P. v. Armendariz
Filed 1/23/13 P. v. Armendariz CA2/2
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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. MANUEL ARMENDARIZ, Defendant and Appellant. | B238000 (Los Angeles County Super. Ct. No. VA117980) |
APPEAL from
a judgment of the Superior Court
of
County. Roger Ito,
Judge. Affirmed.
John A.
Colucci, 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, Paul M. Roadarmel, Jr. and
Jonathan M. Krauss, Deputy Attorneys General, for Plaintiff and Respondent.
___________________
A jury convicted defendant Manuel
Armendariz of second degree murder in violation of Penal Code section 187,
subdivision (a)
name="_ftnref1" title="">[1] (count
1). The jury found that defendant
personally and intentionally discharged a handgun, which caused great bodily
injury and death to the victim within the meaning of section 12022.53,
subdivision (d).
The trial court sentenced defendant
to a term of 40 years to life in state prison.
The sentence consisted of 15 years to life as the base count, plus a
consecutive term of 25 years to life pursuant to section 12022.53, subdivision
(d).
Defendant appeals on the grounds
that: (1) the trial court erred in not
instructing on the lesser included offense of heat of passion manslaughter; (2)
it was error to instruct with CALCRIM No. 522 that provocation should be considered
in deciding whether murder is reduced to manslaughter where only imperfect
self-defense manslaughter instructions were given; (3) the trial court
committed reversible error by not instructing the jury that an unintentional
killing during an assaultive felony constitutes voluntary manslaughter; and (4)
there was insufficient evidence to sustain a finding of murder, since the
uncontroverted testimony showed that defendant acted in perfect or imperfect
FACTS
Prosecution
Evidence
On the afternoon of November 16, 2010, Ruben Saenz
drove a black Escalade to a shopping area in the City of Bell. Josue Lemus was the front-seat passenger,
Juan Valencia was sitting behind him, and a young man named Arturo was in the
right rear passenger seat. When they
arrived at the shopping area, Valencia got out of
the car and entered a small market while the other young men waited in the
car. They listened to music as they
waited.
Lemus noticed a man, later
identified as defendant, impatiently standing at the corner across the
street. When the traffic light turned
green, defendant crossed the street toward the parking lot where the Escalade
was parked. Lemus saw that defendant was
Hispanic, and he was wearing a gray shirt, gray shorts, and a baseball
cap. Defendant walked through the
parking lot. Lemus then saw Valencia exit the
market while looking down. Valencia and defendant
bumped into each other. Although Lemus
could not hear what Valencia and defendant
were saying to each other, he knew “they were like kind of arguing.†The two men were standing to the rear of the
Escalade, and Lemus observed them while he looked backward over his right
shoulder. It looked as if they were
going to fight, but no one took a swing.
Then Lemus heard defendant say, “Oh, yeah, oh, yeah†just before pushing
Valencia. Valencia took two or
three steps back upon being pushed. At
that point, defendant took a gun from his waist area and fired a shot at Valencia. A couple of seconds later, defendant fired
again. Lemus recognized the gun as a
.357-caliber revolver. After the first
shot, Lemus could not see Valencia because Valencia was trying to
“hide†behind the Escalade. After firing
the second shot, defendant ran. Lemus
and Saenz both noticed that defendant had a distinctive tattoo under his eye.
his pockets for anything during the argument, and he never saw him move toward
defendant after the first shot. Neither Valencia nor anyone
else in the Escalade was carrying a gun or a weapon of any kind.
After defendant ran away, Valencia got back into
the Escalade. No one noticed any
injuries to him at that point. Saenz
proceeded to follow defendant through the neighborhood in the Escalade. They eventually lost sight of defendant when
he ran into the driveway of a home.
As Saenz began to make a U-turn, he
and Lemus noticed that Valencia was
“breathing real hard.†Valencia told them he
had been hit. They called 911 and
returned to the shopping area lot to wait for paramedics. Valencia was taken to
the hospital, where he died.
Deputy Medical Examiner Job
Augustine found one bullet entry wound in Valencia’s left
lateral abdomen and no exit wound. A
bullet was found on the right side of Valencia’s
abdomen. Dr. Augustine measured Valencia
at a height of 5’11†and a weight of 220 pounds.
Los Angeles County Sheriff’s
Department Homicide Detective Gary Sica arrived at the scene of the shooting at
around 6:00 p.m. A citizen had provided
a fired bullet, slightly deformed and jacketed, to one of the officers at the
crime scene. There were no expended
shell casings at the scene, which was consistent with the firing of a
revolver. Detective Sica examined the
Escalade and found one bullet hole in the right rear taillight housing.
Lemus and the others gave police a
description of the man who shot Valencia and later worked with a sketch
artist. A few days later, after being
admonished, Lemus was shown two or more photographic lineups so that he could
identify Valencia’s killer.
Tracy Peck, a criminalist with the
Sheriff’s Department, examined two fired bullets in connection with Valencia’s
shooting. One was from the body of the
decedent and was consistent with a .38 or a .357 Magnum. The other bullet submitted as evidence was
compared to the bullet from the decedent and found to have been fired from the
same firearm.
After defendant’s arrest, Joshua
Ramirez, a deputy sheriff at the men’s central jail, was placed in defendant’s
holding cell in an undercover capacity.
He was dressed like a gang member.
Deputy Ramirez struck up a conversation with defendant, who was “awake
and alert and [ ] very talkative.†Their
conversation was recorded and later played for the jury. Because Deputy Ramirez was posing as a
“Mexican gang member,†he used certain slang words that defendant would only
know “if he was a Mexican gang member.â€
Deputy Ramirez asked defendant if he
was from Whittier, and defendant said he was from “South Side WCS.†He said to call him “Suspect.†Defendant told Deputy Ramirez that he
“murked†someone from South Side 13th Street, and the police were “just
investigating.†Ramirez asked defendant
“Why’d he get at you?†Defendant
replied, “Cause he was—he was trying to trip on me dog so he came and his
homies tried to trip on me and I just let him have it, dog.†The following conversation ensued:
“Ramirez: It was just you alone?
“[Defendant]: Just me alone, yeah.
“Ramirez: And that fool—that fool got brave and shit,
huh—
“[Defendant]: Yeah.
“Ramirez: ‘Cause you were stopped solo and shit?
“[Defendant]: Yeah.
“Ramirez: Fuck that fool.
“[Defendant]: I ain’t tripping though, they don’t got
nothing—got nothing on me.
“Ramirez: Pero—
“[Defendant]: Not shit.
“Ramirez: —Pero—fuck,—he’s dead though, right?
“[Defendant]: Yeah, sure. Sure.
“Ramirez: Did you—when you shot him did you saw [sp]
him die?
“[Defendant]: Yeah.
“Ramirez: Yeah?
“[Defendant]: _____ something—like that’s why I’m saying,
that why I’m saying—they don’t got nothing on me dog.
“Ramirez: [It’s better that way, that they die, so they
don’t talk.]
“[Defendant]: Yeah.â€
Defendant admitted shooting Valencia
twice with a .38, and that a .38 is “the best thing to use in shit like thatâ€
because “[n]o evidence is left behind.â€
Defendant said that “one was a hollow and one was a regular.†He said that Valencia “tried to run, but I—
[¶] . . . [¶] shot him in the back, dog.†The conversation continued:
“Ramirez: Good homie, fuck. He didn’t have a cuete [gun], huh?
“[Defendant]: No.
His homies were right there though.
“Ramirez: And what did his homies do, nada?
“[Defendant]: They didn’t do shit, dog. They tried chasing in the car, but I tried to
like light ’em up, but they fucking pussed out.
“Ramirez: Good.
Fuck them.
“[Defendant]: Yeah, but it’s all good.â€
Defendant told Deputy Ramirez that
he disposed of the gun “like the next day.â€
He said he had been thinking of taking off to Mexico, but he was
arrested. Defendant said that the
shooting appeared in the Los Angeles Times.
“It just said it was a gang thingy, and then that he got shot twice in
the torso and he died in the hospital.â€
The following exchange occurred:
“Ramirez: You probably—you probably—only shot him the
leg. You probably hit his kidney.
“[Defendant]: Yeah, ‘cause I hit him with a hollow tip and
a regular.
“Ramirez: Oh, yeah, he’s done.
“[Defendant]: That shit rocked him.
“Ramirez: Fuck that fool then. What kind of—what kind—[What make was your
.38]?
“[Defendant]: Smith and Wesson.
“Ramirez: Smith and Wesson? Mine was a Ruger. I like Smith and Wesson better though.
“[Defendant]: Yeah.
“Ramirez: They fucking – they kick though. My shit kicked.
“[Defendant]: I don’t know.
That one didn’t kick on me though.
I didn’t—well, I shot it like that.
Just _____ shot it like that. I
shot—I shot it at that fucking _____.
“Ramirez: He didn’t even see it, huh?
“[Defendant]: Nah, ‘cause there was a lot of people around
us and shit.â€
After sheriff’s deputies removed
defendant from the holding cell to question him, Ramirez told the guards that
defendant had been reenacting the shooting with body motions right before he
was taken out.
name="_ftnref3" title="">[3]
When defendant returned to the
holding cell, he told Deputy Ramirez that the deputies told him there was a
video of him running away. Defendant
remarked that he had been wearing a hat.
He had told his interviewers that he was not at the shooting scene. They got mad and tried to confuse him. Defendant said they were not going to let him
go and said, “Damn, I’m gonna do some time, dog.†Defendant told Deputy Ramirez whom to call
for help in getting rid of the gun that the deputy used in the crime he
purportedly committed.
Defendant was not sorrowful during
his conversation with Deputy Ramirez.
Deputy Ramirez and defendant were alone throughout the entire
conversation and no other gang members or inmates were sitting in the cell with
them. Detective Ramirez knew that
defendant was 16 or 17 years old, and he did not threaten or touch defendant.
Defense
Evidence
Defendant testified that on the day
of the shooting, he went to get some pizza at the strip mall. He bumped into Valencia by accident. Valencia told defendant, “What the fuck, homie?â€
and defendant responded, “My fault.
We’re cool.†Defendant wanted to
“keep it mellow.†Valencia looked angry
and used an angry tone of voice. He
cursed at defendant. When defendant
repeated, “We’re cool,†Valencia told defendant that “he didn’t give a fuck
’cause this is South Side 13th Street.â€
Valencia was “all up in†defendant’s face. Defendant noticed that Valencia was “pretty
big,†around 5’10â€, whereas defendant was only 5’5†or 5’6â€.
It appeared to defendant that his
efforts to calm down Valencia were not working.
Valencia kept saying he did not “give a fuck,†and he kept repeating
where he was from. Valencia had his
hands in his pockets, and he was “like, moving his hands in his pocket, like,
trying to pull something—something, I don’t know.†Defendant thought Valencia had a weapon. As soon as Valencia approached defendant,
defendant pulled out a gun because he “thought [ ] he was gonna—gonna shoot me
or something and I just—I got—I got paranoid and scared and panicked, and I
just let off the gun.†Defendant carried
the gun for protection because he had been shot at several years before by
people older and larger than he was. He
was afraid of losing his life because of Valencia’s words and gestures. After he shot Valencia, he noticed that the
Escalade was chasing him.
Defendant remembered telling Deputy
Ramirez in the holding cell that he shot Valencia but he did not remember
telling him that he shot Valencia in the back.
Defendant did not know which part of Valencia’s body he shot. He denied that he was trying to kill Valencia
and said that he shot only because he was afraid and thought Valencia was going
to pull out a weapon. He wanted only to
make him back away or get scared off. He
denied telling Deputy Ramirez that he knew that Valencia was a gang member and
he denied telling Deputy Ramirez that he shot at the Escalade as it was chasing
him. He lied to Deputy Ramirez because
“I was trying to show him that ’cause I thought—I knew he was older, he told me
he was older, so I was trying to make him think that I was a hard core gang
member. . . . I didn’t want him to think that I was a
pussy.â€
On cross-examination, defendant
acknowledged that he was a member of the WCS gang and that his moniker was
“Suspect.†Although he had gang tattoos
under his eye and on his chest, he was not proud of being in a gang. He carried the gun for protection because “if
you do run into rival gang, there will be problems.†He acknowledged that the shopping center was
located within WCS gang territory. He
denied that he went there looking for trouble.
Defendant acknowledged that Valencia never hit or pushed him and that he
never saw an actual gun or part of a gun on Valencia. He denied pushing Valencia away before he
shot him. Defendant said he himself took
a step back. He said he ran for his life
when the Escalade began chasing him. He
hid the gun behind a trailer home and never saw it again.
Defendant acknowledged that Deputy
Ramirez did not grab him or force him to say things. He admitted that the deputy was polite and
conversational. He lied to Deputy
Ramirez because he was scared of him.
Defendant admitted that many things he said to Deputy Ramirez were true,
including that he used a .38, that he shot a guy from South Side 13th Street
gang, that he was known as Suspect from WCS, and that he was chased by the
Escalade after he shot the victim.
Defendant told the interviewing detectives he was not even in the City
of Bell on the day of the shooting. He
never said that he felt threatened.
DISCUSSION
I. Lack of Heat of Passion Voluntary Manslaughter
Instruction
Defendant’s Argument
Defendant contends that the trial
court should have given sua sponte
the instruction on the heat of passion type of voluntary manslaughter contained
in CALCRIM No. 570.
name="_ftnref4" title="">[4] Defendant argues that there was substantial
evidence that he acted in the heat of passion in the midst of a quarrel
provoked by Valencia and that Valencia was the provocateur. According to defendant, the trial court’s
error violated his rights under California state law, as well as his federal
due process rights to a jury trial and to present a complete defense, and the
is the proper one.
B. Proceedings Below
During the jury instruction
conference, defense counsel asked the trial court to add only one instruction
to the list the prosecutor had prepared:
CALCRIM No. 505 on imperfect self-defense. The court believed there was sufficient evidence
for the instruction to be given and for argument by the defense on that point. Neither party had any objection to the list
of instructions the trial court announced it would read.
The trial court instructed the jury,
inter alia, on “Homicide: General
Principles†(CALCRIM No. 500); “First Or Second Degree Murder With Malice
Aforethought†(CALCRIM No. 520); “First Degree Murder†(CALCRIM No. 521);
“Provocation: Effect On Degree Of
Murder†(CALCRIM No. 522); “Justifiable Homicide: Self-Defense Or Defense Of Another†(CALCRIM
No. 505); and “Voluntary Manslaughter: Imperfect Self-Defense – Lesser Included
Offense.†(CALCRIM No. 571.)
The prosecutor argued to the jury
that defendant acted with express malice and that defendant was guilty of first
degree murder. He stated that
defendant’s self-defense argument was not plausible, since there was no
evidence of anything more than an argument between the two young men. Defense counsel argued to the jury that
defendant believed he was in imminent danger of being shot and shot the victim
in self-defense. Counsel asserted that
this was a plausible alternative, and the jury should convict defendant of
manslaughter.
Relevant Authority
In criminal
cases “‘[a] trial court has a duty to instruct the jury “sua sponte on general
principles which are closely and openly connected with the facts before the
court.â€â€™â€ (People v. Gutierrez (2009) 45 Cal.4th 789, 824; see
142, 154 (Breverman).) “In a murder case, this means that both heat
of passion and unreasonable self-defense, as forms of voluntary manslaughter,
must be presented to the jury if both have substantial evidentiary
support.†(Breverman, supra, 19
Cal.4th at p. 160.) The trial court’s
sua sponte duty arises even if the defendant objects to the instruction and
regardless of the defendant’s theory of defense. (Id.
at p. 162.) We review de novo the claim
a court failed to properly instruct the jury on the applicable principles of
law. (People v. Cole (2004) 33 Cal.4th 1158, 1215.)
In determining whether
substantial evidence exists, trial courts should not usurp the jury’s function
of evaluating the credibility of witnesses.
(Breverman,
evidence means, in this context, “‘“evidence from which a jury composed of
reasonable [persons] could . . . conclude[]â€â€™ that the
lesser offense, but not the greater, was committed.†(Ibid.)
Due process does not require
more. (Hopper v. Evans (1982) 456
U.S. 605, 611.) Speculation is insufficient to require the giving of an instruction on a
lesser included offense. (
174.)
Voluntary
manslaughter is a lesser included offense of murder. (People v. Lewis (2001) 25 Cal.4th
610, 645; Breverman, supra, 19 Cal.4th at p. 154.) To establish voluntary manslaughter based on
sudden quarrel or heat of passion, both provocation and heat of passion must
exist, and they must both be affirmatively demonstrated. (People v. Lee (1999) 20 Cal.4th 47,
60.) The heat of passion requirement for
manslaughter has both an objective and a subjective component. (People v. Steele (2002) 27 Cal.4th
1230, 1252.) The reasonableness of the
circumstances giving rise to the heat of passion is viewed objectively. (People v. Cole, supra, 33 Cal.4th at pp. 1215-1216.) The provocation must be of such a character
as to “cause an ordinary person of average disposition to act rashly or without
due deliberation and reflection.†(People
v. Lujan (2001) 92 Cal.App.4th 1389, 1411-1412.) Additionally, the provocation must be caused
by the victim (People v. Lee, at p. 59) and the killing must occur
“‘suddenly’†in response to this provocation (People v. Daniels (1991)
52 Cal.3d 815, 868). As for the
subjective component, the killer’s reason actually must have been obscured due
to strong passion that was aroused by provocation, such that he acts “‘“from
this passion rather than from judgment.â€â€™â€
(Breverman, supra, 19 Cal.4th at p. 163.)
Mindful of the
above-mentioned principles, we conclude the record in this case does not
reflect sufficient evidence to warrant instruction on voluntary manslaughter
based on heat of passion. As noted, heat
of passion has both objective and subjective components. (People
v. Steele, supra, 27 Cal.4th at
p. 1252.) We conclude that both elements
are lacking in this case.
Although provocation may
be verbal, derogatory name-calling has been held to be insufficient provocation
to inflame the passions of a reasonable person to reduce murder to voluntary
manslaughter. (See People v. Manriquez (2005) 37 Cal.4th 547, 585-586 (
88, 91 [“Words or gestures, no matter how grievous or insulting, are not
sufficient provocation . . . .â€].) “‘While no particular cause for such heat of
passion is expressly prescribed by law. . . . There
must be “considerable†provocation, such at least as would stir the resentment
of a reasonable man. A provocation of
slight and trifling character, such as words of reproach, however grievous they
may be, or gestures, or an assault, or even a blow, is not recognized as
sufficient to arouse, in a reasonable man, such passion as reduces an unlawful
killing with a deadly weapon to manslaughter . . . .’†(People
v. Wells (1938) 10 Cal.2d 610, 623.)
In the instant case,
according to defendant, the provocation consisted of Valencia repeatedly asking
defendant where he was from and in declaring his (Valencia’s) gang
affiliation. Valencia also got face to
face with defendant. We do not believe
these words and actions by Valencia would “arouse feelings of homicidal rage or
passion in an ordinarily reasonable person.â€
(People v. Pride (1992) 3
Cal.4th 195, 250.) “Although the
provocative conduct may be verbal, . . . such provocation
‘must be such that an average, sober person would be so inflamed that he or she
would lose reason and judgment.’†(
In Manriquez, for example,
this standard was not met where the evidence showed the victim “called
defendant a ‘mother fucker’ and . . . also taunted
defendant, repeatedly asserting that if defendant had a weapon, he should take
it out and use it. Such
declarations . . . plainly were insufficient to cause an
average person to become so inflamed as to lose reason and judgment.†(Id.
at p. 586.) In People v. Najera, supra,
138 Cal.App.4th 212, the victim called the defendant a “‘jota’ (translated as
‘faggot’)†and pushed him to the ground.
(Id. at p. 216.) Citing Manriquez,
the Court of Appeal concluded the “taunt would not drive any ordinary person to
act rashly or without due deliberation and reflection,†and that the physical
attack did not make any difference. (
v. Oropeza (2007) 151 Cal.App.4th 73, 76, 83 [mutual yelling and offensive
hand gestures exchanged between two cars on highway were not adequate
provocation for one passenger shooting at other car].)
In the instant case,
although defendant, a WCS gang member, may have been offended or felt
“disrespected†by Valencia’s repeated gang allusions, defendant’s reaction is
judged by a reasonable person standard and not a reasonable gang-member
standard. The California Supreme Court
has “rejected arguments that insults or gang-related challenges would induce
sufficient provocation in an ordinary
person to merit an instruction on voluntary manslaughter. [Citations.]â€
(People v. Enraca (2012) 53
Cal. 4th 735, 759.) Also, the
provocation that incites the defendant to homicidal conduct must be caused by
the victim or by conduct reasonably believed by the defendant to have been
engaged in by the victim. (
Here, what amounted to a verbal argument was escalated by defendant
himself when he pushed Valencia.
Whatever it was that Valencia said, a defendant may not “‘“set up his
own standard of conduct and justify or excuse himself because in fact his
passions were aroused . . . .â€â€™â€ (People
v. Cole, supra, 33 Cal.4th at pp.
1215-1216.)
There was also a lack of
evidence that defendant’s reason was in fact obscured by passion at the time he
fired the gun. Appellant himself
testified that he tried “to keep it mellow.â€
He tried to calm Valencia down so that they could talk it out. Appellant points out that Valencia was taller
and heavier than he, but this adds little to his argument of heat of
passion. Appellant also asserts that his
act of pushing the victim shows the existence of heat of passion. However, defendant’s act of pushing Valencia
away before reaching for his gun is more indicative of a rational distancing of
Valencia in order to have access to his gun and prepare to shoot rather than a
rash act of passion. Although the
eyewitnesses reported what appeared to be an argument, it was limited to words
until the very end. Defendant never
testified that he was overcome by his emotions.
To the contrary, he testified that he wanted to make peace with
Valencia, and, when that failed, defendant shot him in imperfect self-defense.
Defendant also argues
that the fact he acted out of fear might support a finding he acted in the heat
of passion. This contention is not
persuasive. In any event, the jury was
instructed on perfect and imperfect self-defense, but rejected these theories,
indicating that they did not believe he acted out of fear. Defendant also contends that the fact that
the jury rejected first degree murder and convicted only on second degree
murder shows that the jury rejected premeditation in favor of a rash action. According to defendant, had the jury been
given the opportunity to consider whether the rashness was objectively
reasonable, it is not clear beyond a reasonable doubt that they would have
convicted him of murder rather than manslaughter. We believe there was abundant evidence of
second degree murder, as explained in the last section of this opinion. Therefore, it is mere speculation to assert
that the jury believed defendant’s act of shooting was rash. Although the jury rejected premeditation, it
found that defendant acted in a conscious disregard for Valencia’s life. The jury had before it the evidence that
defendant shot at Valencia twice, and the second time occurred when Valencia
was trying to hide behind the Escalade.
It appears defendant’s bullet struck the car. Defendant actually told Deputy Ramirez that
he shot Valencia in the back when he tried to run away.
Finally, even if the trial court had
given the heat of passion instruction, the testimony and defendant’s
conversation with Deputy Ramirez provided strong evidence that defendant shot
Valencia in cold blood rather than in the heat of passion. Therefore, even assuming for argument that
the trial court erred, the error was harmless under either the
suggests defendant may have killed under the influence of a heat of passion
caused by adequate provocation.
Accordingly, substantial evidence did not support a lesser included
offense of voluntary manslaughter on a heat of passion theory, and the trial
court was not required, either as a matter of state law or federal
constitutional law, to instruct upon the theory sua sponte. (People
v. Ayala (2000) 23 Cal.4th 225, 283; see also Hopper v. Evans, supra,
456 U.S. at p. 611.)
II. Trial Court’s Reading of CALCRIM No. 522
Defendant
contends that the trial court erred in including a bracketed portion on
provocation in relation to manslaughter when reading CALCRIM No. 522, since
provocation is not an element of imperfect self-defense, but only an essential
part of heat of passion manslaughter.
The jury was likely to interpret the instruction in an erroneous manner
and believe that defendant was impliedly required to prove provocation before
he could assert imperfect self-defense, which lessened the burden of proof for
the prosecution by raising the bar on the defense. Defendant asserts the error must therefore be
judged under the Chapman standard of
harmless error.
“In determining the correctness
of jury instructions, we consider the instructions as a whole. [Citation.]
An instruction can only be found to be ambiguous or misleading if, in
the context of the entire charge, there is a reasonable likelihood that the
jury misconstrued or misapplied its words.â€
(People v. Campos (2007) 156
Cal.App.4th 1228, 1237; see also People
v. Smithey (1999) 20 Cal.4th 936, 963.)
Jury instructions are also considered in the context of the arguments of
counsel. (People v. Young (2005) 34 Cal.4th 1149, 1202.)
C. Proceedings Below
degree to second degree and may reduce a
murder to manslaughter. The weight
and significance of the provocation, if any, are for you to decide. If you conclude that the defendant committed
murder but was provoked, consider the provocation in deciding whether the crime
was first or second degree murder.
whether the defendant committed the murder or manslaughter.†(Italics added to indicate bracketed
portion.)
D. Any Error Harmless
failure to suggest modification of CALCRIM No. 522 in the trial court. (People
v. Hudson (2006) 38 Cal.4th 1002, 1011-1012 [“‘Generally, a party may not
complain on appeal that an instruction correct in law and responsive to the
evidence was too general or incomplete unless the party has requested
appropriate clarifying or amplifying language.’â€].) Even if we view the claimed error as
violative of defendant’s substantial rights, however, and thus not requiring an
objection in the trial court (see § 1259; People
v. Kelly (2007) 42 Cal.4th 763, 791), defendant’s claim fails on the
merits.
We believe it is speculation to suggest
that the jury was led to believe provocation was to be considered in
conjunction with the imperfect self-defense type of manslaughter to defendant’s
detriment. The jury was told that defendant
acted in imperfect self-defense if he believed he was in imminent danger of
death or great bodily injury, and he believed the immediate use of deadly force
was necessary to defend against the danger, and at least one of those beliefs
was unreasonable. (CALCRIM No.
571.) The jury was told to consider
evaluating his beliefs. (
The jury was thus encouraged to consider Valencia’s apparent anger and
body language as they appeared to defendant in making its evaluation, and to
the extent that a jury member may have attached the label of “provocation†to
these circumstances, it could not have injected an objective standard into the
assessment of the reasonableness of defendant’s beliefs or prejudiced defendant
in any way.
Moreover, the instructions as a
whole made clear that the prosecutor bore the burden of proving that defendant
did not act in self-defense—imperfect or otherwise. The trial court read CALCRIM No. 521
regarding the People’s burden of proof to show that defendant committed a first
degree murder. (CALCRIM No. 521.) The trial court read CALCRIM No. 505, which
told the jury that the People had the burden of proving beyond a reasonable
doubt that the killing was not justified.
The trial court also instructed the jury with CALCRIM No. 571, which
described the requirements for reducing a killing from murder to voluntary
manslaughter based on imperfect self-defense and informed the jury that the
People had the burden of proving beyond a reasonable doubt that defendant was
not acting in imperfect self-defense.
These instructions expressly stated that the People had the burden of
proving that defendant’s act did not constitute a crime less than first-degree
murder. Considering these instructions
and the standard instructions on the presumption of innocence and the
prosecution’s burden to prove guilt beyond a reasonable doubt (CALCRIM No.
220), there was no likelihood that CALCRIM No. 522 as read by the trial court
caused the jury to shift the burden to defendant to prove that he had been
provoked. Furthermore jurors are presumed
to be intelligent and capable of understanding and correlating jury
instructions. (People v. Richardson (2008) 43 Cal.4th 959, 1028;
130.) “‘With regard to criminal trials,
“not every ambiguity, inconsistency, or deficiency in a jury instruction rises
to the level of a due process violation.
The question is ‘“whether the ailing instruction . . . so
infected the entire trial that the resulting conviction violates due
process.â€â€™ [Citation.]â€â€™â€ (People
v. Letner and Tobin (2010) 50 Cal.4th 99, 182.) Applying these principles here, we conclude
defendant was not prejudiced by the trial court’s reading of the bracketed
portions of CALCRIM No. 522.
Finally, nothing in the argument of either the prosecutor or defense counsel
suggested that defendant was required to prove provocation before he could
assert imperfect self-defense. Defense
counsel emphasized that defendant was the only source that could explain what
he was feeling, which the video of the encounter could not show. The prosecutor argued that defendant’s claim
of fear was not credible because of his failure to explain his actions to the
interviewing deputies when given the opportunity, his conversation with Deputy
Ramirez, and the fact that he was never grabbed or threatened by Valencia. The prosecutor was entitled to point out the
circumstantial evidence against defendant’s claim of fear. Given the instructions as a whole and the
arguments, we believe defendant’s argument is without merit.
III. Lack of Sua Sponte Instruction on a Third
Theory of Voluntary Manslaughter
A. Defendant’s Argument
Defendant contends the
trial court had a duty to instruct sua sponte on a type of voluntary manslaughter
extracted from the rejection of a theory of involuntary manslaughter espoused
by the appellant in People v. Garcia (2008)
162 Cal.App.4th 18 (Garcia). According to defendant, the trial court was
obliged to tell the jury that an unintentional killing committed without malice
during the course of an inherently dangerous assaultive felony constituted
voluntary manslaughter.
principles of law that are commonly or closely and openly connected to the
facts before the court and that are necessary for the jury’s understanding of
the case. (People v. Gutierrez, supra,
45 Cal.4th at p. 824.) This includes
instructing on lesser included offenses that are supported by substantial
evidence. (People v. Valdez (2004) 32 Cal.4th 73, 115.)
C. No Sua Sponte Duty
the court held that it was reversible error for the trial court not to instruct
that an unintentional killing without malice committed during the course of an
inherently dangerous assaultive felony constituted voluntary manslaughter.
he acted suddenly and upon provocation by a larger gang member of whom he was
afraid, and because he did not intend to kill Valencia, this theory of
voluntary manslaughter applies to him.
Therefore, the trial court was required to instruct the jury on this
theory, since it constitutes a lesser-included-offense instruction required by
the due process guarantee of the state and federal constitutions, and the
instruction was supported by substantial evidence.
Initially, we believe
defendant inaccurately recites the holding in Garcia. In that case, the
court merely affirmed the trial court’s denial of Garcia’s request for an
instruction on involuntary
manslaughter as a lesser included offense of murder. (Garcia,
supra, 162 Cal.App.4th at p.
22.) While carrying a shotgun, Garcia
was confronted by the victim, who told him to put the gun away. The two men began yelling, and when the
victim moved toward Garcia, Garcia struck out at him with the butt of the
shotgun to “back him up.†The gun hit
the victim in the face, causing him to fall to the ground and hit his head. He subsequently died from his head
injury. (Id. at p. 23.) Garcia was
charged with second degree murder, and the jury found him guilty of voluntary
manslaughter. (Id. at pp. 23, 25.)
The trial court
instructed the jury on both types of voluntary manslaughter (heat of passion
and imperfect self-defense) as a lesser included offense of murder. (Garcia,
supra, 162 Cal.App.4th at pp.
25-26.) On appeal, Garcia contended that
the trial court erred by refusing to instruct on involuntary manslaughter on the theory that the killing “was
committed without malice and without either an intent to kill or conscious
disregard for human life.†(
court addressed at length the issue of whether an unintentional killing without
implied malice during commission of an inherently dangerous felony (aggravated
assault) could support an instruction for involuntary manslaughter. (Id.
at pp. 28-31.) The court concluded that
the trial court properly declined to instruct on involuntary manslaughter. (Id.
at p. 32.) In rejecting Garcia’s claim,
the court stated that “an unlawful killing during the commission of an
inherently dangerous felony, even if unintentional, is at least voluntary
manslaughter.†(Id. at p. 31.)
Thus, the language on
which defendant relies as support for the trial court’s sua sponte obligation
is dictum arising from the Garcia
court’s rejection of the appellant’s involuntary manslaughter theory, and not
from an intention to create a third category of voluntary manslaughter. Neither Garcia
nor any other authority establishes the theory of voluntary manslaughter upon
which defendant relies. It is well
established that voluntary manslaughter occurs when there is an unlawful
killing based upon sudden quarrel or heat of passion or in an actual, but
unreasonable, belief in the need to defend against imminent death or great
bodily injury. (§ 192, subd. (a).)
Furthermore, although
the court in People v. Bryant,
157, found that an instruction based on the Garcia
dictum should have been given, and that the trial court prejudicially erred in
not doing so, the case was taken up for review on the same day that defendant’s
set of jury instructions were compiled and read to the jury. The trial court could hardly have acquired a
sua sponte duty to follow People v.
Bryant during the short period of its viability as citable authority. As the California Supreme Court has stated,
“the sua sponte ‘rule seems
undoubtedly designed to promote the ends of justice by providing some judicial
safeguards for defendants from the possible vagaries of ineptness of counsel
under the adversary system. Yet the
trial court cannot be required to anticipate every possible theory that may fit
the facts of the case before it and instruct the jury accordingly. The judge need not fill in every time a
litigant or his counsel fails to discover an abstruse but possible theory of
the facts.’†(People v. Flannel (1979) 25 Cal.3d 668, 683.) Even if the theory that defendant extracts
from Garcia is eventually recognized
as a valid basis for voluntary manslaughter, it was not, at the time of his
trial, a general principle of law upon which the trial court was required to
instruct sua sponte.
Moreover, in the instant
case, the evidence would not warrant such an instruction because defendant
clearly killed Valencia with implied malice at the very least. Malice is implied “when a killing results
from an intentional act, the natural consequences of which are dangerous to
human life, and the act is deliberately performed with knowledge of the danger
to, and with conscious disregard for, human life.†(People
v. Cook (2006) 39 Cal.4th 566, 596.)
Here, the evidence showed that defendant pushed Valencia away and then
pulled out his gun and shot him at point-blank range in the abdomen. Unlike Garcia, defendant did not strike with
one unfortunate blow of a bludgeon.
Instead, he used bullets.
The trial court had no
sua sponte duty to instruct the jury on voluntary manslaughter pursuant to the
dictum in Garcia, and there was no
IV. Sufficiency of the Evidence of Murder
A. Defendant’s Argument
murder where the uncontroverted credible testimony showed that he acted in
either perfect or imperfect self-defense.
Therefore, his conviction should be reversed or reduced to voluntary
manslaughter under an imperfect self-defense theory.
B. Relevant Authority
evidence is limited. The court must
‘review the whole record in the light most favorable to the judgment below to
determine whether it discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.’ [Citations.]â€
(People v. Ceja (1993) 4
Cal.4th 1134 , 1138.)
Given this court’s
limited role on appeal, appellant bears an enormous burden in claiming there was
insufficient evidence to sustain the verdict.
If the verdict is supported by substantial evidence, we are bound to
give due deference to the trier of fact and not retry the case ourselves. (People
v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Reversal for insufficiency of the evidence “is unwarranted unless it
appears ‘that upon no hypothesis whatever is there sufficient substantial
evidence to support [the conviction].’â€
(People v. Bolin (1998) 18
Cal.4th 297, 331.) Accordingly, when the
evidence is largely circumstantial, reversal is not warranted simply because
the evidence might support contrary findings equally as well as those made by
the trier of fact. (People v. Ceja, supra, 4
Cal.4th at pp. 1138-1139.)
C. Evidence Sufficient
established as a matter of law because the evidence was uncontroverted and
established all of the elements for a finding of self-defense. Defendant argues that, viewed as a whole, the
record in his case establishes as a matter of law that his was a case of
self-defense. He states that Valencia’s
behavior was a classic example of gang confrontation, and it was reasonable for
defendant to fear that the “assault†against him would shortly lead to great
bodily injury or death. Valencia was
taller, heavier, and older, and defendant had experienced problems with gangs
in the area. Valencia got up close and
face to face with defendant and was moving his hands in his pockets. Defendant’s reaction was justified based on
his belief that Valencia had a gun. Even
if his reaction was excessive, he contends, imperfect self-defense is
established as a matter of law.
We disagree. As we have stated previously, there was
sufficient evidence to support a finding of implied malice at a minimum. Defendant and Valencia had a brief verbal
confrontation. Regardless of what
Valencia said to defendant, the evidence showed that defendant escalated the
verbal confrontation into a physical one by pushing Valencia, which caused him
to take two or three steps backward.
Defendant then pulled out his gun and shot Valencia twice, the first
time at nearly point-blank range.
Valencia turned and tried to hide behind the Escalade, and defendant
fired at him once again. Defendant’s conversation
with Deputy Ramirez revealed that defendant knew he was using a hollow point
bullet. At such close range, defendant
clearly exhibited a conscious disregard for Valencia’s life, if not express
malice. The jury did not believe
defendant’s assertions that he was fearful because of his past experiences and
the fact that Valencia was purportedly moving his hands around in his
pockets. Under the standard of review
articulated ante, there was
sufficient evidence to uphold the jury’s verdict.
The judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________,
P. J.
BOREN
We concur:
______________________, J.
ASHMANN-GERST
______________________, J.
CHAVEZ
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[1] All
further references to statutes are to the Penal Code unless stated otherwise.
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[2]
Defendant
has a cursive “W†tattooed on his cheek bone below his left eye.
