People v. Morales ( 2021 )

Filed 9/30/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A159825
v.
ANTHONY MORALES, (Alameda County
Super. Ct. No. 18CR019843)
Defendant and Appellant.
A jury convicted Anthony Morales of second degree murder for
stabbing Eric McMillian outside a Greyhound station in Oakland.
Morales contends the evidence was insufficient to support his
conviction. He also argues the trial court erred by improperly
instructing the jury on self-defense and imperfect self-defense and
denying an instruction on voluntary intoxication. We disagree and
shall affirm.
BACKGROUND
In his youth in Watsonville, Morales had associated with gang
members. He later distanced himself from the gang and, as a result,
gang members had assaulted him and stabbed him twice. Morales
testified against a gang member related to one of the stabbings and in
exchange was placed in a witness protection program in Oregon.
One day in December 2018, Morales was in Oakland waiting for a
Greyhound bus to visit his family. His only luggage was a backpack
that contained, among other things, a seven and a half inch kitchen
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knife. Morales also had a butterfly knife in his pocket. Morales carried
the weapons for self-defense.
Morales arrived in Oakland at noon. When he tried to board a
bus in the afternoon, Morales got into a fight with the bus station staff.
Morales had persisted in trying to get on the wrong bus despite the
staff telling him he had the wrong ticket. The police arrived in
response to a call and spoke to Morales, but they took no action because
the security guard did not want to press charges.
Morales testified that he kept his backpack on his shoulder
unless he was inside, because he didn’t want anyone to take his
belongings while he was at the station. However, the Greyhound
station’s security cameras showed that around 8:30 p.m. he stood on
the sidewalk in front of the station for at least five minutes with his
backpack at his feet.
Later that night, around 9:00 p.m., Morales left the station with
an unidentified man wearing a beanie hat and walked along the
sidewalk towards the parking lot on the side of the building. Morales
testified that the two went to the parking lot so Morales could smoke a
cigarette and the other man could use a vape with marijuana. The
Greyhound station’s video security cameras captured the two men
walking on the sidewalk in front of the building, but the area of the
parking lot where the men stood was not visible to the security
cameras.
Less than 15 seconds after arriving at the parking lot, the man
with the hat returned to the sidewalk in front of the bus station, while
Morales stayed on the side of the building. Thirty seconds after that,
McMillian walked by and stepped around the corner of the building
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into the parking lot out of view of the camera. McMillian was wearing
shorts, a coat, and a red hoodie. McMillian usually carried a backpack
or bag of some sort when he left his apartment, but at this point he was
carrying only a bicycle wheel.
According to Morales, McMillian was taller and bigger than he.
McMillian asked Morales for a cigarette. Morales responded that he
did not have another but offered to give McMillian some change.
McMillian seemed to take offense to Morales’ offer of change and said,
“If I want your shit, I’ll take your shit.” Feeling threatened, Morales
said McMillian could not take any of Morales’ possessions, and Morales
took a step backward and turned to get away. As he was turning,
Morales felt McMillian’s fingers rake across his shoulder and pull on
his backpack. The force pulled Morales back around, and he saw that
McMillian was now holding his backpack. Morales also felt McMillian
brush against him, so Morales pushed McMillian.
Morales testified that he then backed out of the parking lot onto
the sidewalk at the corner of the station and McMillian walked toward
him. The security camera captured Morales as he backed onto the
sidewalk without his backpack, about 40 seconds after McMillian
stepped off the sidewalk into the parking lot. Morales said he walked
back towards McMillian and demanded his backpack, then backed
away again when McMillian did not return it.
According to Morales, McMillian then said, “What else you got?”
Believing McMillian was trying to take his cell phone and wallet,
Morales lifted his shirt to reveal a knife in the waistband of his pants.
Morales drew the knife, held it with the blade against his forearm, and
raised his arm across his chest. Morales leaned back, and it seemed to
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him that McMillian was moving closer to take the knife, so Morales
said he lashed out by extending his arm straight. Based on a later
autopsy, Morales drove his knife five and a half inches into McMillian’s
torso.
At the time of the stabbing, the two men were on the edge of the
video taken from the security camera and the details of the scene are
somewhat difficult to make out. The video does not show Morales
lifting his shirt and it is difficult to tell when he drew the knife. But
the video does show that less than 15 seconds after Morales backed
onto the sidewalk, he stepped forward toward McMillian and, in a
backhanded motion, stabbed at McMillian with a knife. McMillian’s
arms were at his sides. Morales admitted that McMillian never drew a
weapon, did not verbally threaten him, and never took a swing at him.
According to Morales, after stabbing McMillian he tried to get his
backpack, but McMillian walked towards him swinging punches.
McMillian fell down, got back up, picked up the backpack and bicycle
wheel, and started swinging the wheel at Morales to keep Morales
away. McMillian then walked quickly away, and Morales did not
pursue him. These interactions were mostly out of view of the security
camera, though the video reflects portions of them. Raymond Price,
who had exited the building and witnessed some of these interactions
after the stabbing, testified that Morales appeared to be the aggressor
attacking McMillian, while McMillian was saying “Hey, man,”
shielding himself, and trying to get away.
McMillian walked from the parking lot to his nearby apartment
building, dripping blood on the sidewalk. With blood pouring out from
his shirt, he asked the front desk clerk to call 911. He asked another
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resident of the building to take the bicycle wheel and Morales’
backpack up to the resident’s room. While waiting for first responders,
McMillian said he had been robbed by a Mexican. McMillian was then
taken to the hospital where he died from his injuries.
Morales meanwhile dropped his knife at the corner of the parking
lot. Morales then ran away from the sidewalk, alongside the building,
through the parking lot. He testified that he ran to get the security
guard at the bus loading area in the back of the building but turned
back in the parking lot when he encountered a plastic fence blocking
the bus loading area. The cameras show him running through the
parking lot alongside the building and turning back, but they do not
show any fence. Morales then smoked a cigarette in the front of the
building and went inside. The police detained Morales at the bus
station shortly afterwards.
The autopsy showed that McMillian’s blood tested positive for
cocaine, methadone, and a very low level of marijuana, as well as
metabolites of those substances. The pathologist explained that cocaine
can cause agitation, alertness, increased heart rate and blood pressure,
and sweating. The cocaine level in McMillian’s blood was significant
but not necessarily fatal, especially because the presence of significant
amounts of cocaine metabolite suggested he was a chronic user. For
the same reason, McMillian may have had more of a tolerance and not
been exhibiting the effects of cocaine as acutely as someone who had
never used the drug before. The stab wound in McMillian’s abdomen
penetrated his stomach and liver and was the cause of his death.
McMillian had abrasions on his knees consistent with falling on
concrete. McMillian also had a superficial cut on the side of his thumb
5
towards the end from the knuckle, which could have been caused by
him trying to grab a knife but was more likely a defensive wound.
Morales had blood drawn at the police station, and his blood
tested positive for methamphetamine and an antidepressant drug but
not amphetamine. The effects of methamphetamine are similar to
cocaine and include agitation, sweating, high blood pressure, as well as
some level of psychosis, confusion, and aggression. The pathologist
stated that methamphetamine is metabolized to amphetamine between
1 and 12 hours after use, so the amount of methamphetamine in
Morales’ blood without any amphetamine was consistent with acute
intoxication and indicated the methamphetamine had been recently
taken.
The pathologist told the jury that both cocaine and
methamphetamine can cause a condition called excited delirium.
Excited delirium consists of excitement or agitation like a fight or flight
reaction, and people with the condition will get agitated and can be
physically violent against things or people. People experiencing excited
delirium are also not responding appropriately to stimuli and may not
understand instructions, may make growling or unintelligible sounds,
and fight in an aggressive, desperate way with superhuman strength.
The state may end in exhaustion or death. The aggression of a person
in excited delirium can arise because the person has paranoia and
thinks people are coming after them. Although the levels of cocaine in
McMillian’s blood were consistent with a state of excited delirium,
without a description of McMillian’s behavior, they were not sufficient
for the pathologist to say whether they caused McMillian to be in a
state of excited delirium.
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A psychologist, Dr. Laeeq Evered, testified for the defense that
Morales had significant post-traumatic stress disorder (PTSD) from his
prior experiences with gangs and being stabbed. Dr. Evered opined
that if a person with significant PTSD were robbed in the dark in a
strange place, the event would be likely to trigger a fear response of
freeze, then fight or flight. A person with such a response would
typically have poor memory of the details of the incident, and as a
result might make up a story to explain the incident, perhaps by
watching a video of the incident, while believing the confabulated
memory to be true. Dr. Evered admitted that people with PTSD do not
always have a fear response to triggering events and that it was hard
to know whether a person was acting out of a fear-based PTSD
response or deciding to stab someone. Dr. Evered also acknowledged
that people with PTSD can get angry and act for reasons other than a
fear response.
After a trial in July 2019, the jury found Morales not guilty of
first degree murder but could not reach a verdict regarding second
degree murder, voluntary manslaughter, and involuntary
manslaughter. The trial court declared a mistrial. After a second trial
in December 2019, the jury deliberated for about 17 hours over four
days before finding Morales guilty of second degree murder and finding
true the allegation that he used a knife. The trial court sentenced
Morales to 16 years to life in prison.
DISCUSSION
I. Sufficiency of the evidence
Morales contends the evidence was not sufficient to support his
conviction for second degree murder. “Second degree murder is the
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unlawful killing of a human being with malice aforethought, but
without the premeditation, deliberation and willfulness necessary to
elevate the offense to first degree murder.” (People v. Bohana (2000)
84 Cal.App.4th 360, 368; Pen. Code,1 § 187, subd. (a).) Malice may be
express or implied. (§ 188, subd. (a).) “Malice is express when there is
manifested a deliberate intention to unlawfully take away the life of a
fellow creature.” (§ 188, subd. (a)(1).) “Malice is implied when no
considerable provocation appears, or when the circumstances attending
the killing show an abandoned and malignant heart.” (§ 188,
subd. (a)(2).) The Supreme Court has “interpreted implied malice as
having ‘both a physical and a mental component. The physical
component is satisfied by the performance of “an act, the natural
consequences of which are dangerous to life.” [Citation.] The mental
component is the requirement that the defendant “knows that his
conduct endangers the life of another and . . . acts with a conscious
disregard for life.” ’ ” (People v. Chun (2009) 45 Cal.4th 1172, 1181.)
Because Morales testified that he killed McMillian in self-
defense, the prosecution was also required to prove he did not act in
self-defense or imperfect self-defense. (People v. Frye (1992)
7 Cal.App.4th 1148, 1158–1159 [prosecution required to disprove
justifications or excuses]; In re Walker (2007) 147 Cal.App.4th 533, 537
[prosecution required to disprove imperfect self-defense].) Under the
doctrine of self-defense, “a homicide is justifiable and noncriminal
where the actor possessed both an actual and reasonable belief in the
need to defend.” (People v. Stitely (2005) 35 Cal.4th 514, 551.) Under
the doctrine of imperfect self-defense, “[a]n unlawful killing involving
1 Undesignated statutory citations are to the Penal Code.
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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.”
(Ibid.)
“Given this court’s limited role on appeal, [Morales] bears an
enormous burden in claiming there was insufficient evidence to sustain
his conviction.” (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.)
“ ‘The proper test for determining a claim of insufficiency of evidence in
a criminal case is whether, on the entire record, a rational trier of fact
could find the defendant guilty beyond a reasonable doubt. [Citations.]
On appeal, we must view the evidence in the light most favorable to the
People and must presume in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence.
[Citation.] [¶] Although we must ensure the evidence is reasonable,
credible, and of solid value, nonetheless it is the exclusive province of
the trial judge or jury to determine the credibility of a witness and the
truth or falsity of the facts on which that determination depends.
[Citation.] Thus, if the verdict is supported by substantial evidence, we
must accord due deference to the trier of fact and not substitute our
evaluation of a witness’s credibility for that of the fact finder.’ ” (People
v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “The same standard applies
when the conviction rests primarily on circumstantial evidence.
[Citation.] Although it is the jury’s duty to acquit a defendant if it finds
the circumstantial evidence susceptible of two reasonable
interpretations, one of which suggests guilt and the other innocence, it
is the jury, not the appellate court that must be convinced of the
defendant’s guilt beyond a reasonable doubt. [Citation.] ‘ “If the
9
circumstances reasonably justify the trier of fact’s findings, the opinion
of the reviewing court that the circumstances might also reasonably be
reconciled with a contrary finding does not warrant a reversal of the
judgment.” ’ ” (People v. Kraft (2000) 23 Cal.4th 978, 1053–1054.)
In his opening brief, Morales contends the evidence supporting
his conviction is insufficient because (1) there was not enough evidence
that he intended to kill McMillian, (2) the undisputed evidence of his
PTSD precluded a finding that he acted with a conscious disregard for
the dangerousness of his actions, and (3) the prosecution failed to prove
he was not acting in imperfect self-defense. In his reply brief, however,
Morales abandons the first argument by conceding that the evidence
that he struck first and used a knife to stab at McMillian’s abdomen,
among other things, supports a finding that he intended to kill. He
nonetheless insists this evidence was insufficient under his third
argument because the evidence shows his mental state was impacted
by a fear of McMillian’s robbery.
As the Attorney General points out, however, the jury was free to
disbelieve Morales’ claim that he was afraid and acting in self-defense,
especially in light of the evidence to the contrary. (People v. Webb
(1978) 83 Cal.App.3d 83, 94–95.) Morales admitted that he lashed out
at McMillian with a seven-inch knife with sufficient force to penetrate
five and a half inches into McMillian’s abdomen. Price testified that
immediately after the stabbing Morales was the aggressor and
McMillian was trying to get away. The pathologist testified that
McMillian had a defensive wound on his thumb. The jury also saw the
video of the stabbing, which shows that Morales wound up for his
killing stroke by leaning back and then stepped forward to McMillian,
10
purposefully driving his knife straight towards McMillian’s abdomen.
During the moments immediately preceding the stabbing, McMillian
did not appear to be menacing or threatening Morales, and McMillian’s
arms never left his sides. The jury had a sufficient basis from which to
conclude Morales intended to kill and was not acting in self-defense or
imperfect self-defense.2
Morales’ argument regarding implied malice and his PTSD
evidence likewise falls short. Morales points out that Dr. Evered’s
testimony that Morales suffered from PTSD was undisputed. Dr.
Evered told the jury that if Morales were experiencing a fear response
triggered by his PTSD, Morales would have been unable to consciously
consider the risk to McMillian’s life from Morales’ actions. Morales
argues no reasonable jury could conclude from this evidence that
Morales was aware that his actions were dangerous and consciously
disregarded the risk.3
Morales cites no authority for his apparent assumption that the
jury was required to accept Dr. Evered’s testimony about Morales’
PTSD. Such an assumption is contrary to the instruction to the jury,
2 Morales argues the jury verdict cannot be construed as a
rejection of his claim of self-defense because of his separate argument
that the jury was not properly instructed that self-defense applies in
cases of robbery. We reject this claim of instructional error for the
reasons set out below.
3 Morales also mentions the evidence of his methamphetamine
intoxication in support of his argument regarding implied malice. But
as we discuss in further detail below in response to Morales’ argument
regarding his request for an instruction on voluntary intoxication,
evidence of voluntary intoxication cannot be used to disprove implied
malice. (People v. Turk (2008) 164 Cal.App.4th 1361, 1376; § 29.4,
subds. (a)–(b).)
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which Morales does not challenge, that the jury could believe all, part,
or none of any witness’s testimony. (See CALCRIM No. 226; see also,
e.g., People v. Carrington (2009) 47 Cal.4th 145, 187 [jury was free to
disbelieve defendant’s claim that she formed specific intent to rob
victim only after shooting him].) Assuming the jury did believe Dr.
Evered’s testimony on these points, the jury could still decide that
Morales had implied malice despite the PTSD diagnosis. Dr. Evered
admitted that people with PTSD can act for reasons other than their
PTSD, even in triggering situations. The jury could watch the video of
Morales’ actions and conclude from Morales’ behavior and actions on
the video that he was not acting based on fear or PTSD at the time of
the stabbing, despite his and Dr. Evered’s testimony to the contrary.
We cannot gainsay the jury’s conclusion in this regard.
II. Instruction on self-defense to robbery
“We review a claim of instructional error de novo. [Citation.]
‘Review of the adequacy of instructions is based on whether the trial
court “fully and fairly instructed on the applicable law.” ’ ” (People v.
Barber (2020) 55 Cal.App.5th 787, 798.) “Generally, the trial court is
required to instruct the jury on the general principles of law that are
closely and openly connected with the evidence and that are necessary
to the jury’s understanding of the case. [Citation.] It also has a duty to
refrain from giving incorrect instructions or instructions on principles
of law that are irrelevant and that would have the effect of confusing
the jury or relieving it from making findings on the relevant issues.”
(Id. at p. 799.)
The trial court instructed the jury in accordance with CALCRIM
No. 505 that Morales acted in lawful self-defense if (1) he reasonably
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believed that he was in imminent danger of being killed or suffering
great bodily injury, (2) he reasonably believed that the immediate use
of deadly force was necessary to defend against that danger, and (3) he
used no more force than was reasonably necessary. Morales asked the
trial court to modify the first element to include, apart from the
imminent danger of being killed or suffering great bodily injury, an
imminent danger of being robbed or maimed. The trial court denied
Morales’ requested instruction, telling Morales’ counsel that he could
discuss robbery in his argument concerning the concepts of danger of
great bodily injury or death, but that the danger had to be one of
imminent death or great bodily injury.
Morales contends the trial court erred by denying his request to
add an imminent danger of robbery as a sufficient basis for the first
element of self-defense because his own testimony provided ample
evidence that McMillian was committing a robbery. He argues the trial
court mistakenly believed that self-defense was available only to
respond to a danger of great bodily injury or death. He relies primarily
on section 197, as construed in People v. Ceballos (1974) 12 Cal.3d 470(Ceballos).
Section 197 provides that homicide is justifiable “[w]hen resisting
any attempt to murder any person, or to commit a felony, or to do some
great bodily injury upon any person” or “[w]hen committed in defense of
habitation, property, or person, against one who manifestly intends or
endeavors, by violence or surprise, to commit a felony.” (§ 197,
subds. (1)–(2).) Ceballos, supra, 12 Cal.3d at pages 477–478, limited
the meaning of “felony” in these subdivisions because there are far
more felonies under modern criminal law than at early common law,
13
and many modern felonies do not involve a danger of serious bodily
harm. Following and expanding on People v. Jones (1961)
191 Cal.App.2d 478, 481–482, Ceballos therefore read section 197 as
permitting the use of deadly force to prevent a felony only if the felony
is “forcible and atrocious.” (Ceballos, at p. 478.) Ceballos then
remarked, “Examples of forcible and atrocious crimes are murder,
mayhem, rape and robbery. (See Storey v. State [(1882)] 71 Ala. 329,
340; 3 Greenleaf on Evidence (1899) p. 122.) In such crimes ‘from their
atrocity and violence human life [(]or personal safety from great
harm[)] either is, or is presumed to be, in peril.’ ” (Ceballos, at pp. 478–
479.) Ceballos went on to hold that even though burglary had also been
considered a forcible and atrocious crime, because burglary had a wide
scope, not all burglaries would trigger the right to use deadly force in
self-defense. (Id. at p. 479.) Ceballos therefore held that a defendant
who killed two burglars with a trap gun, when the defendant was not
on the property when it was burglarized, could not claim self-defense.
(Id. at pp. 479–480.)
Relying on Ceballos, Morales argues that the evidence that he
was resisting McMillian’s attempt to rob him was itself a sufficient
basis for his requested instruction without regard to any danger of
great bodily injury or death. Morales notes that CALCRIM No. 505,
based on Ceballos, provides bracketed language in the first element of
the self-defense instruction to allow a jury to find that element is
satisfied if a defendant reasonably believed the defendant was in
imminent danger of death, great bodily injury, or being raped, maimed,
or robbed. CALCRIM No. 505 further states in a bench note, “If the
defendant is asserting that he or she was resisting the commission of
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one of these felonies or another specific felony, the court should include
the bracketed language at the end of element 1 and select ‘raped,’
‘maimed,’ or ‘robbed,’ or insert another appropriate forcible and
atrocious crime. In all other cases involving death or great bodily
injury, the court should use element 1 without the bracketed language.”
Morales also cites People v. Young (1963) 214 Cal.App.2d 641, 644,
fn. 2, 650 (Young), which reversed a conviction because the trial court
failed to instruct the jury that homicide is justifiable when resisting an
attempt to murder, commit a felony, or do great bodily injury.
Young and Ceballos notwithstanding, we are not convinced that a
mere robbery, without more, will give rise to the right of self-defense
with deadly force. Young predated Ceballos and its restriction of
section 197 to forcible and atrocious felonies, so it is not helpful. Using
Ceballos’ terminology, we conclude that robberies are not always
forcible and atrocious, as they cover a wide scope of conduct. “Robbery
is the felonious taking of personal property in the possession of
another, from his person or immediate presence, and against his will,
accomplished by means of force or fear.” (§ 211.) But the degree of
force involved is immaterial, and can be satisfied by wresting a purse
from someone unwilling to part with it and stepping on her foot (People
v. Burns (2009) 172 Cal.App.4th 1251, 1259), or even by politely
tapping a person on the shoulder to indicate that she should step aside
from a cash register (People v. Garcia (1996) 45 Cal.App.4th 1242,
1246, disapproved of on other grounds by People v. Mosby (2004)
33 Cal.4th 353). Where a robbery is accomplished through fear,
meanwhile, the fear need not pertain to physical safety at all and can
be a fear of injury to property. (§ 212.) A robbery therefore cannot
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trigger the right to use deadly force in self-defense unless the
circumstances of the robbery gave rise to a reasonable belief that the
victim would suffer great bodily injury or death. To be sure, many
robberies likely satisfy that standard, since, for example, a victim who
surrenders property in response to the brandishing of a weapon or what
appears to be a deadly weapon could reasonably fear that the robber
would use it. (See, e.g., People v. Villa (2007) 157 Cal.App.4th 1429,
1433 [pointing a metallic object that appeared to be a gun induced fear
in victims and satisfied the fear element of robbery].) But the
touchstone for self-defense remains the reasonable belief of the danger
of great bodily injury or death, not the threat of a robbery in and of
itself.
Ceballos’ remark that robbery is a forcible and atrocious crime
does not convince us otherwise. Ceballos itself did not involve a
robbery, so the remark is dicta. Further, treating all robberies as
forcible and atrocious crimes would be at odds with Ceballos’ approach
of examining whether the character and manner of the burglary at
issue there threatened or could be reasonably believed to threaten
death or serious bodily harm. (Ceballos, supra, 12 Cal.3d at p. 479.)
The corresponding instruction in another set of jury instructions,
CALJIC Crim. 5.16, also states that robbery is a forcible and atrocious
crime, based on Ceballos. But as the use note for that instruction
explains, Ceballos “relied upon an old Alabama case and an 1899
evidence text, and those authors obviously had in mind the traditional
common law robbery. Since Ceballos, other cases have expanded
robbery to include situations where very little force or threat of force is
involved. In addition, some unarmed robberies would not meet the
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definition of forcible and atrocious. Bearing in mind that in Ceballos,
the court was postulating a rule of reasonableness, it is suggested that
if the trial court is in doubt whether the crime the victim was engaged
in was in fact forcible and atrocious, using the first paragraph of the
instruction alone [concerning the threat of great bodily injury or death]
would permit the jury to determine appropriately the merits of the
alleged defense.”
The suggestion in this use note is sensible. As the court
remarked in People v. Jones, supra, 191 Cal.App.2d at page 482 (on
which Ceballos relied), “Any civilized system of law recognizes the
supreme value of human life, and excuses or justifies its taking only in
cases of apparent absolute necessity.” For that reason, to determine
whether a person who fears being the victim of a crime may respond
with deadly force, “[w]e must look further into the character of the
crime, and the manner of its perpetration,” prohibiting the use of
deadly force when the character and manner of the crime “do not
reasonably create a fear of great bodily harm.” (Ibid.) The use of
deadly force is not necessary to prevent a robbery that is little more
than a purse snatching or to prevent harm to the purse. Neither the
Legislature nor Ceballos can have intended to permit the victim of a
robbery to use deadly force in such situations.
In his reply brief, Morales advances a narrower argument that
his requested robbery instruction was necessary for the jury’s
understanding of the case because robbery can be accomplished by
instilling fear of bodily injury and that was the basis for his claim of
self-defense. He believes the jury could not put these points together,
because it was only told that Morales could resist an imminent attack,
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not that he could use force to defend himself if he believed he was
having property taken by use of fear of physical attack. His maintains
the jury should have been told how the fear of great bodily injury in the
context of a robbery applied to the concept of self-defense.
This argument has no more merit than Morales’ first position.
Preliminarily, this theory does not match the instruction Morales
requested in the trial court, which presented fear of robbery as an
alternative basis for self-defense to fear of great bodily injury or death,
not as a contributing factor to the fear of great bodily injury or death.
More importantly, the jury did not need to be instructed on self-defense
in the context of a robbery. Because the trial court told the jury that
Morales could use deadly force in self-defense if he reasonably feared
an imminent attack that might result in death or great bodily injury, it
was unnecessary to go further and say he could use deadly force in self-
defense if he reasonably feared such an imminent attack as part of a
robbery. The instruction the trial court delivered thus necessarily
encompassed the theory Morales advanced. The key question for the
purposes of self-defense is not an attacker’s motive for attacking, but
the sincerity and reasonableness of Morales’ belief of an imminent
attack. “In determining whether error has been committed in giving
jury instructions, we consider the instructions as a whole and assume
jurors are intelligent persons, capable of understanding and correlating
all jury instructions which are given. [Citation.] ‘ “Instructions should
be interpreted, if possible, so as to support the judgment rather than
defeat it if they are reasonably susceptible to such interpretation.” ’ ”
(People v. Barber, supra, 55 Cal.App.5th at pp. 798–799.) Considering
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the instructions as a whole, the jury could evaluate Morales’ theory
using the instructions the trial court provided.
Even if the trial court should have provided an instruction on the
narrow theory that Morales advances in his reply brief, the error was
harmless under either the federal or state standards. (People v.
Gonzalez (2018) 5 Cal.5th 186, 199 [California Supreme Court has “yet
to determine whether a trial court’s failure to instruct on a requested
affirmative defense instruction supported by substantial evidence is
federal constitutional error or state law error”]; People v. Barber, supra,
55 Cal.App.5th at p. 799 [error in refusing to give a requested pinpoint
instruction is reviewed under People v. Watson (1956) 46 Cal.2d 818,
836].) As Morales admits, his defense focused on making the robbery a
part of the basis for Morales’ claim of fear. He raised the robbery and
his resulting fear numerous times in his testimony. His counsel raised
the robbery theory several times in closing argument as well. The jury
nonetheless chose to convict Morales of second degree murder. This
indicates that the jury did not accept Morales’ claims that he used
deadly force because of a genuine and reasonable fear that McMillian
would inflict great bodily injury or kill him. Adding an additional
instruction that Morales could have acted in self-defense if he had a
fear of great bodily injury or death due to robbery would not have
changed the jury’s finding on this point.
III. Instruction on imperfect self-defense
Morales next challenges the trial court’s instruction on voluntary
manslaughter based on imperfect self-defense.4 In addition to
Morales did not object to this instruction below, but we may
4
review his argument here that the instruction was an incorrect
19
instructing the jury on self-defense in accordance with CALCRIM
No. 505, the trial court instructed the jury using CALCRIM No. 571.
That instruction states that a killing that would otherwise be murder is
reduced to voluntary manslaughter if the defendant kills because of
imperfect self-defense. It further states that a defendant acts in
imperfect self-defense if a defendant (1) actually believes that he or she
is in imminent danger of being killed or suffering great bodily injury
and (2) actually believes that the immediate use of deadly force is
necessary to defend against the danger, but (3) at least one of those
beliefs is unreasonable.
Morales contends this instruction was insufficient because it
failed to tell the jury that a homicide also qualifies as voluntary
manslaughter and not murder when a defendant’s beliefs in danger and
the need to use deadly force are reasonable but the sort of deadly force
he uses is excessive and more than necessary to repel the attack. He
argues that if the jury found he reasonably believed he would suffer
great bodily injury from McMillian in the course of the robbery and
reasonably believed he needed to arm himself against McMillian, but
found that stabbing McMillian in the abdomen was more force than
was reasonably necessary, the jury could find him guilty of voluntary
manslaughter.
Our Supreme Court has made clear that “not every unreasonable
belief will support a claim of imperfect self-defense”; rather, a
statement of the law if the instruction affected his substantial rights,
meaning it was reversible error under People v. Watson, supra,
46 Cal.2d at p. 836. (§ 1259; People v. Christopher (2006)
137 Cal.App.4th 418, 427; People v. Rivera (1984) 162 Cal.App.3d 141,
146.)
20
defendant can claim imperfect self-defense based only on a belief “that,
if reasonable, would support a claim of perfect self-defense.” (People v.
Valencia (2008) 43 Cal.4th 268, 288.) For example, if a defendant
unreasonably believes someone is going to punch him in the arm and
stabs him to death in response, “this belief would not support a claim of
imperfect self-defense for the reason that the belief, even if reasonable,
would not permit the use of deadly force.” (Id. at p. 288, fn. 6.) In such
a scenario, the use of force would be excessive but still would not reduce
a homicide to voluntary manslaughter. Similarly here, if Morales
reasonably believed he needed to use force against McMillian but used
more force than was necessary, then he could not claim perfect self-
defense. As a result, he cannot claim imperfect self-defense, either.
Moreover, Morales does not explain how his stabbing could be
based on his reasonable belief in the need to use of deadly force but still
qualify as excessive.5 If Morales reasonably believed he needed to use
deadly force to prevent McMillian from harming him, his use of a single
stab with his knife would appear to be reasonable. (Cf. Young, supra,
214 Cal.App.2d at pp. 649–650 [deadly force would be excessive if
defendant chased victim as victim ran away from fight and stabbed him
after he was lying on the ground].) Morales also cites no authority for
his position that one type of deadly force could be reasonable but
5To the extent Morales is making the related argument that the
instructions failed to inform the jury that he would be guilty only of
voluntary manslaughter if he had a sincere, but unreasonable, belief in
the need to use deadly force, we reject this claim as well. The
instructions informed the jury of precisely this point, and in any event,
if Morales’ sincere belief in the need to use deadly force was
unreasonable, then by definition the use of deadly force would be
excessive.
21
another could be excessive. The relevant consideration is whether a
defendant uses more force than is necessary to repel an attack, not the
type of deadly force used by a defendant. (See People v. Hardin (2000)
85 Cal.App.4th 625, 629–630.)
Morales further argues that the trial court should have
instructed the jury that malice would be negated if they found that
Morales killed out of an honest belief in the need to defend himself but
used excessive force.. Morales is correct that imperfect self-defense
converts a homicide from murder to voluntary manslaughter because it
negates the element of malice. (People v. Mayfield, (1997) 14 Cal.4th
668, 777–778, abrogated on other grounds by People v. Scott (2015)
61 Cal.4th 363, 390, fn. 2.) But the negation of malice is immaterial for
the purposes of the jury. Mayfield did not hold, as Morales contends,
that the jury necessarily had to be instructed on how imperfect self-
defense impacts the concept of malice. (Ibid.) Although the instruction
in Mayfield did explain that imperfect self-defense negated malice,
Mayfield found the instruction there sufficient because it made clear
that the question of whether an imperfect self-defense theory will
preclude a murder conviction turns on the jury’s assessment of whether
the defendant’s belief in the need to use deadly force was sincere, even
if unreasonable. (Ibid.) So, too, the instruction here.
People v. Genovese (2008) 168 Cal.App.4th 817, 832, rejected the
argument Morales now advances. Like Morales, Genovese contended
that the jury instructions erroneously failed to inform the jury that
imperfect self-defense eliminates malice. (Id. at p. 825.) The court held
that “it does not matter that the [] instructions failed to inform the jury
that imperfect defense of another would eliminate malice,” explaining
22
that Genovese’s “argument is defeated by the plain language of the
instructions as given to the jury, that ‘[a] killing that would otherwise
be murder is reduced to voluntary manslaughter’ if defendant acted in
imperfect defense.” (Id. at pp. 830–831, 832.) As a result, it was
“immaterial that the jury was not informed that, in fact, what was
going on was that the jury was finding an ‘absence of malice.’ . . . The
definition of malice may be interesting to lawyers and judges and law
professors, but it does not aid the task of lay jurors to inform them that,
when the defendant acts in an honest but unreasonable belief in the
need to defend another, he is acting without malice.” (Id. at p. 831.)
The jury in Morales’ trial received the same instruction. Like the
Genovese court, we find that this instruction adequately explained that
Morales would be guilty of voluntary manslaughter if he acted in
imperfect self-defense, even if the jury found he had an intent to kill or
a conscious disregard for the danger of his actions. (Ibid.) We presume
the jury followed this instruction, despite not being told the underlying
legal rationale that the reduction of murder to voluntary manslaughter
would occur via the mechanism of negating malice. (People v. Barber,
supra, 55 Cal.App.5th at p. 799 [“ ‘The crucial assumption underlying
our constitutional system of trial by jury is that jurors generally
understand and faithfully follow instructions’ ”].)
IV. Failure to instruct on voluntary intoxication
Morales finally argues the trial court should have delivered an
instruction on voluntary intoxication. In the context of second degree
murder, evidence of a defendant’s voluntary intoxication can negate a
finding that he harbored express malice, which is defined in section 188
as an intent to kill unlawfully. (People v. Turk, supra, 164 Cal.App.4th
23at pp. 1376–1378; § 29.4, subd. (b); see People v. Soto (2018) 4 Cal.5th
968, 975.) However, voluntary intoxication cannot negate a finding of
implied malice. (Turk, at p. 1376 [“a defendant who unlawfully kills
without express malice due to voluntary intoxication can still act with
implied malice, which voluntary intoxication cannot negate”]; Soto, at
p. 977 [“By prohibiting evidence of voluntary intoxication to negate
implied malice, the Legislature apparently [intended] that a defendant
who acts with conscious disregard for life should be punished for
murder regardless of whether voluntary intoxication impaired his or
her judgment”]; § 29.4, subds. (a)–(b).) A defendant is therefore
entitled to an instruction on voluntary intoxication “only when there is
substantial evidence of the defendant’s voluntary intoxication and the
intoxication affected the defendant’s ‘actual formation of specific
intent.’ ” (People v. Williams (1997) 16 Cal.4th 635, 677.) “In
determining whether the evidence is sufficient to warrant a jury
instruction, the trial court does not determine the credibility of the
defense evidence, but only whether ‘there was evidence which, if
believed by the jury, was sufficient to raise a reasonable doubt.’ ”
(People v. Salas (2006) 37 Cal.4th 967, 982.)
Morales asked the court to deliver CALCRIM No. 625, which
defines voluntary intoxication and as relevant here states that a jury
may consider voluntary intoxication for the limited purpose of deciding
whether a defendant acted with the intent to kill. The trial court
denied Morales’ request, stating, “No one touched upon that. No one
even asked him about -- you know, you have the doctor talk about the
methamphetamine issue and then how within six hours it would
process itself. It hadn’t processed itself. So it’s within the window, but
24
nobody talked about that. Nobody asked that question. So that’s the
question. I’m sitting here waiting and it didn’t happen.”
We agree with the trial court that the evidence here was
insufficient to warrant an instruction on voluntary intoxication.
Morales focuses on the testimony of the pathologist that Morales’ blood
tested positive for methamphetamine and the absence of metabolites
was “consistent with an acute intoxication.” The pathologist testified
that these lab results indicated that Morales had recently taken the
methamphetamine, somewhere between 1 and 12 hours prior to his
blood being drawn. The pathologist also explained that
methamphetamine can cause agitation, sweating, high blood pressure,
“even a certain level of psychosis, confusion, aggression on some levels.”
Additionally, the pathologist mentioned that cocaine and
methamphetamine can both cause excited delirium.
What is missing from this general testimony about the effects of
methamphetamine, however, is any indication that Morales’ use of
methamphetamine affected his thought process in any way. This
absence is conspicuous, because, as the trial judge noted, Morales’
counsel’s questioning of the pathologist initially suggested that he
intended to present a defense of voluntary intoxication. But Morales’
counsel never completed the defense by presenting evidence regarding
the effects of methamphetamine on Morales’ formation of an intent to
kill, either from the pathologist or Morales himself. Morales’ counsel
himself seemed to recognize this, since he described the testimony on
voluntary intoxication as “limited” when he asked for the instruction.
For example, Morales’ counsel never asked the pathologist which of the
effects of methamphetamine Morales would have exhibited given the
25
amount found in his blood, or whether any of the described effects
would have prevented Morales from forming the intent to kill. Morales’
counsel focused his questions to the pathologist on excited delirium as
it relates to McMillian’s use of cocaine and did not try to link excited
delirium to the level of methamphetamine in Morales’ blood. Besides,
the pathologist also made clear that excited delirium cannot be
diagnosed from a toxicology report alone, but instead is diagnosed
based on a description of a person’s conduct. Morales himself never
mentioned using methamphetamine or raised any issue with respect to
whether the methamphetamine affected his formation of an intent to
kill McMillian. Absent such evidence, the pathologist’s testimony
regarding the amount of methamphetamine in Morales’ blood and the
general effects of methamphetamine was not sufficient to raise a
reasonable doubt in the jury’s mind about Morales’ intent to kill.
(People v. Salas, supra, 37 Cal.4th at p. 982.)
This case is similar in this regard to People v. Williams, supra,16 Cal.4th 635. Williams held that even if a few isolated references to
a defendant being “ ‘spaced out,’ ” “ ‘doped up,’ ” and “ ‘smokin’ pretty
tough’ ” qualified as evidence that the defendant was intoxicated at the
time of the crime, the trial court properly denied the defendant’s
request for a voluntary intoxication instruction because “there was no
evidence at all that voluntary intoxication had any effect on [the]
defendant’s ability to formulate intent.” (Id. at pp. 677–678.) Similarly
here, even if the pathologist’s testimony could qualify as substantial
evidence that Morales was intoxicated, in the absence of evidence that
his intoxication had any effect on his formation of the intent to kill, the
26
trial court correctly refused his request for an instruction on the effects
of voluntary intoxication.
In a fallback argument, Morales argues that any insufficiency of
the evidence to support a voluntary intoxication instruction
demonstrates his trial counsel was constitutionally insufficient. He
contends that Morales’ counsel’s questioning of the pathologist and
request for the instruction indicates that his counsel intended to lay the
foundation for a voluntary intoxication defense, so that his failure to
elicit the necessary testimony fell below reasonable professional
standards.
“To demonstrate ineffective assistance of counsel, [Morales] ‘must
show that counsel’s performance was deficient, and that the deficiency
prejudiced the defense.’ [Citation.] On direct appeal, a finding of
deficient performance is warranted where ‘(1) the record affirmatively
discloses counsel had no rational tactical purpose for the challenged act
or omission, (2) counsel was asked for a reason and failed to provide
one, or (3) there simply could be no satisfactory explanation.’
[Citation.] ‘[W]here counsel’s trial tactics or strategic reasons for
challenged decisions do not appear on the record, we will not find
ineffective assistance of counsel on appeal unless there could be no
conceivable reason for counsel’s acts or omissions.’ ” (People v. Johnsen
(2021) 10 Cal.5th 1116, 1165.)
We cannot say in this direct appeal that Morales’ trial counsel
was ineffective for failing to elicit the final piece of testimony regarding
Morales’ intoxication. Despite asking for the instruction at the end of
trial, his counsel could have rationally decided earlier that it was better
not to rely on Morales’ use of methamphetamine for his defense.
27
Morales’ counsel’s admission that the evidence regarding voluntary
intoxication was limited suggests this was in fact a tactical decision.
Evidence of voluntary intoxication at most would have defeated a
finding that he acted with express malice. The jury could still have
convicted Morales based on a finding of implied malice. The evidence
at trial supported an implied malice theory, since the jury could have
concluded that thrusting a seven-inch knife towards McMillian’s
abdomen demonstrated Morales had a conscious disregard for
McMillian’s life, even if Morales did not actually intend to take his life.
Morales’ counsel could have reasonably concluded that the benefit from
relying on Morales’ methamphetamine use to defeat a finding of
express malice was not worth the risk of losing the sympathy of the
jury and thereby making a conviction based on an implied malice
theory more likely.6
DISPOSITION
The judgment is affirmed.
BROWN, J.
I CONCUR:
TUCHER, J.
People v. Morales (A159825)
6Because we find the trial court committed no error, we need not
consider Morales’ contention that the cumulative effects of multiple
errors in his trial made it fundamentally unfair in violation of due
process.

Presiding Justice of the Court of Appeal, First Appellate
District, Division Three, sitting by assignment pursuant to article VI,
section 6 of the California Constitution.
28
STREETER, Acting P. J., Concurring.
I agree with the lead opinion that the imminent danger of
robbery Morales faced was not sufficient to warrant his requested
pinpoint instruction on self-defense, but I am reluctant to reject his
claimed entitlement to that instruction as categorically as my
colleagues do. In support of his claim of error, Morales does not suggest
that “all robberies” ought to be treated as forcible and atrocious felonies
as a matter of law, so I see no need to expound on whether the
illustrative reference to robbery in People v. Ceballos (1974) 12 Cal.3d
470, 478, was dicta or not. We should tread carefully in dealing with
what may appear to be statements extraneous to the precise holding of
a Supreme Court case. (Hubbard v. Superior Court (1997)
66 Cal.App.4th 1163, 1169 [“ ‘Even if properly characterized as dictum,
statements of the Supreme Court should be considered persuasive.’ ”].)
What Morales contends is that, on this record, there was substantial
evidence to support his proposed instruction. We need go no further
than to answer that question on the specific facts of this case.
The felony-resistance defense contained in Penal Code
section 197, subdivision (1), is a codification of the traditional common
law felony-resistance defense. (People v. Ceballos, supra, 12 Cal.3d at
pp. 477–478; People v. Jones (1961) 191 Cal.App.2d 478, 481.) Where
statutes are merely codifications of the common law, we must assume
they are limited by the corresponding traditional common law rules.
(Parsley v. Superior Court (1973) 9 Cal.3d 934, 938–939.) Virtually all
forms of the common law doctrine of justification contain an element of
objective reasonableness. (People v. Uriarte (1990) 223 Cal.App.3d 192,
197; see generally Note, Justification for the Use of Force in the
1
Criminal Law (1961) 13 Stan. L.Rev. 566.) An objective reasonableness
requirement is therefore implied in the statutory version of the defense
Morales proposed as the frame for his requested pinpoint instruction.
There is a subjective element to the defense as well. Felony-
resistance is not available as an excuse or justification unless the
defendant actually and reasonably believes in the need to use deadly
force. “A homicide is considered justified as self-defense where the
defendant actually and reasonably believed the use of deadly force was
necessary to defend himself from imminent threat of death or great
bodily injury. Under such circumstances, the killing is not a crime.
[Citations] Where the defendant kills while actually but unreasonably
believing the use of deadly force was necessary, defendant is considered
to have acted in imperfect self-defense. Imperfect self-defense is not a
complete defense to a killing, but negates the malice element and
reduces the offense to voluntary manslaughter. [Citations.] ‘The
subjective elements of self-defense and imperfect self-defense are
identical. Under each theory, the [defendant] must actually believe in
the need to defend . . . against imminent peril to life or great bodily
injury.’ ” (People v. Sotelo-Urena (2016) 4 Cal.App.5th 732, 744.)
Drawing inferences from the record in favor of Morales, he was
an indigent person carrying all of his possessions in his backpack and
he attempted to ward off an attempt to strip him by force of everything
he owned. None of us has ever been in that situation, but in applying
the requisite test of actually perceived peril and reasonableness, we
must make an effort to put ourselves in the shoes of someone reacting
to a threat so profound that it struck at the victim’s fundamental sense
of personal security. (Cf. People v. Humphrey (1996) 13 Cal.4th 1073,
2
1083 [in a homicide case involving an attempt to present expert
testimony supporting a battered women’s syndrome claim of self-
defense, “[a]lthough the ultimate test of reasonableness is objective, in
determining whether a reasonable person in defendant’s position would
have believed in the need to defend, the jury must consider all of the
relevant circumstances in which a defendant found herself.”].) For a
person so impoverished that he owns nothing else, there could be
circumstances in which a threatened taking of property meets this test.
Even looking at things in this case through that prism, on these
specific facts I conclude that the evidence is insufficient to support the
requested pinpoint instruction. It does not appear to me that Morales
either actually or reasonably believed that the taking of his backpack
was such a serious threat to his person that deadly force was necessary
to repel it. I can imagine additional circumstances showing that
Morales, acting out of the sense of desperate hypervigilance that life on
the streets sometimes engenders, might have perceived extreme danger
where others accustomed to greater personal security would not. (See
People v. Sotelo-Urena, supra, 4 Cal.App.5th at pp. 745–746 [reversing
first degree murder conviction based on erroneous refusal to allow
testimony from expert who was prepared to explain “that individuals
who are chronically homeless . . . are subjected to a high rate of
violence by both housed and homeless individuals, and that the
experience of living for years on the streets instills a perpetual fear of
violence that would have affected defendant’s belief in the need to
defend himself with lethal force”].) But no such circumstances were
shown here.
3
The mental-state defense in this case, put on through an expert,
was that Morales, a former gang member who had cut his ties with his
former gang associates and who had been beaten and attacked multiple
times for doing so, suffered from severe posttraumatic stress disorder
(PTSD) that was easily triggered by perceived threats. Due to his past
entanglement with gang life, he was, in short, a person with a hair-
trigger for violence when he came under threat. That has nothing to do
with some deep sense of attachment to his belongings. Other than his
gang past, there is very little in the record about Morales’s life
circumstances at the time of the crime. He appears to have been an
indigent drifter, and he testified that his backpack contained
everything he had, including clothes and medications—“all my stuff,”
as he put it—but the focus of his defense was solely on his heightened
sense of vulnerability to physical attack based on his gang history, not
on a concern about someone taking all of his “stuff ” as a trigger for a
PTSD-induced perpetual fear of violence.
On some other record, I would not rule out the possibility that
there could be a threatened robbery sufficiently serious to qualify as a
forcible and atrocious felony, but we do not have that record here. With
this slight qualification, I concur fully in the opinion.
STREETER, Acting P. J.
4
Trial Court: Alameda County Superior Court
Trial Judge: Hon. C. Don Clay
Counsel:
Law Office of Matthew A. Siroka, Matthew A. Siroka, under appointment by
the Court of Appeal, for Defendant and Appellant.
Matthew Rodriguez, Acting Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney
General, Catherine A. Rivlin, Basil R. Williams, Deputy Attorneys General
for Plaintiff and Respondent.