People v. Leiper CA4/1

Filed 8/18/15 P. v. Leiper CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D065728

Plaintiff and Respondent,

v. (Super. Ct. No. SCD239747)

EDWARD LEIPER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Frederic L.

Link, Judge. Affirmed.

Raymond Mark DiGuiseppe, under appointment by the Court of Appeal, for

Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Ryan H.

Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
 A jury convicted Edward Leiper of second degree murder (Pen. Code,1 § 187,

subd. (a); count 1) and three counts of exhibiting a deadly weapon (§ 417, subd. (a)(1);

counts 2-4). The jury also found that Leiper used a deadly and dangerous weapon (a

knife) in the commission of count 1. (§ 12022, subd. (b)(1).)

The superior court sentenced Leiper to prison for 15 years to life, plus an

additional year for the weapon enhancement to count 1.

Leiper appeals, contending the trial court committed reversible error by

improperly instructing the jury. We affirm.

FACTUAL BACKGROUND

Prosecution

By February 2012, Leiper was a regular at the Sunshine Company Saloon

(Saloon). On February 6, 2012, he arrived at the Saloon in time for the 5:00 p.m. happy

hour. While drinking at the bar, Leiper made multiple, unwelcome, attempts to speak

with other patrons.

Leiper loudly began talking to one patron about growing and selling marijuana.

When she told him to speak quietly, he got mad at her and told her "to fuck off." Later

that night, he apologized and told her that "he was having a weird day."

Leiper approached another patron, Stephen Ward, and told him that he sold "dope"

to earn money. The tone of the conversation "changed quite a few times," and Ward was

repeatedly called upon to calm Leiper down. Ward proved unsuccessful, and Leiper

1 Statutory references are to the Penal Code unless otherwise specified.
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threatened to stab Ward "more than two or three" times. Ward tried to ignore Leiper's

threats, but he placed his knife on the barstool between them and said something to the

effect of, "Now do you believe me?"

Leiper also approached another patron, Antonio Silva. He asked him to teach him

something, to which Silva replied that he could only teach him about his belief in God.

Leiper left and went back to his seat. However, he subsequently picked up his knife and

showed it to Silva, while holding it above his head. He then pointed outside. Silva

reported this to one of the bartenders. While he was doing that, and the bartender's back

was turned, Leiper again displayed the knife to Silva. By the time the bartender turned

around, Leiper put the knife away. Eventually, Leiper was told to leave.

Corwin Street was a bouncer at the Saloon. When he overheard Leiper swearing

at the female patron, Street told Leiper to finish his drink and leave. Before Leiper left,

Street became aware of another incident involving Leiper and heard one of the bartenders

telling him to leave. Street approached and told him to leave, but that he could return

another time. Leiper replied, "You might as well call the fucking cops right now." Street

subsequently noticed that Leiper was holding a knife. Leiper eventually left the bar, but

continued to be aggressive and yelled racial slurs at Street.

After Leiper left the Saloon, he ended up in the alley between two bars: Winston's

and Arizona Cafe. At that time, a group of skateboarders was socializing, playing with a

hula hoop, a guitar, and skateboards, and smoking marijuana in the same alley.

With his knife out, Leiper approached the group and said, "Locals only, no trolls,

this is Dago Mob," and told them to leave. David Price, a bystander in the alley, heard

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Leiper repeatedly yell, louder and louder, "Get out of Diego, I am gonna kill you troll."

Leiper said he was going to clean the streets of homeless people. The group initially

thought he was joking. Leiper then asked whether anyone in the group "had any

marijuana on" them. Leiper had his knife out with the blade pointed up. Within a minute

of Leiper's arrival and his initial threat, everyone left except for Andrew Bazan.

Eric Diaz, one of the people in the group, initially remained and asked if he could

get his jacket. He was afraid of being stabbed and held his skateboard against his chest

for protection from Leiper's knife. He heard Leiper say, "Dago Mob," and heard Bazan

reply, "MS-13." "That's when [Bazan] was stabbed." Leiper cut Bazan across his

abdomen, "on the side of his belly button," with the knife. Then Leiper calmly told Diaz,

"Your friend's just been stabbed. I think you should take him to the hospital." Leiper

chased Diaz away before running away, himself, while yelling. Prior to the stabbing,

nobody made any aggressive movements or swung their skateboards at Leiper.

Justin Reno, a resident in a second floor apartment above Arizona Cafe, had a

view of the parking lot where the stabbing occurred. He heard someone say, "He has a

knife." When Reno looked outside, he saw two people fighting, in what appeared to be

"a messed up brawl[.]" He saw Leiper throw the first punch and the stabbing happened

"very quick[ly]." Nobody was near Leiper with a skateboard, Bazan did not have a

skateboard, and Reno did not hear anyone threatening Leiper.

Bazan stumbled down the alley and bumped into the back of a taxicab. He

managed to come over to the window and ask the driver for help. His shirt was covered

in blood and "a lot of his innards or guts . . . were coming out as well. It was a pretty bad

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. . . one." After asking for help, Bazan fell down to the ground. The taxicab driver,

among others, dialed 911. Dave Price, one of the bystanders in the alley, and his

companion, briefly followed Leiper while calling 911.

Bazan was still conscious when paramedics arrived. He told them that he had

been stabbed. He suffered a laceration of his bowels, a grapefruit-sized portion of which

were protruding outside of his body. He was transported directly to an operating room.

Bazan endured 10 surgeries and suffered extensive complications, which resulted

in portions of his small and large intestines being removed. After a prolonged

hospitalization, he was transferred to hospice care because he "had no viable intestine

left" and "his situation . . . was incompatible with life." Bazan subsequently died from

complications of the stab wound.

Police interviewed Leiper following the incident. He admitted that there was no

excuse or explanation for what he did.

Defense

Leiper testified that he arrived at the Saloon around 5:00 p.m. on February 6,

2012. Leiper had his knife in the pocket of his sweatshirt. He bought the knife about a

month earlier for protection. After a couple of beers, he had a "friendly buzz" and felt

like talking to other people. He tried to talk with Silva, but the conversation did not go

very well because Silva brushed him off. This did not make him angry. As Leiper drank

more, he started acting "like an ass," by "flash[ing] around" and "show[ing] off" his knife

because he thought it was a "pretty cool looking knife." Specifically, he was "putting it

up in the air, putting it on the bar, showing it to people next to [him]." Leiper also talked

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to Ward during this time, though he did not recall having shown the knife to Ward

directly; he just "generally" had it out and on the barstool next to Ward at some point.

Leiper was not trying to be aggressive or to threaten anyone, though someone could have

taken his conduct as a sign of aggression.

Eventually, Leiper realized he was making people uncomfortable, so he put the

knife away and just kept to himself. He did not recall speaking to a woman patron about

marijuana or telling her to "fuck off."

About an hour after he had put the knife away, Leiper noticed Silva talking to a

bartender, who then looked over at Leiper and asked if he was flashing a knife around.

Leiper, "kind of disappointed" and a "little irritated" because he thought the knife was

never a real issue, looked at Silva and said, "Are you serious?" The bartender then asked

Leiper to leave. He put his beer down and walked out of the bar. He turned around at the

entrance because the bartender was talking to him, although he did not recall what they

said to each other. Street then got in the middle of the conversation, which sparked "sort

of a confrontation" with Street, though Leiper was not being aggressive or lashing out.

Leiper did not recall having threatened the bartender or Street or having referred to Street

in racially derogatory terms. He started walking away, but Street kept saying things to

him and coming toward him. Street's behavior was "confusing" and "intimidating," as if

he was trying to "antagoniz[e]" or "provok[e]" Leiper. Leiper reacted defensively, by

stepping back and pulling out the knife "so [Street] wouldn't put his hands on [Leiper]."

Leiper continued walking away from the bar. He put the knife away, and

eventually entered the alley between Winston's and Arizona Cafe, where he saw a large

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group (eight to 10 people) just beyond Winston's. Some of them were sitting on

skateboards, others were holding skateboards. He noticed one of them smoking "weed."

Leiper approached and asked for a "hit" "in a goofy stoner voice," thinking "it would be

nice to smoke some weed and forget about being kicked out of [his] favorite bar." He

was "disappointed" and "a little upset" about that incident, but had "just let it go" before

he reached the group. The group gave a "negative" response to his request and he could

tell that he was "intruding upon" their activity. Then, one of the males very close to him

who was holding a skateboard, started "creeping behind him" and got into a "side stance"

while staring directly at him with eyes "as wide as bottle caps." Leiper "got a really bad

feeling." Based on the male's actions and the generally negative response from the group,

Leiper believed the male was "going to come around and hit [him]" with the skateboard.

He did not believe he had the option of just leaving." So he pulled out his knife, which

he held down by his side. This was not an effort to hurt or lash out at anyone, but a

defensive move in response to his belief in a "good possibility" of a threat. The alcohol

he consumed had also made him feel "vulnerable," like he "couldn't defend [him]self

properly." In response to seeing the knife, the male with the skateboard backed off.

Then another male in the group who was about three feet away "grabbed his

skateboard and lifted it up and started making motions like he was going to hit [Leiper]

with the board." Leiper was "wondering who was gonna do what" and just "stood [his]

ground" without lashing out, but keeping the knife at his side until this male eventually

backed away as well. Leiper still did not feel like he could just leave because several

other people were around him. He felt threatened and "didn't want to take a chance."

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"Panicked," and not knowing "who was going to attack [him] from which direction," he

moved toward each of them with the knife pointed outward to "back them off." Leiper

also referred to "Dago Mob" (which was a "biker club") and used some profanities in an

effort to intimidate them. They all eventually backed off, running away in different

directions.

Leiper would have left the scene, but then he heard someone "yelling and running

up behind" him. He turned around with his knife pointed "straightforward," and saw

someone (Bazan) "closing in on" him and "getting really close." When Bazan got "right

up against" him, Leiper "just reacted." Leiper did not recall stabbing Bazan. He could

have swung the knife or Bazan could have run into it; he did not know Bazan had been

stabbed until after the fact. All he recalled about that moment is being "scared to death."

When Leiper realized he had stabbed Bazan, he was shocked and "couldn't believe it."

He feared being attacked by someone else, so he fled the scene backing people away as

he ran. He briefly turned around at one point to chase away someone following him

whom he believed was part of the same group. He then continued on, "pitch[ing]" the

knife in a bush as he ran away because he was "disgusted" by having it in his hand.

Over a month later, a few days after Bazan had died, homicide detectives

interviewed Leiper at his father's home. At the time, Leiper was still under the

impression that Bazan had just been seriously injured in the incident. He relayed he was

"in a really bad time" of his life when he was homeless, drinking alcohol heavily, and

smoking weed. He had acted like "an ass" in the bar that night, although he did not

specifically recall having displayed the knife while he was there. Leiper said he was

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carrying the knife for protection, explaining: "[T]he only reason why I would carry that

knife is because just in case I got into a situation where I'm either outnumbered or

whatever and the lifestyle I was living [i.e., being homeless] wasn't very — really a

pleasant lifestyle . . . ." By the time he encountered Bazan later outside the bar, Leiper

was "extremely drunk" — in a mindset where "you see things a little differently." In

regard to the stabbing, Leiper said: "I remember one kid raised a skateboard at me and

another kid so I had this one kid on this side and one kid on this side and . . . [¶] [a]nd I

just remember — I don't know all the details, but I just remember a skateboard being

lifted up at me and I just pulled out the knife and I started swinging. I, I panicked and

then I realized what I did and I got scared and I ran off . . . ." He had gotten rid of the

knife along the way because he was scared.

Leiper turned himself in a few days later because he knew "it wasn't fair to

everyone else." Leiper said "there's was no excuse or explanation" for what he did, it

"wasn't right," and he "still [didn't] understand" it himself. He wanted to "take

accountability" for his actions since "[t]here's no denying" what he did. However, he was

not just trying to "create a defense" in explaining the threat he perceived: He

"remembered seeing a skateboard being lifted at [his] head" and, although that "doesn't

mean what [he] did was right," he believed "[i]t is a defense." Leiper went on to say: "If

you knew my morals and you knew who I really was, you would know that the last thing

I want to do is go out there and hurt someone, let alone potentially end someone's life.

Okay, that's bad." Alcohol was "a huge factor" because "honestly [he] d[id]n't think [he]

would ever do those things if [he] wasn't in that state of mind." The detectives then

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informed him that Bazan had died. Leiper said "no way," "[o]h my gosh," and he

certainly felt bad about Bazan's death.

Leiper testified that at the time of this interview, he believed the charges had been

dropped and that Bazan was going to be fine until the detectives told him at the end that

Bazan had died. Regarding his statements to the detectives that what he had done was

wrong and there was no excuse for it, he testified that he had been referring to his

conduct at the bar. He reiterated that it was "never [his] intention or objective" to hurt

anyone, and that his "objective was to back them off, to distance themselves from me so I

couldn't get hurt."

Durrell Chambers, a three-time convicted felon, who had known Leiper since

childhood and still considered him a friend, testified that on February 8, 2012, two days

after the stabbing incident, he was in custody at the central jail in downtown San Diego

for illegal drug possession. While in a holding cell, Chambers heard one of the other

inmates talking loudly about a recent incident in Ocean Beach in which the inmate's

friend was stabbed. Chambers believed the inmate was referring to the incident involving

Leiper. The inmate was making "a bunch of like crazy comments about" the stabbing.

At one point, he said "Eddie . . . like was walking down the alley, they seen . . . Eddie,

Eddie said something to them, they were going to jump him, you know, they had

skateboards, they were willing — they were willing to jump him." The inmate had not

specifically referred to Leiper by name, but Chambers believed he was referring to

Leiper. Chambers told the inmate to stop talking because he was talking about

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Chambers's friend and the inmate responded that "he deserves to go down for" the

stabbing.2

DISCUSSION

Leiper claims the court erred by failing to properly instruct the jury on the

subjective standard of imperfect self-defense. Specifically, he asserts CALCRIM No.

3474 was erroneous and the court failed to "clarify . . . that the right to imperfect self-

defense continues so long as the real or apparent threatened danger continues to exist."

We disagree.

This is a homicide case. As such, the court instructed the jury with, among others,

multiple instructions regarding the killing of another: first degree murder (CALCRIM

No. 520); second degree murder (CALCRIM No. 521); effect of provocation to reduce

first degree murder to second degree murder or murder to manslaughter (CALCRIM No.

522); heat of passion voluntary manslaughter (CALCRIM No. 570); imperfect self-

defense voluntary manslaughter (CALCRIM No. 571); perfect self-defense (CALCRIM

No. 505); and the right to self-defense only exists in the presence of danger (CALCRIM

No. 3474).

Here, Leiper takes issue with CALCRIM No. 3474, which states: "The right to

use force in self-defense or defense of another continues only as long as the danger exists

or reasonably appears to exist. When the attacker withdraws or no longer appears

2 Diaz admitted to have been in custody at the central jail on February 8, 2012 after
he was arrested for selling marijuana. However, he testified that he did not recall having
made any comments about the stabbing at that time.
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capable of inflicting any injury, then the right to use force ends." We note that Leiper's

trial counsel did not object to any of the instructions provided to the jury. Nor did he

request any specific instruction relating to imperfect self-defense that the court refused to

give. The first time Leiper challenges any jury instruction is on appeal.

By failing to object to or request a specific jury instruction at trial, Leiper forfeited

this claim on appeal, unless the claimed error affected Leiper's substantial rights. (See

§ 1259; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.) "Ascertaining whether

claimed instructional error affected the substantial rights of the defendant necessarily

requires an examination of the merits of the claim -- at least to the extent of ascertaining

whether the asserted error would result in prejudice if error it was." (People v. Andersen

(1994) 26 Cal.App.4th 1241, 1249.) We conclude that Leiper has not shown that the

claimed error affected his rights; thus, he has forfeited his claim.

We review a claim of instructional error de novo. (People v. Posey (2004) 32

Cal.4th 193, 218.) "Review of the adequacy of instructions is based on whether the trial

court 'fully and fairly instructed on the applicable law.' " (People v. Ramos (2008) 163

Cal.App.4th 1082, 1088.) 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.

(Ibid.) " 'Instructions should be interpreted, if possible, so as to support the judgment

rather than defeat it if they are reasonably susceptible to such interpretation.' " (Ibid.)

"The crucial assumption underlying our constitutional system of trial by jury is that jurors

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generally understand and faithfully follow instructions." (People v. Mickey (1991) 54

Cal.3d 612, 689, fn. 17.)

Here, Leiper does not maintain that CALCRIM No. 3474 is an incorrect statement

of law. Nor could he. The right to the use of force continues only as long as the danger

reasonably appears to exist. (People v. Martin (1980) 101 Cal.App.3d 1000, 1010;

People v. Perez (1970) 12 Cal.App.3d 232, 236.) This is precisely what CALCRIM No.

3474 tells the jury.

However, Leiper claims here, for the first time, that CALCRIM No. 3474 was

"erroneous on its face insofar as it implies that any claim of self-defense (whether a claim

of perfect self-defense or simply a claim of imperfect self-defense) is cut off unless the

continuing nature of the perceived threat is real or objectively reasonable." (Original

italics.) He points out that the jury could have been confused by CALCRIM No. 3474

and would have not given "proper consideration to the doctrine of imperfect self-defense

since that would have necessarily involved applying a subjective standard in assessing the

continuing nature of the threat." (Original italics.) Put differently, Leiper argues that

CALCRIM No. 3474 somehow undermines the imperfect self-defense jury instruction

the court provided, which, had the jury properly considered, it could have found him

guilty of voluntary manslaughter, instead of murder. (See People v. Thomas (1990) 219

Cal.App.3d 134, 145 (Thomas).)

Manslaughter is a lesser included offense of murder. (People v. Lewis (2001) 25

Cal.4th 610, 645.) A defendant who kills in an actual but objectively unreasonable belief

that he was in imminent danger of death or great bodily injury is said to have done so

13
while acting in imperfect self-defense. (Ibid.) However, such a person, in spite of his

actual belief in the act's necessity, nevertheless " 'kills unlawfully.' " (Thomas, supra,

219 Cal.App.3d at p. 145.) "[T]he 'imperfect self-defense' instruction is not a self-

defense instruction at all. It merely removes the element of malice aforethought" from

the murder charge, reducing the crime to voluntary manslaughter. (Ibid.) In contrast, to

constitute "perfect self-defense," i.e., to exonerate the person completely, a defendant

must actually and reasonably believe in the need to defend himself. (See People v.

Humphrey (1996) 13 Cal.4th 1073, 1082 (Humphrey).) Put differently, a person who

kills in perfect self-defense has not violated the law, but a person who kills, under an

imperfect self-defense theory, has acted unlawfully. Therefore, a person has the right to

engage in perfect self-defense, but no such right to engage in imperfect self-defense.

CALCRIM No. 3474 speaks to the right of self-defense. A person no longer has

that right once an assailant stops the attack, flees, or no longer appears capable of

attacking. (People v. Martin, supra, 101 Cal.App.3d at p. 1010; People v. Perez, supra,

12 Cal.App.3d at p. 236.) Because CALCRIM No. 3474 addresses a defendant's right to

engage in self-defense and when that right ceases to exist, it only pertains to perfect self-

defense. (Cf. Humphrey, supra, 13 Cal.4th at p. 1082 ["For killing to be in self-defense,

the defendant must actually and reasonably believe in the need to defend."].) As such,

CALCRIM No. 3474 does not impact a defendant's claim of imperfect self-defense

whatsoever.

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 At trial, the court instructed the jury under CALCRIM No. 571 [Voluntary

Manslaughter: Imperfect Self-Defense or Imperfect Defense of Another -- Lesser

Included Offense], which states in relevant part:

"A killing that would otherwise be murder is reduced to voluntary
manslaughter if the defendant killed a person because he acted in
imperfect self-defense. [¶] If you conclude the defendant acted in
complete self-defense, his action was lawful and you must find him
not guilty of any crime. The difference between complete self-
defense and imperfect self-defense depends on whether the
defendant's belief in the need to use deadly force was reasonable.
[¶] The defendant acted in imperfect self-defense if: 1. The
defendant actually believed that he was in imminent danger of being
killed or suffering great bodily injury; [¶] AND [¶] 2. The defendant
actually believed that the immediate use of deadly force was
necessary to defend against the danger; [¶] BUT [¶] 3. At least one
of those beliefs was unreasonable. [¶] Belief in future harm is not
sufficient, no matter how great or how likely the harm is believed to
be. [¶] In evaluating the defendant's beliefs, consider all the
circumstances as they were known and appeared to the defendant.
[¶] . . . [¶] The People have the burden of proving beyond a
reasonable doubt that the defendant was not acting in imperfect self-
defense. If the People have not met this burden, you must find the
defendant not guilty of murder."

Accordingly, the jury was properly instructed regarding imperfect self-defense.

Leiper has not pointed to any indication in the record that the jury did not understand

CALCRIM No. 571 or otherwise ignored that instruction because it also received

CALCRIM No. 3474.

CALCRIM No. 3474 correctly states the law. It does not diminish, alter, or

otherwise undermine CALCRIM No. 571. As discussed above, we consider the

instructions as a whole and assume jurors are intelligent persons, capable of

understanding and correlating all jury instructions which are given. (People v. Ramos,

15
supra, 163 Cal.App.4th at p. 1088.) CALCRIM No. 571 instructed the jury about

imperfect self-defense. The jury rejected this theory and found the prosecution proved

that Leiper stabbed Bazan with requisite intent and malice to be guilty of second degree

murder. Leiper does not challenge the sufficiency of the evidence to support that

conviction. On the record before us, we find no error.

Because the jury instructions were correct as given, we see no grounds on which

to determine Leiper received ineffective assistance of counsel for his trial counsel's

failure to object to any of the instructions or request a clarifying instruction.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

McDONALD, J.

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