P.
v. Antwane





Filed
2/26/13 P. v. Antwane
CA2/2







>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND
APPELLATE DISTRICT



DIVISION
TWO




>

THE PEOPLE, Plaintiff and Respondent, v. LORD JULIAN ANTWANE, Defendant and Appellant.

B240539 (Los Angeles County Super. Ct. No. MA053429)

APPEAL from a judgment of the href="http://www.fearnotlaw.com/">Superior Court of Los Angeles County. Lisa M. Chung, Judge. Affirmed.



Landra E. Rosenthal, under
appointment by the Court of Appeal,
for Defendant and Appellant.



Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney
General, Stacy S. Schwartz and Kimberly J. Baker-Guillemet, Deputy
Attorneys General, for Plaintiff and Respondent.





* *
* * * *

A
jury convicted defendant Lord Julian Antwane of first degree murder
in violation of Penal Code section 187, subdivision (a).href="#_ftn1" name="_ftnref1" title="">^[1] The jury found that defendant personally used
and discharged a firearm causing death under section 12022.53, subdivisions
(b), (c), and (d). The trial court
sentenced defendant to a term of 50 years to life, consisting of 25 years to
life for the murder and a consecutive 25 years to life for the firearm-use
enhancement under section 12022.53.

Defendant appeals
on the grounds that; (1) the trial court
erred in refusing to instruct the jury regarding voluntary manslaughter; and
(2) the court erred by failing to instruct the jury sua sponte that it could
consider provocation in determining the degree of murder. Finding no error, we affirm.



FACTS

Prosecution
Case

On the evening
of November 1, 2009, defendant and
his older brothers Lord Daireek Antwane and Lord Christian Antwane were at a
barbecue at the family
residence on Colleen Drive in Lancaster. Christianhref="#_ftn2" name="_ftnref2" title="">^[2] had recently moved from North Carolina to Los Angeles and was
visiting his family in Lancaster. Donee Diamond and Michael Cooper were friends
with the Antwane brothers and were also at the barbecue. Cooper had known the Antwane brothers since
elementary school. He could tell the
brothers apart by their facial features and also recognized the differences in
their voices.

Cooper, Diamond
and the Antwane brothers were drinking beer on the front lawn when Arthur Hicks
pulled up in his car and asked for the time.
Hicks accepted an invitation to stay and drink with the group. A verbal argument developed between Hicks and
Cooper. Christian told Hicks not to use
profanity in front of the Antwane brothers’ sister who was present. A further argument ensued and Christian and
Hicks agreed to fight down the street away from the house.

Hicks drove his
car to the end of the street. Christian
took his sister inside the house and asked Diamond to speak to Hicks and try to
calm him down. Christian brought a gun
from North Carolina and had shown
it to defendant and Diamond the previous day.
The gun was hidden in the backyard of the Antwane residence. Christian asked defendant to “grab the
firearm just so we could be protected walking down the street to see if we’re
okay.” Christian, Daireek, Cooper and
Diamond walked down the street to meet Hicks.

Diamond and Hicks
started fighting and punches were exchanged.
Diamond bled profusely from the forehead. Cooper saw defendant run past him holding
something in his hand which was concealed by a bag. The bag “flew off” and Cooper saw something
metallic in defendant’s hand. He then
heard gunshots and saw the muzzle flash come from defendant’s hand. Christian saw Diamond fall to the ground and
heard gunshots coming from where defendant was standing. Christian was aware of where everybody was
positioned and did not see Daireek, Diamond, or Cooper shoot Hicks.href="#_ftn3" name="_ftnref3" title="">^[3] Hicks was shot six times, including two
gunshots to the chest,
one of which was fatal.

Carlos
Topete lived on Colleen
Drive in Lancaster and heard gunshots on the evening of November 1, 2009. He went outside
and saw four boys run down the street and enter the house directly across from
him. He recognized some of the boys as
his neighbors and identified defendant in a photographic line-up and in court
as one of the individuals he saw that night.

After
the shooting Diamond, Cooper and the Antwane brothers returned to the family
residence on Colleen
Drive. On the way back Cooper heard Christian and
Daireek scream at defendant: “What are
you doing? Are you crazy?” He did not hear any response from
defendant. Defendant and Christian left
in a Chevy Impala with Diamond driving.href="#_ftn4" name="_ftnref4" title="">^[4]

At
approximately 8:00
p.m. on November 1, 2009, Deputy Sheriff John Amis of the Lancaster Station
responded to a call that shots had been fired and the suspects had left the
scene in a white Chevy Impala. Deputy
Amis saw the car with three occupants and followed it. The vehicle stopped and defendant ran from
the car and jumped over a wall into a residential area near 18th Street and Jackman Street. Defendant was
wearing a white jacket. Christian also
jumped from the vehicle moments later and ran.
Diamond was the lone occupant of the vehicle when he was arrested
shortly afterwards.

Los
Angeles County Deputy Sherriff Jason Phillippi and his K-9 dog assisted in
searching the area for individuals that had run from the vehicle while police
were in pursuit. Deputy Phillippi’s dog
located defendant hiding in a trash can in the backyard of a house. The dog bit defendant and dragged him out of
the trash can. Defendant was taken into
custody and subsequently treated at Antelope
Valley Hospital for his injuries.

Los
Angeles County Sherriff’s Detective Peter Hecht arrived at the crime scene at
approximately 1:00
a.m. on November 2, 2009. He noted the
streetlights were working and the area where the shooting occurred was “fairly
well lit” and “you can see without the assistance of a flashlight.” Detective Hecht observed numerous shell
casings and bullet fragments scattered throughout the area. Drops of blood and bloody clothing were also
present. In all, detectives and
criminalists recovered 31 pieces of physical evidence from the scene of the
crime.

Neil
Small lived near 18th
Street and Jackman Street in November 2009.
He found a “wad of clothes” in his backyard that included a white
sweatshirt and a black

T-shirt. The black T-shirt was wrapped
around a .45-caliber semiautomatic Glock Model 30 pistol. Also found was a magazine and two live rounds
for the pistol.

Los Angeles
County Sheriff’s Department Deputy Sheriff Edmund Anderson
testified as the prosecutor’s firearms identification expert. Sheriff Anderson analyzed the Glock Model 30
.45-caliber semiautomatic pistol, eight fired cartridge cases and five bullet
fragments recovered from the scene of the crime, and three fired bullets
recovered from the coroner’s office removed from Hicks during his autopsy. He opined that all eight of the spent casings
were ejected from the .45-caliber Glock pistol recovered from Small’s backyard,
the bullet fragments had no comparison value, and the three bullets recovered
from the coroner’s office “could have been fired from that particular Glock.”

Defense
Case

Defendant’s
father, Christian Antwane, testified on behalf of defendant. Defendant was Antwane’s youngest son, Daireek
was the middle son, and Christian was his oldest son. He also had a daughter Christine, who was 10
years younger than defendant.

Antwane testified
that Christian and defendant were always antagonistic toward one another dating
back to their childhood. When defendant
was just a baby, Christian would blame him for breaking things in the
house. Christian was estranged from the
family and blamed defendant. In
approximately 2005 or 2006, Christian broke a toilet while having sex with his
girlfriend in the bathroom of the family home.
Defendant told Antwane about the incident and Christian had to leave the
house. Antwane also testified that
Christian had sex with defendant’s girlfriend.
When defendant found out he told Christian’s wife, and this caused a
fight between Christian and his wife.
Antwane testified that there was “intense hatred” between defendant and
Christian.

Antwane was
familiar with both Cooper and Diamond.
He did not consider Cooper to be a truthful person and saw him as a bad
influence on his sons. Christian treated
Cooper and Diamond more like family than he did defendant and they always came
first.

At the time of
the shooting on November 1,
2009, Antwane was in a recording studio in his home. He was wearing headphones and did not hear
any gunshots. He testified that he
learned the details of the shooting at defendant’s preliminary hearing. Prior to that, defendant, Daireek, and
Christian denied being in the vicinity of the shooting and claimed they did not
know anything about it whenever he asked them.
Antwane believed defendant when he denied involvement in the shooting.

Detective Hecht
was also called by the defense. Cooper
told Detective Hecht that he had been threatened by Christian and warned not to
say anything. Diamond did not want to
cooperate with law enforcement and had minimal information regarding the
incident.



DISCUSSSION

I. Trial Court’s Refusal to Instruct on
Voluntary Manslaughter

A. Contention

Defendant
contends the trial court prejudicially erred by failing to instruct the jury on
voluntary manslaughter upon sudden quarrel or in the heat of passion as a
lesser included offense of murder.
Defendant maintains that the record contains sufficient evidence that he
acted in response to the adequate provocation of Hicks’s offensive behavior.

Defendant
and his brothers took offense to how Hicks acted in the presence of their
younger sister. He contends that Hicks’s
behavior was particularly offensive and constituted such provocatory conduct so
as to justify an instruction on voluntary manslaughter because defendant acted
in the heat of passion.

>B. Proceedings Below

During the
discussion on jury instructions among counsel and the trial court, the trial
court stated that it had included an instruction on the lesser included offense
of voluntary manslaughter based on the theory of imperfect self-defense of
another.href="#_ftn5" name="_ftnref5" title="">^[5] The court also explained why it rejected a
defense request for an instruction on the effect of voluntary
intoxication. The court then asked if
either side wished to be heard before final copies of the jury instructions
were generated. The prosecutor and
defense counsel stated on the record that they did not.

C. Relevant Authority

“The trial court
is charged with instructing upon every theory of the case supported by
substantial evidence . . . .”
(People v. Montoya (1994) 7
Cal.4th 1027, 1047.) Substantial
evidence is evidence that is “reasonable, credible and of solid value.” (People
v. Quintero (2006) 135 Cal.App.4th 1152, 1165; People v. Crew (2003) 31 Cal.4th 822, 835.) Pure speculation does not constitute the
requisite substantial evidence sufficient to support a lesser included offense
instruction. (People v. Wilson (1992) 3 Cal.4th 926, 942.) The failure to instruct on a lesser included
offense is reviewed de novo. (>People v. Licas (2007) 41 Cal.4th 362,
366 [‘“We apply the independent or de novo standard of review to the
failure by the trial court to instruct on an assertedly lesser included
offense’”].)

Murder is the
unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Voluntary manslaughter is the intentional but
nonmalicious killing of a human being.
(§ 192; People v. Manriquez
(2005) 37 Cal.4th 547, 583; People v.
Benavides (2005) 35 Cal.4th 69, 102.)
Voluntary manslaughter is a lesser included offense of murder. (People
v. Manriquez, supra, at p. 583.) A
killing may be reduced from murder to voluntary manslaughter if it occurs upon
a sudden quarrel or in the heat of passion on sufficient provocation, or if the
defendant kills in the unreasonable, but good faith, belief that deadly force
is necessary in self-defense. (>Ibid.)

“A heat of
passion theory of manslaughter has both an objective and a subjective
component. [Citations.]” (People
v. Moye (2009) 47 Cal.4th 537, 549.)
To satisfy the objective, or reasonable person, element of heat of
passion voluntary manslaughter, the defendant’s heat of passion must be
attributable to sufficient provocation.
(Ibid.) “To satisfy the subjective element of this
form of voluntary manslaughter, the accused must be shown to have killed while
under ‘the actual influence of a strong passion’ induced by such
provocation. [Citation.]” (Id.
at p. 550.) “Heat of passion arises when
‘at the time of the killing, the reason of the accused was obscured or disturbed
by passion to such an extent as would cause the ordinarily reasonable person of
average disposition to act rashly and without deliberation and reflection, and
from such passion rather than from judgment.’
[Citations.]” (>People v. Barton (1995) 12 Cal.4th 186,
201.)

The circumstances
giving rise to the heat of passion are also viewed objectively. (People
v. Oropeza (2007) 151 Cal.App.4th 73, 82–83.) A defendant may not set up his own standard
of conduct and justify or excuse his acts because his passions were aroused,
unless the facts and circumstances were sufficient to arouse the passions of
the ordinarily reasonable person. (>People v. Manriquez, supra, 37 Cal.4th
at p. 584; People v. Oropeza, supra, at
pp. 82–83.) “The claim of provocation
cannot be based on events for which the defendant is culpably
responsible.” (People v. Oropeza, supra, at p. 83.)

If the trial
court fails in its duty to instruct on a lesser included offense supported by
the evidence, the error is one of state law alone. (People
v. Breverman (1998) 19 Cal.4th 142, 165.)
It does not require reversal unless an examination of the entire record
establishes a reasonable probability that the error affected the outcome. (Id.
at p. 178; People v. Watson (1956) 46
Cal.2d 818, 836.)>

D. No Evidence Justified a Voluntary
Manslaughter Instruction

Here, there
was no evidence from which the jury could conclude that defendant killed Hicks
in a heat of passion or sudden quarrel.
Defendant did not exchange any words with Hicks, nor did he engage in
any physical confrontation with Hicks prior to shooting him. Nothing in the record supports the
instruction and the evidence was strong that defendant committed first degree
murder. (People v. Breverman, supra, 19 Cal.4th at p. 162.)href="#_ftn6" name="_ftnref6" title="">^[6]

The sequence of
events was simply not one that would cause an ordinary person of average
disposition to act in the heat of passion.
Hicks did not show up unannounced as defendant contends. He was invited by the Antwane brothers and
their friends to join the barbecue and have a drink. In the beginning, an argument developed
between Hicks and Cooper. Defendant’s
brother Christian appeared upset by Hicks’s behavior and also argued with
him. There was no evidence that
defendant was even aware of the dispute that was taking place and likewise no
evidence that Hicks provoked a reaction from anyone other than Cooper and
Christian.

The incident
could not be characterized as a “sudden quarrel” because the evidence showed
that Christian and Hicks agreed to engage in a physical confrontation and Hicks
got in his car and drove to the end of the street. Diamond, who was sent allegedly by Christian
to intervene in the dispute, ended up fighting with Hicks. Nor was there any evidence that Cooper,
Christian and Daireek either felt the need, or attempted to intercede in the
fight to help their friend Diamond even though they were in close
proximity. The evidence showed that
defendant retrieved the gun (at Christian’s request), and concealed it in a
plastic bag before joining the others where Hicks and Diamond were engaged in a
physical confrontation.

Defendant claims
that due to his strict upbringing, Hicks’s use of inappropriate language in the
presence of defendant’s sister was so egregious as to inflame defendant’s passion. This claim is without merit because the
yardstick is not how defendant or a member of the Antwane family would
react. Defendant is not entitled to set
up his own standard of conduct. (>People v. Manriquez, supra, 37 Cal.4th
at p. 584 [defendant cannot create an unreasonably heightened sense of
injustice in order to justify his conduct].)
Here, not only were the facts and circumstances insufficient to arouse
the passions of the ordinarily reasonable person, they were insufficient to
provoke defendant’s two brothers.
Furthermore, the desire for revenge does not qualify as a passion that
will reduce a killing to manslaughter. (>People v. Bufarale (1961) 193 Cal.App.2d
551, 562.)

Although no
specific type of provocation is required (People
v. Berry (1976) 18 Cal.3d 509, 515), the court may resolve the question
when the provocation is so slight or so severe that reasonable jurors could not
differ on the issue of adequacy. (>People v. Brooks (1986) 185 Cal.App.3d
687, 693.)

In >People v. Fenenbock (1996) 46
Cal.App.4th 1688 (Fenenbock), the
evidence showed a group of people planned to punish the victim for an alleged
child molestation, and a couple of days later a number of those in the group
grabbed him and savagely killed him.
Fenenbock’s testimony was that he did not learn about the molestation
claim until the day of the killing; although he admitted hitting the victim, he
denied participating in the murder, testifying he calmed one of the other
assailants down and then left the area.
(Id. at pp. 1692–1702.) The trial court refused to instruct on any
crimes less than first degree murder.
Fenenbock argued the trial court should have instructed on provocation,
as it pertained to second degree murder and to voluntary
manslaughter. The court rejected the
claims. The allegedly abused child was
not a relative of Fenenbock, there was no evidence that he had any close
personal bond with the child or her parents, and the child had not been visibly
injured. The court found no evidence
from which a jury could have found provocation so serious that it would produce
a lethal response in a reasonable person.

In previous
cases, the murder of a family member (People
v. Brooks, supra, 185 Cal.App.3d 687), a sudden and violent quarrel (>People v. Elmore (1914) 167 Cal. 205,
211), and infidelity of a wife (People v.
Berry, supra, 18 Cal.3d 509) or paramour (People v. Borchers (1958) 50 Cal.2d 321) have been held to
constitute legally adequate provocation for voluntary manslaughter. But here, as in Fenenbock, the circumstances did not constitute provocation
sufficient to reduce the killing to manslaughter. Hicks allegedly used inappropriate language
which was not directed at defendant. There
was an agreement to resolve the issue in a physical fight not involving defendant. In sum, the circumstances here did not
constitute “sufficient provocation” to warrant defendant’s disproportionate
reaction of firing eight shots, six of which struck Hicks inflicting one fatal
wound. (People v. Moye, supra, 47 Cal.4th at p. 549.)



II. Court>’s Failure to Sua Sponte Give CALCRIM No.
522

Defendant contends the trial court erred
in failing to instruct sua sponte with CALCRIM No. 522 on provocation that
reduces the degree of murder from first to second degree.href="#_ftn7" name="_ftnref7" title="">^[7] We reject this contention.

“A pinpoint instruction ‘relate[s] particular facts to a legal
issue in the case or “pinpoint[s]” the crux of a defendant’s case, such as
mistaken identification or alibi.’” (>People v. Ward (2005) 36 Cal.4th 186,
214 (Ward), quoting >People v. Saille (1991) 54 Cal.3d 1103,
1119.) Although a trial court is
required to give a pinpoint instruction on a defense theory upon request when
there is evidence supportive of that theory, it is not required to give a
pinpoint instruction on the court’s own motion.
(People v. Rogers (2006) 39
Cal.4th 826, 878–879 (Rogers); >People v. Saille, supra, at p. 1119.)

As defendant acknowledges, the California Supreme Court
has held that CALJIC No. 8.73 is a pinpoint instruction. (Rogers,
supra, 39 Cal.4th at p. 878; see also Ward,
supra, 36 Cal.4th at p. 214; People
v. Mayfield (1997) 14 Cal.4th 668, 778.)
CALCRIM No. 522, which is the CALCRIM analogue to CALJIC No. 8.73, is
also a pinpoint instruction. (>Rogers, supra, at p. 879; see also bench
notes to CALCRIM No. 522.)

Accordingly, we conclude the court did not err in failing
to sua sponte give CALCRIM No. 522 as defendant did not request such an
instruction.



>DISPOSITION

The
judgment is affirmed.

NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.



_____________________, P. J.

BOREN

We concur:



____________________________,
J.

ASHMANN-GERST



____________________________,
J. href="#_ftn8" name="_ftnref8" title="">^*

FERNS