APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J. Schuit, Judge. Reversed and remanded. (Los Angeles County Super. Ct. No. PA049631).
The opinion of the court was delivered by: Croskey, J.
CERTIFIED FOR PUBLICATION
Defendant and appellant Roberto Villanueva had an altercation with Evelio Manzano. Later that day, Manzano drove back to the location of their earlier fight, and discovered that defendant was still there. Defendant pulled a gun and told Manzano, who did not exit his van, to leave. Eventually, Manzano put his van in reverse and backed away, but then stopped, and tried to put his van into gear so he could drive away. Defendant shot Manzano, injuring him. Defendant testified that, when Manzano was putting his van into gear, defendant feared that Manzano was going to hit him with the van. However, defendant did not claim that he intentionally fired at Manzano in self-defense. Instead, defendant testified that, while in fear for his life, he stepped back quickly and the gun accidentally discharged. At trial, the trial court denied defendant's request that the jury be instructed on self-defense, and the lesser included offense of attempted voluntary manslaughter on the basis of imperfect self-defense. Defendant was convicted of attempted second-degree murder. On appeal, he contends the trial court erred in refusing his requested instructions. We agree, and therefore reverse. Additionally, we conclude the jury should have been instructed on Penal Code section 195, providing that a homicide is excusable when committed by accident and misfortune in the course of doing a lawful act by lawful means, without any unlawful intent; and that brandishing a weapon in self-defense is a lawful act.
FACTUAL AND PROCEDURAL BACKGROUND
The location of the shooting was the parking lot of the Mandarin Deli restaurant. Manzano had previously worked at the Mandarin Deli; he had been fired for drinking on the job. Manzano remained friends with Isidro Vargas, an employee of the Mandarin Deli. He would visit Vargas and drink beer with him outside the restaurant. Other people would sometimes join them, including defendant, who was Vargas's cousin.*fn1
The relevant facts involve three encounters between Manzano and defendant on October 6, 2004. On that day, Manzano and defendant drank together in the Mandarin Deli parking lot from 3:00 p.m. to 4:30 p.m. It is unclear who brought the beers, but the men kept the beers in a bucket on the ground. Manzano drank approximately eight or nine beers; he had also consumed some cocaine the night before.*fn2
Manzano testified that this amount of alcohol did not render him "falling down" drunk. His former employer testified that when Manzano drank, he spoke louder and acted more "macho." Defendant testified that he had known Manzano to have gotten into fights. Manzano testified that defendant drank as much as he did that afternoon. Manzano left the Mandarin Deli at 4:30 p.m. to return to his job at another nearby restaurant.
Around 5:30 p.m., Manzano returned to the Mandarin Deli. While the facts of this encounter were highly disputed, this much is clear: (1) Manzano tried to take more beer from the bucket; (2) defendant tried to stop him from taking the beer; and (3) the two fought verbally and physically.
According to Manzano, he took one beer and drank it while defendant also drank. When Manzano reached for a second beer, defendant pushed him away.
Manzano asked "What's wrong with you?" and defendant pushed him again. Defendant tried to kick Manzano; Manzano grabbed defendant, and defendant fell. At this point, according to Manzano, Vargas came outside and told him to leave; Manzano left.
According to defendant, when Manzano reached for a beer, defendant told him they could not drink there any more. (Defendant testified that Vargas's boss's wife had seen them drinking earlier, and defendant did not want Vargas to get into trouble.) Manzano ignored defendant and grabbed a beer anyway. Defendant took the beer from him and put it back in the bucket. Defendant stood between Manzano and the beer. Manzano pushed him away, and defendant pushed back. The pushing escalated, and Manzano fell. Manzano then punched defendant on the forearm, and defendant fell. Vargas then told Manzano to leave. Before leaving, Manzano said to defendant, "You better watch your back because the next time I see you I'm going to kill you, m----f----."
Vargas testified that he did not see the fight until one of his friends told him that the two men were fighting in the parking lot. Vargas saw them both throwing blows, but saw neither man fall. He told them to break it up, calm down, and leave. Defendant and Manzano went off in separate directions.
An unrelated eyewitness, Archie Kelly, was walking in the alley behind the Mandarin Deli parking lot, and also saw the fight. He heard the men arguing in Spanish, but could not understand what they were saying. Kelly clearly believed one of two men was more aggressive than the other; he appeared enraged, while the other man seemed to be gesturing to leave the matter alone. However, Kelly's testimony was ambiguous as to which of the two men was the aggressor. Kelly was positive that the man who came out of the restaurant (which would have been defendant) was more aggressive than the man who drove up in the van (which would have been Manzano). However, when Kelly saw defendant in court, he was equally positive that defendant was the more peaceful of the two, and gave a physical description of Manzano as the one who was the aggressor.*fn3
Manzano next returned to the Mandarin Deli after work, at 9:30 p.m. According to Manzano, he was going to ask another Mandarin Deli employee for a ride to work the next day, as his van was not working properly. That employee testified that he barely knew Manzano, and had only seen him twice before. In any event, it is undisputed that Manzano, for whatever reason, drove to the Mandarin Deli at 9:30 p.m. Defendant, who had made plans with Vargas for that night, was waiting in the parking lot for Vargas to finish work. As with the earlier incident, the facts of this encounter were highly disputed. The following facts, however, were clearly established: (1) Manzano parked his van in the parking lot; (2) At some point, defendant went to his car and obtained a gun; he loaded the gun and chambered a round; (3) Defendant approached ...