(Super. Ct. No. 08F03567)
The opinion of the court was delivered by: Raye , P. J.
Opinion following rehearing
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 defendants J. Douglas Halford and Mark Hernandez of the second degree murder of a homeless man, Michael Wentworth, and the attempted murder of the decedent's homeless friend, Randy Terrell. Terrell taunted and threatened defendants for harassing Danny "Old Man Dan" Rasmussen, his 62-year-old homeless neighbor, and defendants, believing Terrell was another man who had beaten their 56-year-old diabetic friend and mentor, Danny Hughes, pursued Terrell and a fight ensued. The jury rejected defendants' claims of self-defense. On appeal, both defendants assert instructional error. We affirm.
The Setting. Many homeless people live in close proximity to Loaves and Fishes, an organization that provides coffee and pastries at 7:00 a.m., a place to shower, and lunch for up to 900 people beginning at 11:30 a.m. every weekday. All of the homeless who were either victims or witnesses in this case gather at Loaves and Fishes. They live under trees and shrubs along the river, up on the levee, and in an open clearing they call "the snake pit." They eat together, sleep together, drink together, share drugs, and take care of one another. Without facilities, they use what they call "the shitter," but some of the homeless also urinate on their neighbors' properties.
Something of a Renaissance man, Danny Hughes owns a home very near the homeless encampments by the river. He had been a professional musician as well as an operating engineer, and he earned six first-place medals at the California State Fair for his cookies. He treasured the guitar he had owned for 40 years like a child. But he was in poor health after using methamphetamine for 40 years, and as a diabetic, he needed to adhere to a strict diet and insulin regimen. Although he installed a fence with a locked gate to secure the perimeter of his property, Hughes displayed a tolerant approach to his homeless neighbors. His more immediate and pressing problem was his old friend, Tommy Duke.
The Two Dans. Danny Hughes had been a friend of Tommy Duke for many years. But Duke became very violent when he drank, which he did with some regularity. On one occasion, Duke used Hughes's treasured guitar to smash Hughes's drum set. Duke then attacked Hughes, and Hughes believed Duke was trying to kill him. Duke returned many times, leading Hughes to repeatedly call 911. Eventually, defendant Mark Hernandez moved in with Hughes to protect him and to help him monitor his diet and insulin. Sixty-five-year-old J. Douglas Halford, another friend of Hughes, was a houseguest staying with Hernandez and Hughes at the time of the events leading up to the alleged crimes.
In late April 2008 Tommy Duke tore down Hughes's fence, entered his house, and threatened to kill him. Hughes called Hernandez and Halford for assistance. They escorted Duke out the front gate and instructed him not to return. En route, Halford grabbed Duke by the collar, pointed a big knife at his eye, and said, " 'The only reason your fucking eye is not disappearing and your life is [sic] disappearing is because of that daughter that you have.' "
On the morning of April 30, 2008, Halford's routine morning trip to Starbucks was frustrated by his encounter with Danny Rasmussen, who had relocated some of his belongings from under a mulberry tree and placed them in a shopping cart in front of Hughes's gate. Rasmussen angered Halford. He threatened Rasmussen with a knife. Hernandez was more conciliatory. Fearful of the knife, Rasmussen grabbed what belongings he could and ran away. He testified someone kicked him and someone shouted, " 'If you ever come back, I'll fuck you up.' "
Frazzled from his encounter with defendants, Rasmussen, that morning over coffee, told several of his friends and acquaintances what had happened. Incensed, Randy Terrell, a 200 pound, physically imposing, 31-year-old homeless man, was determined to avenge Rasmussen. Tragically, Randy Terrell looked like Tommy Duke.
Witnesses to the Stabbings. The prosecution's witnesses provide a vivid composite of human suffering. The percipient witnesses' afflictions are many: physical and mental disabilities, addiction, poverty, joblessness, and homelessness. Defendants argued vociferously that the witnesses either could not see, could not remember what they saw, and could not be trusted. From defendants' view, the witnesses made miserable historians.
So, for example, both victims tested positive for methamphetamine in their systems, a drug that makes the user feel empowered, oblivious to pain, and easily agitated. Randy Terrell testified he drinks as many Hurricane High Gravity 40-ounce beers as he can earn by turning in recyclables for money every day. The alcohol intensifies his anger. On the day of the stabbings, he was pretty drunk, and at trial his memory of what transpired was "very blurry." He also uses methamphetamine and smokes marijuana.
Robert Otis had been homeless for 14 years at the time of the trial. Called "Bug Eye" because his left eye was disfigured and he could not see out of it, Otis's remaining vision was very blurry.
Patrick Hill completed a rehabilitation program a few months before the stabbing. Michael Wentworth, the decedent, was known as "Gremlin," jumped around a lot, and, at 114 pounds, he too drank and used drugs. He had been released from the Sacramento County Jail that very morning. Wentworth's good friend and benefactor, Patrick Hill, went to the river to look for him, and brought a case of beer to share with Wentworth and a group of people he knew would be there. Hill drank two or three beers, Wentworth drank some, and they shared the rest with their friends.
Thus, the jury was well-acquainted with the witnesses' shortcomings. Flawed or not, the percipient witnesses testified to what they saw and heard, and it was the jury's prerogative, not ours, to assess their credibility and their ability to perceive, recall, and recount what happened on the evening of April 30. We provide a brief synopsis of the key witnesses' accounts of what happened.
According to Hughes, someone who initially appeared to be Tommy Duke but who was actually Randy Terrell rode a bicycle in circles in front of Hughes's house around noon, walked his back-fence line about 3:00 in the afternoon, and again circled in front of the house on a bicycle around 6:00 p.m. He had a knife in his hand and shouted, "Where's the mother fucker that beat up my old man homeboy? I got a knife. I'm going to stick him." Hughes testified the knife looked like a cheap facsimile of a Buck knife with a rubber handle. Hughes heard Halford respond, "I'll deal with the motherfucker," and he saw both defendants go out the front gate and follow Terrell up a hill to the levee.
Terrell candidly admitted he was extremely angry about how Rasmussen had been treated. He had nursed his anger with his Hurricane High Gravities, was "pretty buzzed," and returned to Hughes's house around 6:00 p.m. to start a fight. He taunted the occupants with threats like, "You guys have a problem picking on old men, come out here and pick on me." According to Terrell, Hernandez came out of the house, instructed Terrell to "[w]ait a minute," and then went back in the house. Fearing Hernandez was getting a weapon, Terrell left.
Terrell joined his friends Otis and "Bandanna" in the snake pit. After a minute or two he walked over to Hill and Wentworth and had a short conversation before returning to Otis and Bandanna. A few seconds after that, defendants came up over the hill and approached him. Otis handed Terrell a knife. As he told the jury, he was angry and confronted defendants, asking, "Why you guys got to mess with an old man?" He noticed that Halford was carrying a Buck knife at his side.
Terrell's friends Hill and Wentworth immediately came to his aid. Wentworth was hopping around like a "leprechaun" or "a Mexican jumping bean," trying to diffuse the situation. As Hernandez, Wentworth, and Hill went off in one direction, Halford and Terrell started swinging knives at each other. Terrell testified that Halford stabbed him in his left upper arm. He did not see what happened to Wentworth.
Patrick Hill was urinating in the "shitter" and talking on his cell phone when Wentworth summoned him to come and help defend Terrell. He was still trying to zip up his pants as Wentworth ran up the hill. Hill saw Halford carrying a stick over his shoulder. As they met, Halford said to Terrell, "You jumped our friend and we're gonna kill you." According to Hill, Terrell did not have a knife.
Halford, according to Hill, started swinging the stick. Hill, still on the phone and continuing to zip up his pants, told Wentworth, "[W]e're not gonna let them jump him. We can't let that happen." Wentworth jumped in front of Terrell and knocked Halford to the ground. Hernandez pulled out two knives and gave one to Halford. Hill backed Hernandez up to the bike ...