Filed 8/18/15 P. v. Leiper CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Plaintiff and Respondent,

v. EDWARD LEIPER, Defendant and Appellant. D065728

(Super. Ct. No. SCD239747)

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 Appell ant. 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.2

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 coun t 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 instruct ing 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 tim e for the 5:00 p.m. happy hour. While drinking at the bar, Leipe r made multiple, unwelcome, attempts t o 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 apolo gized and told her that " he was having a weird day. " Leiper approached another patron, Stephen Ward, and told him tha t he sold " dope " to earn money. The tone of the conversation " changed q uite a few times, " and Ward was repeatedly called upon to calm Lei per down. Ward proved unsuccessful , and Leiper

1 Statutory references are to the Penal Code unless otherwise specified.3

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 beli eve me? " Leiper also approached another patron, Antonio Silva. He asked him to teach him something, to which Silva replied that he could only tea ch him about his belief in God. Leiper left and went back to his seat. However, he subsequently picked up his knif e 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 th e bartender ' s back was turned, Leiper again displayed the knife to Silva. By the time the b artender 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 tha t he could return another time. Leiper replied, " You might as well ca ll 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 th e same alley. With his knife out , Leiper approached the group and said, " Locals only, no trolls, this is Da go Mob, " and told them to leave. David Price, a bystander in the alley, heard4

Leiper repeatedly yell, louder and louder, " Get out of Dieg o, I am gonna kill you troll. " Leiper said he was going to clean the streets of homeless people. The group initial ly thought he was joking. Leiper then asked whether anyone in the gro up " 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 B azan . 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 h ospital. " Leiper chased Diaz away before running away, himself, while yelling. Prior to the stabbing, nobody made any aggressive movements or swu ng their skateboards at Leiper. Justin Reno, a resident in a second floor apartment above Arizona Cafe , had a view of the parking lo t where the stabbing occurred

. He heard someone say, " He has a knife. " When Reno looked outside, he saw two people fighting, in what appear ed to be

" a messed up brawl[.] " He saw Leiper throw the first punch and the stab bing happe ned

" 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 bad5

. . . one. " After asking for help, Bazan fel l down to the ground. The taxicab dr iver, among others, dialed 911. Dave Price, one of the bystanders in the alley, and his companion, briefly fol lowed Leiper while calling 911. Bazan was still con scious when paramedics arrived. He told them that he had been stabbed. He suffered a laceration of his bowels, a grape fruit

- 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 remove d. 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

c omplications of the stab wound. Police interviewed Lei per 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 bough t the knife about a month earlier for protection. After a couple of beers, he had a " friendly buzz " and fel t 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, sh o wing it to people next to [him]. " Leiper also talked6

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 barst ool next to Ward at some point. Leiper was not trying to be a ggressive or to threaten anyone, though someone could have taken his c onduct 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 " a nd a " little irritated " because he thought the knife was never a real issue, looked at Si lva 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 recal l 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 b eing aggressive or lashing out. Leip er did not recall having threatened the bartender or Street or having referred to Stree t in racially derogatory terms. He started walking away, but Street kept saying thin gs to him and coming toward him. Street ' s behavior was " confusing " and " intimidatin g, " as if
he w as trying to " antagoniz[e] " or " provok[e] " Leiper. Leiper reacted defensively, by stepping back and pulling out the knife " so [Street] would n't put his hands on [Leiper]. " Leiper conti nued walking away from the bar. He put the knife away, and eventually entered the alley be tween Winston ' s and Arizona Cafe , where he saw a large7

group ( eight to 10 people) just beyond Winston ' s. Some of them were sitting on skateboards, o thers were holding skateboards. He noti ced 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 i t g o " 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. " Lei per " 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 aro und and hit [him] " with the s kateboard. 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 beli ef in a " good possibility " of a threat. The alcohol he consumed had also made him feel " vulnerable, " like he " could n ' t defend [him]self properly. " In response to seeing the knife, the male with the skateboard backed off. Then another male in the group w ho was about three feet away " grabbed his skateboard and lifted it up and started making motions like he was going t o 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

o ther people were around him. He felt threatened and " didn ' t want to take a chance. "8

" Panicked, " and not knowing " w ho was going to attack [him] from which direction, " he moved toward each of them with the knife poin ted outward to " back them off. " Leiper also referred to " Dago Mob " (which was a " biker club " ) and used some profanities i n an effort to intimidate them. T hey all eventually backed off, running a way in different directions. Leiper would have left the scene, but then he heard someone " yel ling and running up behind " him. He turned around with his knife pointed " straightforward, " and saw someone (Bazan) " clos ing in on " him and " getting really close. " When Bazan got " right up again st " him, Leiper " just reacted. " Leiper di d not recall stabbing Bazan. He could have swung the knife or Bazan could have run into it; he did not know Bazan had bee n stabbed until af

ter the fact. All he recalled about that moment is being " scared to death. " When Leiper realized he had stabbed Bazan, he was sho cked 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 belie ved was part of the same group. He then continued on, " pitch[ing] " the knife in a bush as he ran away because he was " disgu sted " by having it in his hand.
Over a mo nth 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 ser iously injured in the incident. He relayed he was

" in a really bad tim e " of his life when he was homeless, drinking alc ohol heavily, and smoking weed. He had acted like " an ass " in the bar that night, although he did not specifically recall having displaye d the knife while he was there. Leiper said he was9

carrying the knif

e 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

— real ly a pleasant lif

estyle

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

was " extremely drunk "

— in a mindset where " you se e things a little differently. " In regard to the stabbing , Leiper said: " I remember one kid raised a skateboard at me and

an other 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 p anicked 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 " crea te a defense " in explaining the threat he perceived: H e

" remembered seeing a skateboard being lifted at [his] head " and, although that " doesn ' t mean what [he] did was right, " h e believed " [i]t is a defense. " Leiper went on to say: " I f 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 ev er do those things if [he] wasn ' t in that state of mind. " The detectives then10

in formed 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 th at 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 refer ring to his conduct at the bar. He reiterated that it was " never [his] intention or object ive " to hurt anyone, and that his " objective was to back them off, to distance themselves f rom 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 Die go for illegal drug pos session

. While in a holding cell, Chambers heard one of the other inmates talking loudly about a recent incident in Ocean Beach in which t he inmate ' s friend was stabbed. Chambers believed the inmate was referring to the incident involving Leiper. The in mate was making " a bunch of like craz y 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
skateb oards, they were willing

— they were willing to jump him. " T he 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 about11

Chambers ' s friend and the inmate responded that " he deserve s to go down for " the stabbing. 2
DISCUSSION Lei p er claims the court erred by failing to properly instruct the jury on the subjective standard of imperfect self

- defense. Specifically, he asserts CALCRIM N o. 3474 was errone ous 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 N o. 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. 3 474). 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 appear s

2 Diaz admitted to have been in custody at the centr al 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.12

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 sub stantial 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 leas t 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 f orfeited 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. ' " ( Peop le 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 ju ry 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 ou r constitutional system of trial by jury is that jurors13

generally understand and fai thfully 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 t ells the jury. However, Leiper claims here, for the first time, that CALCRIM N o. 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
i talics .) He points out that the jury c ould have been confused by CALCRIM No. 3474 and would have not given " proper consideration to the doctrine o f 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 imperfec t 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 le sser included offense of murder. ( People v. Lewis (2001) 25
C a l.4th 610, 6 45 .) 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 do ne so14

while acting in i m

perfect 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 se lf

defen se 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 def endant 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, und er 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 long er 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. Hump hr ey , supra , 13 Cal.4th at p. 1082 [ " For killing to be in self

- defense, the defendant must actually and reasonably believe in the nee d to defend. " ].) As such, CALCRIM No. 3474 does not impact a defendant ' s claim of imperfect self

- defense whatsoever

.15

At trial, the court instructed the jury under CALCRIM No. 571 [Voluntary Manslaughter: Imperfect Self

- Defense or Imperfect Defense of An other

-- 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 a cted 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 rea sonable. [¶] 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 defe ndant ' 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 hav e not met this burden, you must find the d efendant 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 N o. 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 ,16

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

- defense. T he 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 th at conviction. On the re cord 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 reques t a clarifying instruction.
DISPOSITION The judgment is affirmed.

HUFFMAN, J.
WE CONCUR:

McCONNELL, P. J.

McDONALD, J.