COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
December 22, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
KEVIN CHRISTOPHER ROYLE, DEFENDANT AND APPELLANT.
APPEAL from a judgment of the Superior Court of San Diego County, Louis R. Hanoian, Judge. Affirmed. Super. Ct. No. SCE276920
The opinion of the court was delivered by: O'rourke, J.
P. v. Royle CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted Kevin Christopher Royle of first degree murder (Pen. Code,*fn1 § 187, subd. (a); count 1) and assault with a semiautomatic firearm (§ 245, subd. (b); count 2). As to both counts, the jury found true allegations that Royle personally and intentionally used a firearm (§ 12022.5, subd. (a)), and as to count 1, the jury found true an allegation that Royle personally and intentionally discharged a firearm that proximately caused death (§ 12022.53, subd. (d)). Royle admitted one prior felony conviction and one prior strike conviction (§§ 667, subds. (a)(1), (b)-(i), 1170.12). The court sentenced him to a determinate term of 16 years for count 2 plus an indeterminate term of 75 years to life for count 1, consisting of a determinate lower two-strike term of six years in count 2, plus an indeterminate two-strike term of 50 years to life, plus an indeterminate term of 25 years to life for the firearm use in count 1, and two five-year terms for the serious prior felony conviction in counts 1 and 2 (§§ 667, subds. (a)(1), (b)-(i), 1170.12).
Royle contends the court prejudicially erred in refusing to instruct the jury on the theories of imperfect self-defense and justifiable homicide based on self-defense under CALCRIM Nos. 571 and 505, respectively. Royle further contends the prosecutor committed misconduct during closing argument by improperly appealing to the jury's passion and prejudice. We affirm the judgment.
James Parker rented a home in Lakeside, California where he lived with his girlfriend, Meghan Morgan, and her uncles, defendant and Dennis Royle.*fn2 Dennis testified that on December 29, 2007, Royle pointed a gun at him during an argument. Parker had a "no-gun" policy at the residence. When Parker returned home, Dennis told Parker about Royle's gun. Parker and Royle argued in the yard and got into a "small scuffle." Parker pinned Royle to the ground and yelled at him to take the gun out of the house. After the scuffle, Parker followed Royle back into the house and continued to argue with him in Royle's bedroom. Parker then went outside and spoke with Morgan on his cell phone. While sitting in the living room, Dennis saw Royle exit the house and heard him say, "You want some, punk?" Morgan testified Parker told her about the argument during their phone conversation and then she heard the phone drop on the ground. Dennis heard gunshots and went outside where he found Parker lying on the ground.
Royle's neighbor, Derrell Carriger, testified he heard gunfire while sitting at his desk about 100 feet away from Parker's driveway. Carriger stood up, looked out his window, and saw Royle pointing a gun at Parker. Parker was on the ground on one knee about 10 feet away from Royle. Royle placed the gun in his waistband, covered it with his coat, and walked down the driveway. Carriger went outside and saw Parker lying on the ground, talking on his cell phone in a low voice.
The gunshot wounds caused internal bleeding and Parker died quickly. A pathologist testified the cause of Parker's death was a gunshot wound to the lower torso.
Royle contends the court prejudicially erred by refusing to instruct the jury on voluntary manslaughter based on imperfect self-defense and justifiable homicide based on true or "perfect" self-defense. He maintains the evidence justifies the instruction because it shows that after the scuffle, Parker got "increasingly angry and charged at [him] before [he] fired his weapon."
As requested by Royle, CALCRIM No. 571 states: "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense. [¶] If you conclude the defendant acted in complete self-defense, his action was lawful and you must find him not guilty of any crime. The difference between complete self-defense and imperfect self-defense depends on whether the defendant's belief in the need to use deadly force was reasonable. [¶] The defendant acted in imperfect self-defense if: [¶] 1. The defendant actually believed that he was in imminent danger of being killed or suffering great bodily injury; [¶] AND [¶] 2. The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger; [¶] BUT [¶] 3. At least one of those beliefs was unreasonable."
CALCRIM No. 505, addressing justifiable homicide based on perfect self-defense, states: "The defendant is not guilty of murder or manslaughter if he was justified in killing someone in self-defense. The defendant acted in lawful self-defense if: [¶]
1. The defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily injury; [¶] 2. The defendant reasonably believed that the immediate use of deadly 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."
The trial judge refused to give the requested instructions, ruling that "the subjective elements of both perfect and imperfect self-defense [are] lacking here . . . and I don't believe that there is substantial evidence in the record that would support the giving of either instruction and neither of them will be given." Although the court denied Royle's request to include the self-defense instructions, defense counsel suggested in his closing statement that Parker "charged" Royle during their argument in the yard. Because we conclude the defense presented no evidence to support the giving of the requested instructions, Royle's claim fails.
Addressing a similar claim of instructional error, the California Supreme Court explained: "An unlawful killing involving either an intent to kill or a conscious disregard for life constitutes voluntary manslaughter, rather than murder, when the defendant acts upon an actual but unreasonable belief in the need for self-defense. [Citations.] In addition, a homicide is justifiable and non-criminal where the actor possessed both an actual and reasonable belief in the need to defend. [Citations.] In either case, 'the 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. The defendant's fear must be of imminent danger to life or great bodily injury." ' [Citations.] The trial court need not give [perfect or imperfect self-defense] instructions on request absent substantial evidence to support them." (People v. Stitely (2005) 35 Cal.4th 514, 550; see also People v. Manriquez (2005) 37 Cal.4th 547, 581; In re Christian S. (1994) 7 Cal.4th 768, 783.) Where there is no evidence from which a jury could reasonably conclude a defendant had an actual or honest belief in the need to defend against imminent danger to himself or others, such instructions are properly refused. (People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1269; accord, People v. Breverman (1998) 19 Cal.4th 142, 162 [instructions on imperfect self-defense required where the evidence that the defendant was guilty only of that lesser offense is " 'substantial enough to merit [a jury's] consideration' "; the existence of any evidence, no matter how weak, will not justify instructions on a lesser included offense]; People v. Barton (1995) 12 Cal.4th 186, 201 [sua sponte instruction that defendant killed in unreasonable self-defense is not required when the evidence is " 'minimal and insubstantial' "].) On appeal, we apply a de novo standard of review. (Manriquez, at p. 581.)
Here, the evidence was insufficient to require the giving of either self-defense instruction. The record is devoid of evidence suggesting Royle shot Parker because he actually believed he was in imminent danger of being killed or seriously injured. Royle and Parker engaged in a "small scuffle" in the yard, but the physical portion of the altercation had ended before Royle pursued Parker outside and shot him. Both Carriger and Morgan testified that Parker was outside the house talking on his cell phone at the time of the shooting and Dennis stated he heard Royle say, "You want some punk?" as he walked with his gun from inside the house outside to approach Parker. Carriger observed Royle pointing his gun only feet away from Parker immediately after the shooting. Given this state of the evidence, in which nothing suggests Parker charged at Royle and there is no evidence from which the jury can infer that to be the case, the subjective elements required for imperfect self-defense and perfect self-defense are lacking. We therefore conclude the court correctly refused to instruct the jury with CALCRIM Nos. 571 and 505.
In his closing argument, defense counsel asked the jury to "pretend" a videotape existed showing Parker "charging" Royle. However, a statement made by an attorney in his closing argument is not evidence and the court repeatedly instructed the jury that "[n]othing that the attorneys say is evidence . . . only the witnesses' answers are evidence." Moreover, the court instructed the jury on the lesser included offense of voluntary manslaughter based upon the alternate theories of sudden quarrel and heat of passion. The jury's verdict finding Royle guilty of first degree murder implicitly rejected those theories and defense counsel's version of the events, leaving no doubt the jury would have returned the same verdict even had it been given the self-defense instructions. (Accord, People v. Manriquez, supra, 37 Cal.4th at pp. 582-583.) Thus, even presuming the instructions should have been given, any error was not prejudicial even under a harmless beyond a reasonable doubt standard. (See People v. Demetrulias (2006) 39 Cal.4th 1, 23-24.)
Royle contends the prosecutor committed misconduct in his closing argument by improperly appealing to the passion and prejudice of the jury. He asserts the prosecutor initially erred by asking the jury to view the case from the standpoint of the victim. During his rebuttal argument, the prosecutor stated to the jury: "It's kind of cliche, but what would Jim Parker tell you if he was here? If he could, which obviously he can't, hopefully his spirit is here with us today as well as his family, he would say, isn't it ironic I had a no-gun rule, had to give my life to prove that, but looking back on things, I guess Meghan Morgan was little nuttier than I thought. Dennis Royle, nice guy, alcoholic, but he was harmless. And I wish I never would have let Uncle Kevin Royle live in my house because he killed me. He's a nut I knew it was coming, that's why I had a no-gun rule." Royle's counsel objected*fn3 to the prosecutor's statement, but failed to request a curative instruction.
As to the first statement, we need not decide whether the prosecutor's comments amount to misconduct in the form of inviting the jury to view the case from the victim's standpoint. (See People v. Lopez (2008) 42 Cal.4th 960, 969-970.) Royle forfeited his claim on appeal by failing to request a curative instruction. "A defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, [he] objected to the action and also requested that the jury be admonished to disregard the perceived impropriety." (People v. Thornton (2007) 41 Cal.4th 391, 454.)
Even assuming the prosecutor committed misconduct when he invited the jurors to imagine what Parker would say about his death, and made an improper appeal to the passion and prejudice of the jury, such misconduct would be harmless. The evidence of Royle's guilt was strong and corroborated by physical evidence as well as testimony from Dennis, Morgan, and Carriger. Further, the trial court instructed the jurors they were not to be influenced by sympathy, prejudice, or opinion. It instructed them not to consider statements by counsel as evidence. The jury is presumed to have understood and followed these instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.) In these circumstances, we conclude any presumed misconduct was harmless under any standard, even the Chapman beyond a reasonable doubt standard. (Chapman v. California (1967) 386 U.S. 18, 24.)
Royle further contends the prosecutor committed misconduct when he stated to the jury: "I don't mean to make light of what happened here but I want to give you real life examples of premeditation and deliberation cause [sic] that's what Kevin Royle did. Justice here warrants holding him accountable. Once again, I know it's not a pleasant task, it doesn't bring me great joy to be here by any means to ask you to do this." Royle's counsel objected to the prosecutor's statement as "improper" and the trial court overruled the objection.
"A prosecutor may not express a personal opinion or belief in the guilt of the accused when there is a substantial danger that the jury will view the comments as based on information other than evidence adduced at trial." (People v. Mincey (1992) 2 Cal.4th 408, 447.) However, not all such statements are improper as a prosecutor's comments must be evaluated in the context in which they were made to determine if there is a substantial risk that the jury considered the remarks outside of the evidence presented at trial. (People v. Lopez, supra, 42 Cal.4th at p. 971.)
Here, the prosecutor's comments did not imply that he based his belief of Royle's guilt on evidence not presented at trial. To the contrary, the prosecutor stated that "[t]he evidence, not possibilities, not other theories, the evidence in this case is that [Royle is] guilty of first-degree murder . . . and please hold him accountable." Because we conclude the prosecutor's second statement was a reasonable commentary on the evidence and not an improper opinion of the defendant's guilt, Royle's claim of prosecutorial misconduct fails.
The judgment is affirmed.
McCONNELL, P. J.