People v. Bagnerise CA2/2 ( 2021 )

Filed 5/7/21 P. v. Bagnerise CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B300334
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA446041)
v.
TAYLOR CHANEL BAGNERISE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Stephen A. Marcus, Judge. Affirmed and remanded with directions.
Jin H. Kim, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General,
Joseph P. Lee and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff
and Respondent.
____________________________________________
Appellant Taylor Chanel Bagnerise was found guilty by a jury of the
second-degree murder of Devon McConnell. The jury found that appellant
had used a deadly weapon, namely, a knife, in the commission of the murder.
Probation was denied and appellant was sentenced to a term of
imprisonment of 15 years to life. The sentence was enhanced by a
consecutive one-year term under Penal Code section 12022, subdivision (b)(1)
(use of deadly weapon).1 The court imposed a number of fines and
assessments which are not at issue in this appeal. Appellant was given 1,198
days of custody credit. It is conceded that she is entitled to one additional
day of credit.
Appellant contends that the court prejudicially erred in failing to
instruct the jury on self-defense and in failing to give a voluntary
manslaughter instruction based on imperfect self-defense. We do not agree
and affirm the judgment. We remand with directions to give appellant one
additional day of custody credit.
FACTS
McConnell was murdered shortly after midnight of April 19/20, 2016.
His murder was preceded by a troubled relationship with appellant of two or
more years that appears to have been punctuated by outbursts of violence.
We begin by relating an incident that occurred on May 15, 2015, that
provides background on the nature of appellant’s and McConnell’s
relationship. We go on to summarize alleged previous acts of violence since
this evidence arguably bears on the principal issue on appeal, which is the
court’s refusal to instruct on self-defense. We relate text messages exchanged
between appellant and McConnell two weeks prior to the murder in that this
sheds light on the problems of their relationship and tends to explain their
final and fatal confrontation. We state the facts of the homicide. We discuss
appellant’s physical condition after the homicide since this relates to whether
McConnell may have been the aggressor. We detail the results of the autopsy
performed on McConnell as this evidence bears directly and convincingly on
the issue of self-defense. We end by briefly referring to the defense’s case-in-
chief at trial.
1 Statutory references are to the Penal Code.
2
1. The May 15, 2015 incident
McConnell and his parents retained criminal defense attorney Michael
Kraut on May 27, 2015, to represent McConnell on a single count of felony
domestic violence. This charge appears to have been generated by the
incident that took place on May 15, 2015. It was Attorney Kraut who related
at trial what happened between appellant and McConnell on May 15, 2015.
Appellant and McConnell went out for diner in the evening of May 15,
2015, leaving their recently born child with appellant’s grandmother.
Appellant wanted to talk about their relationship, but McConnell “did not
want to be in the relationship, and she continued to want to talk about it.” It
was already very late and McConnell wanted to take appellant home so that
they could relieve appellant’s grandmother. Appellant did not want to go
home. She started to argue and “then started to get aggressive.” As
McConnell was driving, appellant was punching and trying to scratch him.
They arrived at the grandparents’ home and McConnell got out and went to
ring the doorbell to ask the grandparents for help. Appellant told him not to
ring the doorbell. She did not want to stop talking about their relationship
and told McConnell that if he rang the bell, she would hurt herself. He did
ring the bell, and heard the noise of a pot breaking. He turned around. He
saw a clay pot about a foot and a half that was cracked. Appellant had some
cuts on her face and forehead.2
After appellant’s grandfather opened the front door, McConnell said,
“Look what she just did.” With that, McConnell left and proceeded to the
Carson sheriff’s station. McConnell called 911 (it is unclear whether he
called from the sheriff’s station), stating that he wanted to report an incident.
McConnell told the dispatcher that he was being beaten and that appellant
was threatening to kill him; that with each incident appellant was getting
more violent; that he was scared of her and wanted the grandfather to
intervene. At some point during these events appellant called the police,
stating that McConnell had assaulted her.
2 Around 4:30 a.m. on May 16, 2015, appellant was treated in a medical
emergency room for a laceration of her right eyebrow, which took two stiches,
and for a laceration of one centimeter on her right cheek. The emergency
room physician did not see any bruises, swelling, or other injuries.
3
In September 2015, the prosecution reported that it was unable to
proceed with the case against McConnell. Attorney Kraut’s motion to dismiss
the case was granted.
2. Previous acts of violence
Appellant refers to three acts of prior violence by McConnell which
appellant contends bear on the reasonableness of her perception of the
danger that McConnell posed. These were related by appellant to Deputy
Sheriff Porsche Heisser.
According to Heisser, appellant told her that appellant had experienced
violence at McConnell’s hands around Christmas 2014 when she was
pregnant. There was another incident in January 2015 when McConnell was
aggressive with appellant. The third incident was at McConnell’s house
when she tried to use his duffel bag for her belongings. He snatched the bag,
dumped her stuff, and told her she was not leaving his house with his bag.
He next pushed her against a dresser, bruising her leg.
The first two incidents were described only in conclusory terms.
Appellant, in a later conversation with a sheriff’s detective, withdrew the
third incident as inaccurate and as not having occurred.
Appellant also cites the testimony of Francisco S., a neighbor of
appellant’s, who testified that he regularly heard appellant and a man
arguing and appellant crying. Sometimes he heard banging on the wall,
which he described as sounds of a struggle.
The record also contains reports of acts of violence by appellant. The
persons testifying to these acts were Attorney Kraut and Deputy Sheriff
Heisser. Both of these witnesses related information conveyed to them by
McConnell. We prefer to deal carefully with these accounts. This is not
because we question the credibility of these witnesses, which we decidedly do
not, but because these accounts ultimately involve McConnell’s credibility.
Without burdening the record with a rather tawdry series of scenes, we take
away from these accounts that angry confrontations were not uncommon
between appellant and McConnell.
4
3. The text messages
Text messages exchanged between McConnell and appellant in the two
weeks prior to the murder reflect the issues that appellant and McConnell
were unable to resolve.
On April 5, 2016, appellant texted McConnell that she had to raise
their infant daughter alone, and that she needed McConnell but he wasn’t
there. McConnell replied that she had injured herself, lied that he had done
it, and pressed charges for something he did not do. Appellant texted that
there was “nothing in place for visitation so if you want to see [the baby] we
need to discuss things or go back to court.” On April 8, 2016, in a failed
attempt to patch things up, they exchanged texts about going to Las Vegas to
celebrate appellant’s birthday. On April 15, 2016, appellant wrote that
McConnell was hardly seeing his daughter anymore and that he was hardly
around. McConnell replied, “I have been giving it my all, and I’m not going to
be the only one doing so anymore,” and as a result of what she did, they had
been separated for nine months. On April 17, 2016, appellant wrote, “I have
many people that can testify in court that you have not been taking care of
[the baby] or supporting her in anyway.” In the end, appellant agreed that
McConnell could visit their daughter between 5:00 and 7:30 p.m. on April 19,
2016. This was the visit that ended McConnell’s life.
4. The homicide
Q.N., a friend of appellant’s, visited appellant’s apartment around 4:00
p.m. on April 19, 2016. Appellant told Q.N. that she wanted to go to Las
Vegas with McConnell for her birthday. Appellant spoke of some custody
issues regarding her daughter, voicing concerns that McConnell would take
her daughter away from her.
McConnell arrived at the apartment around 5:00 p.m. There was
nothing unusual about McConnell as he came into the apartment. McConnell
asked where his daughter was. It seemed to Q.N. that there seemed to be a
lot of tension in the room. It appeared as if appellant and McConnell were
mad at each other. As Q.N. put it, “typical stuff like boyfriend/girlfriend
stuff.” McConnell picked his daughter up and played with her.
Appellant came out of the bedroom wearing a dress, saying that this
was the dress she wanted to wear for her birthday in Las Vegas. According
5
to Q.N., McConnell did not appear to be interested. There was not much
conversation except for the reference to Las Vegas. Q.N. continued to sense
the tension between appellant and McConnell.
At one point, appellant told Q.N. that she wanted to go to Las Vegas
with McConnell, but she said they were “having issues.” Q.N. told appellant
that she should go with friends, or Q.N. would go with her, and that
appellant should have fun, whatever she was going to do. Appellant did not
elaborate on what the issues were between her and McConnell.
Q.N. left appellant’s apartment around 7:00 p.m. When she learned
the next day that McConnell had been killed, Q.N. was “very, very shocked.”
We know nothing of what transpired between the time Q.N. left and
the 911 call placed by appellant at 12:40 a.m. on April 20, 2016.
McConnell placed the call from his cell phone. In the call, McConnell
addresses not the 911 operator but appears to be speaking to appellant.
McConnell states repeatedly that appellant is threatening him and asks
appellant why she grabbed the knife and why she is trying to stab McConnell
in the face. There is one extended statement by McConnell: “because you’ve
been threatening to stab me. You’ve been threatening to attack me. Then . . .
why did you say you were gonna stab me in my face, Chanel [appellant]?
Why did you say you’re gonna stab me in my face, Chanel? No, I’m not trying
to make this. I’m trying to protect myself because you’re trying to attack
me—you’ve been hurting me and they’re calling me because you’ve been
threatening me. And you said you would attack me. If you say you gonna
attack me . . . How am I . . . How am I not trying to protect myself?”
Appellant’s response to this was: “I’m not f*** crazy.” The 911 operator
disconnected at this point.
The 911 operator called back within what both parties agree was either
less than a minute or two minutes. The operator asked what was going on.
McConnell said, “Stop, Chanel. My ex just attacked me *** she won’t let me.”
The operator asked for the address. This was followed by some unintelligible
exclamations by appellant (“Help me. Please . . . Ow . . . Ow”), and then
McConnell: “Help. No, let me go. Let me go! . . . Chanel, stop!” The second
call then disconnected.
6
B.S. lived across a very narrow hallway from appellant’s apartment;
the front doors of these two apartments looked right at each other. Just after
midnight on April 20, 2016, B.S. heard a male voice followed half a minute
later by a female voice. He heard a conversation going on for a couple of
minutes. It stopped, and when it started again, he heard a female voice say
two or three times, “Get out.” B.S. characterized the voice as sharp and
scared. Next, he heard a male voice but he could not make out the words.
Then it was silent for about five minutes.3
Next, B.S. heard what sounded like glass breaking, a short pause of
perhaps five seconds, and then screaming and shouting. B.S. heard the doors
opening to appellant’s apartment and then heard a knock on his door. He
opened the door to appellant, who said, “Help me. He’s dead.”
Appellant was holding a child. Appellant was dressed in white; there
were red stains on her clothes that looked fresh. B.S. thought that appellant
might be hurt too and he decided to call 911, which he did about 30 seconds
after he opened the door.
After giving the 911 operator the address, B.S. told the operator that
appellant was saying that someone was dead. B.S. walked into appellant’s
apartment with his phone still connected to the 911 operator. Responding to
the operator’s request to tell her what happened, B.S. said that they had been
fighting, McConnell was “doing physical violence,” and McConnell had said
that he was going to call the police. Appellant is heard to say that McConnell
threw her against the wall and she tried to stab him “to get him off me. Now,
he’s on the floor.”
Inside appellant’s apartment, B.S. saw blood coming from beneath the
bedroom door. It looked like a lot of blood. The bedroom door wasn’t
completely shut. B. S. tried to open the door but couldn’t open it enough to
step inside. He peered inside and saw a body lying facedown. He heard
sirens approaching.
Captain Darius Cunnigan, qualified both as a firefighter and a
paramedic, arrived at the scene at 12:53 a.m. When Captain Cunnigan
3
B.S. initially testified the silence lasted about half a minute but
changed his mind.
7
opened the door to appellant’s apartment, he saw appellant in her panties
and bra holding a child, covered from head to toe with blood, and screaming,
“ ‘It was self-defense, it was self-defense.’ ” He asked appellant to calm down
and requested the police on the scene to take care of appellant.
Captain Cunnigan found McConnell on the bedroom floor shoved
against the door. McConnell was alive and gasping for air, but he was not
responsive. The door had to be removed to move McConnell. He was taken
to the entry of the apartment where there was more room to work on him.
He was bleeding heavily. The paramedics left with McConnell at 1:02 a.m.
and arrived at the hospital at 1:10 a.m. McConnell was pronounced dead at
1:13 a.m.
Police officers conducted a sweep of appellant’s apartment and found a
knife in the bedroom.
5. Appellant’s physical condition
Appellant was examined by a police detective around 8:00 a.m. on
April 20, 2016. Appellant is five feet seven inches tall and weighed between
110 and 115 pounds. There were no marks, bruises, or swelling on her face.
There were no injuries, swelling, or redness to her neck. There was a
quarter-inch incision on her left index finger. There were no injuries to her
hands.
Appellant told the same detective that her legs were pulled out from
under her and she was allegedly dragged into the bedroom. The detective
looked for physical corroboration of this by way of scratches on the ground
but found none.
Whether photographs taken of appellant on April 22, 2016, show any
injuries is a disputed question. A female police officer witnessed police
photographs being taken of appellant in the afternoon of April 22, 2016.
According to this officer, the only injury was a small cut to appellant’s left
index finger. There were no other injuries to her arms, front or back of her
legs other than a small bruise on her left thigh, no injuries to her neck, a
small redness by the right shoulder blade, and no injuries, scratches, or
bruises to her face.
A deputy public defender was asked to take another set of photographs
of appellant. She did so. Appellant in her opening brief characterizes these
8
photographs as showing “minor injuries to her leg, neck, and face below her
eye, and bruising on her arm and her upper chest.”
We need not resolve this controversy. We are satisfied that appellant
sustained no major injuries on April 19 or 20, 2016, but that McConnell
sustained numerous serious injuries, one of which was fatal. We turn to this
next.
6. McConnell’s injuries
Dr. Job Augustine, a deputy medical examiner with the Los Angeles
Department of Medical Examiner-Coroner, performed the autopsy on
McConnell. McConnell was six feet tall and weighed 136 pounds. The cut
that severed the carotid artery was the fatal injury. The manner of death
was homicide.
Dr. Augustine found 16 “sharp force injuries” to McConnell’s body.
These wounds were consistent with the use of the knife found in the bedroom.
Dr. Augustine explained that “sharp force injuries” are stabs and incisions. A
stab penetrates into the body and an incision is longer on the skin surface
than the depth of its penetration into the body.
McConnell sustained four stab wounds. One was on the back of the
neck. It penetrated three inches. Its direction was from the back to the front
of the body. The second was on the left upper body region. This penetrated
four and three-quarters inches. The direction was from the back of the body
to the front and downward. This was the largest wound inflicted on
McConnell. This cut completely transected the carotid artery and it was
fatal. The third stab wound was to the right upper back. It had a depth of
three inches. The direction of this wound was also from the back to the front.
The fourth stab wound was to the upper, mid-back. The direction was from
the back to the front.
McConnell had sustained 12 incision wounds. Five of these were in the
head area.4 There were two incisions on the back of the neck. There were
two incisions in the shoulder area, one on the right, the other on the left.
There was one incision on the right hand and one on the left hand.
4They were to the top of the head, the back of the head, to the left of
the previous incision, slightly below the previous incision, and the left side of
the head at the temple.
9
The injuries were consistent with appellant approaching McConnell
from behind and inflicting these injuries. The hand injuries were consistent
with McConnell putting his hands up when appellant attacked him with the
knife. There were no bruises, abrasions, or scratches on McConnell’s body.
Tests for drugs and alcohol were negative.
A semiretired forensic scientist with the Los Angeles County Sheriff
Department crime laboratory, who was a bloodstain pattern expert, testified
that some of the blood splatter found on the bedroom door where McConnell’s
body was found originated at about 22 inches from the floor, which was
consistent with McConnell being on the floor or on his knees.
7. The defense’s case-in-chief
The defense’s case-in-chief was of such diminishing importance that the
appellant’s opening brief makes no mention of it, save for the testimony of
Francisco S., a neighbor, who testified that he heard shouting and arguments
emanating from appellant’s apartment. Appellant did not testify, leaving it
to two other witnesses to testify about equivocal but hardly criminal conduct
by McConnell, none of which had any relevance to the case at hand.
DISCUSSION
I. THE TRIAL COURT DID NOT ERR
WHEN IT REFUSED TO INSTRUCT ON SELF-DEFENSE
Appellant contends that “[b]ecause there was substantial evidence that
[she] actually and reasonably believed she was in imminent danger of great
bodily injury or death and that immediate use of force was necessary to
defend herself against that danger, the trial court’s ruling [refusing to
instruct on self-defense] violated state law and [appellant’s] federal due
process rights.”
1. Appellant must have acted out of fear alone and not out of
anger or other emotions; the perceived peril must have been imminent
“A bare fear of the commission of any of the offenses mentioned in
subdivisions 2 and 3 of Section 197,[5] to prevent which homicide may be
5 “Homicide is . . . justifiable when committed by any person in any of
the following cases: [¶] . . . [¶]
10
lawfully committed, is not sufficient to justify it. But the circumstances must
be sufficient to excite the fears of a reasonable person, and the party killing
must have acted under the influence of such fears alone.” (§ 198.)
The concept recognized by this statute is referred to as the doctrine of
apparent necessity, i.e., an honest and reasonable belief both in the apparent
peril and the need for defense. (1 Witkin, Cal. Criminal Law (4th ed. 2020)
Defenses, § 68, p. 509.)
It is important that “[a] bare fear is not enough; ‘the circumstances
must be sufficient to excite the fears of a reasonable person, and the party
killing must have acted under the influence of such fears alone.’ (Pen. Code,
§ 198.)” (People v. Flannel (1979) 25 Cal.3d 668, 675, italics added.)
In a setting which was as highly emotionally charged as the one
between appellant and McConnell on the night of April 20, 2016, the evidence
must be that appellant acted out of fear alone and not as a result of other
overwhelming emotions. As the court in People v. Trevino (1988) 200
Cal.App.3d 874 aptly observed: “[T]he party killing may justifiably use
deadly force in self-defense as long as the use of such force is motivated only
by a reasonable fear and the belief that it is necessary to prevent his death or
great bodily injury. The party killing is not precluded from feeling anger or
other emotions save and except fear; however, those other emotions cannot be
causal factors in his decision to use deadly force. If they are, the homicide
cannot be justified on a theory of self-defense.” (Id. at p. 879.)
We must therefore search the record for evidence that appellant acted
out of fear alone and not out of the press of other emotions. And other
emotions were never far from the unhappy relationship between appellant
and McConnell. Appellant’s anger at McConnell over his apparent
abandonment of appellant and their young child and her anger at his refusal
“(2) When committed in defense of habitation, property, or person,
against one who manifestly intends and endeavors, by violence or surprise, to
commit a felony . . . .
“(3) When committed in the lawful defense of such person . . . when
there is reasonable ground to apprehend a design to commit a felony or to do
some great bodily injury, and imminent danger of such design being
accomplished . . . .” (§ 197, subds. (2) & (3).)
11
to continue with their relationship or even to talk about that issue—all of
these emotions had flared before and of course could ignite again. Yet these
emotions do not justify the use of deadly force.
Another requirement that must be met under the doctrine of apparent
necessity is that the peril must be imminent. “ ‘[T]he peril must have existed
or appeared to the defendant to have existed at the very time the fatal shot
was fired. In other words, the peril must appear to the defendant as
immediate and present and not prospective or even in the near future. An
imminent peril is one that, from appearances, must be instantly dealt with.’ ”
(People v. Aris (1989) 215 Cal.App.3d 1178, 1187 [citing jury instructions].)
Fear of future harm, no matter how substantial, or how great the likelihood
of the harm, is not enough. (People v. Hill (2005) 131 Cal.App.4th 1089,
1101.) We must therefore also search the record for evidence that the deadly
peril that appellant was allegedly facing was imminent.
2. The standard of review
In our de novo review of the trial court’s decision not to instruct on self-
defense (People v. Cole (2004) 33 Cal.4th 1158, 1217), we consider the
evidence in the light most favorable to appellant and resolve all doubts about
the sufficiency of the evidence in her favor. (People v. Wright (2015) 242
Cal.App.4th 1461, 1483.) On the other hand, when, as in this case, there is
no evidence to support the instruction, there is no duty to instruct. (People v.
Turville (1959) 51 Cal.2d 620, 632–633; see generally 5 Witkin, Cal. Criminal
Law, supra, § 674, p. 1040.)
3. The trial court’s ruling
The defense requested an instruction on self-defense. The defense
relied heavily on the transcript of B.S.’s 911 call, to which we shall return
below.
The trial court denied the request and gave an extended explanation
for its ruling. Among other reasons, the trial court noted that appellant had
stabbed McConnell a total of 16 times, with four stab wounds in the back,
which the court stated did not support a self-defense theory. The court
stated: “There is no evidence that the victim attacked the defendant. The
opposite is true with regard to the defendant. The victim here calls 9-1-1 to
report that she is attacking him. That’s the evidence in the case.”
12
4. The basic facts do not support a self-defense instruction
As the trial court noted, the salient, uncontroverted fact is that
appellant stabbed McConnell four times in his back and that all but two of
the incision wounds were to the back.6 The stab wounds were to the back of
his neck, to the back left upper body, which was the fatal blow, the back right
upper body, and the back mid-upper body.
Appellant does not come to grips with this physical fact, which puts her
self-defense theory under severe stress. Stabbing appellant in his back when
he was facing away from her and was not in a physical position to inflict any
harm on appellant, and is not consistent with the theory that McConnell was
the aggressor. It is, however, consistent with the view that appellant was the
aggressor. If she was the aggressor, self-defense on her part is of course
precluded. Since 14 out of the 16 wounds were inflicted on McConnell’s back,
it is much more likely than not that these blows were struck when McConnell
was unable to defend himself and when he was not in a position to threaten
appellant.
This is all the more true if McConnell was actually on his knees when
the fatal blows were struck. There is some evidence by way of blood splatter
that this was so. Certainly, if he was on his knees (and this would also
explain that the stab wounds were downward thrusts) with his back turned
to appellant, he was absolutely in no position to attack her, or even threaten
her, but he was certainly extraordinarily vulnerable to repeated thrusts by
the knife held by appellant.
It is also a fact that the four stab wounds penetrated to depths of three
to four and three-quarters inches. This means that these blows were
delivered with a great deal of force, very likely in quick succession since the
stab wounds were all in the same area. This suggests that appellant was
motivated by rage or fury and not by fear. But it is only fear that justifies the
homicide.
The fact that most of the 16 wounds were inflicted on McConnell’s back
also suggests that, even assuming that McConnell was the aggressor, once he
6
Two incision wounds were to the hands, which were defensive
wounds.
13
turned his back on appellant, the attack was over. The question then
becomes whether appellant’s attack was justified. However, there simply are
no facts of record that would allow us to examine this possibility. We turn
next to the absence of evidence that would support a self-defense instruction.
5. There is no evidence to support a self-defense instruction
Appellant relies heavily on the 911 calls to support her theory that she
was in fear for her life. Ignoring everything that McConnell said in the 911
calls, appellant has selected these brief snippets as evidence that she was in
fear for her life: “Get off me! Please!” and “Ow” four times. With the best of
will, it is impossible to read into any of these cryptic words any kind of fear,
much less fear for her life. While the scene was clearly very emotional as
these outbursts confirm, it is only fear that justifies killing in self-defense.
That appellant was angry or even furious does not justify the homicide.
Appellant next seizes on the 911 call generated by witness B.S. She
cites B.S.’s words to the operator, “[T]hey were fighting—he was, he was
doing physical violence, he said he was going to call the police on her,” “And
she—you [apparently addressing appellant] stabbed him?” as
“contemporaneous evidence of McConnell attacking [appellant].” Appellant
also refers to B.S.’s question to appellant, “was he starting to hurt you or
something?” and appellant’s answer “yes.” We fail to see how B.S.’s garbled
reference to fighting, closely followed by McConnell calling the police is
evidence of “McConnell attacking [appellant].” McConnell would hardly be
calling the police if he were attacking appellant. There is also the statement
by appellant, “He threw me against the wall and I tried to stab him to get
him off me. Now, he’s on the floor.” Even on the cold record, this statement
sounds oddly controlled and confident, even triumphant. At any rate, this is
not evidence of fear.
In any event, it is a comment on the lack of evidence that appellant
must rely on the confused and excited comments of witness B.S., who was not
a percipient witness to the altercation between appellant and McConnell.
Compared to the few equivocal snippets of text on which appellant
relies, the first 911 call by McConnell is a searing call for help in the face of a
14
furious person with a knife.7 Appellant’s truculent response, “I’m not f***
crazy,” suggests a person in control but not a person in fear. In any event,
this extended outburst by McConnell is the only coherent picture that we get
about what was going on in these fateful minutes. And that picture is one of
appellant threatening McConnell with the knife with which she ultimately
killed him. This passage tells of McConnell’s justified fear and it shows
appellant as the armed aggressor.
Appellant’s claim that McConnell had in the past physically attacked
her is hollow. The claim lacks substance in that appellant herself withdrew
the only one that was not conclusory. The two conclusory claims that she did
make are not predicated on any evidence. Testimony by Francisco S. about
arguments and fighting by unidentified persons hardly deserves mention.
Contrary to appellant’s claim that she was injured, there is no evidence
of any substantial injuries to appellant, who also admits that the injuries she
claims she sustained were minor. The absence of any substantial injuries,
when compared to those inflicted on the alleged attacker, is yet another
circumstance that suggests that the attacker was appellant, not McConnell.
6. A verdict based on self-defense would have been based on
speculation and conjecture
The record must contain some evidence that appellant was in fear for
her life and that the threat was imminent. Under the doctrine of apparent
necessity, there must be evidence of an honest and reasonable belief both in
the apparent peril and the need for defense. (1 Witkin, Cal. Criminal Law,
supra, § 68, p. 509.)
While there is evidence that both McConnell and appellant were in
some sort of highly emotional state by midnight of April 20, 2016, there is no
7 “[B]ecause you’ve been threatening to stab me. You’ve been
threatening to attack me. Then . . . why did you say you were gonna stab me
in my face, Chanel [appellant]? Why did you say you’re gonna stab me in my
face, Chanel? No, I’m not trying to make this. I’m trying to protect myself
because you’re trying to attack me—you’ve been hurting me and they’re
calling me because you’ve been threatening me. And you said you would
attack me. If you say you gonna attack me . . . How am I . . . How am I not
trying to protect myself?”
15
evidence that appellant was in fear of her life and that the threat was
imminent. Other than the three 911 calls, there is absolutely no evidence
about what transpired between these two people between 7:00 p.m. on
April 19, 2016, when Q.N. left appellant’s apartment, and when McConnell
was stabbed multiple times shortly after midnight. There is no evidence
whatsoever that McConnell was armed; the only evidence is that appellant
had the knife with which she killed him. We cannot even get close to
examining whether the threat to appellant was imminent since, absent any
evidence, we know nothing about any threat to appellant. The only thing we
do know is that shortly before he was murdered, McConnell apparently
feared for his safety. We are unable to examine whether appellant had an
honest and reasonable belief that she was in imminent danger (People v.
Dawson (1948) 88 Cal.App.2d 85, 96 [honest and reasonable belief required])
since we have no idea what the threat was that she was allegedly facing.
McConnell being unarmed, we would be required to speculate as to the threat
that he was posing. Since his back was turned to appellant when he was
struck down, it is hard to imagine (and that is what we would have to do)
what the threat was that he posed.
This brings us to why the trial court was right in refusing to instruct
the jury on self-defense. Any verdict based on the defense of self-defense
would have been based on sheer conjecture and speculation. There were
simply no facts of record on which this defense could have been based. The
absence of evidence about the crucial hours before the homicide is one of the
hallmarks of this case. Only two people know what happened between 7:00
p.m. and midnight on April 20, 2016, and one of them is dead.
The trial court’s decision not to instruct on self-defense was correct.
There was no evidence to support such an instruction. The only known fact of
record, which is that McConnell’s back was turned to appellant when she
killed him, supports the conclusion that she was the aggressor.
II. THERE WAS NO EVIDENCE TO SUPPORT
AN IMPERFECT SELF-DEFENSE INSTRUCTION
The defense requested instructions on “imperfect self-defense.” The
trial court refused to give this instruction. The court did instruct on
voluntary manslaughter based on heat of passion. Appellant contends in her
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appeal that the instruction based on imperfect self-defense should have been
given.
“An honest but unreasonable belief that it is necessary to defend
oneself from imminent peril to life or great bodily injury negates malice
aforethought, the mental element necessary for murder, so that the
chargeable offense is reduced to manslaughter.” (People v. Flannel, supra, 25
Cal.3d at p. 674, italics omitted.) An “honest but unreasonable belief”
justifies a voluntary manslaughter conviction.
In this argument, appellant returns to her contention that appellant
actually believed that McConnell put her in imminent danger of death or
great bodily injury, making the use of deadly force necessary. As appellant
puts it: “[Her] own words, by themselves, satisfied the requirement that she
genuinely believed she needed to defend herself against imminent danger.
Her cries of pain and pleas for help during the second 911 call was evidence
McConnell was injuring her and that consequently she was in fear for her
safety.”
To say that appellant was emitting “cries of pain and pleas for help” is
taking a few words and some inarticulate noises out of context.
Appellant’s reference is to the second 911 call, when the 911 operator
called back. After the operator asked what was going on and what the
address was, McConnell responded: “Elden Avenue! She won’t let me leave!
Send people out, she won’t let me leave! Stop, Chanel, Stop! Chanel, Stop.”
The operator asked for the address again. It was now that appellant twice
said, “Help me. Please,” while McConnell was saying that appellant “won’t
stop” and again asked appellant to let him go. At this point, the transcript
records appellant as saying “Ow” several times. McConnell again says,
“Help. No, let me go. Let me go!” and “Chanel, stop!”8
8The actual sequence after McConnell asked for help in leaving
appellant’s apartment was: “[Operator] What’s the address, sir? [¶]
[Appellant] Help me. Please. [¶] [McConnell] Chanel, stop. [¶] [Appellant]
Help me. Please. [¶] [Operator] Sir what’s—What’s the address? [¶]
[Appellant] Get off me! Please! [¶] [McConnell] She won’t stop *** Avenue.
Apartment *** [¶] [Appellant] Ow! [¶] [Operator] Hello. [¶] [Appellant]
Ow! Ow! [¶] [McConnell] *** [¶] [Appellant] Ow![¶] [McConnell] Help. No,
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It seems that McConnell was trying to get away and that appellant was
hindering him in some way from leaving. It appears that McConnell wanted
her to stop doing whatever she was doing in blocking him from getting away.
In fact, McConnell was asking for help in stopping appellant from hindering
him from leaving (“Send people out, she won’t let me leave!”). Appellant’s
calls for help should be read in this context. They were most probably
requests for help to stop McConnell from leaving. The issue between them at
that point was not an attack by McConnell—there is absolutely nothing that
suggests such an attack—the issue was that McConnell wanted to get away
and she would not let him leave. What “ow” means is anyone guess, but it
should be read in the context of the exchange, which was that she was
stopping McConnell from leaving. It should be kept in mind that one of their
perennial issues appears to have been his wish, and her disinclination, for
the relationship to be terminated.
We return to the point made in the preceding section that there is no
evidence that McConnell was a threat, much less is there evidence of an
imminent threat. There is certainly no evidence as to what the alleged threat
was. Importantly, there is also no evidence that appellant had an honest
belief, even if unreasonable, that appellant was in imminent peril to her life
or of sustaining great bodily injury. The transcript of the 911 call shows that
appellant and McConnell were struggling over an issue that had nothing to
do with a threat to appellant, which was the continuation (or termination) of
their relationship.
There was no evidence to justify an instruction on imperfect self-
defense.
In light of our conclusion that there was no evidence that warranted an
instruction on self-defense and the instruction on imperfect self-defense, it is
not necessary for us to consider the balance of appellant’s contentions,
including the rather improbable claim that appellant used no more force than
was necessary to defend herself against McConnell’s attacks. Sixteen knife
wounds inflicted on the back of the unarmed victim, who may have been
let me go. Let me go! [¶] [Appellant] *** [¶] [McConnell] I’m not doing
anything.”
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kneeling, is a grim exercise in excess by any standard. Because we conclude
that there is no evidence of apparent necessity, appellant’s argument is moot.
DISPOSITION
The judgment is affirmed and the matter is remanded to the trial court
with directions to correct the abstract of judgment to show that appellant is
entitled to one more day of custody credit. The superior court shall issue a
new abstract of judgment that shows the correct number of custody credits.
The court shall forward the new abstract of judgment to the Department of
Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
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