>P. v. Ordonez













Filed 4/10/13
P. v. Ordonez CA2/8















NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 EIGHT


>

THE PEOPLE, Plaintiff and Respondent, v. MARTIN ORDONEZ, Defendant and Appellant.

B238528 (Los Angeles County Super. Ct. No. LA068187)

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



Steven Schorr, 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, Scott A. Taryle and Pamela C. Hamanaka, Deputy Attorneys
General, for Plaintiff and Respondent.



* * * * * * * *



Defendant and appellant Martin
Ordonez was convicted by jury of one count of href="http://www.fearnotlaw.com/">first degree murder of Crystal Zaldivar
(Pen. Code, § 187, subd. (a)). The jury
also found true the special allegation that he personally used a deadly weapon,
a knife, in the commission of the murder (§ 12022, subd. (b)(1)). Defendant was sentenced to a term of 26 years
to life in state prison.

Defendant contends the trial court
committed reversible error by refusing to instruct on (1) the lesser included
offense of voluntary manslaughter,
based on imperfect self-defense and heat of passion, and (2) voluntary
intoxication causing unconsciousness, as well as its effects on homicide
crimes. Defendant further contends the
trial court erred by ordering him to pay attorney fees in the amount $400,
without notice or an opportunity to be heard.
(Pen. Code, § 987.8, subd. (b).)
We conclude the trial court did not err in refusing to instruct on
voluntary manslaughter, under either theory, and voluntary intoxication causing
unconsciousness. We do not decide whether the trial court
should have instructed on the effects of voluntary intoxication on homicide
crimes as we find any alleged error to be harmless. We therefore affirm. However, we reverse the attorney fee order
and strike it from the judgment in that the trial court failed to hold a
hearing pursuant to section 987.8, subdivision (b).



FACTS AND PROCEDURAL
BACKGROUND

>1. The Crime Scene

> Sergio
Munoz worked for a company that handled maintenance at an apartment complex in
the 7000 block of Whitsett Avenue. At about 10:00
a.m., on June 26, 2009,
he received a phone call concerning “a rather serious leak in apartment
1,” on the first floor.
At about 3:00 p.m., Munoz
responded to the location, observed the leak and requested a key from the
building manager to enter apartment 4,
above apartment 1, to
identify the source of the leak. The
manager did not have a key.
Nevertheless, Munoz gained entrance via an unlocked screen door and an
open front door. Inside, he saw
“Crista,” lying on the floor. He closed
the door and notified the authorities.

Los Angeles Police Officer Joel
Gutierrez responded to the location. He,
too, saw Crystal lying on the floor. She
was not breathing and had no pulse. No
one else was inside the apartment, only a small dog (or dogs). Water was overflowing from the bathtub. Gutierrez turned off the bathtub faucet and
secured the crime scene.

Los Angeles Police Detective Thomas
Townsend responded to the Whitsett apartment complex sometime after 3:30
p.m. En route to apartment 4, he
observed what appeared to be drops of blood at the bottom of the stairs, on
various steps and at the top of the landing.
Townsend entered the apartment and observed Crystal lying on the wet
carpet floor. Someone from the fire
department had placed a blanket over her.


In the kitchen, Detective Townsend observed six glass slats had been
removed from a louvered window and stacked on the counter. The window screen had also been removed. In the bathroom, Townsend observed water on
the floor.

Ogbonna Chinwah, MD, Deputy Medical
Examiner, Los Angeles County Department of Coroner, observed that Crystal
sustained between 40 and 42 sharp force injuries. She suffered 15 stab wounds to her face,
seven of the which were fatal, six stab wounds to her neck, all fatal, four
stab wounds to her chest, two of which were fatal, and eight stab wounds to her
abdomen, none of which were fatal. She
had multiple defensive wounds to her hands and arms, and bruising on her
forearm, consistent with being held in place.
Chinwah determined the manner of death to be homicide and the cause of
death to be multiple sharp force injuries.
Although Crystal had Carboxy THC and 0.07 percent methamphetamine in her
blood, neither contributed to her death.




2. The “Robbery”

Around noon, June 26, 2009, Los
Angeles Police Department Officer Rafael Tobar responded to an emergency call
of an ambulance dispatched to handle a “cutting” at the Whitsett apartment
complex. Upon arrival, Tobar spoke to
Juan M., defendant’s 13-year-old brother.
Juan stated that he and defendant were in an alley nearby and were
approached by a couple of individuals who tried to rob them.

Defendant was taken by ambulance to
the hospital. At the hospital, Tobar
observed numerous cuts on defendant’s hands.
Defendant told Tobar that he and Juan were walking down the alley when
two male blacks, wearing black ski masks and black clothing, approached
from behind and demanded that they give up “whatever they have” “if they didn’t
want to get hurt.” Both assailants were
holding knives. One of the robbers
lunged at defendant. Defendant grabbed
the knife and told his brother to run for help.

Later that afternoon, Officer Tobar
returned to the Whitsett apartment and described for Detective Townsend the
slices on defendant’s hands. Given
defendant stated he was robbed at knife point, Townsend suspected the
two crimes might be related and defendant may have been “the last person
who may have seen these people.”
Townsend also considered if defendant had stabbed Crystal with a knife
without a hilt, he could have caused the injuries to his hands.



>3. Juan M.’s Statement to the Police

Defendant and Juan were transported
to the North Hollywood police station.
Detectives Townsend and O’Donnell spoke first to Juan. Juan told the detectives two men with ski
masks tried to rob defendant and him at knife point in the alley, and that he
ran while defendant fought them off, sustaining cuts to his fingers.

The detectives informed Juan they expected to obtain security video
footage of the incident from an adjacent Chevron gas station. A few minutes later, after some cajoling by
the detectives, Juan recanted: “The
truth is I was at home . . . playing.
Then my brother leaves. He’s
like, stay here. [¶] I said, okay. And then I – I go and get something to eat. .
. . [¶]
Then I hear he just knocks hard.
And . . . I just opened the door.
And then I see the cuts. [¶] I said, ‘what happened? . . . .’ [¶]
He’s like, ‘all right, listen . . . if the police come, tell them . . .
that you were with me the whole day and that we went to go back here [>sic].’
[¶] And I said, ‘okay.’” Juan added defendant was gone for less than
an hour, maybe 10 to 20 minutes.href="#_ftn1"
name="_ftnref1" title="">>[1]



>4. Defendant’s Statement to the Police

Detectives Townsend and O’Donnell
informed defendant they had a long conversation with Juan. They asked defendant, “What do you think he
told us about the black guys with the ski masks ?” Defendant responded “they weren’t true.” The detectives then asked if Juan was telling
the truth (i.e., there were no black robbers with ski masks). Defendant answered, “Yes.”

Defendant then gave a second version
of what transpired. He stated he woke up
around 7:00 or 8:00 a.m., walked downstairs and “when I was coming back
upstairs Crystal’s door was open. And
then I saw her. I took off my . . .
flannel shirt . . . .
[¶] . . . I covered her. And then I started crying. And then there was this guy, I don’t know who
he was, but he had tattoos all over him. . . .
He was . . . Hispanic. And he was
short. [¶] But he had like – you know when you enter the
Marines and you have those kind of tats . . . .
[¶] . . .
[¶] . . . I saw the kitchen knife, like it was jammed
in her. And I took it out. And I got scared because I had my
fingerprints on it. And the guy grabbed
it and tried to slash me. And I actually
did fight him off. [¶] And then he had the window open, and he had
jumped out the back window and he ran for his life. And I got scared. And then I was looking out her door. Like, so there was no one there, and then I
walked into my house.”

After a few minutes of encouraging defendant to do the “right thing,” Detective Townsend
bluntly asked defendant, “what happened with Crystal?” Defendant responded, “I
don’t know. It just happened. . . . I just grabbed her. I hit her in the stomach. [¶] .
. . [¶]
With the knife.” He stated, “I
just snapped” and “[a]ll I remember is I was on top of her with the knife.”

Defendant explained, “I woke up . . . I kept falling asleep
like because I was doing air duster. [¶] . . . I decided to
go over and talk to her. And that’s when
I told her that my girlfriend doesn’t want me to talk to her anymore. And . . . she just went off. She’s like, ‘what the fuck. Fuck that bitch.’ [¶] She was saying fuck
you for listening to her. And it’s like,
your whole family is stupid and her family is stupid and she’s a stupid piece
of shit. That’s when I just got
mad. [¶] . . . [¶] I
grabbed the knife.
[¶] . . .
[¶] [It was in] the kitchen. I asked her if I could get something to
drink.”

Defendant added when he stabbed Crystal, she was sitting
on the couch, facing the television, petting her dog. Defendant stated, “I
grabbed her mouth and I jumped on her and that’s when I shanked her in the
stomach first. And then I just
remembered I kept going and then in her face.
Then I guess I missed a couple of times and got myself. [¶] I
just remember laying on top of her. I
was twitching when I was laying on top of her.
I twitched like three times and that’s when I realized what the hell I’d
done.”

Defendant told the detectives he
turned on the water in Crystal’s bathroom and poured water over her face and
stomach. He then kissed her on the
forehead and told her he was “very sorry.”
Defendant removed the window slats and threw the things he touched out
the window, including a pillow, a bag, his flannel shirt, a blanket and the
kitchen knife. Defendant stated he put
all the items in a laundry bag and hid them in the back of the building parking
lot.

The interview concluded with the
detectives inquiring about air duster.
Defendant explained it is used to clean a computer and that one huffs
it, adding “it makes you go to sleep.”
When asked how long the feeling lasts, defendant responded, “I still
feel it right now. I’ve been doing it
since yesterday. I probably had like
eight cans.” Defendant stated he
finished three cans that morning, prior to stabbing Crystal.



>5. Defendant’s Trial Testimony

At trial, defendant testified he
awakened at 3:00 a.m. on June 26, 2009.
He was nauseous and his mouth was dry from “huffing” the day
before. He went outside to get fresh air
and saw Crystal coming home. They
chatted for a moment. She suggested,
“maybe we should kick it sometime.”

Defendant returned to his apartment
and tried to sleep, but he felt fidgety.
He could not stay still, so he played Xbox and started huffing
again. He woke up Juan, and for the next
couple of hours they took turns playing Xbox.


Defendant’s little sister was having her kindergarten
graduation party at her school that morning.
Defendant’s stepfather and grandparents were attending. Defendant stayed home to watch Juan.

Later that morning, defendant
received a phone call from his girlfriend.
She was extremely upset upon learning Michael Jackson had died. Defendant unsuccessfully tried to comfort
her. Defendant hung up and decided to go
outside, maybe to smoke a cigarette.
Defendant testified he had been huffing prior to leaving his
apartment.

As defendant walked towards the
stairs, he thought, “[I] might as well kick it with [Crystal]. I have nothing else to do.” Defendant walked to Crystal’s apartment and
knocked. She was texting when she
answered the door. She invited him in
and they engaged in pleasantries.

According to defendant, Crystal was
just an acquaintance. They did not hang
out in the same crowd. Crystal asked
defendant if his girlfriend would “trip” if she found out he was with her, in
her apartment, alone. Defendant told her
his girlfriend would be mad; that she does not like him hanging around with
other girls. His response caused Crystal
to “flip[] out.” She said to
defendant: “You’re stupid. Why would you listen to her? You know, you’re a piece of shit if you do
listen to her. Your girlfriend is a
bitch.”

Defendant responded: “You’re no prize either. What makes you better than any other
girl? What makes you better than my
girlfriend?” Then, “she got real
pissed. She got heated. [¶] . . . [¶] I
kept telling her to chill. Told her,
‘you know what? Can I get a glass of
water?’ [¶] . . . [¶]
Yeah, I was still thirsty because I kept
getting sort of cotton mouth. And I went
over there to get a glass of water. Also
to, you know, give her a little space, you know. She could calm down.”

Defendant walked the four or five
steps to the kitchen to get water; he was feeling uncomfortable, scared and
angry. Crystal continued yelling,
insulting defendant and his girlfriend.
She said, “you don’t even know me.
You know, I could find people to fuck her up.”

Defendant testified he was just
getting a glass of water and he hoped Crystal would “just chill for a
while. But . . . she kept saying, ‘you
don’t know me. I can find anybody to
kill your family. Your little sister or
brother, [like] nothing.’” Defendant
added, “I wouldn’t know why she would bring my family into this, especially my
little sister. So it just got me scared someone
to do those things [sic].” Defendant stated he was afraid Crystal would
carry out her threats. “I’ve known the people she’s – she or the rest of her
family has come to hang out with. . . . They come try to beat someone up, punk
somebody, bring a knife out at a party, trying to rob somebody.”

Defendant testified Crystal “kept
talking, saying the same things. She
find [sic] anybody to kill my little
sister, my brother, my family like nothing.
And I snapped. [¶] . .
. [¶]
I grabbed a knife. [¶] . . . [¶] On
the counter.
[¶] . . .
[¶] I ran towards her. I covered her mouth, and I stabbed her
in the stomach.
[¶] . . .
[¶] I couldn’t take the – hear
any more of what she was saying.”
Defendant reiterated Crystal hung out with “dangerous people,” which is
why he snapped, took the knife and stabbed her.

He then began “twitching.” “I started coming to
my senses. And I seen [>sic] her laying down right there
bloody. I got scared and I
panicked.” Defendant did not realize he
had cut himself.

Defendant admitted to
removing the slats from the kitchen window and throwing certain items out it,
including the kitchen
knife, then hiding the items in a storage locker in the parking area. “I hid them because . . . my blood was on it [>sic], and I was scared.”
“I wasn’t thinking. I was just scared. Fear ran through my veins, through my
blood. I did not know what to do.” Defendant also admitted he lied to the
police, again explaining he was scared.


To
demonstrate defendant was cognizant throughout the incident, during
cross-examination, the prosecutor engaged the defendant in the following
dialogue:

“Q You thought about it. What am I going to do to get away with this,
right?

“A Yes.

“Q You knew when
you came to, according to yourself, when you – the first thought that came back
to you after you were in the kitchen, you knew you had killed Crystal, correct?

“A Correct.

“Q And you knew that you used that knife,
correct? [¶] . . .
[¶]

“A Correct.

“Q Put that in
the bag with everything else, and you threw all that stuff out the window,
correct?

“A Yes.

“Q And it was
then you decided, I need to come up with a story to cover up what happened
because I got injuries to my hands and I got a dead neighbor, right?

“A Yes.
I ran to my house.

“Q Before you
even got to your house had you already decided that there was an attempted
robbery you were going to make up? Or
was it when you got to the apartment?

“A No.

“Q So when you asked your brother to lie
for you, which you did do, right?

“A Correct.

“Q You had already intended on lying about
this?

“A Yes.

“Q You already
knew you were going to lie to the police about what happened to you at that
point, correct.

“A Correct.

“Q And you
decided to ask your 13-year-old brother to also lie to the police for you,
correct?

“A Yes.

“Q And then you came up with a story about
guys in the alleyway with knives and had your brother also tell that story too,
correct?

“A Correct.

“Q That was your story, right? I mean you came up with that?

“A Correct.

“Q And you came
up with the facts that they had knives because you knew you needed to explain
the cuts on your hands, right?

“A Right.

“Q You’re thinking about all of this,
right? This is stuff you’ve thought,
right?

“A After the fact, yes.”

When
asked why he never mentioned Crystal’s threats during his interview with the
police, defendant stated he tried to but was cut off by the detectives.href="#_ftn2" name="_ftnref2" title="">>[2]


Defendant conceded, in response to
Crystal’s threats, he could have simply walked out the front door and
left. He reiterated he snapped when she
said she might kill his family and that’s when he stopped thinking. According to defendant, he blacked out and
had no idea what was going on while he was stabbing Crystal, although he
admitted he remembered covering her mouth, getting on top of her, holding her
down and repeatedly stabbing her in the stomach and the face.

As for defendant’s use of air
duster, the prosecutor and the defendant engaged in the following colloquy:

“Q Now, you’d been huffing that morning,
right?

“A Correct. . . .

“Q And the day before?

“A Correct.

“Q You didn’t snap because you were
huffing, right?

“A No.

“Q You didn’t stab her 42 times because you
were huffing, correct?

“A Correct.

“Q You’d been
huffing, but going over there had nothing to do with huffing, right?

“A Correct.

“Q And while you
were there, you were just planning on having just a little time hanging out
with her, right?

“A Yeah.

“Q You started getting mad, right?

“A Yes.

“Q And then when she said something about
killing your family is when she crossed a line for you?

“A Correct.

“Q That has nothing to do with huffing,
right?

“A Nothing to do with huffing.”

Defendant
stated he took her threats personally.



6. Defendant’s Toxicologist’s
Trial Testimony

Defendant called John Treuting, Ph.D.,
as an expert in clinical and forensic toxicology. Treuting testified “huffing is a term that is
used for the inhalation of volatile substances . . . .” Treuting added that huffing a product such as
air duster can cause pleasurable effects, in addition to slurred speech, clumsy
movement and/or dizziness. Disruption of
normal brain activity occurs and the individual does not process information
well.

According to Dr. Treuting, “you have
a confusional state, which can effect [sic]
both your reasoning and your judgment.
And if enough of it continues to be used, some individuals have been
shown to be delusional or can hallucinate.
And there are cases where individuals die because of, literally, oxygen
deprivation.” Treuting opined someone
huffing three or four cans of air duster over a three-to-five-hour period would
be under the influence. He added, “you
have more . . . pronounced mind-altering effects if you continue to use it for
some protracted period of time.”

On cross-examination, Dr. Treuting
was asked whether “someone who’s huffed could stab someone 42 times and it have
nothing to do with the huffing?”
Treuting answered, “I think that’s possible.” Treuting added that one who has huffed is
still capable of making decisions, however normal brain function will be
impaired and ability to process information will be affected.



>7. Jury Instruction Hearing

Defendant
requested lesser included instructions on voluntary manslaughter based on heat
of passion and imperfect self-defense. After entertaining argument, the trial court
declined to instruct on imperfect self-defense, finding there was “no evidence
of immediate danger.” The trial court
similarly declined to instruct on heat of passion, explaining defendant never
suggested he killed Crystal because the things she allegedly said “inflamed him
so much that he just wanted to kill her because of what she was saying . . .
that’s not what he said.”

Defendant also requested
instructions on voluntary intoxication and voluntary intoxication causing
unconsciousness. The trial court
declined, explaining “I’m not making a credibility call. That is for sure. And in accepting [defendant’s] testimony I
cannot say I find substantial evidence of intoxication since [defendant] said
[huffing] had nothing to do with anything in this case. He said it multiple, multiple times.”



8. The Verdict and Sentencing

The jury returned a verdict finding
defendant guilty of first degree murder, in violation of Penal Code section
187, subdivision (a). The jury also
found true the special allegation that defendant personally used a knife in the
commission of the murder, within the meaning of section 12022, subdivision
(b)(1).

Defendant timely submitted a motion
for a new trial. It was heard prior to
sentencing. In it, defendant argued the
court erred in failing to instruct on imperfect self-defense and heat of
passion.href="#_ftn3" name="_ftnref3" title="">>[3] The court did not agree and denied
defendant’s motion for a new trial.

The court sentenced defendant to a
term of life on the murder charge, with a minimum eligibility date for parole
of 25 years. The court imposed a
consecutive one-year term for the personal use of a deadly weapon allegation. Defendant’s aggregate sentence was 26 years
to life in state prison. The court
awarded defendant 929 days of custody credit and imposed various fines and
penalties. The trial court also ordered
defendant to pay attorney fees in the amount $400, although there is no record
of either notice or of a hearing pursuant to Penal Code section 987.8,
subdivision (b). This timely appeal
followed.



DISCUSSION

> Defendant
contends the trial court committed reversible error when it failed to instruct
the jury on the lesser included offense of voluntary manslaughter, based on
imperfect self-defense and heat of passion.
Defendant further argues the trial court committed reversible error by
refusing to instruct on voluntary intoxication.
Finally, defendant contends the trial court erred by ordering defendant
to pay attorney fees, without notice or a hearing.

We disagree with defendant that the
trial court erred by refusing to instruct on voluntary manslaughter, based on
imperfect self-defense and heat of passion, as well as voluntary intoxication
causing unconsciousness. We do not herein
determine whether the trial court should have instructed on the effects of
voluntary intoxication on homicide crimes as we find any alleged error to be
harmless. Finally, we agree with defendant that
the trial court erred by ordering him to pay
attorney fees, without notice or hearing.




I. Voluntary Manslaughter

> A
defendant has a constitutional right to have the jury determine every material
issue presented by the evidence. (>People v. Lewis (2001) 25 Cal.4th 610,
645 (Lewis).) In accordance with this right, “[a] court
must instruct sua sponte on general principles of law that are closely and
openly connected with the facts presented at trial.” (People
v. Lopez (1998) 19 Cal.4th 282, 287.)


Moreover, “a trial court must instruct
on lesser included offenses, even in the absence of a request, whenever there
is substantial evidence raising a question as to whether all of the elements of
the charged offense are present.” (>Lewis, supra, 25 Cal.4th at p.
645.) “Conversely, even on request, a
trial judge has no duty to instruct on any lesser offense unless there is substantial evidence to support such
instruction.” (People v. Cunningham (2001) 25 Cal.4th 926, 1008.) “[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on
a lesser included offense . . . .” (>Breverman, supra, 19 Cal.4th at p. 162.)
Evidence is substantial for this purpose if it could cause a jury
composed of reasonable persons to conclude that the defendant committed the
lesser but not the greater offense. (>Ibid.)

Voluntary manslaughter is a lesser included offense of murder. Either imperfect self-defense or heat of
passion will reduce an intentional killing from murder to voluntary
manslaughter by negating the element of malice.
(§ 192, subd. (a); People v.
Breverman (1998) 19 Cal.4th 142, 154 (Breverman).)



>A. Imperfect
Self-defense

Defendant contends he snapped
and killed Crystal because of her threat to have his family killed. Defendant argues he feared imminent danger to
life or great bodily injury
because he knew Crystal associated with “dangerous people,” and she so
stated. Moreover, she was texting when
he entered her apartment so she could easily have carried out her threats via
text. Defendant contends “the jury could
have reasonably inferred he actually believed he needed to use deadly force
right then and there to prevent the imminent threat of [Crystal] putting in
motion a diabolical scheme to kill his family.”
We do not agree.

“Under the doctrine of imperfect
self-defense, when the trier of fact finds that a defendant killed another
person because the defendant actually
but unreasonably believed he was in imminent danger of death or great bodily
injury, the defendant is deemed to have acted without malice and thus can be
convicted of no crime greater than voluntary manslaughter.” (In re
Christian S. (1994) 7 Cal.4th 768, 771.) The Supreme Court cautioned, however, that
“the doctrine is narrow. It requires without
exception that the defendant must have had an actual belief in the need for self-defense. [The Supreme Court] also emphasize[d] what
should be obvious. Fear of future harm –
no matter how great the fear and no matter how great the likelihood of the harm
– will not suffice. The defendant’s fear
must be of imminent danger to life or
great bodily injury. ‘“[T]he peril must
appear to the defendant as immediate and present and not prospective or even in
the near future. An imminent peril is one that, from appearances, must be instantly
dealt with.”’ [Citation.]” (Id.
at p. 783.)

Imperfect self-defense also applies
when a person kills under an actual but unreasonable belief in the necessity to
defend another person from imminent peril to life. (People
v. Randle (2005) 35 Cal.4th 987, 996-997, overruled on other grounds in >People v. Chun (2009) 45 Cal.4th 1172,
1201.) “[O]ne who kills in imperfect
defense of others –in the actual but unreasonable belief he must defend another
from imminent danger of death or great bodily injury – is guilty only of
manslaughter.” (Id. at p. 993.) >

Here, however, the evidence
proffered by the defense “simply was not substantial enough to merit the
requested jury instruction.” (>People v. Booker (2011) 51 Cal.4th 141,
183 [defense request for imperfect self-defense instruction properly refused
because evidence, including the defendant’s own contradictory accounts of the
stabbing, was not sufficiently substantial to support giving the instruction].) When defendant stabbed Crystal, she was
seated on her couch, facing the television, with her back to him, petting her
dog; she was unarmed. The record is
devoid of evidence Crystal was still in possession of her cell phone.

Defendant did not allege Crystal was
going to have his girlfriend or family members immediately killed. Rather, Crystal’s purported statements were
conditional threats of possible future harm, such as “I could
find people to fuck her up.” Moreover,
no evidence was presented that either Crystal or the people she associated with
had ever killed anyone. At most,
defendant testified they were known to rob and beat people up.

Defendant conceded on
cross-examination that nothing prevented him from simply walking out of
Crystal’s apartment. Had he done so, he
could have returned to his apartment and called the police to address Crystal’s
threats, if he was truly in fear for his girlfriend’s or his family’s
safety. Again, “[f]ear of future harm—no
matter how great the fear and no matter how great the likelihood of the
harm—will not suffice. The defendant’s
fear must be of imminent danger to
life or great bodily injury.” (>In re Christian S., >supra, 7 Cal.4th at p. 783.) Instead, defendant “snapped”
when she said she might kill his family.

Since we find no evidence of
imminent danger, we find the trial court did not err in refusing to instruct on
voluntary manslaughter based on imperfect self-defense. As such, we find defendant’s further
contention, that the trial court violated defendant’s state and federal
constitutional due process and jury trial rights to be unavailing. (See Breverman,
supra, 19 Cal.4th at pp. 162,
165 [“We conclude that the failure to instruct sua sponte on a lesser included
offense in a noncapital case is, at most, an error of California law alone, and
is thus subject only to state standards of reversibility. We further determine, in line with recent
authority, that such misdirection of the jury is not subject to reversal unless
an examination of the entire record establishes a reasonable probability that
the error affected the outcome.”]; see also Keeble
v. United States (1973) 412 U.S. 205, 208 [“[I]t is now
beyond dispute that the defendant is entitled to an
instruction on a lesser included offense if the evidence would permit a jury
rationally to find him guilty of the lesser offense and acquit him of the
greater.”].)



B. Heat
of Passion

> Defendant
contends the trial court erred in refusing to instruct on voluntary
manslaughter based on heat of passion.
We do not agree.

> “An
intentional, unlawful homicide is ‘upon a sudden quarrel or heat of passion,’
. . . and is thus voluntary manslaughter . . . , if the killer’s reason
was actually obscured as the result of a strong passion aroused by a
‘provocation’ sufficient to cause an “‘ordinary [person] of average disposition
. . . to act rashly or without due deliberation and reflection, and from this
passion rather than from judgment.”’ . . . ‘“[N]o specific type of provocation
[is] required . . . .”’ . . . Moreover,
the passion aroused need not be anger or rage, but can be any ‘“‘[v]iolent,
intense, high-wrought or enthusiastic emotion’”’. . . other than revenge. . .
. ‘However, if sufficient time has
elapsed between the provocation and the fatal blow for passion to subside and
reason to return, the killing is not voluntary manslaughter. . . .’ . . .” (Breverman,
supra, 19 Cal.4th at p. 163,
citations omitted.)

Heat of passion has two
elements: (1) an objective or reasonable
person element and (2) a subjective element.
(People v. Wickersham (1982)
32 Cal.3d 307, 326-327, disapproved on other grounds by People v. Barton (1995) 12 Cal.4th 186.) The objective element requires “the accused’s
heat of passion must be due to ‘sufficient provocation.’ [Citation.]”
(Wickersham, at p. 326.) “The subjective element requires that the
actor be under the actual influence of a strong passion at the time of the
homicide.” (Id. at p. 327.)

“The
test of adequate provocation is an objective one . . . . The provocation must be such that an average,
sober person would be so inflamed that he or she would lose reason and
judgment. Adequate provocation and heat
of passion must be affirmatively demonstrated.”
(People v. Lee (1999) 20
Cal.4th 47, 60, citing People v. Sedeno (1974) 10 Cal.3d 703, 719; People
v. Williams (1969) 71 Cal.2d 614, 624.)
“The focus is on the provocation ‑‑ the surrounding
circumstances ‑‑ and whether it was sufficient to cause a
reasonable person to act rashly.” (>People v. Najera (2006) 138 Cal.App.4th
212, 223 (Najera).) Here, we find an average, sober person would
not have been so inflamed by Crystal’s alleged comments that he would lose
reason and judgment.

In Najera, supra, 138
Cal.App.4th at page 226, calling the defendant a “faggot” was found to be
insufficient provocation to cause an ordinary person to lose reason and
judgment under an objective standard.
“‘“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.”’” (Ibid., quoting People v. Wells (1938) 10 Cal.2d 610, 623.)

In People v. Manriquez
(2005) 37 Cal.4th 547, 586, the victim called the defendant a “mother fucker”
and taunted him by “repeatedly asserting that if defendant had a weapon, he
should take it out and use it.” The
California Supreme Court stated such declarations “plainly were insufficient to
cause an average person to become so inflamed as to lose reason and judgment”
and held “[t]he trial court properly denied defendant’s request for an
instruction on voluntary manslaughter based upon the theory of a sudden quarrel
or heat of passion.” (Cf. People v. Wickersham, supra,
32 Cal.3d at p. 327, disapproved on other grounds by People v. Barton, supra, 12 Cal.4th at p. 200 [substantial
evidence of strong passion when two police officers who observed the defendant
shortly after shooting her estranged husband described her as “hysterical,”
many of her statements were unintelligible, and several witnesses testified she
was very distraught over victim’s involvement with another woman].)

Here, the evidence demonstrates
defendant was calm both before and after he stabbed Crystal. In fact, defendant testified it was Crystal
who was “pissed,” he was just trying to get her to “chill.” Again, Crystal was unarmed, sitting on the
couch, with her back to defendant, petting her dog. She was 17 years old and had been defendant’s
next-door neighbor for 12 years, without incident. We find under these circumstances, her
purported threats and insults were insufficient to cause a reasonable person to
act rashly and therefore, we find the trial court did not err in refusing to instruct
on voluntary manslaughter based on heat of passion.

Assuming arguendo the
trial court did err in failing to so instruct, we find the failure to do so was
harmless. We review error in failing to
instruct on a lesser included offense under the standard set forth in >People v. Watson (1956) 46 Cal.2d 818,
836. (Breverman, supra, 19
Cal.4th at p. 165.) When analyzing
whether a defendant was prejudiced by a trial court’s erroneous decision not to
instruct on a lesser included offense, we must decide if it is reasonably
probable that the jury would have found the defendant guilty of only the lesser
offense. (People v. Leal (2009) 180 Cal.App.4th 782, 792.) “Error in failing to instruct the jury on a
lesser included offense is harmless when the jury necessarily decides the
factual questions posed by the omitted instructions adversely to defendant
under other properly given instructions.”
(Lewis, supra, 25 Cal.4th at
p. 646.)

Here, the court instructed the jury
that it could consider evidence of provocation in deciding whether the crime
was first or second degree murder and it instructed on second degree
murder. (CALCRIM Nos. 520-522.) Nonetheless, the jury implicitly rejected any
mitigating effect of provocation by finding defendant guilty of murdering
Crystal willfully, deliberately, and with premeditation. As such, it is not reasonably probable the
jury would have found defendant guilty of only voluntary manslaughter had it
been instructed on heat of passion.

>

>II. Voluntary
Intoxication

>A. Voluntary
Intoxication Causing Unconsciousness

> Defendant
contends the trial court erred by refusing to instruct on voluntary
intoxication causing unconsciousness.
Defendant argues had the jury been properly instructed, they could have
found he acted while unconscious and therefore, he would only be guilty of
involuntary manslaughter.

Preliminarily, we note “the 1995
amendments to [Penal Code] section 22 precludes
a defendant from relying on his or her unconsciousness caused by voluntary
intoxication as a defense to a charge of implied malice murder,” as was also
alleged here. (People v. Carlson (2011) 200 Cal.App.4th 695, 705, italics
added.) Notwithstanding >Carlson, we are mindful that “[t]o
constitute a defense, unconsciousness need not rise to the level of coma or
inability to walk or perform manual movements; it can exist ‘where the subject
physically acts, but is not, at the time, conscious of acting.’” (People
v. Halvorsen (1970) 42 Cal.4th 379, 417, citing People v. Newton (1970) 8
Cal.App.3d 359, 376.) We
nonetheless agree with the trial court that the record does not contain
substantial evidence defendant was unconscious when he stabbed Crystal to
death.

Defendant testified he played Xbox
for much of the morning prior to stabbing Crystal to death. When defendant left his apartment to smoke a
cigarette, his younger brother testified defendant appeared normal. Defendant even remembered a conversation he
had had at 3:00 that morning with Crystal, wherein she suggested they should
“kick it” some time. Defendant recalled
thinking to himself, “[I] might as well kick it with
[Crystal]. I have nothing else to do.”

Defendant was able to locate
Crystal’s apartment and knock on her front door. He was able to notice and recall that she was
texting when she first opened the door.
He was able to exchange pleasantries with Crystal upon entering and he
was able to relate that his girlfriend would be jealous if she knew he and
Crystal were hanging out alone.

Defendant even exchanged insults
with Crystal, telling her: “You’re no prize
either . . . . What
makes you better than my girlfriend?” Defendant
repeatedly told Crystal to chill and had the wherewithal to ask for water, then
the presence of mind to walk to the kitchen to find a glass and water, just to
give Crystal “a little space.” Defendant
was able to hear, process and recall Crystal’s threats to his family and
girlfriend, causing him to be in fear for their safety. Defendant was able to locate and arm himself
with a knife to “stop” Crystal.

Most telling of all, though,
defendant recalls grabbing the knife from the counter, running towards Crystal
from behind, covering her mouth with his hand and stabbing her in her stomach
because “I couldn’t
take the – hear any more of what she was saying.”

Defendant also recalled
getting on top of Crystal, holding her down and repeatedly stabbing her in the href="http://www.sandiegohealthdirectory.com/">face and href="http://www.sandiegohealthdirectory.com/">stomach. After the attack, defendant managed to hide
the knife and his bloody clothing and make up a story to tell the police. Finally, Dr. John Treuting, defendant’s
expert toxicologist, testified that even given defendant’s huffing, “he’s not unconscious. I mean, he’s capable of making
decisions.”

In short, the evidence is overwhelming defendant was not
unconscious during this incident and engaged in purposeful, direct and goal
oriented conduct. That defendant does
not recall every one of the 42 stab wounds he inflicted on Crystal is not
surprising. His testimony, though, “I
stopped thinking,” “I snapped,” and “I was twitching,” is woefully inadequate,
given the facts set forth herein, to justify instruction on voluntary
intoxication causing unconsciousness (CALCRIM No. 626).

Since we find the trial court did
not err by failing to instruct on voluntary intoxication causing
unconsciousness, we find defendant’s constitutional arguments to be without
merit.



>B. Voluntary
Intoxication: Effects on Homicide Crimes

Defendant requested the trial court
to instruct the jury on voluntary intoxication and its effects on homicide
crimes, pursuant to CALCRIM No. 625.href="#_ftn4" name="_ftnref4" title="">>[4] The trial court
declined, finding the evidence in support thereof to be insubstantial. The trial court explained:

“There was some evidence, I
wouldn’t call it a substantial amount of evidence, but there was some evidence
based on the video that the defendant had been huffing sometime prior and that
he may have still been feeling some of the effects. I don’t know if I’d go so far as to say if it
was substantial evidence at that point; however, when the defendant took the
stand and said it had nothing to do with the huffing, that that wasn’t even an
issue in this case. And he was very clear
in his testimony when asked on cross-examination about that. I do not find that there’s substantial
evidence of voluntary intoxication. At
this point I actually find there’s virtually no evidence of that based on his
testimony.”

A trial court has no sua sponte duty
to instruct that a defendant’s voluntary intoxication may be considered in
determining the absence of the required criminal intent. Rather, the
defendant must request a voluntary intoxication instruction. (See People
v. Hughes (2002) 27 Cal.4th 287, 342; People v. Saille (1991)
54 Cal.3d 1103, 1119-1120.) To warrant the instruction, there must
be substantial evidence of the defendant’s voluntary intoxication and that
“‘the intoxication affected the defendant’s “actual formation of specific
intent.”’” (People v. Roldan (2005) 35 Cal.4th 646, 715,
quoting People v. Williams (1997) 16 Cal.4th 635, 677, disapproved on
another point in People v. Doolin (2009) 45 Cal.4th 390, 421,
fn. 22.) In other words, even if requested, “an intoxication
instruction is not required when the evidence shows a defendant ingested drugs
or was drinking, unless the evidence also shows he became intoxicated to the
point he failed to form the requisite intent or attain the requisite mental
state.” (People v. Ivans (1992) 2 Cal.App.4th 1654, 1661-1663; see
also People v. Ramirez (1990) 50 Cal.3d 1158, 1180-1183.)

Here, there was substantial evidence
defendant had been huffing air duster prior to stabbing Crystal to
death. Defendant told the detectives in
an interview (played for the jury), that he had been huffing
since the day before and that he still felt the affects of his huffing. (“I still feel it right now. I’ve been doing it since yesterday. I probably had like eight cans.”) Defendant added that he finished three cans
prior to stabbing Crystal. Juan
corroborated defendant had been huffing prior to stabbing Crystal.

Defendant also stated he was
“twitching” when he was laying on top of Crystal, explaining, “I twitched like
three times and that’s when I realized what the hell I’d done.” At trial, defendant repeated these statements
regarding his huffing, adding he blacked out and had no idea what was going on
while he was stabbing Crystal.

Defendant’s expert toxicologist,
John Treuting, testified someone huffing three or four cans of air duster over
a three-to-five-hour period would be under the influence. He added, “you have a confusional state,
which can effect [sic] both your
reasoning and your judgment. And if
enough of it continues to be used, some individuals have been shown to be
delusional or can hallucinate.”

A trial court’s error in
failing to instruct on voluntary intoxication only requires reversal if,
“‘after an examination of the entire cause, including the evidence,’ [we are]
of the ‘opinion’ that it is reasonably probable that a result more
favorable to the [defendant] would have been reached in the absence of the
error.” (People v. Watson, supra, 46
Cal.2d at p. 836.) We need not
decide, therefore, whether the trial court should have given a voluntary
intoxication instruction despite defendant’s testimony that his ingestion
of air duster had nothing to do with his actions, because we are not persuaded
it is reasonably probable such an instruction would have led to a more
favorable result.

Here, defendant testified he stabbed
Crystal because he was mad she had threatened to kill his family and again,
that huffing played no role in this incident.
Defendant’s younger brother testified defendant appeared normal and was
not angry or upset when he left their apartment to see Crystal. Even defendant’s expert toxicologist, John
Treuting, conceded on cross-examination that it is possible defendant stabbed
Crystal unrelated to his huffing.

As detailed above in our discussion
of unconsciousness, defendant’s conduct was purposeful and goal-oriented. Defendant had total recall of virtually all
that transpired on June 26, 2009. Both before and after the attack, defendant
behaved in a rational manner, including hiding evidence and fabricating a story
about what transpired so as to avoid responsibility.

Moreover, the jury had before it
evidence of defendant’s intoxication.
Unlike with a lesser included offense – wherein the refusal to so
instruct removes potential options from the jury – here, the option of returning
a not guilty verdict as to first degree murder and a guilty verdict as to
second degree murder remained available to the jury. While defendant’s pinpoint instruction on
voluntary intoxication was refused, nothing precluded defense counsel from
arguing to the jury that voluntary intoxication could negate express malice,
deliberation and/or premeditation.
Defense counsel chose not to so argue, presumably because defendant’s
theory was a heated argument, not voluntary intoxication, led to this “heinous
homicide.”href="#_ftn5" name="_ftnref5" title="">>[5] Regardless, we do not herein second-guess
defense counsel’s tactical decisions.

Defendant now argues the jury could
have disbelieved his trial testimony as to the affect huffing had on his mental
state when he stabbed Crystal to death.
However, if the jury were to completely disregard defendant’s testimony,
the record would not contain substantial evidence of voluntary
intoxication. Alternatively, if the jury
were to disregard only that portion of defendant’s testimony that Crystal’s
death had nothing to do with huffing, the jury would be forced to wade through
a veritable minefield of lies –told by defendant and his younger brother –
resulting in pure speculation as to how huffing actually affected defendant,
since he never explained what he meant when he told the detectives “I
still feel it right now,” and there is no explanation in the record of
what it means to “twitch.”

We thus find that the evidence
supporting the existing judgment is so strong, and the evidence supporting a
different outcome is so comparatively weak, there is no reasonable probability
the error of which the defendant complains affected the result. (>Breverman, supra, 19 Cal.4th at
p. 177.) Therefore, we find any
error by the trial court in refusing to instruct on the effects of voluntary
intoxication to be harmless. Given
that we find any error to be harmless, we reject defendant’s claims of
constitutional error.

>III. Attorney
Fee Order

Defendant contends the trial court improperly assessed attorney fees for
two reasons. First, it did so without
making a determination that defendant had the ability to pay after notice and a
hearing as required by Penal Code section 987.8. Second, given defendant’s age (18),
employment history and sentence (26-to-life), the trial court could not
reasonably have found the unusual circumstances to overcome the presumption in
section 987.8, subdivision (g)(2)(B) ‑‑ that a defendant
sentenced to state prison does not have the ability to pay defense costs. As a result, defendant requests we reverse
the $400 fee order and strike it from the judgment.

Under Penal
Code section 987.8, subdivision (b), “the court may, after notice and a
hearing, make a determination of the present ability of the defendant to pay
all or a portion of the cost thereof.”
The Attorney General concedes defendant did not have either notice of a
hearing or the hearing itself. The
preferred solution when a trial court fails to make a necessary finding is to
remand the case for a new hearing on the matter (See People v. Flores (2003) 30 Cal.4th 1059, 1068-1069; >People v. Verduzco (2012) 210
Cal.App.4th 1406, 1421). Here, however, defendant was
18 years old at the time of his arrest and, according to the probation report,
unemployed and living in an apartment with his parents. Defendant was sentenced to 26 years to life
in prison and thus has no realistic prospect for gainful employment. Given these facts and the presumption in
section 987.8, subdivision (g)(2)(B), which inures to
defendant’s benefit, remand would be futile.href="#_ftn6" name="_ftnref6" title="">>[6] We therefore reverse the
$400 attorney fee order and strike it from the judgment.

DISPOSITION

The judgment is affirmed. The $400
attorney fee order is stricken.



KARLAN,
Jhref="#_ftn7" name="_ftnref7" title="">*

We concur:



BIGELOW, P. J.





GRIMES, J.