defense, including CALJIC No. 5.30. Instead, counsel requested an instruction on the defense of others, namely CALJIC No. 5.32, which the trial court gave. Counsel also requested instructions on the defense of property (CALJIC No. 5.43) and on a defendant’s use of force within his own residence (CALJIC No. 5.44), which the trial court properly refused.

Defense counsel’s reference to resuming the discussion on “defense of others and self-defense” instructions, when the trial court concluded the initial conference on jury instructions, did not discharge defense counsel’s duty to proffer complete instructions on all intended defense theories. Following this remark, defense counsel never mentioned the matter of self-defense again until the middle of his closing argument — after the instructions had been given and the jury had been instructed solely on the defense of others. Thus, defense counsel’s performance was deficient because he failed to timely proffer adequate instructions on self-defense. (People v. Sedeno, supra, 10 Cal.3d at p. 717, fn. 7; § 1093.5.)

Nevertheless, in view of defendant’s testimony it should have been apparent to the trial court that the defense was relying, at least in part, on self-defense. The trial court acknowledged this when, in denying defendant’s motion for new trial, it said it “probably” would have instructed on self-defense had counsel requested it. Moreover, and as we explain below, self-defense was consistent with the theory of defense of others, and substantial evidence supported the defense of self-defense. Thus, the trial court erred in failing to instruct sua sponte on self-defense. 11

A. The Defense of Self-Defense Was Consistent With the Defense of Others

In the trial court’s view, the defense of self-defense was “detrimental” to, that is, it was inconsistent with, the defense of others, because arguing both theories would have told the jury, “this is my main defense, but if you don’t buy that, how about this one.” The defenses were consistent, however. The argument that defendant hit Young in order to prevent imminent harm to his stepmother and stepsister (CALJIC No. 5.32) did not conflict with nor undermine the argument that defendant (also) hit Young to protect himself because Young had threatened him (CALJIC No. 5.30).

B. Substantial Evidence Supported Giving Self-defense Instructions

Substantial evidence, in the context of determining whether the evidence warrants giving a particular instruction, is evidence sufficient to deserve consideration by the jury. It is evidence from which a jury comprised of reasonable persons could conclude that the facts underlying the instruction exist. (People v. Wickersham (1982) 32 Cal.3d 307, 324, 185 Cal. Rptr. 436, overruled on another ground in People v. Barton (1995) 12 Cal.4th 186, 200-201.) “A trial court should not . . . measure the substantiality of the evidence by undertaking to weigh the credibility of the witnesses, a task exclusively relegated to the jury.” (People v. Flannel, supra, 25 Cal.3d at p. 684; People v. Lemus (1988) 203 Cal. App. 3d 470, 477, 249 Cal. Rptr. 897.) Doubts about whether evidence is sufficient to warrant an instruction on a particular defense theory should be resolved in the defendant’s favor. (People v. Barnett (1998) 17 Cal.4th 1044, 1145.) Whether the proffered evidence provides the necessary support for giving the instruction is a question of law. (Ibid.)

“‘To justify an act of self-defense for [an assault charge under Penal Code section 245], the defendant must have an honest [i.e., actual] and reasonable belief that bodily injury is about to be inflicted on him. [Citation.]’ [Citation.]” (People v. Minifie (1996) 13 Cal.4th 1055, 1064.) The threat of bodily injury must be imminent, and any right of self-defense is limited to the use of such force as is reasonable under the circumstances. (Id. at pp. 1064-1065; §§ 692 & 693; Civ. Code, § 50.) “‘”The peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with.” . . . .'” (In re Christian S. (1994) 7 Cal.4th 768, 783.) The right of self-defense does not extend beyond the time of real or apparent danger. (People v. Pinholster (1992) 1 Cal.4th 865, 966.) “Only that force which is necessary to repel an attack may be used in self-defense; force which exceeds the necessity is not justified. [Citation.]” (People v. Clark (1982) 130 Cal. App. 3d 371, 380, 181 Cal. Rptr. 682.)

The test of reasonableness is objective; it is determined from the point of view of a reasonable person in the defendant’s position. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083.) “[A] jury must consider what ‘would appear to be necessary to a reasonable person in a similar situation and with similar knowledge . . . .’ [Citation.] . . . ‘. . . [A] defendant is entitled to have a jury take into consideration all the elements in the case which might be expected to operate on [the defendant’s] mind . . . .’ [Citation.]” (Ibid.) Accordingly, evidence that the victim had threatened the defendant is admissible to support a claim of self-defense. (People v. Minifie, supra, 13 Cal.4th at p. 1065, citing, e.g., People v. Moore (1954) 43 Cal.2d 517, 527-529 and People v. Aris (1989) 215 Cal. App. 3d 1178, 1188, 264 Cal. Rptr. 167.)

These principles of self-defense are reflected in CALJIC Nos. 5.30 (Self-Defense Against Assault), 5.50 (Self-Defense-Assailed Person Need Not Retreat), 12 5.50.1 (Prior Threats/Assault By Victim), 13 5.51 (Self-Defense-Actual Danger Not Necessary), 14 5.52 (Self-Defense-When Danger Ceases), 15 and 5.53 (Self-Defense Not an Excuse After Adversary Disabled). 16 Other instructions on self-defense may be appropriate where substantial evidence indicates that the defendant was the aggressor (CALJIC No. 5.54 [Self-Defense By an Aggressor]), 17 the defendant initiated the assault with the intent to create a real or apparent necessity of exercising self-defense (CALJIC No. 5.55 [Pleas of Self-Defense May Not Be Converted]), 18 and where the right of self-defense arises in mutual combat (CALJIC No. 5.56 [Self-Defense-Participants in Mutual Combat]). 19

The trial court’s duty to instruct on self-defense, where it arises, includes a duty to give correct and complete instructions on self-defense and on the relationship of the defense to the elements of the charged offense. (People v. Sedeno, supra, 10 Cal.3d at p. 716; see People v. Stewart (1976) 16 Cal.3d 133, 140, 127 Cal. Rptr. 117; People v. Guthrie (1983) 144 Cal. App. 3d 832, 842, 193 Cal. Rptr. 54.) That is, the trial court has a duty to fully instruct the jury on the issues raised by the evidence and which are necessary to the jury’s understanding of the case. (People v. Breverman, supra, 19 Cal.4th at p. 154.) Thus, for example, where substantial evidence shows that the defendant initiated an assault with the intent to create a real or apparent necessity for exercising self-defense, CALJIC No. 5.55 must be given.

Here, substantial evidence supported giving a number of self-defense instructions, including CALJIC Nos. 5.30, 5.50, 5.50.1, 5.51, 5.52, 5.53, 5.54, and 5.55. 20 As set forth above, defendant testified that, as he approached Young on the street, he told him to leave his stepmother and stepsister alone and to sleep off his drunkenness. He said he initially hit Young to protect himself immediately after Young threatened to kill him. The evidence also showed that Young had previously shown a willingness and an apparent ability to inflict bodily harm. Based on this evidence, the jury could have reasonably concluded that defendant struck Young in self-defense, because defendant actually and reasonably believed Young was threatening him with imminent harm.

C. The Failure to Instruct on Self-defense Was Harmless Beyond A Reasonable Doubt

Defendant contends that the trial court’s failure to instruct on self-defense was structural error and requires reversal per se because it deprived him of his right to present the theory that his conduct was justified on a theory of self-defense, and relieved the prosecution of its burden to prove him guilty of each of the elements of assault beyond a reasonable doubt. We disagree that the error was structural, and conclude that the error was harmless beyond a reasonable doubt under the Chapman standard of review.

“Under established law, instructional error relieving the prosecution of the burden of proving beyond a reasonable doubt each element of the charged offense violates the defendant’s rights under both the United States and California Constitutions.” (People v. Flood (1998) 18 Cal.4th 470, 479-480 (Flood).) In Flood, our state Supreme Court held that instructional error that “improperly describes or omits an element of an offense, or that raises an improper presumption or directs a finding or a partial verdict upon a particular element, generally is not a structural defect in the trial mechanism that defies harmless error review and automatically requires reversal . . . .” (Id. at pp. 502-503.) Rather, the court concluded that misdirection of the jury on an element of an offense “falls within the broad category of trial error subject to Chapman review.” (Id. at p. 503; see also People v. Cox (2000) 23 Cal.4th 665, 676.)

The United States Supreme Court later reached the same conclusion in Neder v. United States (1999) 527 U.S. 1 [119 S. Ct. 1827, 144 L. Ed. 2d 35] (Neder). There, the high court explained that “unlike such defects as the complete deprivation of counsel or trial before a biased judge, an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” (Id. at p. 9.) The court further explained: “The erroneous admission of evidence in violation of the Fifth Amendment’s guarantee against self-incrimination, see Arizona v. Fulminante [(1991) 499 U.S. 279 [111 S. Ct. 1246, 113 L. Ed. 2d 302]], and the erroneous exclusion of evidence in violation of the right to confront witnesses guaranteed by the Sixth Amendment, see Delaware v. Van Arsdall [(1986) 475 U.S. 673 [106 S. Ct. 1431, 89 L. Ed. 2d 674]], are both subject to harmless-error analysis under our cases. Such errors, no less than the failure to instruct on an element in violation of the right to a jury trial, infringe upon the jury’s fact finding role and affect the jury’s deliberative process in ways that are, strictly speaking, not readily calculable. We think, therefore, that the harmless-error inquiry must be essentially the same: Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?” (Neder, supra, at p. 18.)

Flood and Neder addressed the failure to instruct on an element of an offense, not a defense or justification that negates an element of the offense. In our view, the failure to instruct on a justification that negates an element of a charged offense implicates the same constitutional considerations as the failure to instruct on the element of the charged offense. This is because the prosecution has the burden of proving each element of the charged offense beyond a reasonable doubt. (People v. Cuevas (1995) 12 Cal.4th 252, 260.) And, under California law, where self-defense negates an element of the charged offense, the prosecution must prove beyond a reasonable doubt that the defendant did not act in self-defense. (People v. Tewksbury (1976) 15 Cal.3d 953, 963, 127 Cal. Rptr. 135; People v. Adrian (1982) 135 Cal. App. 3d 335, 342, 185 Cal. Rptr. 506.) Thus, the failure to instruct on self-defense should be subject to harmless error analysis under Chapman, where self-defense negates an element of the charged offense. 21

Here, self-defense negated an element of the charged offenses of assault (count 1) and battery (count 2); specifically, the unlawful use of force. “An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” ( § 240.) “A battery is any willful and unlawful use of force or violence upon the person of another.” ( § 242.) “Acts committed in self-defense are not unlawful.” (Walters v. American Ins. Co. (1960) 185 Cal. App. 2d 776, 783, 8 Cal. Rptr. 665; Civ. Code, § 50; §§ 692 & 693.) Thus, the justification of self-defense negated defendant’s unlawful use of force. It went directly to an element of the charged offenses, and directly to defendant’s guilt or innocence. (People v. Gonzales, supra, 74 Cal.App.4th at p. 390.)

Additionally, a defendant who wishes to raise self-defense has the burden of producing evidence sufficient to raise a reasonable doubt that he acted in self-defense. (People v. Tewksbury, supra, 15 Cal.3d at p. 963.) But once the defendant has met this burden, the prosecution must prove beyond a reasonable doubt that the defendant did not act in self-defense. (Ibid.; People v. Adrian, supra, 135 Cal. App. 3d at p. 342.) The trial court is required to instruct the jury that the prosecution has the burden of proving beyond a reasonable doubt that defendant did not act in self-defense. (Ibid.; People v. Gonzales, supra, 74 Cal.App.4th at p. 390; Evid. Code, § 502.)

Here, however, the failure to instruct on self-defense was harmless beyond a reasonable doubt under the Chapman standard of review. Although substantial evidence showed that defendant may have reasonably believed he was in imminent peril after Young threatened to kill him, the evidence overwhelmingly showed that, under the circumstances, defendant used excessive force against Young. (CALJIC Nos. 5.52 & 5.53.) After defendant first hit Young and knocked Young to the ground, it should have been readily apparent to defendant that Young was extremely intoxicated and incapable of inflicting harm. Still, defendant admitted he struck Young at least two more times as Young stood up or tried to stand up. Becerra also testified that defendant repeatedly hit Young after Young tried to stand up, and that Young never hit defendant.

In sum, although defendant’s first punch may have been justified in self-defense, the evidence overwhelmingly showed that his subsequent use of force was excessive and unjustified. It is thus not reasonably possible that the failure to give self-defense instructions affected the jury’s ultimate determination that defendant assaulted Young by means of force likely to produce great bodily injury and inflicted great bodily injury on Young.

DISPOSITION

The judgment is affirmed.

King, J.

We concur:

Richli, Acting P.J.

Gaut, J.