Filed 5/7/21 P. v. Bagnerise CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

TAYLOR CHANEL BAGNERISE,

Defendant and Appellant.

 B300334

 (Los Angeles County

 Super. Ct. No. BA446041)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Stephen A. Marcus, Judge. Affirmed and remanded with directions.

Jin H. Kim, 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, 

Joseph P. Lee and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff 

and Respondent.

____________________________________________
2

Appellant Taylor Chanel Bagnerise was found guilty by a jury of the 

second-degree murder of Devon McConnell. The jury found that appellant 

had used a deadly weapon, namely, a knife, in the commission of the murder.

Probation was denied and appellant was sentenced to a term of 

imprisonment of 15 years to life. The sentence was enhanced by a 

consecutive one-year term under Penal Code section 12022, subdivision (b)(1) 

(use of deadly weapon).

1 The court imposed a number of fines and 

assessments which are not at issue in this appeal. Appellant was given 1,198 

days of custody credit. It is conceded that she is entitled to one additional 

day of credit.

Appellant contends that the court prejudicially erred in failing to 

instruct the jury on self-defense and in failing to give a voluntary 

manslaughter instruction based on imperfect self-defense. We do not agree 

and affirm the judgment. We remand with directions to give appellant one 

additional day of custody credit.

FACTS

McConnell was murdered shortly after midnight of April 19/20, 2016. 

His murder was preceded by a troubled relationship with appellant of two or 

more years that appears to have been punctuated by outbursts of violence.

We begin by relating an incident that occurred on May 15, 2015, that 

provides background on the nature of appellant’s and McConnell’s 

relationship. We go on to summarize alleged previous acts of violence since 

this evidence arguably bears on the principal issue on appeal, which is the 

court’s refusal to instruct on self-defense. We relate text messages exchanged 

between appellant and McConnell two weeks prior to the murder in that this 

sheds light on the problems of their relationship and tends to explain their 

final and fatal confrontation. We state the facts of the homicide. We discuss 

appellant’s physical condition after the homicide since this relates to whether 

McConnell may have been the aggressor. We detail the results of the autopsy 

performed on McConnell as this evidence bears directly and convincingly on 

the issue of self-defense. We end by briefly referring to the defense’s case-inchief at trial.

1 Statutory references are to the Penal Code.
3

1. The May 15, 2015 incident

McConnell and his parents retained criminal defense attorney Michael 

Kraut on May 27, 2015, to represent McConnell on a single count of felony 

domestic violence. This charge appears to have been generated by the 

incident that took place on May 15, 2015. It was Attorney Kraut who related 

at trial what happened between appellant and McConnell on May 15, 2015.

Appellant and McConnell went out for diner in the evening of May 15, 

2015, leaving their recently born child with appellant’s grandmother.

Appellant wanted to talk about their relationship, but McConnell “did not 

want to be in the relationship, and she continued to want to talk about it.” It 

was already very late and McConnell wanted to take appellant home so that 

they could relieve appellant’s grandmother. Appellant did not want to go 

home. She started to argue and “then started to get aggressive.” As 

McConnell was driving, appellant was punching and trying to scratch him.

They arrived at the grandparents’ home and McConnell got out and went to 

ring the doorbell to ask the grandparents for help. Appellant told him not to 

ring the doorbell. She did not want to stop talking about their relationship 

and told McConnell that if he rang the bell, she would hurt herself. He did 

ring the bell, and heard the noise of a pot breaking. He turned around. He 

saw a clay pot about a foot and a half that was cracked. Appellant had some 

cuts on her face and forehead.2

After appellant’s grandfather opened the front door, McConnell said, 

“Look what she just did.” With that, McConnell left and proceeded to the 

Carson sheriff’s station. McConnell called 911 (it is unclear whether he 

called from the sheriff’s station), stating that he wanted to report an incident. 

McConnell told the dispatcher that he was being beaten and that appellant 

was threatening to kill him; that with each incident appellant was getting 

more violent; that he was scared of her and wanted the grandfather to 

intervene. At some point during these events appellant called the police,

stating that McConnell had assaulted her.

2 Around 4:30 a.m. on May 16, 2015, appellant was treated in a medical 

emergency room for a laceration of her right eyebrow, which took two stiches, 

and for a laceration of one centimeter on her right cheek. The emergency 

room physician did not see any bruises, swelling, or other injuries.
4

In September 2015, the prosecution reported that it was unable to 

proceed with the case against McConnell. Attorney Kraut’s motion to dismiss 

the case was granted.

2. Previous acts of violence

Appellant refers to three acts of prior violence by McConnell which 

appellant contends bear on the reasonableness of her perception of the 

danger that McConnell posed. These were related by appellant to Deputy 

Sheriff Porsche Heisser.

According to Heisser, appellant told her that appellant had experienced 

violence at McConnell’s hands around Christmas 2014 when she was 

pregnant. There was another incident in January 2015 when McConnell was 

aggressive with appellant. The third incident was at McConnell’s house 

when she tried to use his duffel bag for her belongings. He snatched the bag, 

dumped her stuff, and told her she was not leaving his house with his bag. 

He next pushed her against a dresser, bruising her leg.

The first two incidents were described only in conclusory terms. 

Appellant, in a later conversation with a sheriff’s detective, withdrew the 

third incident as inaccurate and as not having occurred.

Appellant also cites the testimony of Francisco S., a neighbor of 

appellant’s, who testified that he regularly heard appellant and a man 

arguing and appellant crying. Sometimes he heard banging on the wall,

which he described as sounds of a struggle.

The record also contains reports of acts of violence by appellant. The 

persons testifying to these acts were Attorney Kraut and Deputy Sheriff 

Heisser. Both of these witnesses related information conveyed to them by 

McConnell. We prefer to deal carefully with these accounts. This is not 

because we question the credibility of these witnesses, which we decidedly do 

not, but because these accounts ultimately involve McConnell’s credibility. 

Without burdening the record with a rather tawdry series of scenes, we take 

away from these accounts that angry confrontations were not uncommon 

between appellant and McConnell.
5

3. The text messages

Text messages exchanged between McConnell and appellant in the two 

weeks prior to the murder reflect the issues that appellant and McConnell 

were unable to resolve.

On April 5, 2016, appellant texted McConnell that she had to raise 

their infant daughter alone, and that she needed McConnell but he wasn’t 

there. McConnell replied that she had injured herself, lied that he had done 

it, and pressed charges for something he did not do. Appellant texted that 

there was “nothing in place for visitation so if you want to see [the baby] we 

need to discuss things or go back to court.” On April 8, 2016, in a failed 

attempt to patch things up, they exchanged texts about going to Las Vegas to 

celebrate appellant’s birthday. On April 15, 2016, appellant wrote that 

McConnell was hardly seeing his daughter anymore and that he was hardly 

around. McConnell replied, “I have been giving it my all, and I’m not going to 

be the only one doing so anymore,” and as a result of what she did, they had 

been separated for nine months. On April 17, 2016, appellant wrote, “I have 

many people that can testify in court that you have not been taking care of 

[the baby] or supporting her in anyway.” In the end, appellant agreed that 

McConnell could visit their daughter between 5:00 and 7:30 p.m. on April 19, 

2016. This was the visit that ended McConnell’s life.

4. The homicide

Q.N., a friend of appellant’s, visited appellant’s apartment around 4:00 

p.m. on April 19, 2016. Appellant told Q.N. that she wanted to go to Las 

Vegas with McConnell for her birthday. Appellant spoke of some custody 

issues regarding her daughter, voicing concerns that McConnell would take

her daughter away from her.

McConnell arrived at the apartment around 5:00 p.m. There was 

nothing unusual about McConnell as he came into the apartment. McConnell 

asked where his daughter was. It seemed to Q.N. that there seemed to be a 

lot of tension in the room. It appeared as if appellant and McConnell were 

mad at each other. As Q.N. put it, “typical stuff like boyfriend/girlfriend 

stuff.” McConnell picked his daughter up and played with her.

Appellant came out of the bedroom wearing a dress, saying that this 

was the dress she wanted to wear for her birthday in Las Vegas. According 
6

to Q.N., McConnell did not appear to be interested. There was not much 

conversation except for the reference to Las Vegas. Q.N. continued to sense 

the tension between appellant and McConnell.

At one point, appellant told Q.N. that she wanted to go to Las Vegas 

with McConnell, but she said they were “having issues.” Q.N. told appellant 

that she should go with friends, or Q.N. would go with her, and that 

appellant should have fun, whatever she was going to do. Appellant did not 

elaborate on what the issues were between her and McConnell.

Q.N. left appellant’s apartment around 7:00 p.m. When she learned 

the next day that McConnell had been killed, Q.N. was “very, very shocked.”

We know nothing of what transpired between the time Q.N. left and 

the 911 call placed by appellant at 12:40 a.m. on April 20, 2016.

McConnell placed the call from his cell phone. In the call, McConnell 

addresses not the 911 operator but appears to be speaking to appellant. 

McConnell states repeatedly that appellant is threatening him and asks 

appellant why she grabbed the knife and why she is trying to stab McConnell 

in the face. There is one extended statement by McConnell: “because you’ve 

been threatening to stab me. You’ve been threatening to attack me. Then . . .

why did you say you were gonna stab me in my face, Chanel [appellant]? 

Why did you say you’re gonna stab me in my face, Chanel? No, I’m not trying 

to make this. I’m trying to protect myself because you’re trying to attack 

me—you’ve been hurting me and they’re calling me because you’ve been 

threatening me. And you said you would attack me. If you say you gonna 

attack me . . . How am I . . . How am I not trying to protect myself?” 

Appellant’s response to this was: “I’m not f*** crazy.” The 911 operator 

disconnected at this point.

The 911 operator called back within what both parties agree was either 

less than a minute or two minutes. The operator asked what was going on. 

McConnell said, “Stop, Chanel. My ex just attacked me *** she won’t let me.” 

The operator asked for the address. This was followed by some unintelligible 

exclamations by appellant (“Help me. Please . . . Ow . . . Ow”), and then 

McConnell: “Help. No, let me go. Let me go! . . . Chanel, stop!” The second 

call then disconnected.
7

B.S. lived across a very narrow hallway from appellant’s apartment; 

the front doors of these two apartments looked right at each other. Just after 

midnight on April 20, 2016, B.S. heard a male voice followed half a minute 

later by a female voice. He heard a conversation going on for a couple of 

minutes. It stopped, and when it started again, he heard a female voice say 

two or three times, “Get out.” B.S. characterized the voice as sharp and 

scared. Next, he heard a male voice but he could not make out the words.

Then it was silent for about five minutes.3

Next, B.S. heard what sounded like glass breaking, a short pause of 

perhaps five seconds, and then screaming and shouting. B.S. heard the doors 

opening to appellant’s apartment and then heard a knock on his door. He 

opened the door to appellant, who said, “Help me. He’s dead.”

Appellant was holding a child. Appellant was dressed in white; there 

were red stains on her clothes that looked fresh. B.S. thought that appellant 

might be hurt too and he decided to call 911, which he did about 30 seconds 

after he opened the door.

After giving the 911 operator the address, B.S. told the operator that 

appellant was saying that someone was dead. B.S. walked into appellant’s 

apartment with his phone still connected to the 911 operator. Responding to 

the operator’s request to tell her what happened, B.S. said that they had been 

fighting, McConnell was “doing physical violence,” and McConnell had said 

that he was going to call the police. Appellant is heard to say that McConnell 

threw her against the wall and she tried to stab him “to get him off me. Now, 

he’s on the floor.”

Inside appellant’s apartment, B.S. saw blood coming from beneath the 

bedroom door. It looked like a lot of blood. The bedroom door wasn’t 

completely shut. B. S. tried to open the door but couldn’t open it enough to 

step inside. He peered inside and saw a body lying facedown. He heard 

sirens approaching.

Captain Darius Cunnigan, qualified both as a firefighter and a 

paramedic, arrived at the scene at 12:53 a.m. When Captain Cunnigan 

3 B.S. initially testified the silence lasted about half a minute but 

changed his mind.
8

opened the door to appellant’s apartment, he saw appellant in her panties 

and bra holding a child, covered from head to toe with blood, and screaming,

“ ‘It was self-defense, it was self-defense.’ ” He asked appellant to calm down 

and requested the police on the scene to take care of appellant.

Captain Cunnigan found McConnell on the bedroom floor shoved 

against the door. McConnell was alive and gasping for air, but he was not 

responsive. The door had to be removed to move McConnell. He was taken 

to the entry of the apartment where there was more room to work on him. 

He was bleeding heavily. The paramedics left with McConnell at 1:02 a.m.

and arrived at the hospital at 1:10 a.m. McConnell was pronounced dead at 

1:13 a.m.

Police officers conducted a sweep of appellant’s apartment and found a 

knife in the bedroom.

5. Appellant’s physical condition

Appellant was examined by a police detective around 8:00 a.m. on 

April 20, 2016. Appellant is five feet seven inches tall and weighed between 

110 and 115 pounds. There were no marks, bruises, or swelling on her face.

There were no injuries, swelling, or redness to her neck. There was a

quarter-inch incision on her left index finger. There were no injuries to her 

hands.

Appellant told the same detective that her legs were pulled out from 

under her and she was allegedly dragged into the bedroom. The detective 

looked for physical corroboration of this by way of scratches on the ground 

but found none.

Whether photographs taken of appellant on April 22, 2016, show any 

injuries is a disputed question. A female police officer witnessed police 

photographs being taken of appellant in the afternoon of April 22, 2016.

According to this officer, the only injury was a small cut to appellant’s left 

index finger. There were no other injuries to her arms, front or back of her

legs other than a small bruise on her left thigh, no injuries to her neck, a 

small redness by the right shoulder blade, and no injuries, scratches, or 

bruises to her face.

A deputy public defender was asked to take another set of photographs 

of appellant. She did so. Appellant in her opening brief characterizes these 
9

photographs as showing “minor injuries to her leg, neck, and face below her 

eye, and bruising on her arm and her upper chest.”

We need not resolve this controversy. We are satisfied that appellant 

sustained no major injuries on April 19 or 20, 2016, but that McConnell 

sustained numerous serious injuries, one of which was fatal. We turn to this 

next.

6. McConnell’s injuries

Dr. Job Augustine, a deputy medical examiner with the Los Angeles 

Department of Medical Examiner-Coroner, performed the autopsy on 

McConnell. McConnell was six feet tall and weighed 136 pounds. The cut 

that severed the carotid artery was the fatal injury. The manner of death 

was homicide.

Dr. Augustine found 16 “sharp force injuries” to McConnell’s body. 

These wounds were consistent with the use of the knife found in the bedroom. 

Dr. Augustine explained that “sharp force injuries” are stabs and incisions. A 

stab penetrates into the body and an incision is longer on the skin surface 

than the depth of its penetration into the body.

McConnell sustained four stab wounds. One was on the back of the 

neck. It penetrated three inches. Its direction was from the back to the front 

of the body. The second was on the left upper body region. This penetrated 

four and three-quarters inches. The direction was from the back of the body 

to the front and downward. This was the largest wound inflicted on 

McConnell. This cut completely transected the carotid artery and it was 

fatal. The third stab wound was to the right upper back. It had a depth of 

three inches. The direction of this wound was also from the back to the front.

The fourth stab wound was to the upper, mid-back. The direction was from 

the back to the front.

McConnell had sustained 12 incision wounds. Five of these were in the 

head area.4 There were two incisions on the back of the neck. There were 

two incisions in the shoulder area, one on the right, the other on the left. 

There was one incision on the right hand and one on the left hand.

4 They were to the top of the head, the back of the head, to the left of 

the previous incision, slightly below the previous incision, and the left side of 

the head at the temple.
10

The injuries were consistent with appellant approaching McConnell 

from behind and inflicting these injuries. The hand injuries were consistent 

with McConnell putting his hands up when appellant attacked him with the 

knife. There were no bruises, abrasions, or scratches on McConnell’s body. 

Tests for drugs and alcohol were negative.

A semiretired forensic scientist with the Los Angeles County Sheriff 

Department crime laboratory, who was a bloodstain pattern expert, testified 

that some of the blood splatter found on the bedroom door where McConnell’s 

body was found originated at about 22 inches from the floor, which was 

consistent with McConnell being on the floor or on his knees.

7. The defense’s case-in-chief

The defense’s case-in-chief was of such diminishing importance that the 

appellant’s opening brief makes no mention of it, save for the testimony of 

Francisco S., a neighbor, who testified that he heard shouting and arguments 

emanating from appellant’s apartment. Appellant did not testify, leaving it 

to two other witnesses to testify about equivocal but hardly criminal conduct 

by McConnell, none of which had any relevance to the case at hand.

DISCUSSION

I. THE TRIAL COURT DID NOT ERR

WHEN IT REFUSED TO INSTRUCT ON SELF-DEFENSE

Appellant contends that “[b]ecause there was substantial evidence that 

[she] actually and reasonably believed she was in imminent danger of great 

bodily injury or death and that immediate use of force was necessary to 

defend herself against that danger, the trial court’s ruling [refusing to 

instruct on self-defense] violated state law and [appellant’s] federal due 

process rights.”

1. Appellant must have acted out of fear alone and not out of 

anger or other emotions; the perceived peril must have been imminent

“A bare fear of the commission of any of the offenses mentioned in 

subdivisions 2 and 3 of Section 197,[5] to prevent which homicide may be 

5 “Homicide is . . . justifiable when committed by any person in any of 

the following cases: [¶] . . . [¶]
11

lawfully committed, is not sufficient to justify it. But the circumstances must 

be sufficient to excite the fears of a reasonable person, and the party killing 

must have acted under the influence of such fears alone.” (§ 198.)

The concept recognized by this statute is referred to as the doctrine of 

apparent necessity, i.e., an honest and reasonable belief both in the apparent 

peril and the need for defense. (1 Witkin, Cal. Criminal Law (4th ed. 2020) 

Defenses, § 68, p. 509.)

It is important that “[a] bare fear is not enough; ‘the circumstances 

must be sufficient to excite the fears of a reasonable person, and the party 

killing must have acted under the influence of such fears alone.’ (Pen. Code, 

§ 198.)” (People v. Flannel (1979) 25 Cal.3d 668, 675, italics added.)

In a setting which was as highly emotionally charged as the one 

between appellant and McConnell on the night of April 20, 2016, the evidence 

must be that appellant acted out of fear alone and not as a result of other 

overwhelming emotions. As the court in People v. Trevino (1988) 200 

Cal.App.3d 874 aptly observed: “[T]he party killing may justifiably use 

deadly force in self-defense as long as the use of such force is motivated only

by a reasonable fear and the belief that it is necessary to prevent his death or 

great bodily injury. The party killing is not precluded from feeling anger or 

other emotions save and except fear; however, those other emotions cannot be 

causal factors in his decision to use deadly force. If they are, the homicide 

cannot be justified on a theory of self-defense.” (Id. at p. 879.)

We must therefore search the record for evidence that appellant acted 

out of fear alone and not out of the press of other emotions. And other 

emotions were never far from the unhappy relationship between appellant 

and McConnell. Appellant’s anger at McConnell over his apparent 

abandonment of appellant and their young child and her anger at his refusal 

“(2) When committed in defense of habitation, property, or person, 

against one who manifestly intends and endeavors, by violence or surprise, to 

commit a felony . . . .

“(3) When committed in the lawful defense of such person . . . when 

there is reasonable ground to apprehend a design to commit a felony or to do 

some great bodily injury, and imminent danger of such design being 

accomplished . . . .” (§ 197, subds. (2) & (3).)
12

to continue with their relationship or even to talk about that issue—all of 

these emotions had flared before and of course could ignite again. Yet these 

emotions do not justify the use of deadly force.

Another requirement that must be met under the doctrine of apparent 

necessity is that the peril must be imminent. “ ‘[T]he peril must have existed 

or appeared to the defendant to have existed at the very time the fatal shot 

was fired. In other words, the peril must appear to the defendant as 

immediate and present and not prospective or even in the near future. An 

imminent peril is one that, from appearances, must be instantly dealt with.’ ” 

(People v. Aris (1989) 215 Cal.App.3d 1178, 1187 [citing jury instructions].) 

Fear of future harm, no matter how substantial, or how great the likelihood 

of the harm, is not enough. (People v. Hill (2005) 131 Cal.App.4th 1089, 

1101.) We must therefore also search the record for evidence that the deadly 

peril that appellant was allegedly facing was imminent.

2. The standard of review

In our de novo review of the trial court’s decision not to instruct on selfdefense (People v. Cole (2004) 33 Cal.4th 1158, 1217), we consider the 

evidence in the light most favorable to appellant and resolve all doubts about 

the sufficiency of the evidence in her favor. (People v. Wright (2015) 242 

Cal.App.4th 1461, 1483.) On the other hand, when, as in this case, there is 

no evidence to support the instruction, there is no duty to instruct. (People v. 

Turville (1959) 51 Cal.2d 620, 632–633; see generally 5 Witkin, Cal. Criminal 

Law, supra, § 674, p. 1040.)

3. The trial court’s ruling

The defense requested an instruction on self-defense. The defense 

relied heavily on the transcript of B.S.’s 911 call, to which we shall return 

below.

The trial court denied the request and gave an extended explanation 

for its ruling. Among other reasons, the trial court noted that appellant had 

stabbed McConnell a total of 16 times, with four stab wounds in the back, 

which the court stated did not support a self-defense theory. The court 

stated: “There is no evidence that the victim attacked the defendant. The 

opposite is true with regard to the defendant. The victim here calls 9-1-1 to 

report that she is attacking him. That’s the evidence in the case.”
13

4. The basic facts do not support a self-defense instruction

As the trial court noted, the salient, uncontroverted fact is that 

appellant stabbed McConnell four times in his back and that all but two of 

the incision wounds were to the back.6 The stab wounds were to the back of 

his neck, to the back left upper body, which was the fatal blow, the back right 

upper body, and the back mid-upper body.

Appellant does not come to grips with this physical fact, which puts her 

self-defense theory under severe stress. Stabbing appellant in his back when

he was facing away from her and was not in a physical position to inflict any 

harm on appellant, and is not consistent with the theory that McConnell was 

the aggressor. It is, however, consistent with the view that appellant was the 

aggressor. If she was the aggressor, self-defense on her part is of course 

precluded. Since 14 out of the 16 wounds were inflicted on McConnell’s back, 

it is much more likely than not that these blows were struck when McConnell 

was unable to defend himself and when he was not in a position to threaten 

appellant.

This is all the more true if McConnell was actually on his knees when 

the fatal blows were struck. There is some evidence by way of blood splatter 

that this was so. Certainly, if he was on his knees (and this would also 

explain that the stab wounds were downward thrusts) with his back turned 

to appellant, he was absolutely in no position to attack her, or even threaten 

her, but he was certainly extraordinarily vulnerable to repeated thrusts by 

the knife held by appellant.

It is also a fact that the four stab wounds penetrated to depths of three 

to four and three-quarters inches. This means that these blows were 

delivered with a great deal of force, very likely in quick succession since the 

stab wounds were all in the same area. This suggests that appellant was 

motivated by rage or fury and not by fear. But it is only fear that justifies the 

homicide.

The fact that most of the 16 wounds were inflicted on McConnell’s back 

also suggests that, even assuming that McConnell was the aggressor, once he 

6 Two incision wounds were to the hands, which were defensive 

wounds.
14

turned his back on appellant, the attack was over. The question then 

becomes whether appellant’s attack was justified. However, there simply are 

no facts of record that would allow us to examine this possibility. We turn 

next to the absence of evidence that would support a self-defense instruction.

5. There is no evidence to support a self-defense instruction

Appellant relies heavily on the 911 calls to support her theory that she 

was in fear for her life. Ignoring everything that McConnell said in the 911 

calls, appellant has selected these brief snippets as evidence that she was in 

fear for her life: “Get off me! Please!” and “Ow” four times. With the best of 

will, it is impossible to read into any of these cryptic words any kind of fear, 

much less fear for her life. While the scene was clearly very emotional as 

these outbursts confirm, it is only fear that justifies killing in self-defense. 

That appellant was angry or even furious does not justify the homicide.

Appellant next seizes on the 911 call generated by witness B.S. She 

cites B.S.’s words to the operator, “[T]hey were fighting—he was, he was 

doing physical violence, he said he was going to call the police on her,” “And 

she—you [apparently addressing appellant] stabbed him?” as 

“contemporaneous evidence of McConnell attacking [appellant].” Appellant 

also refers to B.S.’s question to appellant, “was he starting to hurt you or 

something?” and appellant’s answer “yes.” We fail to see how B.S.’s garbled 

reference to fighting, closely followed by McConnell calling the police is 

evidence of “McConnell attacking [appellant].” McConnell would hardly be 

calling the police if he were attacking appellant. There is also the statement 

by appellant, “He threw me against the wall and I tried to stab him to get 

him off me. Now, he’s on the floor.” Even on the cold record, this statement 

sounds oddly controlled and confident, even triumphant. At any rate, this is 

not evidence of fear.

In any event, it is a comment on the lack of evidence that appellant 

must rely on the confused and excited comments of witness B.S., who was not 

a percipient witness to the altercation between appellant and McConnell.

Compared to the few equivocal snippets of text on which appellant 

relies, the first 911 call by McConnell is a searing call for help in the face of a 
15

furious person with a knife.7 Appellant’s truculent response, “I’m not f***

crazy,” suggests a person in control but not a person in fear. In any event, 

this extended outburst by McConnell is the only coherent picture that we get 

about what was going on in these fateful minutes. And that picture is one of 

appellant threatening McConnell with the knife with which she ultimately 

killed him. This passage tells of McConnell’s justified fear and it shows 

appellant as the armed aggressor.

Appellant’s claim that McConnell had in the past physically attacked 

her is hollow. The claim lacks substance in that appellant herself withdrew 

the only one that was not conclusory. The two conclusory claims that she did 

make are not predicated on any evidence. Testimony by Francisco S. about 

arguments and fighting by unidentified persons hardly deserves mention.

Contrary to appellant’s claim that she was injured, there is no evidence 

of any substantial injuries to appellant, who also admits that the injuries she 

claims she sustained were minor. The absence of any substantial injuries, 

when compared to those inflicted on the alleged attacker, is yet another 

circumstance that suggests that the attacker was appellant, not McConnell.

6. A verdict based on self-defense would have been based on 

speculation and conjecture

The record must contain some evidence that appellant was in fear for

her life and that the threat was imminent. Under the doctrine of apparent 

necessity, there must be evidence of an honest and reasonable belief both in 

the apparent peril and the need for defense. (1 Witkin, Cal. Criminal Law, 

supra, § 68, p. 509.)

While there is evidence that both McConnell and appellant were in 

some sort of highly emotional state by midnight of April 20, 2016, there is no 

7 “[B]ecause you’ve been threatening to stab me. You’ve been 

threatening to attack me. Then . . . why did you say you were gonna stab me 

in my face, Chanel [appellant]? Why did you say you’re gonna stab me in my 

face, Chanel? No, I’m not trying to make this. I’m trying to protect myself 

because you’re trying to attack me—you’ve been hurting me and they’re 

calling me because you’ve been threatening me. And you said you would 

attack me. If you say you gonna attack me . . . How am I . . . How am I not 

trying to protect myself?”
16

evidence that appellant was in fear of her life and that the threat was 

imminent. Other than the three 911 calls, there is absolutely no evidence 

about what transpired between these two people between 7:00 p.m. on 

April 19, 2016, when Q.N. left appellant’s apartment, and when McConnell 

was stabbed multiple times shortly after midnight. There is no evidence 

whatsoever that McConnell was armed; the only evidence is that appellant 

had the knife with which she killed him. We cannot even get close to 

examining whether the threat to appellant was imminent since, absent any 

evidence, we know nothing about any threat to appellant. The only thing we 

do know is that shortly before he was murdered, McConnell apparently 

feared for his safety. We are unable to examine whether appellant had an 

honest and reasonable belief that she was in imminent danger (People v. 

Dawson (1948) 88 Cal.App.2d 85, 96 [honest and reasonable belief required]) 

since we have no idea what the threat was that she was allegedly facing. 

McConnell being unarmed, we would be required to speculate as to the threat 

that he was posing. Since his back was turned to appellant when he was 

struck down, it is hard to imagine (and that is what we would have to do) 

what the threat was that he posed.

This brings us to why the trial court was right in refusing to instruct 

the jury on self-defense. Any verdict based on the defense of self-defense 

would have been based on sheer conjecture and speculation. There were 

simply no facts of record on which this defense could have been based. The 

absence of evidence about the crucial hours before the homicide is one of the 

hallmarks of this case. Only two people know what happened between 7:00 

p.m. and midnight on April 20, 2016, and one of them is dead.

The trial court’s decision not to instruct on self-defense was correct. 

There was no evidence to support such an instruction. The only known fact of 

record, which is that McConnell’s back was turned to appellant when she 

killed him, supports the conclusion that she was the aggressor.

II. THERE WAS NO EVIDENCE TO SUPPORT

AN IMPERFECT SELF-DEFENSE INSTRUCTION

The defense requested instructions on “imperfect self-defense.” The 

trial court refused to give this instruction. The court did instruct on 

voluntary manslaughter based on heat of passion. Appellant contends in her 
17

appeal that the instruction based on imperfect self-defense should have been 

given.

“An honest but unreasonable belief that it is necessary to defend 

oneself from imminent peril to life or great bodily injury negates malice 

aforethought, the mental element necessary for murder, so that the 

chargeable offense is reduced to manslaughter.” (People v. Flannel, supra, 25 

Cal.3d at p. 674, italics omitted.) An “honest but unreasonable belief” 

justifies a voluntary manslaughter conviction.

In this argument, appellant returns to her contention that appellant 

actually believed that McConnell put her in imminent danger of death or 

great bodily injury, making the use of deadly force necessary. As appellant 

puts it: “[Her] own words, by themselves, satisfied the requirement that she 

genuinely believed she needed to defend herself against imminent danger. 

Her cries of pain and pleas for help during the second 911 call was evidence 

McConnell was injuring her and that consequently she was in fear for her 

safety.”

To say that appellant was emitting “cries of pain and pleas for help” is 

taking a few words and some inarticulate noises out of context.

Appellant’s reference is to the second 911 call, when the 911 operator 

called back. After the operator asked what was going on and what the 

address was, McConnell responded: “Elden Avenue! She won’t let me leave! 

Send people out, she won’t let me leave! Stop, Chanel, Stop! Chanel, Stop.” 

The operator asked for the address again. It was now that appellant twice 

said, “Help me. Please,” while McConnell was saying that appellant “won’t 

stop” and again asked appellant to let him go. At this point, the transcript 

records appellant as saying “Ow” several times. McConnell again says,

“Help. No, let me go. Let me go!” and “Chanel, stop!”

8

8 The actual sequence after McConnell asked for help in leaving 

appellant’s apartment was: “[Operator] What’s the address, sir? [¶] 

[Appellant] Help me. Please. [¶] [McConnell] Chanel, stop. [¶] [Appellant] 

Help me. Please. [¶] [Operator] Sir what’s—What’s the address? [¶] 

[Appellant] Get off me! Please! [¶] [McConnell] She won’t stop *** Avenue. 

Apartment *** [¶] [Appellant] Ow! [¶] [Operator] Hello. [¶] [Appellant] 

Ow! Ow! [¶] [McConnell] *** [¶] [Appellant] Ow![¶] [McConnell] Help. No, 
18

It seems that McConnell was trying to get away and that appellant was 

hindering him in some way from leaving. It appears that McConnell wanted 

her to stop doing whatever she was doing in blocking him from getting away. 

In fact, McConnell was asking for help in stopping appellant from hindering 

him from leaving (“Send people out, she won’t let me leave!”). Appellant’s 

calls for help should be read in this context. They were most probably 

requests for help to stop McConnell from leaving. The issue between them at 

that point was not an attack by McConnell—there is absolutely nothing that 

suggests such an attack—the issue was that McConnell wanted to get away 

and she would not let him leave. What “ow” means is anyone guess, but it 

should be read in the context of the exchange, which was that she was 

stopping McConnell from leaving. It should be kept in mind that one of their 

perennial issues appears to have been his wish, and her disinclination, for 

the relationship to be terminated.

We return to the point made in the preceding section that there is no 

evidence that McConnell was a threat, much less is there evidence of an 

imminent threat. There is certainly no evidence as to what the alleged threat 

was. Importantly, there is also no evidence that appellant had an honest 

belief, even if unreasonable, that appellant was in imminent peril to her life 

or of sustaining great bodily injury. The transcript of the 911 call shows that 

appellant and McConnell were struggling over an issue that had nothing to 

do with a threat to appellant, which was the continuation (or termination) of 

their relationship.

There was no evidence to justify an instruction on imperfect selfdefense.

In light of our conclusion that there was no evidence that warranted an

instruction on self-defense and the instruction on imperfect self-defense, it is 

not necessary for us to consider the balance of appellant’s contentions, 

including the rather improbable claim that appellant used no more force than 

was necessary to defend herself against McConnell’s attacks. Sixteen knife 

wounds inflicted on the back of the unarmed victim, who may have been 

let me go. Let me go! [¶] [Appellant] *** [¶] [McConnell] I’m not doing 

anything.”
19

kneeling, is a grim exercise in excess by any standard. Because we conclude 

that there is no evidence of apparent necessity, appellant’s argument is moot.

DISPOSITION

The judgment is affirmed and the matter is remanded to the trial court

with directions to correct the abstract of judgment to show that appellant is 

entitled to one more day of custody credit. The superior court shall issue a

new abstract of judgment that shows the correct number of custody credits. 

The court shall forward the new abstract of judgment to the Department of 

Corrections and Rehabilitation.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

CHAVEZ, J.

HOFFSTADT, J.