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The People v. Dwayne Brian Burns

August 22, 2011


(Super. Ct. No. 07F3931) APPEAL from a judgment of the Superior Court of Shasta County, Stephen H. Baker and Cara Beatty, Judges.

The opinion of the court was delivered by: Nicholson , J.



Defendant Dwayne Brian Burns went into someone else's home at around 4:00 in the morning looking for a woman with whom he had a "quasi-romantic" and "quasi-sexual" relationship. When he found her in the bed of one of the residents of the home, he pepper-sprayed two of the residents. Convicted, after two trials, of misdemeanor carrying a loaded firearm and misdemeanor aggravated trespassing (in the first trial) and felony use of tear gas (in the second trial), and sentenced to two years in state prison, defendant appeals.

On appeal, defendant contends that (1) the trial court erred by instructing the jury in the second trial that trespassers have no right to self-defense; (2) the court erred by failing to instruct the jury in the first trial on self-defense as a defense to trespassing and on unanimity; (3) the court erred by instructing the jury in the second trial that defendant committed aggravated trespassing, thus invoking collateral estoppel against defendant; and (4) the prosecutor committed misconduct. We conclude that the trial court erred by applying collateral estoppel but that the error was harmless. In all other respects, there was no error or misconduct.

We affirm.


Defendant was charged with felony criminal threats (count 1; Pen. Code, § 422); felony use of tear gas not in self-defense (count 2; Pen. Code, § 12403.7, subd. (g)); misdemeanor carrying a loaded firearm (count 3; Pen. Code, § 12031, subd. (a)(1)); misdemeanor exhibiting a firearm (count 4; Pen. Code, § 417, subd. (a)(2)); and misdemeanor aggravated trespassing (count 5; Pen. Code, § 602.5, subd. (b)).

Defendant was tried by jury (first trial; Judge Stephen H. Baker, presiding), which convicted him of misdemeanor carrying a loaded firearm and misdemeanor aggravated trespassing but acquitted him of felony criminal threats and misdemeanor exhibiting a firearm. The jury deadlocked on the felony count of using tear gas not in self-defense, ultimately voting seven to five in favor of acquittal. The trial court declared a mistrial as to that count.

Defendant was retried by jury (second trial; Judge Cara Beatty, presiding) on the felony count of using tear gas not in self-defense. The jury convicted defendant on that count.

The trial court (Judge Beatty, presiding) denied probation and sentenced defendant to the middle term of two years in state prison on the felony tear gas count. The court also imposed concurrent one-year terms for the two misdemeanors -- carrying a loaded firearm and aggravated trespassing.


The parties agree that the evidence presented in the two trials was similar. For this reason and because defendant makes no assertions concerning the sufficiency of the evidence in either trial, we present the facts without indicating what evidence was produced in each trial, except where noted.

On the evening of May 4, 2007, defendant, who was 42 years old, was at the home of sisters Kelly and Kathy Kelsay, drinking with them until about 10:00 p.m. Kelly, who was 41 years old, left the home in her mother's green van, and defendant went to his own home. In the first trial, defendant stated that he had romantic or sexual feelings toward Kelly. In the second trial, defendant described his relationship with Kelly as "quasi-romantic" and "quasi-sexual."

Early the next morning, defendant, who had been drinking at home, received a call from Kathy, who stated that Kelly had not returned. Defendant left his home around 3:30 or 4:00 a.m. to look for Kelly. He first went to the home of Kelly's mother but did not find the green van there, and then went to the residence of Jeffrey Kelsay, the nephew of Kelly and Kathy, where he found the van. Defendant testified that he knew where Jeffrey lived because he had taken Kelly there several times.

Jeffrey, who was in his early 20's, lived with two other young men of about the same age -- Christopher Martinez and Shane Fotovat. When defendant arrived at the residence, Kelly was sleeping with Martinez in his room. Defendant claimed he was concerned for Kelly's welfare and the thought that she might be with another man, in his words, "did cross [his] mind."

Defendant pounded on the front door, waking up Jeffrey. When Jeffrey opened the front door, defendant entered the house and began frantically looking around. Jeffrey did not know defendant and did not invite him in. Defendant opened doors, saying Kelly's family was looking for her and that she was "coming with [him]." Martinez heard the commotion and told Kelly to hide.

Jeffrey called his grandmother, Kelly's mother, to ask whether the family was looking for Kelly, as defendant continued opening doors and saying that he was looking for Kelly. Jeffrey told defendant not to open Martinez's door because it would make Martinez mad, but defendant pushed on Martinez's door, trying to open it. Martinez was at the door and opened it slightly to ask, "Who are you?' and say, "Get out of my room." As soon as Martinez said that, Jeffrey told defendant to leave.

Defendant, screaming and yelling and saying Kelly was coming with him, continued to try to get into Martinez's room. So Martinez pushed back and, several times, told defendant to leave. Jeffrey hung up the phone and went to help Martinez.

Defendant took a pepper spray can from his pocket and sprayed Martinez and Jeffrey.

Considering defendant's appellate contentions, we summarize only briefly what happened after defendant pepper sprayed Martinez and Jeffrey.

Martinez picked up a bamboo chair and threw it at defendant, and Martinez and Jeffrey rushed defendant. Hearing the commotion, the other housemate, Fotovat, came out of his room, and the three housemates overpowered defendant, taking him outside and continuing to struggle with him. After defendant was pushed out into the street, he threatened to go get his gun, so the housemates went inside. When a Redding Police Department officer arrived, defendant was standing next to his vehicle. A loaded shotgun was in his vehicle.

Defendant testified that he and Jeffrey had met before the May 5, 2007, incident. When he saw the van Kelly had been driving, he wanted to make sure she was okay. Jeffrey invited him into the house by making a sweeping motion with his arm. Defendant became concerned about Kelly when Jeffrey did not answer his questions about where she was, so he began looking around for her. Martinez opened the door, and defendant inquired whether he had seen Kelly. He said he had not and closed the door. Still more concerned about Kelly because of the response, defendant continued to look for her in the house. Suspicious of Martinez, defendant knocked on his door again and then heard Kelly say, "[W]ho is it?" and saw her naked in bed. Martinez began swearing at defendant and asking who he was and then started swinging at defendant and pushing him. Neither Jeffrey nor Martinez had asked defendant to leave. Both Martinez and Jeffrey started swinging at defendant, so defendant took the pepper spray from his belt and sprayed them.



Instructions on Self-Defense (Second Trial)

Defendant contends that, during the second trial, the trial court erred by instructing the jury that trespassers have no right to self-defense. We disagree concerning the effect of the instructions. The instructions, read together, properly informed the jury concerning the circumstances under which a trespasser may use force in self-defense. In the body of his argument, defendant makes the additional contention that the trial court erred by failing to instruct the jury concerning self-defense when he reasonably believed the residents were about to use force against him, rather than already having used force against him. This additional contention is forfeited because it is different from the contention made in the heading. Additionally, there was no error, and any error was harmless.

Whether a jury instruction correctly states the law is determined "under the independent or de novo standard of review." (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088 (Ramos).) Accordingly, we review de novo whether the instructions were adequate.

"Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.'" (Ramos, supra, 163 Cal.App.4th at p. 1088, quoting People v. Partlow (1978) 84 Cal.App.3d 540, 558.) "We examine the jury instructions as a whole, in light of the trial record, to determine whether it is reasonably likely the jury understood the challenged instruction in a way that undermined the presumption of innocence or tended to relieve the prosecution of the burden to prove defendant's guilt beyond a reasonable doubt. [Citation.]" (People v. Paysinger (2009) 174 Cal.App.4th 26, 30.) "It is well established that the instruction 'may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record." (Estelle v. McGuire (1991) 502 U.S. 62, 72 [116 L.Ed.2d 385, 399], quoting Cupp v. Naughten (1973) 414 U.S. 141, 147 [38 L.Ed.2d 368, 373].) "[T]he jury is presumed to have followed the instructions it was given." (People v. James (2000) 81 Cal.App.4th 1343, 1362.)

The trial court instructed the jury that defendant was guilty of aggravated trespassing. (Whether this was a proper application of collateral estoppel is discussed in part III of this opinion.) The court defined aggravated trespassing, then instructed on two scenarios of self-defense: (1) self-defense if the aggravated trespassing occurred before defendant used pepper spray and (2) self-defense if the aggravated trespassing occurred after defendant used pepper spray. While the challenged instructions are lengthy, a full recitation of the relevant instructions is important to resolve defendant's challenge. The court stated:

"The focus of your inquiry is the moment of the initial use of the pepper spray. Events following the initial use of the pepper spray are not relevant to the elements of the charge of: 'the illegal use of a tear gas, not in self-defense.'

"1. If you find that the crime of trespass occurred at the time of entry, or anytime up until the moment of the initial use of pepper ...

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