Filed 5/25/21 P. v. Lewis CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B304675
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA471314)
v.
KISLE LEWIS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Stephen A. Marcus, Judge. Affirmed.
Larenda R. Delaini, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Chung L. Mar, Deputy
Attorneys General, for Plaintiff and Respondent.
Kisle Lewis was charged with assault with a firearm,
discharging a firearm from a vehicle, and attempted murder. In
the first trial, Lewis claimed self-defense. At the second trial,
following a mistrial, Lewis abandoned his assertion that he acted
in self-defense. Instead, Lewis denied using any force or having
any subjective fear at the time of shooting. He insisted that
someone outside of his vehicle shot the victim. Nonetheless, on
appeal, Lewis contends the trial court committed prejudicial
error by failing to instruct the jury on self-defense. We disagree
and affirm the judgment.
BACKGROUND
I. The shooting
On August 26, 2018, Tiffany Lagunas was driving her
husband, Eduardo Leon, and her two children home from a party
when they stopped at a convenience store to buy cigarettes.
Lagunas remained in the car while Leon went inside the store.
Leon felt tipsy because he drank approximately eight beers over a
three and one-half hour period.
As they were driving away, they saw an altercation
between Lewis and another man outside the convenience store.
The man appeared homeless and had a bicycle. Lagunas heard
the man scream at Lewis and saw him throw his bicycle at Lewis.
Lagunas thought the man was attacking Lewis. Leon saw the
man punch Lewis, but thought that Lewis was the aggressor and
that the man was getting beat up. Leon said to Lagunas, “That
wasn’t right. I’m going to go help the guy.” Lagunas told Leon
not to get out of the car, but he got out anyway.
As Leon approached them, the man picked up his bicycle
and walked away while Lewis got into his car and sat in the
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driver’s seat. Leon stood next to Lewis’s driver-side door and
asked the man with the bicycle if he was okay. Leon did not say
anything to Lewis. When Leon looked into Lewis’s car, he saw
Lewis reach for something in the passenger area that Leon
assumed was a weapon. Leon pushed on the driver-side door to
prevent Lewis from getting out while Lewis tried to push the door
open. After a few seconds, Lewis shot Leon in the shoulder with
a handgun through the driver-side window, shattering the glass.
During this encounter, Leon did not see anyone other than Lewis
in the car.
Lagunas rushed Leon to the hospital where he underwent
surgery to remove the bullet from his body.
Lewis testified in his defense. On the night of the incident,
he was on his way to pick up his girlfriend when he encountered
his friend “Rabbit,” who asked for a ride. Lewis knew Rabbit
through Lewis’s methamphetamine dealer. He did not know if
Rabbit was armed with any weapons. They stopped at the
convenience store so Lewis could get change for a $20 bill. While
Lewis got change, Rabbit remained in the backseat of the car.
Lewis saw Leon in the store, but they did not interact.
When Lewis returned to his car, the man with the bicycle
threw it at Lewis and said, “Where’s my shit at?” The man then
reached into his pocket, showed Lewis the butt of a gun, and told
Lewis, “I don’t care about going to jail, I’ll kill you nigga out
here.”
Lagunas and Leon then pulled up next to the man, and
Leon shouted from the car, “fuck mayates,” which Lewis
understood as a racial slur referring to Black people. Lewis got
into his car and started the ignition. As he put his car into gear,
Leon banged on the driver-side window with an unknown hard
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object. Startled, Lewis accidentally put his car in reverse. He
wanted to get away from the area to avoid an attack by Leon and
the other man. He was frightened for his life. He then heard a
gunshot from outside his car and drove away. He did not see
Leon get shot. His window did not shatter, and he did not see
Rabbit fire the gun. The only person that Lewis saw with a gun
that night was the man with the bike. Lewis denied having a
weapon, shooting Leon or acting in self-defense.
After the shooting, Lewis dropped off Rabbit nearby and
went to a friend’s house to discuss the incident.1
II. Procedure
A jury found Lewis guilty of assault with a semiautomatic
firearm (Pen. Code,2 § 245, subd. (b); count 1) and discharging a
firearm from a vehicle (§ 26100, subd. (c); count 2). The jury
found Lewis not guilty of attempted murder (§§ 664/187, subd.
(a); count 3). The jury also found the firearm enhancement
allegations true (§§ 12022.5 [count 1], 12022.53, subds. (b) & (d)
[count 2]).
The trial court found that Lewis suffered one qualifying
prior conviction under the “Three Strikes” law (§§ 667, subds. (b)–
(j), 1170.12, subd. (b)), and one prior serious felony conviction
(§ 667, subd. (a)(1)).
1 Neither Rabbit nor the friend testified at trial.
2 All further statutory references are to the Penal Code.
4
On January 17, 2020, the trial court denied probation and
sentenced Lewis to an aggregate determinate term of 25 years in
state prison.3 Lewis appealed.
DISCUSSION
Lewis contends the trial court committed prejudicial error
by denying his request for a self-defense instruction despite
Lewis’s testimony that he did not shoot Leon and that the
gunshot came from outside his car. His testimony
notwithstanding, Lewis asserts that there was substantial
evidence for the jury to infer that he feared for his life and that
he shot Leon in self-defense. We disagree.
“A trial court must instruct the jury sua sponte on general
principles of law applicable to the case. [Citation.] This
requirement includes instruction on lesser included offenses
supported by the evidence. [Citation.] A trial court is required to
instruct sua sponte on any defense, including self-defense, only
when there is substantial evidence supporting the defense, and
the defendant is either relying on the defense or the defense is
not inconsistent with the defendant’s theory of the case.
[Citation.] If the defense is supported by the evidence but is
inconsistent with the defendant’s theory of the case, the trial
court should instruct on the defense only if the defendant wishes
the court to do so.” (People v. Villanueva (2008) 169 Cal.App.4th
41, 49.)
3 The court elected to impose a 10-year enhancement
pursuant to section 12022.53, subdivision (b) and not the 25-year-
to-life enhancement pursuant to section 12022.53, subdivision (d).
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However, even if the defendant requests an instruction on a
defense, the trial court need not give that instruction if it is
unsupported by substantial evidence. (People v. Villanueva,
supra, 169 Cal.App.4th at p. 49.) Substantial evidence is that
which is reasonable, credible, and of solid value. (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206.) In determining whether
substantial evidence supports a defense, the trial court must not
weigh witness credibility. (People v. Elize (1999) 71 Cal.App.4th
605, 611–612.) We review claims of instructional error de novo.
(People v. Rivera (2019) 7 Cal.5th 306, 326.) In doing so, we are
required to review the evidentiary support for giving an
instruction “ ‘in the light most favorable to the defendant’
[citation] and . . . resolve doubts as to the sufficiency of the
evidence to warrant instructions ‘ “in favor of the accused.” ’ ”
(People v. Wright (2015) 242 Cal.App.4th 1461, 1483.)
A defendant acts in lawful self-defense if the defendant
(1) reasonably believes he or she is in imminent danger of
suffering bodily injury, (2) reasonably believes the immediate use
of force is necessary to defend against that danger, and (3) uses
no more force than is reasonably necessary. (People v. Hernandez
(2011) 51 Cal.4th 733, 747.) The defendant must actually and
reasonably believe in the need to defend against imminent peril
to life or great bodily injury. (People v. Humphrey (1996)
13 Cal.4th 1073, 1082.)
In the present case, Lewis expressly denied believing that
the immediate use of force was necessary. Moreover, he
repeatedly disavowed using any force, reasonable or otherwise, or
acting in self-defense. Over and over again, Lewis claimed that
he did not fire a gun or shoot Leon. Instead, he maintained that
he was safely in his car when he heard a gunshot that originated
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from outside of his vehicle. Although Lewis testified that he
feared for his life when the man displayed the butt of a gun when
he was outside of his car, he also insisted that he had no “reason
to harm anybody” because he was able to get away from the man
and safely retreat to his car. During cross-examination, the
prosecutor asked Lewis:
“[Prosecutor]: Mr. Lewis, isn’t it true that you did shoot
Mr. Leon that night because it was really scary what he did?
“[Lewis]: No sir. I didn’t have any reason to harm
anybody.
“[Prosecutor]: Well, you had just been approached by a guy
on a bike who you have never met before, right, and he showed
you a gun and threatened to kill you?
“[Lewis]: And I ran.
“[Prosecutor]: Well, you tried to run. You tried to get into
your car?
“[Lewis]: I got into my car, I turned my car on, I was
leaving.”
Lewis’s testimony that he had no reason to harm anyone
because he was able to walk away from the man with the bike
and shelter in his car, undermines any suggestion that Lewis
actually believed that the immediate use of force was necessary
at the moment the gun was discharged. Therefore, there was no
substantial evidence that Lewis actually believed the need to
defend against imminent peril or that he used no more force than
was reasonably necessary.
Although Lewis testified that he was not the shooter and he
had no need to use force, he nevertheless argues that there was
substantial evidence to support a self-defense instruction. He
claims that the jury could have constructed an alternate factual
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scenario where Lewis believed it necessary to shoot Leon to
prevent imminent harm. He cites People v. Villanueva, supra,
169 Cal.App.4th 41 to support his position that he was entitled to
a self-defense instruction. There, the evidence showed that the
defendant and another man fought, and the man threatened to
kill him the next time they met. (Id. at p. 46.) They encountered
each other again when the man was parked in his van. The
defendant acknowledged that he pointed a handgun at the man
and ordered him to leave the area as he walked towards the man.
The man responded, “ ‘I was born to die,’ ” and drove the van
forward. (Id. at p. 47.) The defendant claimed that he moved out
of the way and his gun fired accidentally. (Ibid.) The trial court
refused to instruct on self-defense, and the jury convicted the
defendant of attempted murder. (Id. at p. 48.) The appellate
court observed that “a defendant’s assertion of accident may be
disregarded by the jury in an appropriate case, and will not
foreclose jury instruction on self-defense when there exists
substantial evidence that the shooting was intentional (and met
the other requirements of self-defense).” (Id. at p. 51.)
Lewis also relies on People v. Elize, supra, 71 Cal.App.4th
605. In that case, two women, who were in a romantic
relationship with the defendant, went to his workplace where he
was an armed guard. (Id. at pp. 606–607.) It was undisputed
that the defendant and two women fought, the defendant suffered
a broken wrist from being struck by an object, and that the
defendant fired his gun. (Id. at p. 609.) The defendant testified
that both women struck him repeatedly with iron pipes, which
the women denied. (Ibid.) He claimed that there was a struggle
over his gun with one of the women and that he fired it
accidentally. (Ibid.) The trial court refused to instruct on self-
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defense because the defendant testified that he fired the gun
accidentally. (Id. at p. 610.) The appellate court reversed,
finding “a jury could find from the evidence presented that
defendant was sought out and attacked by two angry women
much larger than he, that he was being beaten with pipes, that
this beating accounted for his broken wrist, that one of the
women tried to take his handgun, and that he struggled with
that woman while the other continued to beat him. A jury could
disbelieve defendant’s testimony that the gun fired accidentally
during this struggle. A jury could find that defendant fired the
gun intentionally, hoping to end the attack upon him either by
hitting one of his assailants or by firing into the air to scare off
his attackers.” (Id. at pp. 615–616.)
The trial court considered, compared, and ultimately,
distinguished the facts of Villanueva and Elize to the facts here.
“[T]he difference that I see, is that . . . [t]he[y] said [t]he[y] shot
the person. [They] said . . . it’s an accident . . . . [¶] Your guy is
claiming he had nothing to do with any kind of shooting. He
didn’t shoot anybody.” The trial court also discussed other
problematic aspects of Lewis’s testimony that were inconsistent
with self-defense. “[E]ven if we took the facts in the most
favorable fashion to the defendant, and I have thought about
that, that someone came running up to his car, and even—he
himself testified today that he didn’t think he had a knife. He
just knows it was something cracking on the car. I know in the
other trial he said it was a knife, but he didn’t exactly say it was
a knife in this; it was a tapping or a metal thing [¶] . . . [¶] . . . [a]
banging on his car, or some kind of noise. But even if we
accepted his statement, I do not believe that that is sufficient
evidence to permit him to shoot somebody with a gun. And he’s
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inside the car. I don’t think that rises . . . to a self-defense
situation.”
The trial court’s assessment that Elize and Villanueva are
distinguishable was correct. In each case, it was undisputed that
the defendants shot the firearm, but each defendant claimed that
the shootings were accidental. Each involved a factual scenario
where there was substantial evidence in support of self-defense,
irrespective of the defendant’s testimony. Thus, the jury could
reject the defendants’ testimony that they fired their weapons
accidentally, but still find that they intentionally fired the guns
in lawful self-defense. However, here, Lewis denied that he
engaged in the underlying conduct altogether, i.e., he did not
have a gun and did not shoot Leon accidentally or intentionally.
Moreover, Lewis denied believing he needed to defend against
imminent peril to life or great bodily injury. The jury would have
to construct a new defense based on a scenario that was not
presented to them that Lewis believed he had to shoot Leon
because he actually and reasonably believed in the need to defend
against imminent peril to life or great bodily injury. Here, as we
discussed, there was no substantial evidence of this scenario and
the jury would have had to rely on speculation to reach such a
conclusion Accordingly, the trial court correctly denied Lewis’s
request to instruct the jury on self-defense.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
KALRA, J.*
We concur:
LAVIN, Acting P. J.
EGERTON, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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