P. v. Rueda
Filed 6/24/13 P. v. Rueda 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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.
HECTOR MAURICE RUEDA III,
Defendant
and Appellant.
E052699
(Super.Ct.No. FVA800920)
OPINION
APPEAL
from the Superior Court
of
County. Arthur
Harrison, Judge. Affirmed with
directions.
Harry
Zimmerman, 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, Meagan J. Beale and
William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
A
jury convicted defendant, Hector Rueda, III, of
192, subd. (a)), during which he used a knife (§ 12022, subd. (b)(1)),
attempted voluntary manslaughter (§§ 664/192, subd. (a)), during which he used
a knife and inflicted serious bodily injury (§ 12022.7, subd. (a)), and
carrying a dirk or dagger (§ 12020, subd. (a)(4)). He was sentenced to prison for 12 years and appeals, claiming evidence was improperly
excluded, the jury was misinstructed and the sentencing court erred in imposing
certain fees. We reject his contentions,
while directing the trial court to correct errors in the minutes of the
sentencing hearing and the abstract of judgment.
The
manslaughter victim and Jennifer were involved in a three-year long serious
romantic relationship. During this time,
defendant and the manslaughter victim were good friends. Shortly after the couple broke up, defendant
began dating Jennifer. The manslaughter
victim wanted nothing to do with defendant.
Jennifer came to consider herself to be defendant’s wife, until they
broke up nine months before trial.
However, at the time of the trial, she still loved defendant.
On
May 16, 2008, defendant,
Jennifer, Chris and Roberto attended a party that was also attended by the
manslaughter victim, who, there, ran into his friend, Renee, Renee’s sister and
the attempted manslaughter victim. At 12:30 the next morning, the attempted
manslaughter victim, Renee and Renee’s sister left the party to go to Renee’s
house. The manslaughter victim and
another companion also went to Renee’s, but in a separate car.
Jennifer
testified that she, defendant, Chris and Roberto then went to a second party,
during which she discovered that someone had scratched her car, writing the
word, “Bitches†on it. She was very
upset and she and defendant assumed that Renee and his sister had done it
because she had had problems with them before.
As defendant drove her car, she made a series of angry calls to the
manslaughter victim’s cell phone during which she asked him if they had done it. The manslaughter victim denied that he did it
and first said he did not know if his friends had done it, adding that they did
not do things like that, then later said that they did not. Jennifer testified that the manslaughter
victim invited her to come to Renee’s to discuss the matter. While defendant drove her car, she told him
what the manslaughter victim had told her during their phone
conversations. Defendant was possibly
angry on the way to Renee’s. At some
point during the trip, Jennifer reached into the glove box to retrieve a can of
beer and found, inside, a steak knife she kept there for protection. She wondered out loud if the knife was sharp
enough to puncture someone’s tires.
Defendant felt the tip of the knife.
She said if they discovered who scratched her car, they would scratch
that person’s car and slash the tires.
Defendant agreed to do this with her.
box or defendant took it from her, but she did not see him put it in his
pocket. Chris and Roberto said they
should not go to Renee’s—that they had no proof that anyone there had scratched
Jennifer’s car. Jennifer told defendant
that they should not go, but defendant said it would be alright, as they were
just going to talk.
Chris
testified that both defendant and Jennifer were angry about her car getting
scratched, they discussed who might have done it and assumed that it could be
the manslaughter victim, in addition to others.
she called the manslaughter victim on his cell phone and she accused either he
or his friends of scratching her car.
Jennifer told the manslaughter victim that she was coming to
Renee’s. After Jennifer’s phone
conversation, she said that none of the people at Renee’s had scratched her
car, but defendant said, “‘Let’s go over there and talk to them.’†Defendant and Jennifer said they were going
to talk to the people at Renee’s. Soon,
their talk turned to how they were going to mess up a car when they got to
Renee’s. They were upset.
for them to go—that they didn’t know who had scratched Jennifer’s car.
still should go.
Roberto
testified that he thought Jennifer had put the knife back in the glove box
during the ride to Renee’s.
The
attempted manslaughter victim testified that when the manslaughter victim
arrived at Renee’s, he told the attempted manslaughter victim that he had just
gotten a call from Jennifer that someone had keyed her car and she thought it
was the manslaughter victim or one of them that had done it.
bunch of guys to settle matters or to retaliate.
The
attempted manslaughter victim testified that Jennifer’s car drove down the
cul-de-sac, turned around and stopped in the middle of the street in front of
the house next door. With the car still
running, Jennifer and defendant got out and Jennifer, with defendant following,
angrily approached the manslaughter victim and accused him of scratching her
car.
though the manslaughter victim denied doing this, Jennifer kept shouting at
him. The manslaughter victim told
Jennifer and defendant to leave
name="_ftnref7" title="">[7] and not to continue disrespecting Renee’s
parents’ house. After three to four
minutes of this shouting, defendant, using expletives, told the manslaughter
victim to admit that he or his friends had scratched Jennifer’s car.
slowly walking towards Jennifer and defendant because he saw that defendant had
his hand balled up in his pant pocket.
The manslaughter victim attempted to reassure defendant that he did
nothing to Jennifer’s car and defendant verbally rebuffed him. Defendant moved his hand up and down inside
his pocket and the attempted manslaughter victim concluded that defendant had
something in there.
title="">[9] Defendant said to the manslaughter victim,
“What the fuck are you going to do about it†which the attempted manslaughter
victim took as a challenge to fight. The
attempted manslaughter victim took four steps towards Jennifer and defendant
and told defendant to calm down and take Jennifer and leave “before something
bad goes down.†Defendant then turned
his attention to the attempted manslaughter victim. He moved closer to the latter and
aggressively said to him, “What the fuck?â€
Defendant then pulled out whatever was in his pocket and brought his
hand up to his waist or chest. The
attempted manslaughter victim hit defendant in the chin, hoping defendant would
drop whatever he had in his hand.
Defendant shook off the punch, came at the attempted manslaughter
victim, and the two began hitting each other, but the latter did not realize
that defendant was stabbing him with a knife instead of hitting him with his
fist. Defendant was erect during their
fight.
able to hold defendant back and the attempted manslaughter victim then realized
that he had been stabbed. He stepped
away from defendant
name="_ftnref11" title="">[11] and went into Renee’s house and got towels,
bandages and peroxide for his wounds.
When the attempted manslaughter victim went back outside, the
manslaughter victim was lying on the driveway, having already been fatally
wounded.
Jennifer
testified that while she was yelling at the manslaughter victim after arriving
at Renee’s, she accused Renee of scratching her car and he began yelling at
her.
manslaughter victim hit defendant, the manslaughter victim had said to her, in
a very upset manner, that nothing mattered because she did not care about him
anymore. She also testified that
defendant tried to reassure the manslaughter victim that Jennifer still cared
about him, then the attempted manslaughter victim ran up to defendant and
punched him. She did not see defendant
make an aggressive movement towards or threaten the attempted manslaughter
victim before the latter punched defendant.
She claimed that the manslaughter victim tried to get involved in the
fight between defendant and the attempted manslaughter victim, she tried to restrain
the manslaughter victim, but he broke away from her and the two victims
together began hitting defendant. She
claimed that defendant responded to them hitting him by swinging at them from
side to side, near their waists, with his head down, while leaning
forward. Then, her attention was drawn
away from defendant and the victims by Renee and his sister approaching her and
yelling at her.
Chris
testified that Renee and the victims each had had a bat in his hand when
Jennifer’s car had stopped in the street, but the victims had thrown theirs
away towards the end of the verbal argument between the two groups.
defendant and the manslaughter victim, then the attempted manslaughter victim
began fighting defendant. According to
Chris, defendant stood erect during his fight with the attempted manslaughter
victim. After 12 or 13 seconds of
fighting, the attempted manslaughter victim stopped and stepped away from
defendant and, five seconds later, the manslaughter victim approached defendant
and began fighting with him. Defendant
stood erect while fighting the manslaughter victim. When, after six or seven seconds of fighting,
it appeared that defendant was losing, Jennifer yelled for Chris to “help
[defendant]†and Chris stepped between them and pushed defendant away.
Roberto
testified that during the verbal argument, Renee told defendant and Jennifer to
leave.
fight between defendant and the attempted manslaughter victim ended and the
latter backed off, then, a few seconds later, the manslaughter victim stepped
in and hit defendant, then, eventually, tripped over a utility box and tried to
grab defendant.
title="">[15] Defendant stood erect during his 10-20 second
fight with the manslaughter victim, which ended when Jennifer told Chris to
break it up and Chris pushed defendant.
He said only Renee and the manslaughter victim had had bats, but they
had thrown them away and the bats were not used in the physical fights. He also said that before the attempted
manslaughter victim threw the first punch at defendant, he told defendant that
the latter had come to the wrong neighborhood
for less than 10 seconds. According to
Roberto, the attempted manslaughter victim was arguing with defendant
vehemently, while defendant was backing up and telling the former to calm
down—that he just came there to talk.
The attempted manslaughter victim had removed his shirt before his
physical fight with defendant began.
Renee’s
sister testified that while the attempted manslaughter victim and defendant
were fighting in one area, she, the manslaughter victim and Renee were in
another area. She also said that when
she was in the house with the attempted manslaughter victim, after the latter
had been stabbed, she called out to Renee to get more towels, and Renee entered
the house and did so.
name="_ftnref17" title="">[17]
Renee
testified that the manslaughter victim began fighting with defendant 10-15
seconds after the fight between the attempted manslaughter victim and defendant
ended. Defendant stood straight during
both fights.
Defendant
testified that he attempted to be conciliatory towards the manslaughter victim
at the end of the verbal argument, but the former was having none of it, and he
spoke aggressively with foul language to defendant. Although the attempted manslaughter victim
had removed his shirt and was pacing back and forth, no words were exchanged
between him and defendant. Contrary to
the version of events offered by any others of those present, defendant
testified that the manslaughter victim
ran up to him and punched him in the face.
Defendant tried to pull back but the manslaughter victim grabbed him by
the collar of his shirt, pulled him down and held him down, bent at the waist,
while he and the attempted manslaughter victim, who similarly held onto
defendant, hit him in the head.
Defendant testified that he “felt†Renee coming at him with a bat and he
pulled the knife out of his pocket and swung wildly at both victims.
The
manslaughter victim had eight stab wounds including fatal ones to the front of
his neck and his lung and liver. The
attempted manslaughter victim had six stab wounds including ones to the back of
his neck and his chest.
1.
Exclusion of Evidence
a. Evidence
that the Manslaughter Victim Was Not Angry or Upset at Defendant
Shortly Before the Crimes
1. Other
Evidence Introduced at Trial on the Matter
Jennifer
testified that she had told an investigator that prior to May 17, 2008,
defendant had repeatedly, on different occasions, tried to talk to the
manslaughter victim, but the latter did not want anything to do with defendant
and would walk away. She confirmed that
after she broke up with the manslaughter victim, he wanted nothing to do with
defendant and every time defendant wanted to talk to the manslaughter victim,
the latter got away from him. She said
that at the time of the crimes, defendant and the manslaughter victim did not
like each other because defendant was going out with Jennifer and the
manslaughter victim still loved her. She
said that even though defendant and the manslaughter victim saw each other at
numerous parties for months leading up to the crimes, the manslaughter victim
had tried to avoid defendant. During
cross-examination by defense counsel, she testified, in response to leading
questions by counsel, that as of May 2008, she believed that the manslaughter
victim still cared for her and wanted to be with her, and that he was upset
that she had started dating defendant.
Also in response to leading questions by defense counsel, she said that
the manslaughter victim told her three weeks before the crimes that he was
cutting himself because he couldn’t get over the fact that she was with defendant
and he still loved her and wanted to be with her. She also answered a leading question by
defense counsel that at a party attended by her, the manslaughter victim and
defendant three weeks before the crimes, the manslaughter victim was sarcastically
telling people to tell defendant to approach him and say hello to him. She also testified during cross-examination
that she approached the manslaughter victim the night before the crimes at the
first party and hugged him and shook his hand.
At that time, defendant went up to the manslaughter victim and tried to
shake his hand, saying “‘Are we not friends anymore?’†The manslaughter victim replied in the
negative. Defendant asked him why and
the manslaughter victim pointed to Jennifer and said, “That’s why.†Defendant asked the manslaughter victim if he
and the latter were “‘still cool’†and the latter replied that they were not.
Chris,
who was friends with Jennifer, defendant and the manslaughter victim, testified
that at the time of the crimes, defendant and the manslaughter victim ignored
each other. He said that at the first
party, the manslaughter victim told him that he and defendant were no longer
friends and he appeared to be upset with defendant. The manslaughter victim added that defendant
had tried to shake his hand at the party, but he had told defendant that he did
not like him. While still at the party,
defendant told Chris that he was upset about this. During cross-examination by defense counsel,
Chris testified that the manslaughter victim had told him at the first party
that defendant had approached him and said, “‘We’re cool, right?’†and the
manslaughter victim had responded, “‘No, we’re not cool.’†Defendant asked the manslaughter victim why
and the latter replied that it was because of Jennifer, and the manslaughter
victim seemed to be “a little bothered†about seeing defendant and Jennifer
together. Chris saw defendant approach
the manslaughter victim and try to shake his hand, but the latter did not, and
it was at this time that the conversation about being cool occurred.
Roberto
testified that he was more of a friend to defendant than he was to the
manslaughter victim. He said that at the
first party, defendant and the manslaughter victim “had a little grudge
going, . . . they weren’t getting along.†The manslaughter victim had sarcastically
said to defendant, “‘I thought we were friends.’†During the argument that led up to the
physical fight(s) at Renee’s, as the manslaughter victim got louder and started
to cuss, defendant said, “‘I haven’t done anything to you.’†The manslaughter victim replied, “‘Oh, I
thought we were friends.’†Defendant
replied that they were, which Roberto took as a sincere comment. According to Roberto, before the crimes, the
two were not getting along. It was his
impression that they were enemies.
Defendant
testified that at the first party, the manslaughter victim gave him and
Jennifer a hug and said hello.
name="_ftnref18" title="">[18] Ironically, he also testified on direct that
when he told the manslaughter victim where he and Jennifer were working, the
former replied sarcastically and when he asked the manslaughter victim if he
and the manslaughter victim were cool, the latter replied that they were
not. In fact, defendant testified on
direct that when Jennifer asked him, on the way to Renee’s, if he thought the
manslaughter victim and his friends had scratched her car, he said he did not
know, but he reminded her of what had taken place between him and the
manslaughter victim at the first party.
he also admitted that the manslaughter victim had refused to shake his hand at
the first party and that the latter “mad-dogged†defendant.
On
direct examination, defendant testified that after Jennifer began arguing with
the manslaughter victim at Renee’s, Renee and his sister joined the argument
and began to curse, the manslaughter victim’s friends were “mad-doggingâ€
defendant and the manslaughter victim told Jennifer that he knew he meant
nothing to her. In response to this
comment, defendant said to the manslaughter victim, “‘Don’t say that.’â€
defendant, saying, “‘And you. You used
to be my homie. Fuck you. Fuck you.’â€
defendant had done to him. The
manslaughter victim responded, “‘Fuck you.
What’s up? What’s up? What’s up?’â€
The manslaughter victim continued to say, “‘ Fuck you’†to defendant and
ran up to him and began hitting him.
During
subsequent direct testimony, defendant added that when the manslaughter victim
had said that he meant nothing to Jennifer, he also said that he meant nothing
to “you guys.†At that point, defendant
testified, he felt compelled to interject himself into the argument between
Jennifer, the manslaughter victim and Renee because,
“‘ . . . [I]t’s not true.
[¶] . . . [¶]
That Jen[nifer] or me don’t care about [the manslaughter victim]. [¶] . . . [¶]
. . . I tried to tell him, we do care about
you . . . . [¶]
. . . [¶] . . . [I was j]ust
letting him know that we do care.’â€
At
the beginning of cross-examination,
defendant admitted that when he was first interviewed by the police, he told
them that he and the manslaughter victim were friends, however, later, he
admitted that when he and Jennifer saw the manslaughter victim around, the
manslaughter victim never said hello. He
also admitted that when the manslaughter victim found out that defendant was
dating Jennifer, he was upset and hurt.
2.
Ruling
After
the prosecutor concluded her cross-examination of defendant, defense counsel
filed a written motion to be allowed to introduce the testimony of a man who
claimed to be best friends of both defendant and the manslaughter victim in May
2008. As an offer of proof, the defense
asserted that this man would testify, inter alia,
and, while there, the manslaughter victim told him that he had only recently
found out that Jennifer had begun dating defendant and, when asked if he was
upset about this, the manslaughter victim said he was over it and had started a
new life.
title="">[23]
At
the hearing on the motion, defense counsel stated that he wanted to introduce
the evidence to show the manslaughter victim’s state of mind. Specifically, he asserted that during the
first 40 minutes of her cross-examination of defendant, the prosecutor had
attempted to create the impression that at the time of the crimes, the
manslaughter victim did not like defendant, that defendant had lied to the
police about his relationship with the manslaughter victim when he claimed they
were friends, and, “they were actually friends.â€
evidence, arguing that the manslaughter victim’s state of mind was
irrelevant. The trial court ruled that
even though defense counsel had described the proffered testimony as
circumstantial evidence of the manslaughter victim’s state of mind, it was
really being offered for the truth of the matters asserted therein, and,
therefore, was hearsay. If it was not,
it was not relevant. Therefore, it was
inadmissible. The court added that there
had been a great deal of testimony about the relationship between defendant and
the manslaughter victim, that relationship was somewhat fluid and what occurred
at the first party was not necessarily the manslaughter victim’s state of mind
at the time of the crimes. The court
concluded that the evidence would add nothing but length to this already
lengthy trial. Defendant here contends
this ruling was an abuse of discretion.
(See People v. Rowland (1992)
4 Cal.4th 238, 264.)
Defendant
asserts that the manslaughter victim’s statements to his friend were admissible
to show the manslaughter victim’s state of mind, which was relevant to
defendant’s claim that he acted in self-defense. Unfortunately for defendant, that was not the
basis he asserted below for the admission of these statements.
v. Homick (2012) 55 Cal.4th 816, 867; Evid. Code, § 354.) Below, defendant sought introduction of the
statements to contradict the implication created by the prosecutor’s
cross-examination of defendant that the manslaughter victim did not like
defendant and that defendant had lied to the police when he said they were
friends. Of course, as our summary of
the other evidence introduced on this subject stated above,
shows the manslaughter victim did not like defendant. As stated before, even defendant, himself,
admitted that the manslaughter victim was upset and hurt by the fact that
defendant was dating Jennifer and the manslaughter victim exhibited his
hostility towards defendant at the first party.
As we have noted, defendant introduced evidence that
manslaughter victim in order to disprove the prosecution’s theory that
defendant was angry at the manslaughter victim when he went to Renee’s and
armed himself with the knife in order to use it on the manslaughter victim
before getting out of the car. However,
this was relevant to defendant’s
state of mind, and had nothing whatsoever to do with the manslaughter victim’s state
of mind.
Defendant
also asserts that the trial court abused its discretion in inferentially
determining that the probative value of this evidence was outweighed by its
prejudicial impact. Based on the theory
advanced below by the defense for the admissibility of this evidence, which is
the only theory we may examine on appeal, we disagree with defendant. As already stated, there was a wealth of
evidence that the manslaughter victim was angry at or upset with defendant,
some of it introduced by defense counsel, himself, and some of it admitted by
defendant, himself. To introduce the
evidence at issue would have contradicted this evidence. At the same time, defendant was able to
introduce evidence that he was not angry at the manslaughter victim, which was
the purpose of seeking admission of this evidence. Therefore, he was not deprived, by this
ruling, of the opportunity to put on this defense. Finally, the evidence was of minimal impact
in that it contradicted defendant’s own testimony, and that of
the party, that the manslaughter victim behaved in a manner that was consistent
with him not being friends with defendant.
We agree with the trial court’s implied finding that this evidence,
under these circumstances, would have had minimal impact on the jury favorable
to defendant, and it would have lengthened this already lengthy trial.
b. Evidence
of the Manslaughter Victim’s State of Intoxication
Before
trial began, while discussing what could and could not be addressed during
opening statements, the prosecutor asserted that the manslaughter victim’s
alleged blood alcohol level of 0.18 percent was irrelevant. Defense counsel countered that it was
relevant to the manslaughter victim’s ability to accurately perceive events. He added that he did not think an expert’s
opinion was needed to show that someone with that level of alcohol “may
sometimes be more aggressive than the person may be†when they are sober—that
this was within “people’s common experience.â€
The trial court observed that while “there may be testimony that makes
it relevant†it was not particularly so at that point, and, therefore, could
not be mentioned during opening statements.
However, the fact that the manslaughter victim had been drinking could
be.
Before
the pathologist who performed the autopsy on the manslaughter victim’s body
testified, the People reasserted their belief that evidence of the manslaughter
victim’s blood alcohol level was irrelevant.
Defense counsel countered that the fact that the prosecutor had asked
Roberto, Chris and Jennifer how much they had had to drink and who they saw
drinking just before the crimes suggested that the manslaughter victim’s blood
alcohol level was just as relevant. The
trial court pointed out that those three witnesses were testifying about their
observations at the time of the crimes, therefore, their state of
sobriety/intoxication was relevant to their ability to perceive, whereas the
manslaughter victim would not be testifying.
However, the court reiterated, the fact that the manslaughter victim was
drinking shortly before the crimes was relevant.
The
defense sought to introduce expert testimony about the nature of the wounds
inflicted on the manslaughter victim and the attempted manslaughter victim (to
demonstrate that they were not defensive wounds, but were inflicted while they
were attacking defendant). Included in
this expert’s report was a statement that the manslaughter victim’s blood
alcohol level was 0.18 percent. The prosecutor
sought to exclude mention of this during this expert’s anticipated testimony on
the bases that there was no foundation for it and it was irrelevant to whether
the wounds inflicted on the manslaughter victim were defensive or the result of
the manslaughter victim attacking defendant.
During an Evidence Code section 402 hearing, the expert stated that he
obtained the manslaughter victim’s blood alcohol level from the autopsy report
and it was relevant to his opinion about the nature of the manslaughter
victim’s wounds only because “it explains to me why somebody would be stupid
enough to go up against somebody with a knife if all they have is their
fist.†However, the expert added, it did
not affect whether the wounds were defensive or the result of offensive action
by the manslaughter victim. The trial
court ruled that evidence of the manslaughter victim’s blood alcohol level
would be excluded.
Defendant
here contends that the trial court erred in so ruling. To the extent defendant’s opposition to the
People’s three requests to have this evidence excluded may be viewed as efforts
by defendant to have this evidence admitted, we reiterate that defendant here
is confined to the bases he advanced below for admission. We must determine whether the trial court
abused its discretion by excluding the evidence.
The
first basis was that it was relevant to the manslaughter victim’s ability to
accurately perceive what was happening.
Defendant did not explain below, and does not explain here, how this was
relevant to anything and we fail to see any relevancy. Next, defendant asserted that it is “common
experience†that anyone with a blood alcohol level of 0.18 percent would be
more aggressive than when sober. In
other words, jurors could be told merely that the manslaughter victim had such
a blood alcohol level, and, based on that fact, they could reasonably infer
that he was more aggressive than he would have been had he been sober. There are two problems with this theory. First, it is not within the common
understanding of a lay juror that anyone with a 0.18 percent blood alcohol
level is more aggressive than the person would be when sober. It is, however, a fairly common experience
that different people react differently to alcohol—some become friendly, others
not and still others do not react either way at 0.18 percent.
alcohol—alcoholics with a 0.18 percent may behave no differently than they
would sober, and might, in fact, behave more peacefully then when sober. While these matters might have been ripe for
expert opinion, defendant was not offering that—merely leaving the jury, on its
own, to guess what effect a 0.18 percent blood alcohol level had on the
manslaughter victim. The second problem
is that even if some, most or all people behave more aggressively than when
sober, the statement is meaningless without quantifying the extent of the
aggressiveness and defendant was not prepared to do this , but, rather, leave
it to the jury to figure out on its own, without expert assistance. However, more telling on this subject was the
testimony introduced at trial as to the manslaughter victim’s actual conduct
before and during the physical fight involving him. From this evidence, the jury could determine
whether he was acting aggressively or not.
There was no need to resort to the not necessarily helpful fact that he
had a 0.18 percent blood alcohol.
Finally,
the opinion of the defense pathologist that the manslaughter victim’s 0.18
percent blood alcohol would explain why he would be stupid enough to go up
against defendant, who had a knife, when all the former had was his fist, is
undermined by the testimony of all
the witnesses to these crimes, including defendant, that the latter did not
reveal the presence of the knife before he began using it on the victims, and
all those present, except defendant, did not even know that defendant had a
knife until after the latter had stopped stabbing the attempted manslaughter
victim and they saw the blood on the latter’s clothes.
Defendant
here asserts that he could have “show[n] the general effect of a [0].18
[percent blood alcohol] through [the autopsy pathologist] or [the defense
pathologist] or even another witness[.]â€
However, defendant made no such offer of proof below, and is, therefore,
foreclosed from asserting that such evidence could have been produced. Defendant’s assertion that the manslaughter
victim’s level of intoxication was relevant to defendant’s state of mind, and
thus to his claim of self-defense, is supportable only to the extent that
defendant perceived that the manslaughter victim was intoxicated (and, perhaps,
therefore more likely to be a danger to him), and this he could have testified
to, but did not.
title="">[28] Had he so testified, it is conceivable that
the defense might have been able to introduce evidence of the manslaughter
victim’s actual blood alcohol level to bolster defendant’s claim that the
manslaughter victim appeared to him to be intoxicated or not in full command of
his senses. However, defendant made no
such claim.
Having
concluded that the trial court did not abuse its discretion in excluding
evidence of the manslaughter victim’s blood alcohol level, we necessarily
reject his contentions that the court’s ruling violated his state and federal
constitutional rights to confrontation, present a defense, have a jury trial
and to due process.
2.
a. Arming
With Bats
The
following is defendant’s account of the incident as is relevant to a discussion
of this issue:
title="">[29] He saw that Renee had a bat when defendant,
Jennifer, Chris and Roberto arrived outside Renee’s home. He said that he saw no one else with a bat
that night. When Jennifer was five feet
from the manslaughter victim, and defendant was two to three yards behind her
and to the left, he saw that Renee, who was standing near the manslaughter
victim, was “showing [the bat] in [an] intimidating fashion, hitting it against
the heel of his foot like before batters . . . go up to
bat†and “mad-dogging†him.
name="_ftnref30" title="">[30] Everyone in the manslaughter victim’s group
was “[m]ad dogging†defendant.
name="_ftnref31" title="">[31] Renee stepped in front of Jennifer and began
arguing with her and cussing at her. The
attempted manslaughter victim, whom defendant described as “this big guy†took
off his shirt and was pacing and starring defendant down. As the manslaughter victim and Jennifer
continued to argue, defendant joined the exchange when the manslaughter victim
said he knew that he meant nothing to Jennifer.
There was a verbal exchange between the manslaughter victim and
defendant, during which Renee and the attempted manslaughter victim stared at
defendant. The manslaughter victim ran
up to defendant and punched him on the left side of his face. Defendant tried to pull back, but the
manslaughter victim grabbed him by the collar of his shirt, pulled him down and
started hitting him on the side, top and back of his head. The manslaughter victim went to defendant’s
right side and held him by the shirt and defendant felt that the attempted
manslaughter victim was grabbing him on the left side. Defendant was bent at the waist, his head was
half way down to the ground and all he could see was the ground and feet. Defendant “felt†Renee approaching because he
“felt everybody was crowding†him.
Defendant tried unsuccessfully to lift his head up and back into the
street. He pulled the knife out of his
pocket with his left hand and swung wildly up and down, including above his
head, and right and left, while punching with his right hand. He anticipated a hit in the head with the
bat. The victims continued to hit
defendant in the head and pulled him, then the manslaughter victim backed off.
attempted manslaughter victim and ran backwards into the street. When he looked up, Renee was restraining his
sister. The attempted manslaughter
victim came at defendant again, but stopped when defendant called his attention
to the fact that the manslaughter victim had collapsed and the attempted
manslaughter victim realized that he, himself, had also been stabbed. Defendant denied trying to kill anyone or
wanting to kill the manslaughter victim.
Defendant testified that the “main thing†he was worried about during
the fight was Renee—that some future harm would come to defendant, even though
it was not happening as he was stabbing the victims.
the manslaughter victim the eighth time, he believed he was going to die “if
certain things did happen.†He said he
believed he was going to die when he was stabbing the manslaughter victim, then
added, “I believe . . . some bad stuff was going to
happen.†When asked if when he stabbed
the attempted manslaughter victim the last time, he believed he was going to
die, defendant answered, “Yes. That
something bad was going to happened.â€
That something was that they were going to knock him out or break his
jaw or seriously hurt him and the only way to stop the attempted manslaughter
victim from beating him was to stab him with the knife. However, he conceded that he did not believe
he was going to die from being hit by the victims with their fists, which he
did not consider to be deadly force, but from Renee. He thought the bat was going to be used on
him—he thought it was coming at any moment while he was trying to get the
victims off him by stabbing them.
name="_ftnref34" title="">[34] He thought this “because he was being
attacked.†In response to leading
questions by his lawyer, defendant testified that he did not think before the
physical fight(s) started that he would be able to defend himself against the
victims if they attacked him because of their size.
The
following was read to the jury, “This instruction is regarding only the
acquisition of bats by the individuals that were at [Renee’s house]: The owners
or possessors of real property or personal property may use reasonable force to
protect themselves, their guests and their property from imminent harm. They are also allowed under the law to use
reasonable force to protect the property of family members or guests from
immediate harm.â€
Of
course, Renee never used any force with a bat (or anything else) on
defendant. No other instructions given
tied the notions conveyed in this instruction to any other instruction(s). In his argument to the jury, the prosecutor
tied it only to the concept of perfect self-defense by saying that Renee had a
right to arm himself with a bat because Jennifer said she and defendant were
coming to Renee’s to do damage to someone’s car.
prosecutor, defendant could not rely on his claim that Renee had a bat as a
basis for perfect self-defense.
Defendant did not object below to this argument. For his part, defense counsel stated during
his argument to the jury that the instruction correctly provided that Renee had
a right to arm himself with a bat if he believed defendant and his companions
were coming over to do something to Renee’s house or to property there. However, Renee would not have been justified
in using his bat just because he thought defendant and Jennifer might do something—that
the harm to property or person had to be imminent or immediate. The fact that Renee did not use the baseball
bat, he argued, suggested that Renee did not feel that defendant or Jennifer
posed an imminent threat of harm to his property or the people there. He went on to argue that the fact that Renee
had a baseball bat played a significant role in defendant’s state of mind at
the time he stabbed the victims because defendant believed the baseball bat was
going to be used on him.
Defendant
now claims that the presence of this instruction requires reversal of his
convictions of voluntary manslaughter and attempted voluntary
manslaughter. First, defendant asserts
that since the lawful reason for Renee to arm himself was not an issue in the
case, the presence of this instruction distracted the jury from its primary
purpose of weighing the reasonableness of defendant’s actions in
self-defense. Defendant has no basis for
making this assertion. He can only
speculate that the presence of this instruction somehow prevented the jury from
determining whether he acted in self-defense, either perfect or imperfect.
Next,
defendant asserts that the instruction was inappropriate because there was no
unlawful conduct of his for the jury to consider before the attempted
manslaughter victim attacked him without warning, nor was there an imminent
threat to real or personal property or persons present at Renee’s house.
As
to his first assertion, he criticizes the holding in People v. Watie (2002) 100 Cal.App.4th 866 (Watie). In
went to the home of his stepfather to retrieve his step-siblings. (Id.
at p. 873.) As defendant stood on the
front porch, talking to his stepfather through a security screen door, the
latter told him to leave. (
They argued and the stepfather threatened to “‘whip [the defendant’s]
ass.’†(Ibid.) The defendant thought
his stepfather had retrieved a gun and was about to shoot him, so he shot
first, killing his stepfather. (
of a residence had the right to request that a trespasser leave, and if the
trespasser does not comply within a reasonable time, to use reasonable force to
eject the trespasser. (
occupant may defend his or her home against anyone who manifestly intends or
endeavors in a violent manner to enter the home or who appears to intend
violence to anyone in the home, using the amount of force that reasonably
appears necessary to resist the entry. (
giving of these instructions was error because the stepfather’s justification
for a killing was irrelevant and the instructions allowed the jury to presume
that the stepfather was acting in lawful defense of his home, thus removing
self-defense from the jury’s consideration.
(Id. at p. 876.) The appellate court rejected defendant’s
contentions, saying “To be acquitted of responsibility for a person’s death
based on [perfect] self–defense, the defendant must have acted pursuant to an
actual and reasonable belief in the need to defend himself under circumstances
that would lead a reasonable person to fear the imminent infliction of death,
or great bodily injury. [Citation.] ‘The justification of self-defense requires
a . . . showing [that] defendant was actually in fear of
his [or her] life or serious bodily injury and that the conduct of the other
party was such as to produce that state of mind in a reasonable person.’ [Citation.]
[¶] . . . [¶] . . . [
right of a victim to defend himself [or
herself] and his [
may prevail when he seeks to negate malice aforethought by asserting the
affirmative defense of imperfect self-defense. [¶]
Here, the jury was confronted with the question of whether defendant’s
use of deadly force was justified as he confronted [his stepfather] on the
front porch of [the latter’s] home and whether defendant’s unlawful conduct
created the circumstances that legally justified [the stepfather’s] use of
force. If [the stepfather] had a right
to use force on defendant himself in his home, then defendant had no right of
self-defense, imperfect or otherwise.“ (
supports the giving of this instruction here and completely undermines
defendant’s position.
And
what of defendant’s contention that Watie
“stated the rule too broadly, then narrowed it . . . by
going on to explain the underlying basis for allowing the victim the defense of
property instructions [if] there was . . . unlawful conduct
[on the part] of the defendant claiming self-defense[?]†That basis, defendant asserts was the notion
that “‘if one makes a felonious assault upon another, or has created
appearances justifying the other to launch a deadly counterattack in
self-defense, the original assailant cannot slay his adversary in self-defense
unless he or she has first, in good faith, declined further combat, and second,
has fairly notified the adversary that he or she has abandoned the
combat.’†(Waite, supra, 100
Cal.App.4th at p. 877.) Defendant
misreads Watie. Watie
cited this rule, which is the familiar notion that a person who is the initial
aggressor cannot claim self-defense unless he or she stops fighting and
notifies the other person that he or she has stopped fighting.
of the holdings in People v. Gleghorn
(1987) 193 Cal. App. 3d 196 (Gleghorn),
a holding
title="">[38] which Waite
was not relying on for its holding.
Instead, Watie relied on the
holding in Gleghorn that the
giving an instruction on the right of a resident to use deadly force on a
trespasser, which instruction was identical to one of the ones at issue in
victim . . . ha[d] the right to defend himself against a
violent attack in his own house . . . .’ [Citation.]â€
(Watie, supra, 100 Cal.App.4th at pp. 876-878.) The Watie
court also cited People v. Hardin
(2000) 85 Cal.App.4th 625, commenting that it and Gleghorn establish that the right of a victim to defend him-or
herself and his or her property is a relevant consideration in determining
whether a defendant may prevail when the defendant seeks to negate malice
aforethought by asserting the affirmative defense of imperfect
self-defense. (Waite, supra, 100
Cal.App.4th at pp. 877-878.)
It
must also be remembered that Roberto, Renee and his sister,
defendant and Jennifer to leave several times before the physical fight(s) and
Renee called the police at that time and said he wanted them to leave.
was a trespasser at the time of the fight(s).
This, of course, refutes defendant’s current claim that he was not
engaged in unlawful conduct when he was first hit by the attempted manslaughter
victim.
By
confining the jury’s consideration of Renee arming himself with a baseball bat
to the issue whether defendant acted in perfect self-defense, the prosecutor
took a more conservative position than the court in Watie, which held that such a fact was also relevant to the defense
of imperfect self-defense.
As
to defendant’s remaining contention that there was no imminent threat to
persons or property at Renee’s, the evidence is otherwise.
Defendant
also contends that the instruction is an improper pinpoint instruction. An improper pinpoint instruction is one that
“invite[s] the jury to infer the existence of [a party’s] version of the
facts . . . .†(
437.) The instruction at issue did not
do this. It merely informed the jury
that if it found that the people or property at Renee’s were subject to imminent
or immediate harm, the possessors or owners of real or personal property could
use reasonable force to protect that property.
This did not invite the jury to accept the People’s version of the facts
that defendant and Jennifer, in fact, threatened personal property at Renee’s
house or posed a threat of immediate harm to the people there.
Finally,
as in Watie, the fact that this jury
convicted defendant of voluntary manslaughter and attempted voluntary
manslaughter suggests that they credited defendant’s claim of imperfect
self-defense, despite the presence of this instruction. (Watie,
supra, 100 Cal.App.4th at pp. 878,
879.) Thus, defendant could not have
possibly suffered any prejudice by its inclusion at this trial.
b. Use of
Hands or Fists
The
jury was instructed that if defendant acted in perfect self-defense, he was not
guilty of any of the charged offenses, except possession of a dirk or
dagger. Further, if defendant acted in
imperfect self-defense, he would be guilty of voluntary manslaughter and attempted
voluntary manslaughter, but not murder or attempted murder. For either type of self-defense, defendant
must have believed he was in imminent danger of, inter alia, suffering great
bodily injury. Great bodily injury was
defined as “significant or substantial physical injury. It is an injury that is greater than minor or
moderate harm.†Defendant unsuccessfully
sought the following addition to this last sentence, “Such injury may be
inflicted by the hands or fists.â€
Defendant here claims that the trial court’s failure to grant his
request requires reversal of his convictions for voluntary manslaughter and
attempted voluntary manslaughter. We
disagree.
The
prosecutor correctly pointed out during his argument to the jury that defendant
never said during direct examination by his attorney that he was in fear of
great bodily injury at the hands of the victims at the time he stabbed
them. In fact, it was not until redirect
examination, when defense counsel essentially “fed†the words to defendant, that
he claimed he was in such fear.
name="_ftnref42" title="">[42] The prosecutor then asserted that the only
bodily injury defendant testified he feared was a hit to his face, which would
have been impossible had he been in the bent over position he claimed he was.
fear had to be the only reason defendant used deadly force and she asserted
that defendant’s anger at the manslaughter victim was also a reason he fatally
stabbed the latter. She also pointed out
the defendant used deadly force immediately, instead of waiting until he had
been hit several times by the victims.
Finally, she asserted that his claim that he was being beaten severely
by the victims was contradicted by his report to a detective that he was not
injured and by his lack of wounds after the crimes. In other words, the prosecutor never claimed
that the serious bodily injury, the fear of which could have created either
perfect or imperfect self-defense, could not have resulted in the victims’ use
of their hands or fists. In fact, she
appeared to concede the matter.
name="_ftnref44" title="">[44] As stated before, defense counsel essentially
abandoned the claim that defendant stabbed the victims because he feared being
hit with the bat by Renee. However, not
surprisingly, defense counsel asserted that defendant’s belief that if he had
not used the knife, he would have suffered “a broken nose, a fractured
orbital . . . , a broken jaw, get knocked outâ€, “[got]
poun[d]ed into the groundâ€, or suffered “a totally bruised up face†was
sufficient to support self-defense. As
to this specific issue, defense counsel said, “[T]here is nothing in [the
instruction on self-defense] that suggests that great bodily injury cannot be
caused by hands and fists. . . . And common sense
dictates that it absolutely can be caused by hands and fists.†“Great bodily injury can certainly be
inflicted by hands or feet.†The
prosecutor did not object to any of these remarks.
We
determine whether, in light of all the above, there is a reasonable likelihood
that the jury understood that great bodily injury could not be inflicted by
hands and fists. (See
525.) The arguments of counsel are to be
considered in making this determination.
(Id. at p. 526.) If there was ever a doubt in the minds of
jurors, under the instructions given, whether great bodily injury could be
inflicted by hands and fists, that doubt was completely extinguished by the
comments of both the prosecutor and defense counsel. Therefore, there is no reasonable likelihood that
the jury believed that great bodily injury could not be inflicted by hands or
fists.
3.
Cumulative Error
Having
concluded there was no error in the exclusion of evidence or the giving of
instructions, we necessarily reject defendant’s contention that the cumulative
effect of these errors requires reversal.
4.
The
sentencing court ordered defendant to reimburse the City of Rialto for booking
fees in the amount of $79.86 and to pay “court security fees†in the amount of
$70 per count, or $210, total. The
minutes of the sentencing hearing show that the latter was for “Criminal
Assessment and Security†for counts 1, 2 and 4.
The abstract of judgment, however, incorrectly adds to the list of
counts count 3, for which defendant was not convicted. Therefore, the abstract must be
corrected. It also omits the order that
defendant reimburse the City of Rialto for booking fees in the amount of
$79.86, and this must be corrected.
Relying
on People v. High (2004) 119
Cal.App.4th 1192, defendant asserts that the trial court is required to report
in the abstract of judgment the statutory basis for each fee imposed. Defendant misreads High. Therein, the
sentencing court, in its oral pronouncement of judgment, imposed “a drug
program fee, together with surcharges and
penalties in the total sum of $1,530â€
and “a clandestine drug lab fine, together
with penalties, assessments and
surcharges totaling $1,700.†(
drug program fee. The minute order and
abstract of judgment stated that the $1700 was a clandestine drug lab
fine. (Ibid.) The appellate court
held, “All fines and fees must be set forth in the abstract of judgment. [Citations.] . . . If
the abstract does not specify the amount of each fine, the Department of
Corrections cannot fulfill its statutory duty to collect and forward deductions
from prisoner wages to the appropriate agency.
[Citation.] At a minimum, the
inclusion of all fines and fees in the abstract may assist state and local
agencies in their collection efforts.†(
The High court never held that
the statutory basis of each fee must be set forth in the abstract of judgment,
or anywhere else. It merely held that
the fees must be sufficiently identified so that the state and local agencies
would know what to collect. In its
disposition, the appellate court in High
ordered the trial court to “separately list, with the statutory basis, all
fines, fees and penalties imposed on each count . . . .†(Id.
at p. 1201.) A dispositional order by an
appellate court is not the holding of the case.
Defendant cites no other authority for the proposition that the abstract
must contain the statutory provisions for each fine or fee imposed.
However,
as the People concede, it is more accurate, in this case, for the $70 “criminal
assessment and security fees†to be designated as $40 for the court security
fee and $30 for the criminal conviction fee, each per conviction. Therefore, we will order the trial court to
amend both the minutes of the sentencing
hearing and the abstract of judgment to reflect this.
The
trial court is directed to amend the minutes of the sentencing hearing and the
abstract of judgment to show that $30 per conviction was imposed as a criminal
conviction fee and $40 per conviction was imposed as a court security fee. The trial court is further directed to amend
the abstract to omit any reference to a fee being imposed for count 3 and to
include the order that defendant reimburse the City of Rialto for its $79.86
booking fee. In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
RAMIREZ
P.
J.
We concur:
HOLLENHORST
J.
RICHLI
J.
name="_ftn1" title=""> [1] Jennifer also variously testified that
defendant agreed that sh
| Description | A jury convicted defendant, Hector Rueda, III, of voluntary manslaughter (Pen. Code, § 192, subd. (a)), during which he used a knife (§ 12022, subd. (b)(1)), attempted voluntary manslaughter (§§ 664/192, subd. (a)), during which he used a knife and inflicted serious bodily injury (§ 12022.7, subd. (a)), and carrying a dirk or dagger (§ 12020, subd. (a)(4)). He was sentenced to prison for 12 years and appeals, claiming evidence was improperly excluded, the jury was misinstructed and the sentencing court erred in imposing certain fees. We reject his contentions, while directing the trial court to correct errors in the minutes of the sentencing hearing and the abstract of judgment. |
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