THE PEOPLE, Plaintiff and Respondent, v. CHARLES KENNETH WAXLAX, Defendant and Appellant.
E074347 (Super.Ct.No. INF1600362)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Filed 12/9/21
CERTIFIED FOR PUBLICATION
Richard Power and Howard Cohen, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
During an altercation outside a bar after last call, Charles Waxlax stabbed Erik Kimbler in the back with a military-grade knife. Kimbler suffered serious injuries but survived. At trial, the jury rejected Waxlax‘s claim of self-defense and convicted him of the four crimes the prosecution had charged him with—attempted murder, assault with a deadly
On appeal, Waxlax argues the omission of the following three self-defense related jury instructions requires reversal of his murder and assault convictions: (i) an instruction on the doctrine of transferred self-defense, (ii) CALCRIM No. 3470, which defines self-defense for all nonhomicide offenses, and (iii) a pinpoint instruction that his specific fear of imminent danger arose from his belief he was being robbed. Waxlax also argues his dual assault convictions at the very least violate
We find Waxlax‘s claims of instructional error meritless but agree his dual assault convictions violate
I
FACTS
A. Prosecution‘s Case
According to Kimbler, he and Waxlax had been friends for several years, but their friendship ended when he started dating Waxlax‘s ex-fiancé, Shea, about a week after their breakup. When they were friends, Kimbler loaned Waxlax about $1,500, which he never repaid. At trial, Kimbler told the jury he didn‘t really care about the money because he never expected Waxlax to pay him back.
On March 27, 2015, Kimbler and Shea were celebrating his birthday with some friends at the Red Barn, a bar in Palm Desert. Waxlax also happened to be at the bar that evening but was playing pool with a different group. Kimbler had several drinks over the course of the night and was quite drunk when the bartender announced last call around 1:45 a.m.
When Kimbler saw the situation was turning into an argument, he rushed over and got between Waxlax and Contreras. With his back turned to Waxlax, Kimbler told Contreras it wasn‘t “worth it” and they should leave. As Kimbler spoke to Contreras, Waxlax came up from behind and stabbed him under his right armpit. He pushed the blade between Kimbler‘s ribs, all the way to the hilt, then kissed him on the cheek. Kimbler turned around to see Waxlax with a knife in his hands and screamed, “You fucking stabbed me!” before falling to the ground.
Waxlax left, and Shea and Contreras took Kimbler to the hospital, where he spent two weeks in a medically induced coma. The blade punctured his lung and nearly cut his liver in half. Less than an hour after the incident, at 2:27 a.m., he received a text from an unknown number that said, “If anyone goes to the hospital or talks to law, it‘s done. If my name gets even implied, everyone is done. I know how to handle this s-h-i-t.”
At trial, Kimbler said he‘d recognized the knife Waxlax used to stab him. Once when they were hanging out, Waxlax had showed him the knife (a Ka-Bar brand, military combat knife) and told him that if he ever wanted to hurt someone to stab them in the side of the chest because that would cause the “most damage.”
Though Kimbler and Contreras recounted the broad strokes of the incident similarly, their testimony differed on one topic in particular.2 Kimbler said the first time he‘d seen Waxlax that night was in the parking lot after last call. But according to Contreras, Kimbler pointed Waxlax out to him while they were at the bar and wondered why he was there. Contreras said Kimbler told him Waxlax owed him money because he had stolen from Shea. Later, around the time of last call, Kimbler mentioned Waxlax again, saying, “I don‘t like that guy, and I don‘t like that he is here.”
Waxlax testified in his own defense and gave yet another version of the events. He denied ever having been friends with Kimbler. He said he and Kimbler used to deal drugs together and that he‘d hung out with him only a few times, just to see if he could trust him enough to do business with him. He said he‘d been the one to break up with Shea and didn‘t care that Kimbler was dating her. He didn‘t know it was Kimbler‘s birthday that evening and it was just a coincidence he was at the bar.
He was alone in his car when Contreras approached him and got him to roll his window down by asking him something about his stereo system. But Contreras changed topics as soon as the window was down. Leaning in towards Waxlax with both elbows on the window‘s ledge, Contreras told Waxlax he owed Kimbler money. At this point Waxlax knew something was awry, and he felt unsettled. It was late, the parking lot was dark, and he didn‘t know this person who was demanding money from him. Just then, Shea jumped into his back seat, tried to hit him, and reached into the center console. Waxlax believed she stole the money he kept in that compartment because when the police inventoried his car after the incident, the money was gone.
After Shea got into his car, Waxlax got out, pushing Contreras aside with the driver‘s side door. He started yelling for someone to help him remove Shea, while Contreras stood just a few steps away, with his fists up, ready for a fight.
Then Waxlax noticed someone else running toward him, yelling, “Where is my mother fucking money?” He had no idea who the person was, but it was their approach—aggressive and quick—that made him realize he was about to be robbed. “When I heard the person running up saying, ‘Where is your mother fucking money at,’ that‘s when everything clicked . . . It clicked I‘m being robbed right now.” “It‘s 2:00 in the morning. People are running at me, ‘Where is your fucking money at?’ I was focused on who these two people are because I don‘t know this guy. The only person I know is that [Shea] is in my car.”
That‘s when Waxlax made the split-second decision to protect himself. He maneuvered between the two men, reached into the driver‘s side door and grabbed his knife from the floorboard. He turned around and brandished the knife, warning the two men to “Get the fuck back.” This was apparently the moment the stabbing occurred, but Waxlax‘s testimony on this point is brief and vague. He said he tried to get back into his car but Contreras lunged at
After realizing his knife had made contact with something, he got into his car and drove away. When the police interviewed him about a half-hour later, he denied knowing about the stabbing or having been in any sort of altercation at the bar. He told the officer that the only knife he was in possession of that evening was a pocket knife, and he didn‘t mention his belief that a group of people had tried to rob him. At trial, he acknowledged having seen Kimbler at the bar earlier but maintained he had no idea the person who ran up to him, and whom he stabbed, was the same person.
II
ANALYSIS
A. Dual Convictions under Section 954
We begin with Waxlax‘s assertion that his dual aggravated assault convictions—for assault with a deadly weapon (
Our Supreme Court has interpreted this language to mean that
Although now located in two separate subparagraphs of
In the early 1960s, the Legislature redesignated the aggravated assault provision as
In 2011, the Legislature amended
Specifically, because the “Three Strikes” law carries consequences for prior deadly weapon assault convictions but not force-likely convictions, the Legislature separated the two types of aggravated assault to make it readily apparent to the prosecution and the court in potential future cases which type the defendant had been convicted of.3 (Brunton, supra, 23 Cal.App.5th at pp. 1104-1105, citing Sen. Com. on
Public Safety, Analysis of Assem. Bill No. 1026 (2011-2012 Reg. Sess.).) “AB 1026 will make it easier for prosecutors and defense attorneys to determine whether or not a defendant‘s prior conviction for assault under . . . [s]ection 245(a)(1) involved an assault on a person with a deadly weapon or by any means of force likely to produce great bodily injury. . . . [¶] ‘AB 1026 does not create any new felonies or expand the punishment for any existing felonies. It merely splits an ambiguous code section into two distinct parts.“’ (Sen. Com. on Public Safety, Analysis of Assem. Bill No. 1026 (2011-2012 Reg. Sess.) as introduced Feb. 18, 2011, p. 3.)
As the court observed in Cota, the 2011 amendment “resurrected the question of whether” force-likely and deadly weapon assault are still two different ways to commit the same offense. (Cota, supra, 44 Cal.App.5th at p. 725.) The first opinion to consider the issue was Jonathan R., which held that the new structure of
places offenses “in separate subdivisions“—as the 2011 amendment to
But a little over a month before Jonathan R., our Supreme Court issued Vidana, in which it considered whether larceny (
The next two opinions to consider the connection between force-likely and deadly weapon assault were Brunton and Cota, and both found Johnathan R.‘s total reliance on the structure of
aggravated assault offense,” as well as the legislative history of the 2011 amendment. (Cota, supra, 44 Cal.App.5th at p. 728, citing Brunton, supra, 23 Cal.App.5th at p. 1107.) Those courts concluded “the Legislature did not intend for its 2011 amendment of
We agree with Brunton and Cota. In our view, those opinions have accurately interpreted the Legislature‘s view of aggravated assault by harmonizing the history of the aggravated assault statute with our lawmakers’ expressed reason for reorganizing
On balance, given the history of
based on the same criminal act. Because that is the case here, we conclude Waxlax‘s dual assault convictions violate
B. Claims of Instructional Error
Waxlax asserts three claims of instructional error. He argues the jury should have received (i) CALCRIM No. 3470, the self-defense instruction applicable to nonhomicide offenses, (ii) an instruction on the doctrine of transferred self-defense, and (iii) the optional language in CALCRIM No. 505 (the self-defense instruction for homicide offenses) indicating that his fear of imminent danger was based on his belief he was being robbed.
A trial judge has a sua sponte duty to instruct the jury on “all general principles of law relevant to the issues raised by the evidence.” (People v. Souza (2012) 54 Cal.4th 90, 115.) The general principles of law governing the case are ‘“those principles closely and openly connected with the facts before the court, and which are necessary for the jury‘s understanding of the case.“’ (People v. Breverman (1998) 19 Cal.4th 142, 154.) A court
has a sua sponte duty to instruct on a defense “‘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.‘” (Id. at p. 157, first italics added.) In this
The sua sponte obligation to give general instructions does not, however, extend to “pinpoint” instructions or optional paragraphs of instructions. (People v. Lawley (2002) 27 Cal.4th 102, 160-161.) “A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.” (People v. Lang (1989) 49 Cal.3d 991, 1024.)
We review claims of instructional error de novo. (People v. Cole (2004) 33 Cal.4th 1158.) “The proper test for judging the adequacy of instructions is to decide whether the trial court ‘fully and fairly instructed on the applicable law.‘” (People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112Ibid.)
We start with Waxlax‘s claim the judge should have instructed the jury with CALCRIM No. 3470, the general self-defense instruction for nonhomicide offenses. Waxlax acknowledges the jury was instructed on the doctrine of self-defense in the context of the attempted murder with CALCRIM No. 505, and he concedes that instruction provides a correct statement of the law. Nevertheless, he argues the lack of a similar instruction for the assault charges constitutes reversible error.
We disagree. In light of Waxlax‘s testimony and the fact the assault charges were based on the same act as the attempted murder charge, we conclude the omission of CALCRIM No. 3470 was harmless under either the federal or state standards. (See People v. Gonzalez (2018) 5 Cal.5th 186, 199 [California Supreme Court has “yet to determine whether a trial court‘s failure to instruct on a requested affirmative defense instruction supported by substantial evidence is federal constitutional error or state law error“].) The difference between CALCRIM No. 3470 and CALCRIM No. 505—that is, the difference between self-defense in the homicide context and self-defense that will justify an assault—lies in the type of the threat the defendant believed they faced. To justify a homicide or attempted homicide, the defendant must believe that “danger” or “great bodily harm” is imminent, whereas an assault committed in self-defense may
Here, the evidence did not implicate the difference between the two types of self-defense. This is because Waxlax provided the same justification for the attempted murder charge as he did for the assaults, and the justification wasn‘t that he feared a robbery accomplished by means of an unlawful touching or a simple injury. Instead, he told the jury he grabbed his knife “[s]o I can fight a bunch of people” because “I don‘t know who has a gun or weapons.” Thus, according to his own testimony, he feared his perceived assailants had weapons and would use them to take money from him. In other words, he feared great bodily harm.
But even if Waxlax‘s testimony could support a finding that he believed Kimbler and Contreras were unwilling to seriously injure him for the money but intended only to touch him in some unlawful way, CALCRIM No. 3470 is still inapplicable. This is because, if the jury believed he feared a lesser threat from the two men, his decision to defend himself with a knife becomes unreasonable or more than necessary to fend off the perceived threat. In short, Waxlax‘s testimony supported only one theory of self-defense, that he feared his attackers were armed and would seriously harm him to get what they were after. As a result, CALCRIM No. 505 sufficiently instructed the jury on the principles relevant to the evidence presented at trial.
Next we address Waxlax‘s claim that the jury should have received an instruction on transferred self-defense. That doctrine applies where the defendant acts justifiably in self-defense and in so doing “inadvertently [causes] the injury of an innocent bystander.” (People v. Mathews (1979) 91 Cal.App.3d 1018, 1024.) Waxlax argues transferred self-
defense applies to his case because his testimony shows the only person he saw as a threat was Contreras. He argues the lack of an instruction on the doctrine presented the jury with a false all-or-nothing choice regarding his claim of self-defense: either he acted to defend himself against Kimbler or he intended to harm him. He argues his testimony permitted the jury to find a third scenario was true—that he accidentally stabbed Kimbler in an effort to protect himself from Contreras.
We conclude the record does not support such a scenario. Contrary to his characterization of his testimony on appeal, Waxlax told the jury he was scared of both men and grabbed his knife to defend against both of them. He made this clear several times during his testimony, including when he said he grabbed his knife “[s]o I can fight a bunch of people” because “I don‘t know
Finally, we turn to Waxlax‘s claim that the lack of a robbery pinpoint instruction constitutes reversible error. Recognizing judges have no sua sponte obligation to provide pinpoint instructions, Waxlax argues his counsel‘s failure to request the instruction constitutes another instance of ineffective assistance. In order to establish a claim of ineffective assistance of counsel, a defendant must demonstrate that his attorney‘s performance was deficient and that the deficiency was prejudicial or had a tendency to affect the outcome of trial. (Strickland v. Washington (1984) 466 U.S. 668, 688, 690.)
Sufficiency of his counsel‘s performance aside, we conclude the lack of the pinpoint instruction was harmless. (People v. Barber (2020) 55 Cal.App.5th 787, 799 [“Any error in refusing to give a requested pinpoint instruction is reviewed under the standard enunciated in People v. Watson (1956) 46 Cal.2d 818“].)In relevant part, CACLRIM No. 505 says an attempted murder may be justified if the jury finds Waxlax “reasonably believed that [he] was in imminent danger of being killed or suffering great bodily injury.” (CALCRIM No. 505.) The instruction contains optional bracketed language that can be added to the end of this phrase if warranted by the evidence. That optional language says, “or was in imminent danger of being (raped/maimed/robbed/____ [insert other forcible or atrocious crime]).”
The point of the optional language is to identify Waxlax‘s theory of self-defense for the jury, but his trial testimony and the closing arguments from both sides did an adequate job of that. Waxlax spent the majority of his testimony explaining that he thought he was being robbed, and both sides highlighted that testimony at length in their closing remarks to the jury. Additionally, it is not as though the generic threat language in CALCRIM No. 505 was at odds with Waxlax‘s testimony such that it could lead the jurors to reject his claim of self-defense even if they credited his testimony that he thought he was being robbed. Waxlax testified that both men asked him about money and acted aggressively and that he feared they might have weapons. While this testimony supports a finding that he thought he was being robbed, it equally supports a finding that he thought he was in imminent danger of serious bodily harm.
“Forcible and atrocious crimes are generally those crimes whose character and manner reasonably create a fear of death or great bodily injury.” (CALCRIM No. 505, citing People v. Ceballos (1974) 12 Cal.3d 470, 479, italics added.) As such, the pinpoint
III
DISPOSITION
We vacate the conviction for assault with force likely to cause great bodily injury (
judgment as modified in this opinion and forward a certified copy to the Department of Corrections and Rehabilitation.
CERTIFIED FOR PUBLICATION
SLOUGH
J.
We concur:
McKINSTER
Acting P. J.
MENETREZ
J.