People v. Sebaja

THE PEOPLE, Plaintiff and Respondent, v. ANTELMO SEBAJA, Defendant and Appellant.

B305387

California Court of Appeals, Second District, Third Division

November 15, 2021

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BA476446 Drew E. Edwards, Judge. Affirmed.

Susan Morrow Maxwell, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.

EDMON P. J.

A jury convicted Antelmo Sebaja of making a criminal threat, with a weapon enhancement. Sebaja contends his conviction must be reversed because the court committed instructional error. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts

Vernell Thompson owned a towing company, which he operated with his son, Terrell Goins. On March 25, 2019, a friend of Thompson's called and asked him to tow his car, which had been damaged in an accident earlier that morning and was parked on Figueroa Street near 73rd.

Thompson and Goins arrived at Figueroa Street shortly before noon. A tow truck, apparently owned by appellant Sebaja, was parked behind the car the men were towing. After Thompson and Goins hooked the car up to their tow truck, Sebaja drove up in a white pickup truck, stopped in the emergency center lane in the middle of the street, and walked up to Thompson. He asked Thompson whether the towed vehicle was for sale. Thompson said Sebaja would have to ask the vehicle's owner, and offered to provide the owner's phone number. Sebaja declined to take it, and became upset.

Sebaja then pointed to damage to his tow truck and claimed that Thompson and Goins had caused it. Thompson replied that he knew nothing about it, and the damage had "nothing to do with me." Sebaja became angry, loud and aggressive, and moved closer to Thompson. Sebaja said he had taken pictures of Thompson's tow truck and would "take [him] to court." Thompson asked why Sebaja was taking pictures because Thompson had not touched his tow truck.

Goins moved to where his father was standing and asked Sebaja if there was a problem. Sebaja continued to claim that Thompson and Goins had hit his vehicle. Sebaja then forcefully shoved Goins, causing him to stumble backwards. According to Goins, Sebaja had both hands in fists in front of him, and swung at Goins. In response, Goins punched Sebaja in an effort to defend himself. According to Thompson, after Sebaja shoved Goins, Goins threw the first punch. Thereafter, Goins and Sebaja engaged in a brief fistfight, with each punching the other. Thompson did not participate in the fistfight. Sebaja did not lose consciousness, did not appear to be disoriented, and did not fall to the ground during the fistfight.

Sebaja then broke away, ran to his truck, and retrieved a one-and-one-half to two-foot long machete. As Sebaja was heading to his truck, both Thompson and Goins ran away. Sebaja chased them, swinging the machete and yelling. A man, who appeared to know Sebaja, attempted to block Thompson's path and catch him. Sebaja screamed at Goins multiple times, "I'm going to kill you," while holding the machete in the air. He came within two feet of Thompson and Goins, still swinging the machete. Goins was scared for his life. Thompson was also frightened, but did not hear what Sebaja was saying. Goins estimated that the chase lasted for 10-15 minutes.

Police officers were summoned by a passing motorist who observed the incident. The first officers on the scene, Officers Jordan Durazo and Adriana Tavera, arrived at approximately 11:50 a.m. They observed Sebaja chasing Goins with the machete. Neither Goins nor Thompson had anything in their hands. Goins jumped onto his father's tow truck and grabbed a shovel. Meanwhile, Thompson ran toward the police car, out of breath and complaining that he could not breathe. Tavera ordered Goins and Sebaja to the ground. Goins immediately dropped the shovel and complied. Sebaja initially ignored her command and handed the machete to the man who had attempted to block Thompson's path. That man got into Sebaja's white truck, moved it to the side of the road, and left the scene, in violation of the officers' commands not to leave. When backup units arrived moments later, Sebaja complied with the officers' commands and thereafter was cooperative with police. The officers detained and questioned Thompson, Goins, and Sebaja.

Video footage of events occurring after the officers' arrival was retrieved from their "body-worn" and dashboard video cameras, and was played for the jury.

Sebaja was bleeding from his ear. He was taken to a hospital and treated. An expert, testifying for the defense, stated that Sebaja's hospital discharge papers indicated he had suffered a "traumatic brain injury," i.e., a concussion. Such an injury can be caused by being hit in the head by a fist, and may cause confusion and disruption of the thought processes, among other things. Goins and Thompson had no apparent injuries, although Goins complained of pain to his face.

The machete was not found. Tavera observed the man to whom Sebaja gave the machete at a nearby laundromat, but officers did not get his identifying information, and he was not located thereafter.

A defense investigator who examined Sebaja's cellular telephone discovered a photograph of the back of Thompson's tow truck, taken at 11:49 a.m. on the morning of the incident.

2. Procedure

The jury convicted Sebaja of one count of making a criminal threat against Goins (Pen. Code, § 422, subd. (a))^[1] and found he personally used a deadly and dangerous weapon, a machete, during commission of the offense (§ 12022, subd. (b)(1)). It acquitted him of making a criminal threat against Thompson, and of two counts of assault with a deadly weapon against Thompson and Goins. The trial court declined Sebaja's request to reduce the offense to a misdemeanor and sentenced him to three years in prison, i.e., the midterm of two years for the threats offense, plus a year for the weapon enhancement. It imposed a $300 restitution fine, a suspended parole revocation restitution fine in the same amount, a court operations assessment, and a criminal conviction assessment. Sebaja filed a timely notice of appeal.

DISCUSSION

Sebaja's instructional error claims lack merit

Sebaja contends that his criminal threats conviction must be reversed because the trial court failed to adequately instruct the jury on self-defense principles as they related to the criminal threats charge, and then exacerbated this error by providing an inadequate response to a question the jury posed during deliberations. We discern no reversible error.

1. Additional facts

When the court and parties discussed the jury instructions, defense counsel objected to CALCRIM Nos. 3471 (right to self-defense/mutual combat or initial aggressor) and 3474 (danger no longer exists), and the trial court excluded them. Defense counsel stipulated to the remaining instructions, including the self-defense instruction Sebaja now challenges on appeal, CALCRIM No. 3470.

The instructions given stated the following. CALCRIM No. 3470 provided in pertinent part: "Self-defense is a defense to the crimes charged in this case. The defendant is not guilty of the crimes charged in this case if he used force against the other person in lawful self-defense" under specified circumstances. It concluded by stating: "The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. If the People have not met this burden, you must find the defendant not guilty of the crimes of assault with a deadly weapon and criminal threats."^[2] CALCRIM No. 3472 informed jurors that, "A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force."

The court also gave CALCRIM No. 875 on assault with a deadly weapon. One of the elements listed was that the "defendant did not act in self-defense." The court instructed on criminal threats with the standard version of CALCRIM No. 1300, which does not list the absence of self-defense as an element.

During closing argument, defense counsel argued that Sebaja acted in self-defense when he chased Thompson and Goins with the machete. Counsel argued: "Criminal threats doesn't have self-defense as one of the elements written down, but there are a couple of things to note. [¶] I am going to argue that there is a seventh element in the criminal threats, and that is Mr. Sebaja did not act in self-defense, similar to the other counts, counts 1 and 2 with the assault with a deadly weapon . . . . [¶] Obviously, it just makes common sense. If you are acting in your own self-defense, you are allowed to say whatever you want to act in your own self-defense. . . . It is lawful if it is self-defense. That is why if you find Mr. Sebaja was acting in his own self-defense or you find the prosecutor didn't prove to you beyond a reasonable doubt that he acted in self-defense, then he is not guilty of criminal threats as well."

In rebuttal, the prosecutor did not challenge the assertion that self-defense applied to the criminal threats charge. Instead, she argued that Sebaja started the fistfight and therefore did not have the right to self-defense, and he used more force than was reasonably necessary.

During deliberations, the jury sent the court a note asking "If we find Sebaja not guilty of counts 1 and 2, and we were told by defense counsel during closing arguments that we cannot find Sebaja guilty of counts 3 and 4. Is this...