People v. Morell CA1/2 ( 2024 )

Filed 1/31/24 P. v. Morell CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A165502
v.
PHILLIP LANCE MORELL, (Contra Costa County
Super. Ct. No. 04002018794)
Defendant and Appellant.
Defendant Phillip Lance Morell assaulted his girlfriend, Jane Doe, and
a jury convicted him of, among other things, injuring a cohabitant or dating
partner and false imprisonment by violence. On appeal, Morell argues the
trial court’s failure to instruct the jury on defense of property violated his
constitutional rights to due process and to present a defense. We disagree
and affirm.
BACKGROUND
I.
The Trial
The People charged Morell with injuring a cohabitant or dating partner
(Pen. Code, § 273.5, subd. (a)1), assault with caustic chemicals (§ 244), and
All further statutory references are to the Penal Code unless
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otherwise indicated.
false imprisonment by violence (§§ 236, 237). The information further alleged
Morell had previously been convicted of assault with a deadly weapon (§ 245,
subd. (a)(1)), constituting both a prior serious felony and a prior strike
(§§ 667, subds. (a)(1), (d), (e), 1170.12, subd. (b)).
A. Prosecution Evidence
Doe testified she and Morell dated for three years.2 They lived in a
Chevy Suburban sport utility vehicle (Suburban or SUV) which contained all
their belongings. On the day of the incident, Morell started an argument
with Doe while they were in the parking lot of a strip mall. He got out of the
SUV to go to an Autozone store. Doe, who was driving, reversed the vehicle
to leave, but Morell returned and asked her to not leave. When he turned
back towards the store, however, Doe again tried to leave—she started to
back out, but Morell jumped on the window, which caused her to hit a parked
car. Morell pulled her out of the SUV by her hair and she fell to the ground.
He also hit her in the face.
Morell had two backpacks in the SUV. After the altercation ended, he
grabbed his things. On cross-examination, Doe testified Morell did not take
his belongings when he walked away after the fight. He told her “to hold on
to [his backpacks] until he got out.” She then testified he took one backpack
with him.
A manager for the Wells Fargo Bank next to the Autozone store had
just arrived for a branch visit. He “heard a lady screaming inside a car.” A
man in the vehicle was “beating her up” and “she was yelling, ‘Stop.’ ” He
2 Doe did not want to testify—she was worried that if she did so,
Morell could hurt her or send someone to hurt her. When testifying, Doe
frequently testified she did not remember what happened.
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called 911. “[I]t was very apparent that she was being assaulted.” The fight
eventually stopped and the man walked away carrying two backpacks.
The Autozone store manager testified that he heard a crash, and a
customer came into the store and told him somebody had hit their vehicle.
He called 911, walked out of the store, saw the customer’s vehicle and then
saw an SUV to his right. In the SUV, he saw a man and a woman arguing.
Then things escalated. The man, whom he later identified as Morell, got out
of the SUV. Morell approached the woman, whom he later identified as Doe,
and dragged her out of the passenger side of the Suburban by her hair and
her clothing. At some point, she fell. Morell dragged her around to the back
of the vehicle, pushed her shoulders, and punched her in the face with a
closed fist. She tried to dodge the hits and get out of his hands, but Morell
kept grabbing her by her arms and legs. The manager saw Morell attacking
Doe but did not see her attacking him. Morell was punching her as she was
trying to escape. The manager yelled at Morell several times and told him
the cops were coming, in an effort to stop the fighting and protect the woman.
Another Autozone store employee offered similar testimony: He saw
Morell and Doe in the SUV—Doe was in the passenger seat. The employee
heard yelling and screaming and watched Morell pull Doe’s hair and punch
her “like, more than, like, seven, eight times” while they were inside the
vehicle. They were having a “heated argument” and “she was putting her
hands up and everything.” She tried to get out of the SUV, “but he had her.”
Morell “ended up getting out, and then was moving around to her and pulled
her out of the car.” She “was screaming and kind of getting a commotion, and
then he was just telling her to shut up and then he took her out.” They “went
around to the other side of the truck, like, ’cause he seen that we were seeing,
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and I think he probably seen that I was recording.”3 The employee then
“approached him” and saw Doe on the ground. Morell was “standing above
her” and “getting some punches in,” and she was continuing to guard her
face. He punched her three or four times while she was on the ground.
A police officer arrived and spoke with Doe while she was sitting in the
SUV. Doe was “upset,” had been “crying,” was crying during parts of the
interview, and was “visibly shaken.” There was a “strong odor of bleach
coming from within the vehicle and her person.” Her shirt and her jeans had
bleach stains. She had some redness on the left side of her face, with bluish
green bruising around the eye socket, and she had an abrasion near her
elbow. She told the officer that Morell threw bleach on her while she was
seated in the driver’s seat, and that it got into her mouth.
B. Jury Instructions
Defense counsel requested the trial court give CALCRIM No. 3476
regarding defense of property; the People objected. The court denied the
request, finding that Morell and Doe were “joint possessors of the Suburban”
and in that circumstance he had no right to use force even if she had been
attempting to take the SUV away, which the court did not believe the
evidence showed. The court also saw no evidence that the SUV or any of the
property in it was in imminent harm. Defense counsel then requested a
pinpoint instruction regarding a property owner’s right to use reasonable
force to protect property from damage or to retake property, which the trial
court denied, reasoning there was no evidence Morell was trying to protect
his property from harm or retake it.
3 The employee recorded a portion of the altercation, and the
prosecution played the recording for the jury. In the recording, Morell pushes
Doe while she screams “ ‘Move,’ ” “ ‘Get outta here,’ ” “ ‘Leave me alone,’ ”
“ ‘Get off me,’ ” and “ ‘Stop!’ ”
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II.
The Verdict
The jury found Morell guilty of injuring a cohabitant or dating partner
(§ 273.5, subd. (a)) and false imprisonment by violence (§§ 236, 237). It also
found Morell guilty of simple assault, a lesser included offense of assault with
caustic chemicals (§§ 240, 244).
DISCUSSION
Morell’s sole claim on appeal is that the trial court’s refusal to instruct
the jury regarding defense of property pursuant to CALCRIM No. 3476
violated his federal and state constitutional due process rights to fair trial
and to present a defense. We address—and reject—this argument.
A defendant has a right to have the trial court “give a jury instruction
on any affirmative defense for which the record contains substantial evidence
[citation]—evidence sufficient for a reasonable jury to find in favor of the
defendant [citation]—unless the defense is inconsistent with the defendant’s
theory of the case [citation].” (People v. Salas (2006) 37 Cal.4th 967, 982.) In
determining whether there is such substantial evidence, the “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.’ ” (Ibid.) The court need not give the requested instruction where the
evidence is “minimal and insubstantial. Doubts as to the sufficiency of the
evidence should be resolved in the accused’s favor.” (People v. Barnett (1998)
17 Cal.4th 1044, 1145.) We review de novo a trial court’s failure to instruct
on a defense. (People v. Simon (2016) 1 Cal.5th 98, 133.) Because the law is
unsettled on which standard of prejudice applies to an erroneous failure to
instruct on an affirmative defense (People v. Gonzalez (2018) 5 Cal.5th 186,
199), we apply the more rigorous standard, which requires reversal unless
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the error is harmless beyond a reasonable doubt. (See Chapman v.
California (1967) 386 U.S. 18, 24 (Chapman).)
Morell argues the trial court erred in failing to give CALCRIM
No. 3476 because substantial evidence supported his claim he was acting in
defense of his property—the SUV and his possessions within it.4 That
instruction states, in relevant part,
“The owner [or possessor] of (real / [or] personal) property may use
reasonable force to protect that property from imminent harm. . . .
“Reasonable force means the amount of force that a reasonable person
in the same situation would believe is necessary to protect the property from
imminent harm.
“When deciding whether the defendant used reasonable force, consider
all the circumstances as they were known to and appeared to the defendant
and consider what a reasonable person in a similar situation with similar
knowledge would have believed. If the defendant’s beliefs were reasonable,
the danger does not need to have actually existed.
“The People have the burden of proving beyond a reasonable doubt that
the defendant used more force than was reasonable to protect property from
imminent harm. If the People have not met this burden, you must find the
defendant not guilty of ______ <insert crimes>.”
4 In his opening brief, Morell does not contend the trial court erred in
refusing to give the requested pinpoint instruction. Issues not raised in a
party’s opening brief are forfeited. (See People v. Zamudio (2008) 43 Cal.4th
327, 353-354.) In any event, the court did not err in refusing to give the
pinpoint instruction because there was no substantial evidence Doe took, or
attempted to take, Morell’s property by force. (See § 693; In re Marriage of G.
(2017) 11 Cal.App.5th 773, 780.)
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The People argue there was no evidence to support an essential
element of the defense of resisting an attempt by force to take or injure
property in Morell’s possession, citing section 693. We quote that section and
the one preceding it, for context. Section 692 provides in relevant part,
“Lawful resistance to the commission of a public offense may be made: [¶]
1. By the party about to be injured . . . . ” Section 693 provides, “Resistance
sufficient to prevent the offense may be made by the party about to be
injured: [¶] . . . [¶] 2. To prevent an illegal attempt by force to take or injure
property in his lawful possession.” (Italics added.) Morell cites Civil Code
section 50—concerning defense of property—which states in relevant part,
“Any necessary force may be used to protect from wrongful injury the person
or property of oneself . . . .” (Italics added.)
We agree with the People and conclude the trial court got it right.
There was no evidence of any “illegal attempt by force to take or injure
property in [Morell’s] lawful possession” (§ 693) or of any imminent threat of
harm by Doe to his property (CALCRIM No. 3476).
First, as to the Suburban, Doe was within her legal rights in occupying
the SUV she had purchased and Morell apparently jointly owned. Further,
there was no indication that Doe posed any threat of imminent harm to the
SUV. Second, as to Morell’s backpacks and other belongings inside the SUV,
the evidence indicated both parties kept their belongings in the SUV because
they were homeless and living in it. There was no evidence that Doe made
any effort, involving force or otherwise, to remove Morell’s backpacks from
the vehicle, to take them from Morell, or to interfere with any attempt by him
to remove them from the Suburban. Nor is there evidence of any risk that
she was about to damage the backpacks or any other property of Morell’s.
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Absent evidence that Doe posed an imminent threat of harm to any
property in Morell’s possession or was engaged in an illegal attempt by force
to take or injure it, there was no substantial evidence supporting the defense
of property statutes. The limits of the defense are established. “ ‘The use of
force against another for the purpose of recaption of a chattel, which the
other is tortiously withholding from the actor, is not privileged if the other’s
possession was rightfully acquired.’ ” (Deevy v. Tassi (1942) 21 Cal.2d 109,
118; see People v. Whearty (1959) 169 Cal.App.2d 524, 528-529 [judgment of
assault affirmed where defendants assaulted victim, who towed car belonging
to one defendant at that defendant’s request, when victim refused to
relinquish car unless defendants paid required fee]; Rogers v. Kabakoff (1947)
81 Cal.App.2d 487 [affirming judgment against driver who assaulted parking
lot owner when latter refused to return driver’s vehicle without payment of
allegedly excessive fee, because lot owner had acquired possession of the
vehicle legally when driver entrusted it to him]; Rest.2d Torts, §108 [“The
use of force against another for the purpose of recaption of a chattel which
the other is tortiously withholding from the actor is not privileged if the
other’s possession was rightfully acquired”].)
Finally, even if there had been substantial evidence supporting the
defense we would affirm for the further reason that the trial court’s refusal to
give the instruction was harmless beyond a reasonable doubt under the
Chapman standard. That is because, regarding another element of the
defense, that the force used by the defendant be “reasonable,” no reasonable
juror could have found Morell’s brutal attack on Doe was reasonable.
Morell punched Doe multiple times while the two were inside the SUV—after
it was parked and Doe was in the passenger seat with no control over the
vehicle—and then dragged her out of the vehicle by her hair and her clothing.
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He then continued to assault Doe—he pushed her onto the ground, stood over
her and repeatedly punched her, and prevented her from getting away by
grabbing and holding her legs and arms.
That the jury convicted Morell of the offenses—which required the
prosecution to prove he used violence and inflicted a traumatic injury—
demonstrate the jury would not have interpreted his actions as a reasonable
measure to prevent his property from being taken. The jury was instructed
on the crimes’ elements, including false imprisonment by violence (§§ 236,
237), which defined “violence” as “using physical force that is greater than
the force reasonably necessary to restrain someone.” The jury necessarily
rejected any notion that Morell’s use of force was reasonable. Even if the
trial court had given CALCRIM No. 3476, we conclude beyond a reasonable
doubt that the jury would have found that Morell used more force than was
reasonably necessary to protect his property from imminent harm.
Because we “can conclude beyond a reasonable doubt that ‘the jury
verdict would have been the same’ had the jury been instructed on” defense of
property (People v. Brown (2023) 14 Cal.5th 453, 474), the refusal to give
such instruction was not prejudicial and did not violate Morell’s
constitutional rights.
DISPOSITION
The judgment is affirmed.
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STEWART, P. J.
We concur.
RICHMAN, J.
MAYFIELD, J. *
People v. Morell (A165502)
* Judge of the Mendocino Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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