Metropolitan News-Enterprise


Monday, October 17, 2011


Page 1


Court of Appeal Upholds Standard Instructions on Imperfect Self-Defense


By SHERRI M. OKAMOTO, Staff Writer


The Fifth District Court of Appeal on Friday upheld the second degree murder convictions of two Fresno men involved in a 2008 shooting at a liquor store parking lot.

In the published portion of the opinion by Justice Charles S. Poochigian, the panel rejected arguments by Luciano Lopez and Cortney Flemming that the standard CALCRIM instructions did not correctly set out the imminence requirements for imperfect self-defense.

Witnesses testified that Lopez became incensed after a truck, driven by Fidel Jimenez at a low rate of speed through the crowded parking lot of the Liquor King in Fresno, approached him.

He then argued with Adam Mirelez, a passenger in the truck, before calling on Flemming to produce a weapon, which Flemming discharged at the vehicle.

Gunshot Wound

Mirelez ducked and escaped harm, but a bullet struck Jimenez in the head, entering behind his right ear. He later died of injuries to his brain and spinal cord caused by the gunshot wound.

After a trial before Fresno Superior Court Judge James R. Oppliger, a jury found Lopez and Flemming guilty of murder and attempted murder. Lopez was sentenced to prison for a total of 15 years to life plus eight years, while Flemming was sentenced to prison for a total term of 40 years to life plus 27 years.

On appeal, Lopez and Flemming raised several claims of error with respect to jury instructions which Oppliger had issued.

Poochigian, in his opinion for the appellate court, said CALCRIM Nos. 505, 571, and 604 correctly stated the law on imperfect self defense in terms of common, everyday usage.

Imminent Peril

 He also said they did not misstate the concept of imminent peril even when considered in conjunction with the prosecution’s special instruction, which read: “ ‘Imminent danger’ as used in these instructions, means that the danger must have existed or appeared to the defendant to have existed at the very time the fatal shot was fired. In other words, the danger must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent danger is one that, from appearances, must be instantly dealt with.”

The justice reasoned that it was unlikely the jury found the instructions self-contradictory or understood them to foreclose application of the theory of imperfect self- defense.

In the unpublished portions of the opinion, Poochigian addressed the defendants’ arguments that manslaughter instructions should have been given.

“As an initial matter, we are not sure we agree with the trial court’s conclusion that Lopez’s passion was irrelevant because he was not the shooter,” Poochigian said, but “we decline to be drawn into the parties’ argument on this point” since the evidence did not warrant a heat-of-passion instruction.

“Here, even assuming defendants were angry, the only evidence of provocation with respect to Lopez was that he nearly was hit by a slow-moving vehicle and then argued with the vehicle’s passenger, who may have attempted to defend himself again an assault by Lopez,” the justice noted, and “[e]ven less provocation was evident with respect to Flemming”

No Misconduct

Poochigian went on to reject the defendants’ claims of prosecutorial misconduct and to explain that the admission of videotape and photographs taken by surveillance cameras inside the Liquor King on the night of the shooting was not prejudicial, even if they should not have been admitted.

“Given the poor quality of the video and photographs (which we have viewed), jurors’ actually seeing those items added little or nothing, and certainly did not render the trial fundamentally unfair,” Poochigian said.

He also rejected the argument that the trial court had committed reversible error by declining to discharge a juror who belonged to a different branch of the same church as the prosecution’s chief investigating officer in light of evidence that neither man knew the other’s name and apparently had failed to recognize each other until they ran into each other in a courthouse elevator.

Justices Betty L. Dawson and Stephen Kane joined Poochigian in the decision.

The case is People v. Lopez, F059255.


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