People v. Sweis CA4/1 ( 2015 )


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  • Filed 9/18/15 P. v. Sweis 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    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    THE PEOPLE,                                                         D066832
    Plaintiff and Respondent,
    v.                                                         (Super. Ct. No. SCD254666)
    SAMIR SWEIS,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of San Diego County, Louis R.
    Hanoian, Judge. Affirmed.
    Jill Kent, 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, A. Natasha Cortina and Parag
    Agrawal, Deputy Attorneys General, for Plaintiff and Respondent.
    Samir Rammy Sweis appeals a judgment following his jury conviction of arson of
    an inhabited structure (Pen. Code, § 451, subd. (b))1 and arson of personal property
    1        All statutory references are to the Penal Code.
    (§ 451, subd. (d)). He pleaded guilty to the charge of burglary (§ 459). On appeal, he
    contends the trial court prejudicially erred by refusing to instruct on self-defense to the
    arson charges.
    FACTUAL AND PROCEDURAL BACKGROUND
    In April 2014, Sweis was dating Annalise Valdez and sometimes shared a room
    with her in a home in which she lived with Juana Cervantes and Elizabeth Perez. Sweis
    used drugs and had recently overdosed on heroin.
    On April 9, Sweis and Valdez were screaming and arguing in their bedroom.
    Cervantes's daughters, Elizabeth Gurule (Elizabeth) and Yahaira Gurule (Yahaira), heard
    the argument. Elizabeth thought Sweis was acting crazy, like he was on drugs. Valdez
    packed Sweis's property into a suitcase and threw it outside.
    Sweis locked himself in the bathroom adjoining Valdez's bedroom. Valdez stated
    she would get someone to help force him out of the house and then she left the house.
    Elizabeth believed Sweis was doing drugs inside the bathroom and told him to leave the
    house or she would call the police. Sweis yelled obscenities at Cervantes and threatened
    her. Yahaira called her child's father, Ernesto, who arrived, picked up their child and
    another child, and left with them. Ernesto did not go into Valdez's bedroom. While
    Sweis was locked inside the bathroom, one or two of Valdez's friends arrived and tried to
    get him to leave the bathroom. He would not leave. Yahaira called the police and went
    outside.
    Cervantes saw Sweis lighting his clothes on fire and throwing something on the
    mattress. Elizabeth saw him playing with paper that was on fire and laughing. Sweis
    2
    threw the burning paper on the floor. Elizabeth saw the floor, bed, and wall were on fire
    and saw Sweis trying to light himself on fire. Perez threw water on the burning paper to
    put it out. A neighbor saw Sweis throw a lit piece of paper out the window.
    When San Diego Police Officers Cory Ohlwiler and Leann Rager arrived at the
    scene, Elizabeth was outside and told them Sweis was inside lighting the house on fire.
    The officers could see smoke coming out of the house. Entering the house, the officers
    saw the bedroom floor was wet and Sweis was alone in the bedroom. The bed and other
    objects were on fire. They ordered Sweis out of the room, but he initially did not comply.
    When Rager stated her observation the house was on fire, Sweis replied, "The house is on
    fire. Yeah." He then laughed.
    Sweis was detained and Rager found a lighter in his pocket. He was transported to
    a hospital because of possible smoke inhalation and a cut under his lip. His left cheek
    was swollen. His hands had blisters and burn marks.
    San Diego Fire Captain Eric Kelley arrived at the scene and saw a charred piece of
    lined paper outside, by the window. The origin of the fire was inside the bedroom at the
    foot of the bed. There was a large amount of burnt debris and clothes with charring on
    them. There was also fire damage to a computer and a trash bin. The bedroom wall was
    burnt and the ceiling had smoke damage. Kelley determined the cause of the fire was an
    open flame, meaning a flame came into direct contact with material that was ignited. A
    lit lighter is an open flame. Although a single piece of lit paper could possibly have
    started the fire, it was not probable that happened.
    3
    An information charged Sweis with arson of an inhabited structure (count 1)
    (§ 451, subd. (b)), making criminal threats (count 2) (§ 422), burglary (count 3) (§ 459),
    and arson of personal property (count 4) (§ 451, subd. (d)). It also alleged that Sweis had
    one prison prior (§§ 667.5, subd. (b), 668) and that counts 1, 2, and 4 were committed
    while Sweis was released from custody on bail pending final judgment on an earlier
    felony (§ 12022.1, subd. b)).
    At trial, the prosecution presented evidence substantially as described above. In
    his defense, Sweis testified he had been a heroin addict for six years and had overdosed
    on heroin a few days before the incident. However, he testified he had used only
    marijuana on the day of the incident. On April 9, he argued with Valdez about his drug
    use. Cervantes became involved, cursing at him, and he cursed back at her. Sweis
    testified that Ernesto became upset when he cursed at Cervantes, and entered Valdez's
    bedroom. Sweis became scared because Ernesto was bigger than he and did not have
    good intentions. Because he was scared, Sweis then locked himself inside the bathroom.
    He heard Valdez leave to get someone to help make him leave the house. Ernesto banged
    really hard on the bathroom door for two and one-half minutes and told him to come out.
    Ernesto told him, "I'm going [to] mess you up." When Ernesto stopped banging on the
    door and yelling, Sweis, believing he had left the bedroom, opened the bathroom door
    and walked out. Ernesto hit Sweis in the face, causing him to fall on the floor near the
    foot of the bed. Ernesto got on top of Sweis, straddling him with his knees on Sweis's
    abdomen or pelvic area. Ernesto hit Sweis multiple times in the mouth and face. Sweis
    heard Yahaira talking on the phone with the police and telling Ernesto the police were
    4
    there. Sweis felt Ernesto about to punch him again, but Ernesto paused in his attack on
    Sweis. Sweis then reached in his pocket, pulled out his lighter, and lit a couple of pieces
    of paper (i.e., his bank statement). Sweis held the lit papers just above his beltline,
    causing Ernesto to feel the heat of the fire. Ernesto got off of Sweis and he (Sweis) threw
    the lit papers at him. However, the lit papers landed on the bed where there was some
    clothing. He remembered smelling smoke and thought about putting out the fire, but the
    police arrived. Sweis denied throwing any burning paper out the window. He testified
    he did not intend to light either the bed or the clothes on fire. He did not remember
    telling Ohlwiler he did not recognize the man who attacked him.
    Valdez testified for the defense. She testified Sweis continued to use heroin up to
    and including the day of the incident. When Sweis was under the influence of heroin, he
    would act cocky and would not think as he would when he was sober. She admitted she
    and Sweis were arguing on the day of the incident and that Cervantes and Sweis argued
    about money. Sweis locked himself in the bathroom. Valdez testified Ernesto came to
    the house after Elizabeth and Yahaira asked him to beat up Sweis. When Ernesto arrived,
    Sweis was locked in the bathroom and Ernesto argued with him until Valdez left the
    house. When she returned, the fire in her bedroom had already been extinguished. She
    admitted she had told officers that when Sweis was in the bathroom, she heard loud
    noises that sounded like he had fallen.
    The jury found Sweis guilty of arson of an inhabited structure (§ 451, subd. (b))
    and arson of personal property (§ 451, subd. (d)). It found him not guilty of making a
    criminal threat (§ 422). He pleaded guilty to burglary (§ 459). The trial court found true
    5
    the on-bail allegations (§ 12022.1, subd. (b)) and not true the prison prior allegation
    (§§ 667.5, subd. (b), 668). The court sentenced Sweis to a total of seven years in prison,
    consisting of a five-year term for his conviction of arson of an inhabited structure and a
    consecutive two-year enhancement for the on-bail allegation. It also imposed a
    concurrent two-year term for his burglary conviction and stayed the sentence for his
    conviction of arson of personal property pursuant to section 654. Sweis timely filed a
    notice of appeal.
    DISCUSSION
    I
    Trial Court's Refusal to Instruct on Self-defense
    Sweis contends the trial court prejudicially erred by refusing his request for an
    instruction on self-defense regarding the two arson counts. He argues the evidence was
    sufficient to support a finding by the jury that he acted in self-defense when he lit the
    paper on fire.
    A
    After Sweis's trial testimony, his counsel informed the court he would be
    requesting an instruction on self-defense. The court responded that it did not believe self-
    defense was a defense to arson. Sweis's counsel stated he was unaware of any authority
    holding that self-defense was a defense to arson. The prosecutor argued self-defense was
    a defense only for assaultive crimes and not arson. Because Sweis was charged with
    arson and not with assaulting Ernesto, the court refused his request for an instruction on
    self-defense.
    6
    However, the court stated Sweis's theory would be more appropriately covered by
    an instruction on accident. It explained that instruction would cover an act of lawfully
    fending off an attacker with fire, during which something catches on fire, and thereby
    negating the elements of malice and/or willfulness. The court instructed the jury on the
    defense of accident.
    B
    To justify an act in self-defense, a defendant generally must have an honest and
    reasonable belief that bodily injury is imminent. (People v. Minifie (1996) 
    13 Cal. 4th 1055
    , 1064-1065; People v. Humphrey (1996) 
    13 Cal. 4th 1073
    , 1082-1083.) The
    reasonableness of the belief in the need to defend is determined from the point of view of
    a reasonable person in the defendant's position. (Humphrey, at pp. 1082-1083.) The
    right of self-defense allows a person to use such force as is reasonable under the
    circumstances. (Minifie, at p. 1065.) In certain cases, the right of self-defense may apply
    when a person reasonably believes he or she is in imminent danger of either bodily injury
    or being touched unlawfully (e.g., battery). (CALCRIM No. 3470; People v. Myers
    (1998) 
    61 Cal. App. 4th 328
    , 335.) The right to use self-defense continues only so long as
    the danger exists or reasonably appears to exist. (CALCRIM No. 3474.) Therefore,
    when an attacker withdraws or no longer appears capable of inflicting any injury, the
    right to use self-defense ends. (CALCRIM No. 3474.)
    A trial court has a duty to instruct on a particular defense only if there is
    substantial evidence to support that defense. (People v. Salas (2006) 
    37 Cal. 4th 967
    , 982
    (Salas).) In determining whether the evidence is sufficient to support an instruction on a
    7
    defense, the court does not determine the credibility of the defense evidence, but rather
    determines whether there is evidence, if believed by the jury, could raise a reasonable
    doubt on the charged offense. (Id. at pp. 982-983.) We review de novo a trial court's
    refusal to give an instruction. (People v. Waidla (2000) 
    22 Cal. 4th 690
    , 733.)
    C
    Sweis argues the trial court erred by refusing his request for an instruction on self-
    defense to arson because there was substantial evidence to support that instruction.
    Viewing the evidence favorably to Sweis, the jury could have found he honestly and
    reasonably believed he needed to act in self-defense when he lit the paper on fire. Sweis
    testified Ernesto punched him in the face, causing him to fall on the floor. Straddling
    Sweis with his knees, Ernesto hit him multiple times in the mouth and face. Yahaira was
    talking on the phone with the police and told Ernesto the police were there. Ernesto was
    about to punch him again, but paused in his attack on Sweis. Sweis then reached in his
    pocket, pulled out his lighter, and lit a couple of pieces of paper. He held the lit papers
    just above his beltline, causing Ernesto to feel the heat of the fire and get off of Sweis.
    Sweis threw the lit papers at him. However, the lit papers landed on the bed where there
    were some clothes, causing them to catch on fire. That testimony, if believed by the jury,
    would have been sufficient to support a finding by the jury that, or at least a reasonable
    doubt regarding whether, Sweis actually and reasonably believed in the need to defend
    himself against Ernesto's attack on him and therefore did not have the required mental
    8
    state for the arson counts (i.e., a willful and malicious act).2 There was sufficient
    evidence that Ernesto was in the midst of his assault on Sweis when he (Ernesto) paused
    and Sweis took that opportunity to defend himself by lighting pieces of paper, holding
    them near Ernesto's torso, and then throwing them at him.
    Contrary to the People's assertion, we do not conclude the evidence, viewed
    favorably to Sweis, showed Ernesto had stopped his assault on Sweis and the danger of a
    continued assault had ended. Rather, the evidence, viewed favorably to Sweis, showed
    Ernesto was still on top of Sweis and had only briefly paused his assault on him when
    Sweis allegedly acted in self-defense by starting some paper on fire. Based on that
    evidence, the jury could find that Ernesto had not withdrawn, or otherwise appeared
    incapable of inflicting any injury on Sweis, when he (Sweis) acted. (CALCRIM
    No. 3474.)
    Although the People argued below, and the trial court found, that self-defense is
    not a defense to arson, the People do not cite any authority so holding. Instead, the
    People cite People v. Hayes (2004) 
    120 Cal. App. 4th 796
    , in which the court concluded
    self-defense excuses or justifies an act, but does not negate the malice element of
    mayhem. (Id. at pp. 802-805.) Because we conclude below the trial court did not
    prejudicially err in refusing to instruct on self-defense in this case, we need not, and do
    not, decide whether self-defense is a defense to arson by applying Hayes's reasoning or
    2      Section 451 states: "A person is guilty of arson when he or she willfully and
    maliciously sets fire to or burns or causes to be burned . . . any structure . . . ."
    9
    otherwise. Rather, for purposes of disposing of this appeal, we assume arguendo that
    self-defense may be a defense to arson. Because there was substantial evidence to
    support an instruction on self-defense, the trial court erred by refusing Sweis's request for
    that instruction.
    D
    Although we assume the trial court erred by refusing an instruction on self-
    defense, we nevertheless conclude that error was harmless and does not require reversal
    of Sweis's arson convictions. Contrary to Sweis's assertion, we conclude the California
    standard for prejudicial error applies to such an instructional error (i.e., the error is
    harmless unless the defendant shows it is reasonably probable he or she would have
    obtained a more favorable result absent the error). (People v. Watson (1956) 
    46 Cal. 2d 818
    , 836; People v. Watt (2014) 
    229 Cal. App. 4th 1215
    , 1219 (Watt); People v.
    Villanueva (2008) 
    169 Cal. App. 4th 41
    , 53 (Villanueva).) Although the California
    Supreme Court has yet to expressly decide which standard of prejudice applies when a
    court errs by failing to instruct on an affirmative defense (see 
    Salas, supra
    , 37 Cal.4th at
    p. 984),3 the court in Watt noted the California Supreme Court and other courts have
    decided in analogous cases that the Watson standard generally applies to instructional
    errors and no published opinion has applied the federal constitutional standard for
    prejudicial error under Chapman v. California (1967) 
    386 U.S. 18
    , 24 (i.e., the error is
    3       Salas stated: "We have not yet determined what test of prejudice applies to the
    failure to instruct on an affirmative defense." (
    Salas, supra
    , 37 Cal.4th at p. 984.)
    10
    reversible unless the People show beyond a reasonable doubt the error was harmless).
    
    (Watt, supra
    , 229 Cal.App.4th at pp. 1219-1220; cf. People v. Breverman (1998) 
    19 Cal. 4th 142
    , 165 [applying Watson standard to error in not instructing on lesser included
    offense].) Furthermore, in Villanueva, after concluding the trial court erred by refusing to
    instruct on self-defense, the court stated: "We review an error of misdirection of the jury
    for a miscarriage of justice, and do not reverse unless it appears reasonably probable that
    the defendant would have achieved a more favorable result had the error not occurred."
    
    (Villanueva, supra
    , 169 Cal.App.4th at p. 53.) We agree with that line of authority and
    conclude the Watson standard applies to this case in determining whether the trial court's
    error in refusing to instruct on self-defense was prejudicial. That instructional error did
    not deprive him of his right to present a defense or otherwise violate his federal
    constitutional rights to due process of law and to a jury trial. He does not cite any
    precedent so holding or otherwise persuade us the Chapman standard should apply.
    Applying the Watson standard to this case, we conclude Sweis has not carried his
    burden on appeal to show it is reasonably probable he would have obtained a more
    favorable verdict had the trial court instructed on self-defense. Although we are not
    persuaded by the People's assertion that the jury's rejection of the affirmative defense of
    accident (on which the trial court instructed) necessarily meant the jury would have
    rejected an affirmative defense of self-defense, we nevertheless conclude, based on our
    review of the entire record, that it is not reasonably probable Sweis would have obtained
    a more favorable verdict had the court instructed on self-defense. The evidence showed
    Sweis had been argumentative earlier on the day of the incident. He had overdosed on
    11
    heroin a few days before and likely had taken heroin on the day of the incident. Valdez
    and others had been attempting to get Sweis to leave the residence that day when he
    locked himself in the bathroom and refused to leave. The jury could reasonably infer
    from this evidence that Sweis intentionally and maliciously lit pieces of paper on fire in
    response thereto and as a continuation of his argumentative and disruptive behavior.
    Percipient witnesses testified Sweis threw lit pieces of paper out of the window,
    supporting an inference he was acting maliciously and also contradicting his testimony
    that he lit only his bank statement on fire and threw it at Ernesto. A videotape from
    Rager's body camera was played for the jury, showing that after Sweis lit the bedroom on
    fire, he was laughing and did not attempt to put out the fire. That evidence also
    supported a reasonable inference by the jury that he acted maliciously when he lit the
    pieces of paper and started the bedroom fire.
    Furthermore, the jury could reasonably conclude Sweis's testimony regarding how
    the fire was started was not credible. Sweis made previous inconsistent statements,
    including telling police he did not know the man who allegedly attacked him in the
    bedroom. Also, on the day of the incident, he did not tell anyone that Ernesto had
    attacked him.
    Based on the entire record, we conclude it is reasonably probable the jury would
    have rejected Sweis's defense of self-defense had the trial court instructed on that
    defense. It likely would have concluded he did not actually believe in the need to defend
    himself or that a reasonable person in his circumstances would not have believed there
    was a need to defend himself or herself. Also, the fact that the jury rejected Sweis's
    12
    affirmative defense of accident supports our conclusion the jury also likely would have
    rejected his theory that he acted in self-defense. Because it is not reasonably probable
    Sweis would have obtained a more favorable verdict had the trial court instructed on self-
    defense, we conclude that error was harmless and does not require reversal of his arson
    convictions. (People v. 
    Watson, supra
    , 46 Cal.2d at p. 836; 
    Watt, supra
    , 229 Cal.App.4th
    at p. 1219; 
    Villanueva, supra
    , 169 Cal.App.4th at p. 53.)
    DISPOSITION
    The judgment is affirmed.
    McDONALD, J.
    WE CONCUR:
    HUFFMAN, Acting P. J.
    AARON, J.
    13