P. v. Cabrera

 

 

 

 

 

 

 

 

 

 

 

Filed 5/24/13  P. v. Cabrera CA2/3

 

 

 

 

 

NOT TO BE PUBLISHED IN THE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opinion has not been certified for publication or ordered published for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 THREE

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   ANTHONY JERRY CABRERA,               Defendant and Appellant.

B233111         (Los Angeles County       Super. Ct. No. VA108103)

 

 

 

            APPEAL
from a judgment of the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County,

Michael A. Cowell, Judge.  Affirmed.

            William
Pitman, 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, Margaret E. Maxwell,
Tasha G. Timbadia and Brendan Sullivan, Deputy Attorneys General, for Plaintiff
and Respondent.

 

_________________________

 

            Defendant
and appellant, Anthony Jerry Cabrera, appeals his conviction for href="http://www.mcmillanlaw.com/">voluntary manslaughter with an
enhancement for use of a deadly or dangerous weapon (Pen. Code, §§ 192,
12022, subd. (b)(1)).href="#_ftn1"
name="_ftnref1" title="">^>[1]  He was sentenced to state prison for
11 years.

            The judgment
is affirmed.

>BACKGROUND

            Viewed
in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence
established the following.

            1.  Prosecution
evidence.

            On the night of October 18,
2008,
Rebecca V. went to a party in Hawaiian Gardens.  She drove her brother Victor’s car to the
party without his permission.  Once
there, she met up with Danny Valdez, whom she knew from high school.  Rebecca’s other brother, Marco, did not
approve of Danny and had previously told her to stay away from him.

            Shortly
after arriving at the party, Rebecca and Danny drove to a nearby grocery store
where they met defendant Cabrera and his girlfriend, Ashley.  Ashley was over 21 and therefore able to buy
alcohol.  The four of them went in and
bought a bottle of vodka.  As they were
leaving the store, Rebecca saw Marco and his friend Jose “Joey” Garcia
approaching from the parking lot. 
Rebecca told Danny, “Just let me talk to my brother.  Don’t say anything.”  Cabrera was standing right next to Rebecca
when she referred to Marco as her brother.

            Marco
was upset and shouting.  He said to
Rebecca, “[W]hat the fuck are you doing with him.”  Marco was also yelling at Danny and Cabrera,
“talking shit” and saying things like “[Y]ou want to fight me?” and “I’m not
scared of you.”  Rebecca was worried
because Marco had a short temper and she didn’t know what he might do.  Rebecca also heard Marco say, “These are the
guys that jumped me.”

            At
one point, Rebecca grabbed Marco’s wrists and he yelled at her to let him
go.  Rebecca was four feet 11 inches tall
and weighed 120 pounds, while Marco was five feet six inches tall and weighed
185 pounds.  Marco was a “big guy” who
was “pretty buff.”  Rebecca noticed
something was going on between Cabrera and Joey, but she could not see them
clearly because Marco was standing in front of her.  Cabrera then came toward them and swung his
fist.  Marco pushed Rebecca away and she
fell down.  While she was on the ground
she saw Joey “passed out on the floor.” 
When Danny and Ashley helped Rebecca to her feet, she told them to leave
her alone.  Cabrera, Ashley and Danny ran
off.

            Marco
told Rebecca to call the police because Joey was hurt.  Right after that, Marco collapsed on top of
Joey.  Rebecca could see blood soaking
through Marco’s shirt.

            Rebecca
testified she never screamed for help during her argument with Marco and that
she had not been afraid he was going to hurt her.  She testified Marco did not push, hit or
choke her during the incident.  She did
not hear Marco tell Joey to “get that guy” or “go get him.”

            Marco
was pronounced dead at the scene.  He had
sustained three sharp force entry wounds, two in the upper chest and one in the
chin.  One of the chest wounds had
punctured the superior vena cava, “the largest vein draining blood from the
head and neck region.”  The pathologist
described this wound as “rapidly fatal.”

            Joey
Garcia testified he and Marco had gone to a billiards club earlier that evening
where they drank beer.  From there they
went to Marco’s house, but then decided to buy more beer.  Before leaving for the grocery store, they
talked to Marco’s brother, Victor, about whether Rebecca had taken his car
without permission or if it had been stolen. 
Marco and Joey then drove to the store. 
According to Joey, Marco was not annoyed or upset at this point.  In the parking lot, they saw Victor’s car.

            Marco
asked Joey to call Victor to say they’d found his car.  While Joey was making the call on his cell
phone, Marco was walking toward the store and Joey was walking just behind
him.  Joey testified that after he put
his cell phone away he kept his hands in the pockets of his jacket.  When Rebecca came out of the grocery store,
Marco went up to her and yelled, “[W]hat the fuck are you doing with these guys
. . . take your ass home.” 
Then Marco said, “Hey, Joey these are the guys that jumped me.”  Cabrera responded by saying, “[W]hat the fuck
are you going to do about it.”  Joey also
heard Danny say something like, “[W]ho the fuck do you think you are.  You’re not her father.  You can’t tell her what to do.”

            Joey
started walking toward Cabrera because Cabrera had insulted them.  Joey did this on his own initiative; Marco
did not tell Joey to “go get him.” 
Joey’s intention was “to make a statement” because Cabrera and Danny
were “trying to intimidate” them.  Joey
still had his hands in his jacket because he was cold.  Cabrera took something shiny from his pocket
and swung his right arm toward Joey, who raised his left forearm to “block
[Cabrera’s] strike.”  Their forearms
collided.  Joey heard Marco say, “Hey,
Joey watch out,” and then someone hit Joey from behind.  He tried to get up, but he was hit again and
knocked unconscious.  A surveillance
camera in the grocery store parking lot, on which much of the incident had been
captured, apparently recorded Danny punching Joey and then kicking him while he
was on the ground.  When Joey regained
consciousness, Marco was lying on top of him. 
There was blood coming out of Marco’s mouth.

            Joey
testified he did not have a weapon that night. 
He did not see Marco with a weapon, and he did not know Marco to carry
weapons.

            2.  Defense
evidence.

            Cabrera
testified in his own behalf.  That night,
he picked up his girlfriend Ashley from work and drove to a restaurant.  Cabrera’s stepbrother Danny Valdez called to
say he was with a girl and they wanted to buy alcohol.  Cabrera agreed to meet them at a grocery
store.  When Cabrera and Ashley arrived,
Danny introduced them to Rebecca.  Inside
the store, Danny and Rebecca picked out a bottle of vodka which Ashley
purchased.

            As
the group was leaving the store, they were approached by Marco and Joey.  Cabrera had never seen them before; he denied
having ever had an altercation with Marco. 
Marco was being loud and verbally abusive to Danny and Rebecca, which
made Cabrera uncomfortable and nervous. 
Marco was “[g]etting out of control,” and “appeared very angry, like he
was looking for trouble.”  Cabrera did
not realize Marco was Rebecca’s brother; he thought Marco might be her
boyfriend and that he was angry because she was with Danny.  Marco and Rebecca were yelling at each other.

            Cabrera
noticed that Joey “had something in his hand and he put it in his pocket”:

            “Q.  And how did that make you feel when that
happened?

            “A.  It scared me.

            “Q.  And why was that?

            “A.  Because he just . . . put it in his
pocket and then he turned around and looked at me.

            “Q.  And you saw an object in his hand?

            “A.  Yes.

            “Q.  Did you know what the object was?

            “A.  No.  It
was too quick.  I didn’t see it in time.

            “Q.  So you couldn’t tell . . . what it
was?  It was just some object in his
hand?

            “A.  Yeah, it was something.  I didn’t know what it was.”

            Marco
turned around and told Joey, “Get this guy,” and Joey began walking toward Cabrera.  Joey looked upset and mad:

            “Q.  And what were you thinking . . . as
this person was walking towards you? 
“[¶] . . . [¶]

            “A.  . . . I knew he was coming to hurt
me.  I thought he was coming to do
something to me or to my girlfriend.”

            In
his pocket, Cabrera had a small pocket knife with a three- or four-inch
blade.  As Joey got closer to
Cabrera:

            “A.  I just backed up, I backed away from him.

            “Q.  What did you do?

            “A.  I reached for my knife.

            “Q.  Why did you reach for the knife?

            “A.  I don’t . . . know exactly.  I mean I don’t know exactly why I reached for
it.  I just did it.

            “Q.  Were you scared?

            “A.  Yes.

            “Q.  And why were you scared?

            “A.  He was coming at me and I seen something in
his hand.  And I knew he had something in
his pocket.”

            In
the next instant, Cabrera had swung his knife at Joey:

            “A.  I just seen [Joey] pull his hands out of his
pockets very fast . . . and he made a quick movement toward me with
one of his arms.

            “Q.  And what did you do?

            “A.  I swung with the hand that had my knife in
it.”

            Cabrera
testified their forearms collided and he retreated as Joey continued to come
toward him.  Then Cabrera noticed Marco
“had [Rebecca] by her neck and by her hair.” Rebecca was grabbing Marco’s
sleeve and trying to push him away.  Both
Marco and Rebecca were screaming and cursing. 
“It looked like [Marco] was hurting her. 
Looked like he was beating her up.” 
Marco’s hands were “all over her neck and her face and her hair”
and “[i]t looked to me like he was trying to strangle her or choke her.”  Cabrera grabbed Marco’s shoulder and that’s
when the fatal stabbing occurred:

            “A.  [Marco] swung at me with his right hand, with
the back of his fist, and he hit me.

            “Q.  And what happened then?

            “A.  He just turned around, took a step and lunged
at me.

            “Q.  What did you do?

            “A.  At that point, I pushed my hand on his
shoulder and I stabbed him.  [¶] . .
. [¶]

            “Q  And how many times did you stab him?

            “A.  I only remember doing it twice.

            “Q.  Where did you stab him, what part of the body?

            “A.  In his chest.

            “Q.  And did you ever stab him in his chin?

            “A.  I don’t remember that happening, but I know
it happened.

            “Q.  And at the time that you stepped in what was
your intent?  What were you intending to
do when you stepped into that fray?

            “A.  All I was trying to do was to get him to stop
hurting her.

            “Q  So were you trying to separate them or –

            “A.  Just get him off her, just to separate them.

            “Q.  In your mind was this moving quick, was it
moving slow?

            “A.  It all happened very fast.

            “Q.  And were you intending to kill him when you
stabbed him?

            “A.  No, sir.

            “Q.  Were you intending to injure him?

            “A.  No.

            “Q  Were you conscientiously [>sic] thinking about what you were doing
at that point in time?

            “A.  No, I wasn’t thinking.

            “Q.  Would you say you were aware of what you were
doing at that point in time?

            “A.  No, I wouldn’t say that.”

            Cabrera
also described the stabbing this way: 
“[Marco] hit me and I just reacted and I stabbed him.”  “[H]is arm is coming this way so, I put my
hand up and it only gets about this far. 
And then I just stabbed him . . . .”

            “A.  [Marco] was cursing at [Rebecca] when I
grabbed him.  And he turned around and
hit me. . . .  And I stabbed
him and then after that he kept cursing, but it was more towards me I think
after that.”

            “Q.  Did you know that you stabbed him when you
stabbed him?

            “A.  Did I actually know that it happened?

            “Q.  Yeah?

            “A.  I wasn’t really thinking it through, but when
I walked away, yes, I knew I stabbed him.

            “Q.  At the moment when you were stabbing him did
you know you were stabbing him?

            “A.  I didn’t really think about it.

            “Q.  You didn’t think about it before you stabbed
somebody?

            “A.  No, I didn’t think about it.  There was not enough time to think about what
was going on.”

            After
stabbing Marco, Cabrera fled with Danny and Ashley.  He later threw the knife away because he was
scared; he did not feel good about what had happened and he didn’t want the
knife near him.

            Dr.
Scott Fraser, a professor of neuropsychology
who teaches at UCLA and USC medical schools, explained the “flight or fight”
syndrome and the effects of stress on human reactions to frightening
situations.  People faced with
potentially dangerous situations experience a series of automatic physiological
reactions, including an increased blood flow to the skeletal muscular system
along with a compensating decreased blood flow to the brain’s frontal
cortex.  The frontal cortex “is the major
area where decision making occurs, where we monitor our behavior, where we
evaluate the consequences of potential actions.”  In such situations, a “survival instinct” is
triggered and a person is more likely to interpret actions and objects as
threatening and dangerous. 
Dr. Fraser opined these physiological reactions could have been
triggered by someone in Cabrera’s position the night of the stabbing.

            3.  Rebuttal
evidence.

            Craig
Ditsch of the Los Angeles County Sheriff’s Department was one of the lead
investigators on the case.  The first
time he interviewed Rebecca, which was about seven hours after the stabbing
occurred, he did not see a single scratch, red mark, bruise, or other type of
injury on her.  She did not have torn
clothing or look disheveled.  In fact,
Ditsch was struck by “how neat her hair was. 
Every hair was in place like she just got home from a date.”

>CONTENTION

            The trial court erred by
refusing to instruct on involuntary manslaughter as a lesser included offense
of murder.

>DISCUSSION

            Cabrera contends his
conviction must be reversed because the trial court should have instructed the
jury on involuntary manslaughter based on an imperfect self-defense
theory.  This claim is meritless.

            1.  Background.

            Cabrera
and Danny Valdez were jointly charged with murdering Marco and assaulting Joey
Garcia.  Danny pled guilty to the assault
and only Cabrera went to trial.  Cabrera
was acquitted of assaulting Joey, but convicted of voluntary manslaughter for
Marco’s death.

            At
trial, during a discussion about which jury instructions to use, Cabrera asked
for an involuntary manslaughter instruction on the theory he had acted in
imperfect self-defense and, therefore, the killing of Marco had been without
malice.

            The
trial court rejected the request:  “Well,
it’s not just the absence of malice. 
But as we discussed at length in chambers and this obviously was
not on the record, it was a discussion with counsel.  Everyone seemed to agree and [what] the
discussion focused on, was the phrase ‘conscious disregard for life.’  [¶] 
It’s your contention . . . the jury can find there was no
conscious disregard for life on the part of your client.  And [the prosecutor’s] contention and the one
that I agree with, is that when you take a knife and you stab someone in the chest,
there is a conscious disregard for life unless you have evidence, one that he
was unconscious or the motion was involuntary or some evidence to the
effect.  Just simply saying I wasn’t
thinking about what I was doing I don’t think takes it out of the level that
you’re entitled to ask the jury to find there was no conscious disregard for
life.  [¶]  He testified he intentionally took the knife
out, he opened the blade, he swung the knife, and . . . he admits
stabbing the person . . . twice in the chest.  [¶] 
Now obviously it was three times because there were three puncture
wounds, three separate wounds.  >But I don’t see how any way under that set
of facts that one can argue that there is no conscious disregard for life.  And that’s the element that prevents it from
being an involuntary manslaughter. 
[¶]  So your objection is noted
for the record, but the court is going to instruct the jury on second degree
murder as requested by the People and on the lesser included offense of
voluntary manslaughter.”  (Italics
added.)

            2.  Legal
principles.

            “When
there is substantial evidence that an element of the charged offense is
missing, but that the accused is guilty of a lesser included offense, the court
must instruct upon the lesser included offense, and must allow the jury to
return the lesser conviction, even if not requested to do so.  [Citations.]” 
(People v. Webster (1991) 54
Cal.3d 411, 443.)  In this context,
“substantial evidence” is evidence from which reasonable jurors could conclude
the lesser offense, but not the greater, had been committed.  (People
v. Breverman (1998) 19 Cal.4th 142, 162.)

            In >People v. Blakeley (2000) 23 Cal.4th 82,
our Supreme Court explained the difference between murder and the lesser
included offense of manslaughter:  “Murder
is the unlawful killing of a human being with malice aforethought.  (Pen. Code, § 187, subd. (a).)  Malice may be either express or implied.  It is express when the defendant manifests ‘a
deliberate intention unlawfully to take away the life of a fellow
creature.’  (§ 188.)  It is implied ‘when no considerable
provocation appears, or when the circumstances attending the killing show an
abandoned and malignant heart.’  (>Ibid.) 
This statutory definition of implied malice, we have said, ‘has never
proved of much assistance in defining the concept in concrete terms’
[citation], and juries should be instructed that malice is implied ‘when the
killing results from an intentional act, the natural consequences of which are
dangerous to life, which act was deliberately performed by a person who knows
that his conduct endangers the life of another and who acts with conscious
disregard for life’ [citation]. . . . 
[F]or convenience we shall describe this mental state as ‘conscious
disregard for life.’  [¶]  Manslaughter is ‘the unlawful killing of a
human being without malice.’ 
(§ 192.)  A defendant lacks
malice and is guilty of voluntary manslaughter in ‘limited, explicitly defined
circumstances:  either when the defendant
acts in a “sudden quarrel or heat of passion” (§ 192, subd. (a)), or
when the defendant kills in “unreasonable self-defense” – the unreasonable but
good faith belief in having to act in self-defense [citations].’  [Citation.]” 
(People v. Blakeley, supra,
23 Cal.4th at pp. 87-88, fn. omitted.)

            >Blakeley then framed the question before
it this way:  “A person who >intentionally kills in unreasonable
self-defense lacks malice and is guilty only of voluntary manslaughter, not
murder.  [Citations.]  But what offense is committed when a person,
acting with a conscious disregard for life, unintentionally
kills a human being, but the killing occurs in unreasonable self-defense?  Is the killer guilty of murder, voluntary
manslaughter, or involuntary manslaughter?” 
(People v. Blakeley, supra, 23
Cal.4th at p. 88.)  >Blakeley’s answer was:  “Here, we hold in a case of first impression
that voluntary manslaughter is also committed when a defendant, acting with
conscious disregard for life and the knowledge that the conduct is life-endangering,
unintentionally but unlawfully kills while having an unreasonable but good
faith belief in the need to act in self-defense.”  (Id.
at p. 85.)

            3.  Discussion.

            Citing
Blakeley, Cabrera contends there was href="http://www.mcmillanlaw.com/">substantial evidence to support an
involuntary manslaughter instruction in his case.  This claim is meritless, for both legal and
factual reasons.

            Cabrera’s
first error is legal because he has misconstrued what the Supreme Court said in
Blakeley.  Cabrera asserts the Blakeley majority held that “ â€˜when a defendant, acting with a
conscious disregard for life, unintentionally kills in unreasonable
self-defense, the killing is voluntary rather than involuntary
manslaughter.’  [Citation.]  Notably, however,
the Court acknowledged, while discussing Justice Mosk’s dissent, that >it had ‘no quarrel’ with the view that a
defendant ‘who kills in unreasonable self-defense may sometimes be guilty of
involuntary manslaughter.’ 
[Citation.]  Justice Mosk
distinguished between persons who with an actual, but unreasonable belief in
imminent danger of death or great bodily harm, act with malice aforethought,
either express or implied, and those who act ‘without due caution and
circumspection.’  [Citation.]  The latter category, in Justice Mosk’s view
would be guilty of involuntary manslaughter, while the former guilty of
voluntary manslaughter.  [Citation.]  Accordingly,
the Blakeley court concluded that the trial court erred ‘by failing to
instruct the jury that an unintentional killing in unreasonable self-defense is
involuntary manslaughter.”  (Italics
added.)

            Neither
italicized portion of Cabrera’s assertion is correct.

            What
the Blakeley majority actually said,
after noting Justice Mosk’s dissent, was this: 
“We have no quarrel with this view. 
We conclude only that a defendant who, with the intent to kill or with conscious disregard for life,
unlawfully kills in unreasonable self-defense is guilty of voluntary
manslaughter.”  (People v. Blakeley, supra, 23 Cal.4th at p. 91.)  Justice Mosk agreed with this statement:  “For my part, I have no quarrel with their
view.”  (Id. at p. 99, fn. 2 (dis. opn. by Mosk, J.).)  Hence, Justice Mosk agreed with the
majority’s holding that a defendant acting in imperfect self-defense >and with a conscious disregard for life
commits voluntary manslaughter, not involuntary manslaughter.href="#_ftn2" name="_ftnref2" title="">>^[2]  The fact the majority had no quarrel with
Justice Mosk’s view – that a defendant acting in imperfect self-defense but
with something less than conscious disregard for life, e.g., mere negligence,
would only be guilty of involuntary manslaughter – is simply irrelevant to
Cabrera’s case.

            In
addition, Cabrera’s statement, that “accordingly” the Blakeley majority concluded the trial court had erred by not
instructing on involuntary manslaughter, completely misses the majority’s
holding there was trial court error only
because of a retroactivity problem.  That
is, Blakeley’s answer to the
first-impression question it faced would have constituted an “unforeseen
judicial enlargement of the crime of voluntary manslaughter, and thus may not
be applied retroactively to defendant.” 
(People v. Blakeley, supra, 23
Cal.4th at p. 92.)href="#_ftn3"
name="_ftnref3" title="">^>[3]  Since Cabrera’s offense was committed well
after the Blakeley decision, the new
principle announced there applies to him.

            Cabrera’s
second error is factual because there is no substantial evidence that, in
stabbing Marco, he acted with anything other than a conscious disregard for
life.  Cabrera agrees “one view of the
evidence might support such a finding,” but argues “other substantial evidence
existed to support a reasonable conclusion that the appellant acted reflexively
while brandishing a [knife] and without an intent to kill or a conscious
disregard for life.”  We disagree.

            If by
“reflexively” Cabrera means there was evidence he acted either unconsciously or
accidentally, the overwhelming weight of the evidence was to the contrary.  Cabrera’s own testimony shows he was fully
cognizant of what he was doing when he stabbed Marco, that it had been an
intentional and deliberate act, and that the stabbing had not been
accidental.  Cabrera was very clear he
knowingly stabbed Marco out of fear and because he believed it was necessary to
protect Rebecca and/or himself.

            Although
Cabrera occasionally testified that when he stabbed Marco he “didn’t really
think about it” and he “wasn’t thinking,” the overwhelming weight of his
testimony demonstrated he had been acting intentionally.  Describing his encounter with Joey, Cabrera
testified that when he saw Joey pull his hands from his jacket and make an arm
movement, he “swung with the hand that had my knife in it.”  Similarly, when Marco lunged at Cabrera:  “I stabbed him.”  “And then I just stabbed him . . . .”  “[Marco] turned around and hit
me. . . .  And I stabbed
him and then after that he kept cursing . . . .”  “I wasn’t really thinking it through,
but when I walked away, yes, I knew I stabbed him.”

            Indeed,
defense counsel’s closing statement tried to argue around this evidence showing
Cabrera had stabbed Marco intentionally. 
Counsel argued Cabrera “saw and heard what appeared to be a young woman
getting beat up and injured and instinctively reacted.”  “[Cabrera] sees this buff big strong guy and
this girl and they are getting physical and there’s a physical confrontation
going on.  And one second passes and he
reacts.  He thinks because of what he
heard, because of what he saw, because he just got attacked by this guy Joey,
that something crazy’s going on.  That
this guy is hurting [Rebecca].  And he
sees that and he acts.  He reacts.  It’s not a decision . . . like I
think I’ll step in there and maybe do something.  He reacts because he thinks this girl is
going to suffer great bodily injury. 
He’s on auto pilot.  It’s
automaticity.  He scared for her.”  “He wasn’t acting in conscious disregard [for
life]. . . .  [T]here was no
conscious disregard.  There was no
thought process.  The thought process was I see a girl getting
beat up by a big buff guy and I’m acting. 
That’s what happened.” 
(Italics added.)

            Cabrera
may have been afraid.  In the heat of the
moment, he may have believed his violent intervention was necessary to protect
Rebecca or himself.  There is, however,
no doubt that he knowingly and intentionally stabbed Marco.  Cabrera offers absolutely no authority or
reasoned argument to support the proposition that this sort of “reflexive” or
“instinctual” killing is not done with a conscious disregard for life.  As the trial court said:  “[W]hen you take a knife and you stab someone
in the chest, there is a conscious disregard for life unless you have evidence,
one that he was unconscious or the motion was involuntary or some evidence to
the effect.  Just simply saying I wasn’t
thinking about what I was doing . . . [does not entitle you] to ask
the jury to find there was no conscious disregard for life.  [¶]  He
testified he intentionally took the knife out, he opened the blade, he swung
the knife, and . . . he admits stabbing the person . . .
twice in the chest.”

            Cabrera’s
case is essentially the same as People v.
Garcia (2008) 162 Cal.App.4th 18, where Garcia hit the victim, Gonzalez, in
the face with the butt of a shotgun, causing Gonzalez to fall, hit his head on
the sidewalk and die.  Garcia testified
“Gonzalez had lunged toward him and . . . he thought Gonzalez was
going to try to fight him and was concerned Gonzalez would take the gun,” so
Garcia “ â€˜just reacted’ and . . . [he] jabbed or swung at
Gonzalez to back him up.  He did not
intend to hit Gonzalez in the face and ‘never intended to kill him or for him
to die.’ â€  (Id. at p. 25.)  The trial
court refused to instruct on involuntary manslaughter as a lesser-included
offense, reasoning Gonzalez had died “as the direct result of an inherently
dangerous felony such as assault with a deadly weapon or assault with a
firearm.”  (Id. at p. 26.)  The court of
appeal affirmed:  “Absent proof of malice
– whether because malice was negated by provocation or the doctrine of
imperfect self-defense or because of an absence of proof that ‘the
circumstances attending the killing show[ed] an abandoned and malignant heart’
[citation] – Garcia committed manslaughter, ‘the unlawful killing of a human
being without malice.’  [Citations.]  Because Gonzalez’s death did not occur in the
commission of either a dangerous misdemeanor [citation], or a lawful act in an
unlawful manner or without due caution and circumspection, it does not fall
within the statutory definition of involuntary manslaughter [citation].  [¶]  .
. . [I]n light of the undisputed evidence Garcia assaulted Gonzalez with a
deadly weapon/firearm, knocking him to the sidewalk where he hit his head and
died, there was not sufficient evidence in this case the killing of Gonzalez
was involuntary manslaughter. 
Accordingly, no involuntary manslaughter instruction was required.”  (Id.
at pp. 32-33.)

            In
his own testimony, Cabrera acknowledged knowingly and deliberately stabbing
Marco because he believed it was necessary to save himself and/or Rebecca from
harm.  The other evidence at trial also
showed the stabbing had been intentional, and hence there was no evidence from
which the jury could have concluded Cabrera was acting without a conscious
disregard for life.  “[V]oluntary
manslaughter, but no lesser offense, is . . . committed when one
kills unlawfully, and with conscious
disregard for life, but lacks malice because of provocation or imperfect
self-defense.”  (People v. Rios (2000) 23 Cal.4th 450, 461, fn. 7.)  Because there was no substantial evidence
from which the jury could have reasonably concluded Cabrera committed
involuntary manslaughter, there was no error in not giving a lesser included
offense instruction.  (See >People v. Webster, supra, 54
Cal.3d at p. 443.)

>DISPOSITION

            The judgment is
affirmed.

 

            NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS

 

 

 

 

 

                                                                                    KLEIN, P. J.

 

We Concur:

 

 

 

 

                        KITCHING, J.

 

 

 

 

                        ALDRICH, J.