Filed 5/29/13 P. v. Brazier
CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
KEVIN DEON BRAZIER,
Defendant
and Appellant.
E055582
(Super.Ct.No.
SWF10002413)
OPINION
APPEAL
from the Superior Court
of
County. Albert J.
Wojcik, Judge. Affirmed.
Sharon
M. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting and
Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
A
jury convicted defendant, Kevin Brazier, of attempted murder, which was
premeditated and deliberate (Pen. Code, §§ 664/187, subd. (a)),
both of which he used a knife (§ 12022, subd. (b)(1)), and assault with a
deadly weapon (§ 245, subd. (a)(1)). In
true allegations that he had suffered a serious prior conviction (§ 667, subd.
(a)) and a strike prior (§ 667, subds. (c) & (e)(1)). He was sentenced to prison for 14 years to
life plus 6 years.
According
to her 911 call and an interview with a female police officer the day of the
crimes, Mechelle said that she and the victim were boyfriend and girlfriend and
shared an apartment into which they had moved on November 2, 2010. Mechelle had placed sticks in all the windows
of the apartment because defendant, her ex-boyfriend, had “followed her†to the
apartment when she moved and then had told her that he was going to break in
and kill everyone. On November 18, 2010,
when Mechelle went to the local Wal-Mart, behind which defendant “lived,â€
defendant followed her around the store so she would not talk to another man,
then, in the parking lot, removed the ignition key from her car and told her
she could not go anywhere because he “‘kn[ew she] was with [the victim].
got on the back of her car at Wal-Mart and held on while she drove because she
would not let him in her car. He finally
hopped off the car. On still another
occasion, defendant slapped Mechelle’s brother because she was going somewhere
with him instead of being with defendant, then defendant returned to the
apartment at 2:00 or 4:00 a.m. and banged on the window and threatened to kick
down the door if he was not let inside.
Defendant had also entered the apartment while no one was there on at
least one occasion.
On
November 26, 2010, defendant entered the apartment through the bedroom window
and threatened to kill everyone there.
Mechelle and the victim were naked, sleeping on the living room
floor. Mechelle told defendant she
wanted nothing to do with him, but he replied that “it†was not over until he
died. Defendant had Mechelle’s steak
knife
victim,
nothing to lose. Defendant got on top of
the victim, on the floor and stabbed the victim two to three times, saying,
“I’m going to kill you, [victim’s first name], for sleeping with my
girl . . . .â€
Mechelle held onto defendant’s hand so he would not kill the victim and
she punched him and told him to let go of the knife. Defendant bit her on the arm.
At
trial, Mechelle testified that defendant
had been her boyfriend for over three years and the victim was her platonic
apartment mate. More of her trial
testimony will be described later in this opinion.
The
victim was interviewed by the police the day of the crimes. During the interview, which was played for
the jury at trial, he said that he and Mechelle, his girlfriend, had lived
together in the apartment since November 2.
He recounted several prior incidents involving defendant, as well as the
crimes. The first prior incident was in
June or July 2010, during which he borrowed Mechelle’s phone and called her and
defendant answered the call. Defendant
told the victim that Mechelle was defendant’s girlfriend now and she was not
with the victim. The two men
argued. Eight days before the crimes,
defendant and the victim got in an altercation in the living room of the
apartment, then a physical fight in the driveway. The victim told Mechelle that defendant was
no longer welcome in the apartment. The
victim added facts to those contained in Mechelle’s statement about the
incident in which defendant jumped on the trunk of Mechelle’s car by saying
that it occurred within a couple of days of the crimes and the victim called
her during it and he advised her to drive past the police station, but
defendant jumped off before that. Just
before the crimes, the victim told defendant that defendant could use the
shower in the apartment. Defendant then
tried to get the victim to leave the apartment so defendant could be with
Mechelle. Defendant showed the victim a
letter in which defendant said that he was going to be with Mechelle, and then
defendant left. The victim said that
before the crimes defendant had threatened to murder him. While defendant claimed to be in a
relationship with Mechelle, she told the victim that she associated with
defendant just to get money from him.
The victim said that on the day of the crimes, he and Michelle were sleeping
on the living room floor when defendant entered the apartment through the
bedroom window. The victim felt a poke
on his thigh and awoke to defendant holding a knife to his throat and saying,
“‘I don’t got nothing to do; I don’t got nothing to lose. You’re a dead man. It told you I was gonna get you. I told you I was coming back to get you. And you’re sleeping with my
girl . . . . And I
told you it was ‘till death do us part.’â€
Defendant said that he would be with Mechelle until death did them part. The victim grabbed defendant and held him
down and told Mechelle to call the police.
At
trial, the victim testified that he did not want to take the stand and he was
Mechelle’s apartment-mate at the time of the crimes—that he slept in the living
room while she slept in the bedroom, although it was “typical†for them to both
sleep in the living room. He testified
he awoke on the morning of the crimes and the police arrived and dragged him
outside. He denied seeing defendant in
the apartment that day and claimed he did not know who called 911. He claimed he was drunk at the time of the
crimes and while being questioned by the police at the hospital
thereafter. He could not recall what he
told the police or denied making statements in the recorded conversation and he
could not remember how he got cuts on his neck, chest and side, other than they
were scratches that could have resulted from lifting furniture.
through Friday between 5:00 and 6:00 a.m. and returned between 9:30 and 10:00
p.m. He also said that defendant and
Mechelle were in a “dating relationship,†but he and Mechelle had never been
together. He testified that during the
preliminary hearing, he claimed he did not remember anything about the crimes.
An
apartment maintenance worker at the apartment complex testified that he was one
hundred percent certain that he saw defendant looking into the apartment window
around 7:00 a.m. the day of the crimes.
A
recording of the 911 call made at the time of the crimes was played for the
jury. On it, Mechelle is heard saying,
“[Defendant’s first name], give me the knife.â€
The victim said, “This son of a bitch came through my window.â€
The
officer who responded to Mechelle’s 911 call at 7:34 a.m. on the day of the
crimes testified that when he arrived outside the apartment, a scared and
agitated male voice inside said to kick the locked door down.
saw defendant lying on his stomach with his hands extended up over his head and
a knife in one. The naked bleeding
victim was on top of defendant with his stomach to defendant’s back and his
hands pinning defendant’s hands to the floor.
At the officer’s direction, defendant let go of the knife and the victim
moved it away from defendant’s reach.
Defendant hesitated when told to walk outside. The victim told the officer that he was the
victim and defendant did not dispute this.
The victim told the officer that he was afraid because defendant would
have killed him in his sleep. The victim
had one centimeter stab wounds to his left neck, chest and to the left side of
his stomach. The officer testified that
the victim did not appear to be intoxicated at the time he interviewed him at
the hospital.
Another
police officer who arrived at the apartment at 7:45 a.m. testified that a
backpack containing defendant’s social security card, other pieces of
identification and a letter, purportedly written by Mechelle, using defendant’s
last name as her own, was found outside the window of the apartment. There was a piece of wood under the backpack
and the screen was not present on the window.
The
case agent testified that the window was to the apartment bedroom and there was
a screen on the ground that fit that window.
A
third police officer testified that the bedroom window of the apartment was
open and a leg from the dresser was on the ground outside it.
Defendant’s
fingerprint was found on the window.
and Discussion
1.
Incompetency of Trial Counsel
The
only evidence adduced at trial that came anywhere close to supporting the
theory that the attempted killing of the victim was the result of heat of
passion or provocation was the testimony of Mechelle, who stated, on
cross-examination, that when she awoke at 10:00 or 11:00 a.m. the morning of
the crimes, defendant was in the hallway of the apartment.
and they argued, while the victim slept on the living room floor. The victim awoke 15 to 20 minutes later, and
he and defendant began arguing. Mechelle
assumed it was over her. The argument
never ended. Defendant slapped the
victim and the victim said he was going to call his homies. At some point, a physical fight erupted
between the two and she told both of them to shut up because she had just moved
into the apartment a few weeks before.
She saw the victim get from the corner of the living room a knife which
she used for cutting food and also kept in the bedroom for protection. Defendant asked the victim if the victim was
going to stab him with the knife. The
two began struggling over the knife and they wound up on the floor as they
continued to struggle. She called 911
when she saw blood.
The
jury was instructed that if defendant attempted to kill the victim while acting
under the influence of a sudden quarrel or heat of passion, he was guilty of
attempted voluntary manslaughter.
However, “the provocation [had to] be of the character and degree as
naturally would excite and arouse the passion . . . .†The heat of passion had to be such as would
naturally be aroused in the mind of an ordinarily reasonable person in the same
circumstances. Defendant could not set
up his own standard of conduct unless the facts and circumstances confronting
him were such as would have aroused the passion of an ordinarily reasonable
person facing the same situation. The
question was whether at the time of the attempted murder, defendant’s reason
was so obscured or disturbed by passion as would cause the ordinarily
reasonable person of average disposition to act rashly and without deliberation
and reflection, and from passion rather than judgment. Provocation not sufficient to arouse passion,
or provocation that was remote, so that sufficient time elapsed between it and
the attempted murder for passion to subside and reason to return, did not
reduce the crime to attempted voluntary manslaughter.
The
jury was given the following instruction on the special finding that the
attempted murder was willful, premeditated and deliberate, “‘Willful’ means
intentional. [¶] ‘Deliberate’ relates to how a person thinks
and means formed or arrived at or determined upon as a result of careful
thought and weighing of considerations for and against the proposed course of
action. [¶] ‘Premeditated’ relates to when a person
thinks and means considered beforehand.
[¶] A person premeditates by
deliberating before taking action.
[¶] If you find that the
attempted murder was preceded and accompanied by a clear, deliberate intent to
kill which was the result of deliberation and premeditation so that it must
have been formed upon pre-existing reflection and not under a sudden heat of
passion or other condition precluding
the idea of deliberation, it is attempt to commit willful, deliberate and premeditated
murder. [¶] The law does not undertake to measure in
units of time the length of the period during which the thought must be
pondered before it can ripen into an intent to kill which is truly deliberate
and premeditated. The time will vary with
different individuals and under varying circumstances. [¶]
The true test is not the duration of time but, rather, the extent of the
reflection. A cold, calculated judgment
and decision may be arrived at in a short period of time, but a mere unconsidered
and rash impulse, even though it includes an intent to kill, is not
deliberation and premeditation. [¶] To constitute willful, deliberate, and
premeditated attempted murder, the would-be slayer must weigh and consider the
question of killing and the reasons for and against such a choice and, having
in mind the consequences, decides to kill and makes a direct but ineffectual
act to kill another human being.
[¶] The People have the burden of
proving the truth of this allegation. If
you have a reasonable doubt that it is true, you must find it to be not true.â€
The
jury was not given the following instruction, “When the evidence shows that the
defendant acted upon provocation of heat of passion and that this played a part
in inducing the attempted killing, but also shows that such provocation was not
such as to reduce the attempted murder to attempted voluntary manslaughter, you
may consider the evidence of provocation for such bearing as it may have on the
question of whether the attempted murder was committed with deliberation and
premeditation.†(CALJIC No. 8.73.)
Under
the instruction given, in order to conclude that the attempted murder was
premeditated and deliberate, the jury had to find that defendant “careful[ly]
thought†and “weigh[ed] the considerations for and against†it.
notion of heat of passion by the same instruction in its provision (italicized
above) contrasting it, or “other conditions precluding the idea of
deliberation†with pre-existing reflection.
Finally, the instruction given provided that if the jury entertained a
reasonable doubt about the existence of premeditation and deliberation, it was
to make a not true finding as to the allegation. In short, the instruction given did not
consider heat of passion/provocation in deciding whether defendant deliberated
and premeditated, but stated that heat of passion precluded the idea of
deliberation and was in contrast to pre-existing reflection.
Because
the omitted instruction is a pinpoint instruction and must be given only upon
request (People v. Rogers (2006) 39
Cal.4th 826, 877, 878), defendant here claims that his trial counsel was
ineffective for failing to request it.
In order to prevail, however, defendant carries the heavy burden of
showing that had this jury been given the omitted instruction, there is a
reasonable probability it would not have found the attempted murder to have
been deliberate and premeditated. (
668, 688, 693.) We concluded that
defendant cannot carry this burden because of the instruction that
evidence on which such a finding could have been based was so weak and because
the defense presented to the jury during argument was inconsistent with heat of
passion or provocation.
When
Mechelle took the stand and was questioned by the prosecutor, she repeatedly
asserted that she had no memory of what happened between defendant and the
victim on the day of the crimes, how blood got on a blanket in the living room
or talking to police officers.
name="_ftnref10" title="">[10] She testified she could not recall or she
denied making statements to the police, recordings of which were played for the
jury. Those statements are that defendant
came through the window and threatened to kill everyone in the house; that
defendant said it was not over until he dies; that she said she had the windows
stuffed with sticks because defendant said he was going to break in and kill
everyone in the house; that she said she felt someone tapping on her leg and
she looked up and defendant had the steak knife; that defendant said if she
didn’t get up, he was going to “murk (meaning, to murder) this [derogatory term
defendant used for the victim]â€;
name="_ftnref11" title="">[11] that defendant said “he don’t care, he doesn’t
have anything to lose,†then defendant got on top of the victim and stabbed
him; that she said if she had let go of defendant’s hand, the victim would be
dead; that she said she had scissors, a knife and a sword under her bed because
she was afraid of defendant; that defendant said, “You ain’t going nowhere
because I know you’re with that [derrogatory term defendant used for the
victim]â€;
title="">[12] that she said defendant bit her on her right
arm while she was preventing him from stabbing the victim; that defendant said,
“I’m gonna murder this [derogatory term defendant used for the victim] [
because he says he’s staying with youâ€; that defendant said, “I’m gonna kill
you, [victim’s first name], for sleeping with my girlâ€; that she said that
during the past week she had called police on defendant because he took her
keys against her will; that she said defendant took her keys, killed her
ignition and told her she couldn’t go anywhere; that she said defendant was on
the back of her car holding on and she was driving away and he wouldn’t let go,
and concerning defendant’s threats to kill the victim, she said, “I guess [the
day defendant committed the crimes] was that day.†As stated before, she also testified that
defendant had been her boyfriend for two or three years and that she had not
been romantically involved with the victim, which was contrary to the
statements she made in her 911 call and her interview with a female police
officer the day of the crimes. She also
testified that she went to sleep in the living room wearing boy shorts and a
sports bra, yet she had told the female officer that during her 911 call, she
was trying to put clothes on, she indicated during the 911 call that she was in
the state of dress she was in because she had been having sex and the officer
who arrived at the apartment in response to that call testified that she was
naked when he got there. She testified
that she did not remember being awoken by defendant, or defendant threatening
to kill everyone in the house or that her windows were held closed by sticks
because defendant had said he was going to break in and kill everyone, yet she
told the female police officer these things.
She denied telling defendant she was going to use reverse psychology at
the preliminary hearing when she testified and that he told her to claim she
had no recollection at that hearing.
However, a tape of a conversation she had with defendant before the
preliminary hearing was held was played for the jury and on it, defendant told
her to tell parole that she knew nothing, and she responded that she did what
he had told her to do and used reverse psychology and claimed she had no
recollection. Defendant told her to do
the same during the preliminary hearing.
She denied telling defendant that the victim had moved out of her
apartment because he was scared and defendant told her to tell the victim to
say that he and defendant had engaged in mutual combat. However, during the above-mentioned recorded
phone call between her and defendant, she told defendant that the victim told
her that he was scared to continue living in the apartment. During the same call, defendant told her that
the victim should say that it was mutual combat—that they were fighting—and she
responded that it was a love triangle.
She testified that she had a scratch on her arm after November 26, 2010
from wrestling with the victim, who “had her down.†However, as already stated, she told the
female police officer that defendant bit her when she punched him so he would
let go of the knife. She denied during
her testimony preventing defendant from stabbing the victim. However, as already stated, she told the
female police officer that she held onto defendant’s hand so he wouldn’t kill
the victim. She testified she did not
remember calling 911 on the day of the crimes.
When confronted with the playing of the taped call, she admitted calling
911, but she back-pedaled from a statement she made during the call. When reminded of her statement during the
call that she had seen defendant stab the victim in the neck, she suddenly
remembered that both men had had the knife.
She also then remembered that the victim was on top of her and defendant
and the victim were fighting over the knife.
She
testified that she did not want to be a witness, that during the year preceding
the trial, she called defendant every chance she had,
him, he sent her mail using his last name for her as though it were hers, she
has been in love with him since the third month of their courtship, she wanted
to marry him, she wanted to spend her life with him after the trial, and during
the previous year, she had attempted to marry him.
On
cross-examination by the defense counsel she was suddenly able to remember a
good deal more. She testified that the
knife she kept in her apartment was the knife over which defendant and the
victim had struggled. She remembered trying
to get the knife, including the position she was in while doing so, withdrawing
from the struggle over the knife and defendant and the victim continuing to
struggle until she saw blood. She
remembered the facts stated above which served as the only arguable basis for a
finding of heat of passion or provocation.
She remembered that it was defendant who called out to the arriving
police to kick in the door in order to gain entry to the apartment. She could not explain why in the 911 call she
had referred to the victim as her boyfriend, even though she was in a dating
relationship with defendant at the time.
She remembered talking to a male deputy the day of the crimes. She continued to deny or claimed not to
remember making certain statements that were in her 911 call and in her
interview with the female police officer the day of the crimes: i.e., defendant
harassing her, defendant breaking into the apartment, defendant saying he was
going to murk the victim, putting things in her windows, defendant saying he
was going to kill the victim and defendant stabbing the victim
During
her redirect examination, the prosecutor called attention to the fact that she
was able to remember a great many more things about the crimes during
cross-examination by defense counsel than she was during his examination of
her. She also admitted that during the
preliminary hearing, which had occurred five weeks after the crimes, she
testified that she did not remember anything about the crimes.
In
short, the testimony of Mechelle, which provided the only basis for a finding
that defendant had attempted to kill the victim in heat of passion or as a
result of provocation, was heavily impeached by her prior inconsistent
statements and her obvious bias in favor of defendant, as well as the victim’s
prior statements and other trial testimony as set forth above which
contradicted her trial testimony.
Additionally,
as defendant here concedes, his defense was “primarily and only†self-defense,
not heat of passion or provocation reducing the attempted murder to attempted
voluntary manslaughter. In fact, defense
counsel specifically asserted that the victim got accidentally cut while he and
defendant struggled over the knife.
Given
this,
of passion or provocation, and the fact that the instruction given the jury on
premeditation and deliberation provided that heat of passion precluded the idea
of deliberation and was in contrast to pre-existing reflection, defendant has
not carried his burden of showing a reasonable probability that had the omitted
instruction been requested, and given, there is a reasonable probability that
he would have enjoyed a better outcome.
We
cannot agree with defendant that the jury’s acquittal of the charged burglary
necessarily meant that it did not believe that defendant premeditated and
deliberated the attempted killing. It is
entirely possible for the jury to have entertained a reasonable doubt that
defendant entered the apartment on November 26 with the intent to commit a
felony and still have found that he premeditated and deliberated before
attempting to kill the victim. (See
Cal.4th 254, 294, [“Premeditation and
deliberation . . . can occur in a brief
interval; . . . “‘“‘thoughts may follow each other with
great rapidity and cold, calculated judgment may be arrived at
quickly.â€â€™â€â€™ [Citation.]â€].)
2.
Failure to Instruct on Reasonable
Doubt as to Whether Greater or Lesser Offense
As
already stated, the jury was instructed as to the charged attempted murder and
the lesser offense of attempted voluntary
manslaughter. The jury was also
instructed, as is pertinent here, according to CALJIC No. 17.10, “If you are
not satisfied beyond a reasonable doubt that the defendant is guilty of the
crime charged, you may nevertheless convict [him] of any lesser crime, if you
are convinced beyond a reasonable doubt that the defendant is guilty of the
lesser crime. [¶]
. . . The crime of attempted voluntary manslaughter, a
violation of Penal Code section 664/192(a), is lesser to that of attempted
murder, a violation of Penal Code section 664/187(a) charged in count 1. [¶] . . . [¶] Thus, you are to determine whether [the]
defendant] [is] guilty or not guilty of the crime[s] charged or of any lesser
crime[s]. In doing so, you have
discretion to choose the order in which you evaluate each crime and consider
the evidence pertaining to it. You may
find it productive to consider and reach a tentative conclusion on all charges
and lesser crimes before reaching any final verdict[s]. However, the court cannot accept a guilty
verdict on a lesser crime unless you have unanimously found the defendant not
guilty of the [charged] crime.†Finally,
the jury was instructed, according to CALJIC No. 2.90, “A defendant in a
criminal action is presumed to be innocent until the contrary is proved, and in
case of a reasonable doubt whether [his] guilt is satisfactorily shown, [he] is
entitled to a verdict of not guilty.
This presumption places upon the People the burden of proving [him]
guilty beyond a reasonable doubt.
[¶] Reasonable doubt is defined
as follows: It is not a mere possible doubt; because everything relating to
human affairs is open to some possible or imaginary doubt, [it] is that state
of the case which, after the entire comparison and consideration of all the
evidence, leaves the minds of the jurors in that condition that they cannot say
they feel an abiding conviction of the truth of the charge.â€
555, held that where the evidence is sufficient to support a finding of guilt
of a charged offense and a lesser included offense, if the jury has a
reasonable doubt which crime the defendant committed, it must give the
defendant the benefit of the doubt and find him guilty of the lesser included
crime. Penal Code section 1097 provides,
in pertinent part, “When it appears that the defendant has committed
a[n] . . . offense, . . . and there is
reasonable ground of doubt in which of two or more degrees of the
crime . . . he is guilty, he can be convicted of the lowest
of such degrees only.†The
“[The s]ection . . . presupposes that the jury has
concluded that the defendant is guilty of
some . . . offense embraced within the pleadings but is in
doubt as to the degree of the offense proved. . . . [T]he
words ‘offense’ and ‘degrees’ [in section 1097] . . . refer
to all the degrees of criminality . . . involved in a
criminal act. . . . [¶] . . .
[W]hether reasonable doubt exists as between degrees of the same offenses or as
between the inclusive and included offense, the jury can only convict of the
crime whose elements have been proved beyond a reasonable doubt.†(Id.
at pp. 555-556.) Defendant contends that
the failure to give an instruction based on section 1097 and
convictions. We disagree.
Both
section 1097 and Dewberry are based
on the principle that the prosecution must prove a defendant guilty beyond a
reasonable doubt. (Dewberry, supra, 51 Cal.2d
at p. 556.) As explained in
of reasonable doubt requires an acquittal of an offense when the prosecution
has not met its burden of proof. Thus,
whether reasonable doubt exists as between degrees of the same offense [as
section 1097, narrowly construed, speaks to] or as between the inclusive and
included offense, the jury can only convict of the crime whose elements have
been proved beyond a reasonable doubt.â€
(Ibid.)
CALJIC
No. 17.10, together with CALJIC No. 2.09, instructed the jury on the principle
of reasonable doubt and the Dewberry
principle, which specifically applies the principle of reasonable doubt when
the jury has such a doubt whether the elements of a greater offense or a lesser
included offense have been proved beyond such a doubt.
CALJIC
No. 17.10 reflects and incorporates the principle of reasonable doubt as set
forth in CALJIC No. 2.90, and its specific application in the
jury that it cannot find a defendant guilty of a greater crime unless all the
jurors agree the defendant is guilty of the greater crime beyond a reasonable
doubt. Thus here, CALJIC Nos. 17.10 and
2.90 did not permit the jury to find defendant guilty of attempted murder, and
required it to acquit defendant of that offense, in the event the jurors did
not agree or at least some of them had a reasonable doubt whether the defendant
was guilty of that offense.
In
People v. Crone (1997) 54 Cal.App.4th
71, 76, this court noted that the giving of CALJIC No. 17.10 satisfied the
requirements of Dewberry.
v. Barajas (2004) 120 Cal.App.4th 787, 793, the appellate court held that
the giving of CALJIC No. 2.90, along with CALJIC No. 17.10, was sufficient for
the purpose of Dewberry. (Accord, People
v. Gonzales (1983) 141 Cal.App.3d
786, 794, fn. 8; People v. St. Germain
(1982) 138 Cal.App.3d 507, 521, 522.)
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] We have redacted the victim’s statement so as
to not include the horrendously offensive racial word defendant used to
describe the victim.
