People v. Smith, 2017 Cal. App. Unpub. LEXIS 3948 (CA Ct. App. 2017)

Court of Appeal of California, First Appellate District, Division Five

June 9, 2017, Opinion Filed


2017 Cal. App. Unpub. LEXIS 3948

THE PEOPLE, Plaintiff and Respondent, v. HARRY SMITH, Defendant and Appellant.

Judges: NEEDHAM, J.; SIMONS, ACTING P. J., BRUINIERS, J. concurred.

Opinion by: NEEDHAM, J.


Appellant Harry Smith cut M.A’s neck with a knife, causing a serious injury. During his jury trial on attempted murder and assault charges, appellant testified that the injury was inflicted accidentally and was justified in any event because he was trying to prevent M.A. from pimping out a teenage girl. A jury acquitted appellant of attempted murder and the lesser included offense of attempted voluntary manslaughter, but convicted him of assault with a deadly weapon with an enhancement for the personal infliction of great bodily injury. (Pen. Code, §§ 187/664, 245, subd. (a)(1), 12022.7, subd. (a).) [1] The court sentenced appellant to prison for 16 years after the jury returned true findings on prior conviction and prior prison term allegations in a bifurcated trial. (§ 667, subd. (a), 667.5, subd. (b), 1170.12.) [2]

Appellant argues the judgment must be reversed because (1) the trial court failed to elaborate on the meaning of “imminent danger” in response to a jury question concerning the elements of defense of another; (2) the court should have instructed the jury sua sponte that it could consider appellant’s knowledge of M.A.’s prior bad acts when determining whether his actions were reasonable under the circumstances; and (3) the cumulative effect of these two errors requires reversal. We affirm.


At 10:00 p.m. on March 12, 2012, M.A. and her friend Jamila Moore were in and around the Auburn Hotel on Minna Street in San Francisco. M.A. was talking to a man while sitting on the stoop of the hotel inside a security gate. The area was rife with crime and M.A. had ingested several different kinds of drugs that evening. Appellant, who lived nearby and earned money selling drugs to “people of class,” came to the hotel and spoke briefly to Moore inside the gate, before pushing her head against the gate and punching her in the head. Still arguing, appellant and Moore walked out of the security gate and onto the street. M.A. followed and shortly thereafter, the three of them came back inside the security gate. Moore sat on the stoop inside the gate and M.A. stood between her and appellant as appellant tried to hit Moore again. Appellant walked outside the gate onto the street and Moore followed.

Appellant and Moore continued their conversation on the sidewalk outside the hotel. M.A. walked outside the gate and stood at the curb several yards away from them, looking toward the street. Appellant approached M.A. from behind and threw her to the ground before walking away from the scene. When paramedics arrived, M.A. was hunched over and blood was squirting with great force from a cut in her neck, reaching a distance of about three feet away when she was being treated in the ambulance. M.A. was taken to the hospital where she underwent surgery. A slash wound had penetrated skin and muscle and had almost cut her trachea. Her jugular vein was severed and had to be permanently clamped off. According to the trauma surgeon who treated M.A., “significant force” would have been required to cause M.A.’s injury, which was very severe and involved a great deal of blood loss.

Police officers who responded to the stabbing collected surveillance videos from the Auburn Hotel’s security cameras, two of which captured footage of the attack. Appellant was identified as a suspect and officers went to the residential hotel where he lived. He was not in his room, but the officers heard barking in another room, and, knowing appellant had a pit bull, knocked on the door of that room. The room’s occupant opened the door and told appellant to come out, and the officers forced entry when appellant did not immediately do so. As appellant was being handcuffed and taken into custody he said, “I knew you guys would be comin’ for me.”

Appellant was taken to the police station and was interviewed after he waived his rights under Miranda v. Arizona (1966) 384 U.S. 436, 474. He initially told the officers he had not gone to the Auburn Hotel that evening, but after being shown a picture of himself from the surveillance cameras he acknowledged he had gone there “to get the dope to get high.” He said he gave some money to Moore, who was “like his niece,” in part to pay the debt of a light-skinned girl with curly hair whom Moore was about to beat up. M.A. approached him from behind like “a dude.” Appellant told her if she was going to act like a dude he would fight her like a dude. He came up behind her, put her in a chokehold and threw her to the ground before walking away. Appellant did not know how her neck got cut. [3]

The surveillance videos showing the altercation were admitted into evidence and played for the jury during appellant’s trial. M.A. testified that she started to assist Moore when appellant pushed her, but both Moore and appellant told her to “get out of here.” As she was walking away from the hotel, appellant came up behind her and put a knife to her throat. Appellant cut M.A’s throat, stabbed her in the jugular three times, threw her on the ground, kicked her in the head and told her she was a “fuckin’ bitch.” When she stood up, blood was shooting out of her neck “like[] a fire hydrant.” Before the stabbing, M.A. had been speaking to a male friend of Moore’s about a girl he was supposed to meet. M.A. acknowledged being an actress in pornographic films but denied any familiarity with street prostitution.

Appellant testified that Moore and M.A. had a reputation as “players and pimps” in the neighborhood. On the night in question, he saw Moore accusing a “little girl” he had never seen before of owing her money. The girl, who appellant later learned was named “Amber,” had curly hair, appeared to be 15 or 16 years old, and did not look like she belonged in the neighborhood. Appellant believed Moore and M.A. were going to take the girl into the Auburn Hotel to make her perform acts of prostitution in exchange for the debt. Appellant did not know the girl, but he gave Moore some money to pay her debt and expected Moore to bring him some change.

When appellant went back later to check on Moore, he saw that the girl was across the street and that M.A. was getting drugs from a man. Appellant believed the girl would be taken into the Auburn Hotel to have sex with the man in exchange for drugs, so he confronted Moore and pushed her. M.A. came over to help Moore and appellant walked away, knowing there were security cameras recording them. Moore followed, telling appellant M.A. had sold the girl already and “the girl gotta go in there and do what she gotta do” because she had already been paid.

M.A. came out of the hotel gate and called the girl over from across the street to take her into the hotel. Appellant felt bad because “she was just like a little innocent, cute little girl. And I never seen her down there. Dressed properly, no dirty clothes really. She wasn’t from down there. [¶] I mean I’m pretty sure she wasn’t from down there. She was real little. She was cute. And she was young. She just wanted to get high. She didn’t know no better.”

Appellant went over to M.A. as she stood on the street and tried to scare her, saying something like, “Bitch, leave the little girl alone.” He grabbed M.A. from behind and when she started to fall unexpectedly, he leaned her down on the ground to try to break her fall. Appellant continued to tell M.A. to leave the girl alone and when the girl appeared to be safe, he walked away. He returned to the hotel where he lived and went to another occupant’s room to get high, where he received a call from a friend telling him M.A. had been hurt and police were everywhere. Before that he was unaware she had been injured.

Appellant denied putting a knife to M.A.’s neck, though he testified that he did have a folding knife on his key chain with a two-and-a-half inch blade. The blade was “by her neck” while he was talking and she could have been hurt by it when he “twisted her down” to the ground. “Evidently, I —it had to be me, but . . . I didn’t do it intentionally.” Appellant acknowledged that the girl he was protecting did not appear in the surveillance videos.


A. Response to Jury Question Regarding Definition of “Imminent Danger”

In light of appellant’s testimony that M.A. was injured while he was attempting to prevent her from pimping out a teenage girl, the trial court instructed the jury on the defense of another as a legal justification to the charges of attempted murder and assault with a deadly weapon. [4] Appellant does not claim any defect in the instructions given, but argues the court should have further defined the term “imminent danger” when the jury sent a note seeking an “elaborated definition” of that term. We disagree.

1. Instructions Given and Jury Questions

As to the assault with a deadly weapon count, the court gave CALCRIM No. 3470 regarding the defense of another. That instruction provided in part: “Self-defense is a defense to Assault with a Deadly or Dangerous Weapon. The defendant is not guilty of that crime if he used force against the other person in lawful defense of another. The defendant acted in lawful defense of another if: [¶] “1. The defendant reasonably believed that “Amber” was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully; [¶] 2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of bodily injury to someone else or an imminent danger that someone else would be touched unlawfully. Defendant’s belief must have been reasonable and he must have acted because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful defense of another.”

As to the attempted murder count (of which appellant was acquitted), the trial court instructed the jury with CALCRIM No. 505, which defined the defense of another in similar but not identical terms. Consistent with case law concerning the justified use of deadly force, the instruction stated that lawful defense of another required a reasonable belief that “Amber was in imminent danger of being killed or suffering great bodily injury” (italics added), not simply a reasonable belief that she was in imminent danger of being unlawfully touched. (See People v. Hardin (2000) 85 Cal.App.4th 625, 629-630 [“deadly force or force likely to cause great bodily injury may be used only to repel an attack which is in itself deadly or likely to cause great bodily injury”].) At defense counsel’s request, the court added a pinpoint instruction defining imminent danger in connection with the attempted murder count, which was drawn from CALJIC No. 5.17 and which advised the jurors: “Imminent danger of being killed or suffering great bodily injury means one that is apparent, present, and must be instantly dealt with.” [5]

The jury deliberated over six days between June 2 and June 9, 2015. During that time, it sent several notes requesting readbacks of testimony and the clarification of certain instructions.

As relevant to the issue before us, a note sent on June 4 at 11:33 a.m. requested a readback of appellant’s testimony regarding his observations of the interactions between M.A., Moore, and “Amber,” and “what danger he perceived ‘Amber’ to be in throughout the night.” The court arranged for a readback of the relevant testimony. On June 8, at 11:39 a.m., the jury sent a note informing the court that it had reached a verdict on count 1, attempted murder, and requesting a readback of “any witness testimony regarding the danger (and potential imminence of danger) that Amber may have been in.” In response to the note, the court directed the jurors to put their verdict form for count 1 into an envelope and continue deliberating on the remaining charge. With regard to the readback request, the court asked the jury to be more specific.

At 12:15 p.m. on June 8, the jurors sent a note requesting a readback of appellant’s testimony “related to his observations and perceptions related to Amber’s situation immediately prior to the incident between Mr. Smith and [M.A.].” Before the reporter had prepared the transcript of the relevant testimony, the jury sent another note at 2:35 p.m. In that note, the jury requested a readback of appellant’s testimony regarding what he saw “Amber” do after the stabbing. The court arranged for a readback in response to both requests. At 4:17 p.m. on the same day, the jury sent another note, asking for clarification on the three elements outlined in CALCRIM No. 3470, specifically with regard to how to determine whether the amount of force used by appellant was reasonable.

At 9:44 a.m. on June 9, the court responded to the jurors’ note from the previous afternoon, asking them to describe their difficulty with the reasonable force element with more specificity. At 10:18 a.m., the jurors sent a note stating they had not been able to reach a verdict on count 2. The court called the jurors back into the courtroom and acknowledged that jury deliberations can be difficult and impasses were not uncommon. The court asked the jury to “try a little bit more, if you can,” asked if it could provide any information or clarification that would be of assistance, and suggested the jurors take a short break to see if they could formulate a question explaining their difficulty.

Shortly after, at 11:31 a.m., the jury sent a lengthy note with four separate inquiries, including (1) whether the court could clarify what “reasonable” meant as used in the various elements of CALCRIM No. 3470’s definition of defense of another; (2) under what circumstances could an individual conclude the first element of defense of another (reasonable belief in imminent danger) had been satisfied, but the third element (reasonable amount of force) had not; and (3) “Can you please provide us with an elaborated definition of im[m]inent danger? Although we were provided with a definition in the jury instructions, we are having trouble coming to consensus on what this means and would appreciate further clarification (i.e. other phrasing).” (Italics added.)

The trial court consulted with counsel about its proposed response to the jury’s questions, including the jury’s request for an “elaborated definition” of imminent danger. The court was initially reluctant to provide an additional definition of this term to the jury: “We’ve given them the best definition that we can . . . we cannot give them a better definition than we have . . . beyond that, it’s for them to use their understanding of the every day meanings of the words.”

Ultimately, the court sent a written response to the jurors’ note advising them that in assessing reasonableness, they were to decide whether a reasonable person in the defendant’s circumstance would have perceived a threat of imminent danger of bodily injury or being touched unlawfully, not whether the assault was “an understandable response from the defendant’s point of view.” The court’s note also advised the jury to reread the instructions regarding “reasonably necessary,” and told the jury the elements of the defense were to be decided separately. Finally, the court’s noted stated: “[F]or the purposes of instruction 3470, the term ‘imminent danger of suffering great bodily injury or being touched unlawfully’ means one that is apparent, present and must be instantly dealt with.” Defense counsel acceded to the court’s further definition of the term “imminent danger.”

Later that afternoon, at 2:18 p.m., the jury reached its verdict.

2. Analysis

Like the closely-related doctrine of self-defense, the defense of others requires that the defendant “‘actually and reasonably believe in the need to defend.'” (People v. Battle (2011) 198 Cal.App.4th 50, 72.) “‘[T]he fear must be of imminent harm. “Fear of future harm—no matter how great the fear and no matter how great the likelihood of the harm—will not suffice.”‘” (Ibid.) “‘An imminent peril is one that, from appearances, must be instantly dealt with.'” (People v. Trujeque (2015) 61 Cal.4th 227, 270, italics omitted.) Thus, the trial court did not misstate the law in any way when it advised the jurors, in response to their request for clarification, that “‘imminent danger of suffering great bodily injury or being touched unlawfully’ means one that is apparent, present and must be instantly dealt with.” Indeed, “imminent” is a term of ordinary meaning that requires no additional definition absent a request. (See People v. Lopez (2011) 199 Cal.App.4th 1297, 1304-1307.)

Appellant contends the trial court should have offered additional guidance on the definition of imminent danger. Noting that the court’s response simply repeated the definition that had been previously provided in connection with the attempted murder count, he argues it would have done nothing to allay the jurors’ confusion. Appellant suggests the court should have instead amplified the definition already given with the following language from People v. Aris (1989) 215 Cal.App.3d 1178, 1188: “There must be such a demonstration of an immediate intention to execute the threat as to induce a reasonable belief that the party threatened will [be unlawfully touched] unless he immediately defends himself against the attack of his adversary.” [6]

The issue has not been preserved for appeal. Appellant’s trial counsel (who acted as a zealous and effective advocate throughout the proceedings) did not suggest any change to the court’s proposed answer regarding the definition of imminent danger. “Where, as here, appellant consents to the trial court’s response to jury questions during deliberations, any claim of error with respect thereto is [forfeited].” (People v. Bohana (2000) 84 Cal.App.4th 360, 373; see People v. Jennings (2010) 50 Cal.4th 616, 683; People v. Rodrigues (1994) 8 Cal.4th 1060, 1193; People v. Cooper (1991) 53 Cal.3d 771, 847.)

Even if we were to find the issue preserved on appeal, we would reject it on its merits. Section 1138 [7] imposes on the trial court a duty to provide a deliberating jury with information it desires on points of law. (People v. Smithey (1999) 20 Cal.4th 936, 985 (Smithey).) “The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions . . . . Indeed, comments diverging from the standard are often risky. [Citation.]” (People v. Beardslee (1991) 53 Cal.3d 68, 97.) “Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information.” (Ibid.) A trial court may satisfy its duty under section 1138 simply by rereading instructions already given if these instructions are a full and complete answer to the jury’s question. (Smithey, at pp. 984-985.)

The court in this case supplied the jury with a correct definition of imminent danger that had been taken from a pattern jury instruction and had already been provided in connection with the attempted murder charge. The definition of imminent danger now suggested by appellant—”such a demonstration of an immediate intention to execute the threat as to induce a reasonable belief that the party threatened will be unlawfully touched unless he immediately defends himself against the attack of his adversary”—was not substantively different than the definition actually provided by the trial court—”one that is apparent, present and must be instantly dealt with.” Both definitions advised the jury that an imminent danger was an immediate one and a future risk was not sufficient. Both definitions were sufficient to enable the jury to resolve the factual question before it. The trial court did not abuse its discretion. (People v. Eid (2010) 187 Cal.App.4th 859, 881-882 [court’s response under § 1138 reviewed for abuse of discretion].)

B. Sua Sponte Instruction on Victim’s Prior Conduct

Appellant argues the trial court had a sua sponte duty to instruct the jury with an optional, bracketed paragraph contained in CALCRIM No. 3470: “[If you find that the threatened or harmed the defendant or others in the past, you may consider that information in deciding whether the defendant’s conduct and beliefs were reasonable.]” We disagree.

A trial court “is required to instruct sua sponte only on general principles which are necessary for the jury’s understanding of the case. It need not instruct on specific points or special theories which might be applicable to a particular case, absent a request for such an instruction. [Citations.] Alternatively expressed, ‘[i]f an instruction relates “particular facts to the elements of the offense charged,” it is a pinpoint instruction and the court does not have a sua sponte duty to instruct.'” (People v. Garvin (2003) 110 Cal.App.4th 484, 488-489 (Garvin).)

In Garvin, the court concluded that an instruction on the effect of prior assaults by the victim upon the reasonableness of the defendant’s use of force “highlights a particular aspect of this defense and relates it to a particular piece of evidence. An instruction on the topic of antecedent assaults is analogous to a clarifying instruction. It is axiomatic that ‘[a] defendant who believes that an instruction requires clarification must request it.'” (Garvin, supra, 110 Cal.App.4th at p. 489.) Thus, while “it is erroneous to refuse a request for instruction on the effect of the victim’s antecedent threats or assaults . . . on the reasonableness of the defendant’s conduct” (id., at p. 488) such instructions are pinpoint instructions that need not be given absent a request (id., at p. 489).

Defense counsel did not request an instruction on the effect of prior threats or acts of violence by M.A. Assuming such an instruction would have been appropriate based on appellant’s testimony about his general belief that M.A. had acted as a pimp in the past, the bracketed paragraph of CALCRIM No. 3470 was a pinpoint instruction that was not required to be given sua sponte. (People v. Hughes (2002) 27 Cal.4th 287, 361.)

C. Cumulative Error

Because we have found no error, there are no errors to cumulate. (See People v. Calderon (2004) 124 Cal.App.4th 80, 93.)


The judgment is affirmed.


We concur.




1. Further statutory references are to the Penal Code.

2. The 16-year aggregate sentence included the three-year middle term for the assault count (§ 245, subd. (a)(1)), doubled to six years based on a prior conviction under the Three Strikes law (§ 1170.12, subd. (c)(1)), a consecutive three-year term for the great bodily injury enhancement (§ 12022.7, subd. (a)), a five-year serious felony prior conviction enhancement (§ 667, subd. (a)), and two one-year terms for two prior prison term enhancements (§ 667.5, subd. (b)).

3. We have reviewed the surveillance videos admitted into evidence and none of them show M.A. approaching appellant from behind in the moments before he threw her to the ground.

4. The court also gave CALCRIM No. 3404 regarding the defense of accident: “The defendant is not guilty of Attempted Murder or Assault with a Deadly Weapon if he acted without the intent required for [those crimes], but acted instead accidentally. You may not find the defendant guilty of Attempted Murder or Assault with a Deadly Weapon unless you are convinced beyond a reasonable doubt that he acted with the required intent.”

5. The court did not give a pinpoint instruction requested by the prosecution: “The term imminent danger means that the danger of death, great bodily injury or danger of unlawful touching must have existed or appeared to the defendant at the very time that he grabbed [M.A.] from behind. In other words the danger must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent danger is one that, from appearances, must be instantly dealt with.”

6. Aris was overruled on unrelated grounds in People v. Humphrey (1996) 13 Cal.4th 1073, 1089.

7. Section 1138 provides: “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.”

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