# People v. Lemus > California Court of Appeal · August 1, 1988 · 203 Cal. App. 3d 470 URL: https://www.frixlaw.com/law-library/cases/9723714 ## Case - **Full name:** The PEOPLE, Plaintiff and Respondent, v. TEODORO LEMUS, Defendant and Appellant; THE PEOPLE, Plaintiff and Respondent, v. JUAN LEMUS, JR., Defendant and Appellant - **Court:** California Court of Appeal - **Decided:** August 1, 1988 - **Citations:** 203 Cal. App. 3d 470; 249 Cal. Rptr. 897; 1988 Cal. App. LEXIS 901 - **Precedential status:** Published - **Opinion:** Dissent by Scherer - **Judges:** Benke, Scherer, Kremer - **Cited by:** 27 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9723714 ## Opinion text SCHERER, J. * I respectfully dissent. I disagree with the majority’s conclusion the trial court erred in refusing to instruct the jury on self-defense as to count one, attempted murder. Even if it was error to omit the instruction, I believe that error was harmless beyond a reasonable doubt. At trial, there was no evidence adduced to support Teodoro’s theory of self-defense except his own testimony. However, Teodoro’s testimony was not sufficient to require a self-defense instruction. For the use of deadly force in self-defense to be justified, the actor must have “reasonable ground to believe and does believe that there is imminent danger that the other person will kill him or cause him great bodily injury, ... a bare fear of death or great bodily harm is not sufficient.” (CALJIC No. 5.12 (4th ed. 1979).) Here, there was no evidence Franco even had a knife or gun, much less put Teodoro in imminent danger with such a weapon. The evidence showed Teodoro had drawn his knife before the alleged threat by Franco. Mary Helen Hernandez, who was sitting with Franco, testified Franco never threatened Teodoro and never reached into his pocket. Another customer in the bar, Sebastian Luna, testified Teodoro was the aggressor and that he provoked the confrontation. All the evidence presented at trial is *484 contrary to Teodoro’s claim of self-defense. Thus, Teodoro’s version of the facts was merely a “bare fear of death or great bodily harm” insufficient to warrant an instruction on self-defense. (CALJIC No. 5.12.) As the People correctly point out, “[a] man has not the right to provoke a quarrel, go to it armed, take advantage of it and then convert his adversary’s lawful efforts to protect himself into grounds for further aggression against him under the guise of self-defense.” (People v. Garcia (1969) 275 Cal.App.2d 517, 523 [ 79 Cal.Rptr. 833 ].) To allow a criminal defendant an automatic right to any instruction based on his theory of the case, no matter how tenuous and unsupported by the evidence that theory may be, would put our trial courts in the untenable position of having to give instructions that are potentially confusing to the jury and possibly in direct conflict with the evidence. As stated by the Supreme Court in People v. Mayberry (1975) 15 Cal.3d 143, 151 [ 125 Cal.Rptr. 745 , 542 P.2d 1337 ] and reiterated in People v. Flannel (1979) 25 Cal.3d 668, 684-685 , footnote 12 [ 160 Cal.Rptr. 84 , 603 P.2d 1 ], where there is no substantial evidence of the defendant’s theory of the case, “the court does not err in refusing to give instructions based on that defense.” Accordingly, I believe the trial court was correct in its assessment the evidence was insufficient, as a matter of law, to require a self-defense instruction. Even assuming it was error for the trial court to refuse to instruct on self-defense, that error was harmless. As our Supreme Court has observed, “aside from errors affecting fundamental rights, ‘there is a strong presumption that any other errors that might have occurred are subject to harmless error analysis.’ ” (People v. Lee (1987) 43 Cal.3d 666, 675 [ 238 Cal.Rptr. 406 , 738 P.2d 752 ], quoting Rose v. Clark (1986) 478 U.S. 570 [ 92 L.Ed.2d 460 , 106 S.Ct. 3101, 3107 ].) “The thrust of the many constitutional rules governing the conduct of criminal trials is to ensure that those trials lead to fair and correct judgments. Where a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed. As we have repeatedly stated, ‘the Constitution entitles a criminal defendant to a fair trial, not a perfect one.’ [Citations.]” (Rose v. Clark, supra, 478 U.S. at p. 579 [ 92 L.Ed.2d at p. 471 , 106 S.Ct. at p.3107].) Thus, the appropriate analysis here is whether the error was “harmless beyond a reasonable doubt” under the standard of Chapman v. California (1967) 386 U.S. 18, 21 [ 17 L.Ed.2d 705, 708 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ]. (See People v. Lee, supra, 43 Cal. 3d at p. 676 ; Rose v. Clark, supra, 478 U.S. at pp. 576-577 [92 L.Ed.2d at pp. 469-470, 106 S.Ct. at pp. 31053106].) Applying the Chapman test here, a review of the entire record leads *485 to the inescapable conclusion the error was harmless beyond a reasonable doubt. The evidence against Teodoro was strong. Teodoro testified he stabbed Franco three times. Although Teodoro testified he did so in self-defense, the witnesses to the assault testified Teodoro was the aggressor. Teodoro himself admitted he first pulled the knife and when Franco charged at him, he hit Franco with his fist and stabbed him when he thought Franco was going to pull something out of his pocket. Further, defense counsel for Teodoro argued a theory of self-defense in closing argument. Thus, the factual issue of self-defense was not completely eliminated from the jury’s consideration. The jury chose to believe those witnesses who testified Teodoro was the aggressor. Because the record establishes Teodoro’s guilt beyond a reasonable doubt, I would affirm the judgment as to Teodoro and also as to Juan as an aider and abettor. Respondent’s petition for review by the Supreme Court was denied November 17, 1988. Assigned by the Chairperson of the Judicial Council. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9723714. Public record. Not legal advice.