P. v. Benites
Filed 3/26/13 P. v. Benites CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
VICENTE BENITES,
Defendant and Appellant.
D061110
(Super. Ct.
No. CRN27532)
APPEAL from
a judgment of the Superior Court
of
County, K. Michael Kirkman, Judge. Affirmed.
Vicente
Benites appeals from a judgment convicting him of voluntary manslaughter. He argues the judgment must be reversed due
to the cumulative effect of error that occurred in
court's response to a jury question, and the court's refusal to exclude a
rebuttal witness's testimony. We reject
these contentions of error, and hence find no cumulative error.
FACTUAL
AND PROCEDURAL BACKGROUND
The
homicide in this case occurred in 1989, but the crime was not prosecuted until
2011 because defendant absconded to
appeal, we need only briefly summarize the factual record.
On May 20, 1989, defendant shot and
killed Margarito Navarrete while they were attending a birthday party. Defendant and the victim were from the same
small town in Mexico,
where there had been a feud between their families resulting in several
killings. According to witness
testimony, there were rumors that defendant's brother had killed the victim's
brother, and, in revenge, the victim and several accomplices killed defendant's
brother and father.
On the
night of the shooting in 1989, defendant and his cousin, Epifanio Flores,
encountered the victim at the party. Flores
came towards the victim with a knife and stabbed him once, cutting his
arm. Other men at the party quickly
intervened to stop Flores. However, defendant then pulled out a gun and
repeatedly shot the victim. Prosecution
witnesses testified that the victim did not have a weapon and did not engage in
any threatening behavior. The
prosecution's theory of the case was that Flores
committed first degree premeditated murder for revenge.
Defendant
called numerous character witnesses to testify that he was not a violent
person. Defendant also testified on his
own behalf, stating he had heard the victim was asking about his family; he
told his cousin Flores about this; and he interpreted this to mean the victim
wanted to hurt his family. When
defendant saw the victim at the party he became afraid, and he went to his car
and got a gun. When Flores
attacked the victim with a knife, the victim had his hand on his waist and
defendant thought the victim "was going to take something out" and
attack Flores and then him.
The jury
was instructed on self-defense and on voluntary manslaughter based on heat of
passion or unreasonable self-defense.
The jury convicted defendant of voluntary manslaughter with a finding
that he personally used a firearm. He
received an eight-year prison sentence.
DISCUSSION
Defendant
asserts the jury might have found reasonable, rather than unreasonable, self-defense
if not for the cumulative effect of several errors. He asserts that portions of the prosecutor's
closing argument misled the jury about self-defense principles. He also challenges the court's response to
the jury's request (after deadlock) for definitions relevant to
self-defense. Finally, he argues the
trial court erred in denying his motion to exclude a rebuttal witness's
testimony.
We find no
error.
I. Prosecutor's
Closing Arguments
A
prosecutor has wide latitude to vigorously argue the prosecution's case;
however, it is improper for the prosecutor to misstate the law. (People
v. Hill (1998) 17 Cal.4th 800, 819, 829.)
When evaluating claims of improper argument to the jury, the question is
whether there is a reasonable likelihood the jury construed the prosecutor's
statements in an objectionable manner. (
841.)
Defendant
asserts the prosecutor misled the jury about self-defense principles in the
following portions of her rebuttal argument:
"Common sense
and logic tells us that you don't run towards the thing you're afraid of. You don't run into a burning building. You don't run towards someone who you think
is about to kill you with a knife or a gun.
And in this case, the defendant did not run towards [the victim] because
he thought he was going to kill him. He
ran towards him because he wanted to kill him . . . for
revenge, and that's why this is first degree murder.
"This is not a
self-defense case. Let me tell you
why. Self-defense . . .
right. . . .The
Legislature . . . tell[s] us, 'At this particular
time . . . because of what happened, we are giving you a freebie.'
We're saying, 'We understand what happened here, and you had a right at
that time.' It's one of the rights we best
enjoy in the United States of America,
but it's a very limited right.
"In this case,
i[t] is not a self-defense case. This is
not a case where society tells the defendant, 'You were allowed to kill on May 20th, 1989, and we're not going
to hold you accountable for that crime.'
This is not that type of case.
It's a limited right because our country discourages eye for an eye,
discourages an opportunity where, if someone cut off my arm, six months later,
I can go over and cut off that person's arm, too. Our society does not allow that. There's enough cooling off period for
that." (Italics added.)
In another portion of rebuttal,
the prosecutor argued:
"Let's talk
about imperfect self-defense. It's an
actual but unreasonable belief in the necessity to defend against immediate
peril to life or great bodily injury.
Basically, you're about to die
instantly, and the only way to avoid
that is to kill right now. That's
not this case, either. It does not
apply, and the defendant does not get that discount. Because
immediate . . . deadly force was not necessary in this
case. . . .
[¶] . . . The defendant did not believe, based on
the evidence, that he needed to defend himself against immediate harm. There were no weapons in [the victim's]
hands . . . ."
(Italics added.)
name="_ftnref2" title="">[2]
On appeal,
defendant asserts the prosecutor misled the jury when she described
self-defense as a "sacred right" and "freebie," and when
she suggested that self-defense requires a belief "that one needs to
'instantly' kill someone."
Read in
context, there is no reasonable likelihood the prosecutor misled the jury about
self-defense principles by characterizing the right to self-defense as a sacred
right and a freebie. Calling a defense a
sacred right means that it is a value held in high esteem in our society; this
characterization inures to the defendant's benefit because it tells the jury
that if it found defendant acted in self-defense he could not be found guilty
even though he killed someone.
Further,
characterizing self-defense as a "freebie" does not rise to the level
of a misstatement of the law. A
successful self-defense claim allows a person who killed another person to go
free. There is no reasonable likelihood
that the jury interpreted the reference to "freebie" to mean anything
other than this well-recognized concept.
With
respect to the prosecutor's suggestion that self-defense requires a belief in
the need to kill instantly (i.e., the defendant is about to die instantly and
needs to "kill right now"), defendant posits that self-defense
requires the belief in a threat that
must be dealt with instantly, but it
does not require the belief in the need to instantly
kill the victim. The contention is
unavailing. Self-defense requires both a
belief in imminent harm and a belief
that immediate use of deadly force is
necessary. (People v. Humphrey (1996) 13 Cal.4th 1073, 1094 [defendant must
believe that "immediate defense
against the impending danger was the only means of escape from great bodily
injury or death"], italics added; CALCRIM No. 505 ["defendant
reasonably believed that [he or someone else] was in imminent danger" and
"defendant reasonably believed that the immediate use of deadly force was necessary to defend against that
danger" (italics added)].) The
prosecutor did not err when stating that the defendant must believe that he
needs to kill the victim "right now."
II. Court's
Response to Jury Question
Defendant
also raises a claim of error based on the manner in which the court responded
to a jury question after it was deadlocked.
Background
During
deliberations, the jury informed the court that it was not able to reach an
agreement. After being queried by the
court, the jury stated that it might be helpful if it was provided a definition
of "imminent danger" and "reasonably necessary force."
The jury's
request for definitions was derived from the self-defense instruction it
received (CALCRIM No. 505), which included the following description of the
self-defense requirements:
"1. The defendant reasonably believed that he or
someone else was in imminent danger
of being killed or suffering great bodily [injury]; [¶] 2. The defendant reasonably believed that the
immediate use of deadly force was necessary to defend against that danger; [¶]
AND [¶] (3) The defendant used
to defend against that danger.
"Belief in
future harm is not sufficient, no matter how great or how likely the harm is
believed to be. The defendant must have
believed there was imminent danger of
great bodily injury to himself or someone else.
Defendant's belief must have been reasonable and he must have acted only
because of that belief. The defendant is
only entitled to use that amount of force
that a reasonable person would believe is necessary in the same
situation. If the defendant used more
force than was reasonable, the killing was not justified. . . .
"If you find
that [the victim] threatened or harmed the defendant or others in the past, you
may consider that information in deciding whether the defendant's conduct and
beliefs were reasonable. . . . [¶] Someone who has been
threatened or harmed by a person in the past, is justified in acting more
quickly or taking greater self-defense measures against that person." (Italics added.)
After
discussing the jury's note with counsel, the trial court proposed responses to
the jury's question, and both counsel concurred. Accordingly, the trial court provided the
following responses to the jury:
" 'Imminent
danger' as used in these instructions, means the danger must have existed or
appeared to the defendant to have existed, at the time that shots were
fired. In other words, the danger must
appear to the Defendant as immediate and present and not prospective or even in
the near future. And imminent danger is
one that, from appearances, must be instantly dealt with.
"With respect
to the requested definition of 'reasonably necessary force,' I reference you to
CALCRIM Instruction 505 and, generally, to CALCRIM Instruction 200 regarding
words or phrases used during this trial."
Analysis
The
Attorney General asserts defendant's challenge to the court's response to the
jury's question is forfeited on appeal because defense counsel agreed with the
court's response. Even absent an
objection, a trial court's instructional response to a jury note is not
forfeited if the instruction affected the defendant's substantial rights. (People
v. Butler (2009) 46 Cal.4th 847, 876-877, 882, fn. 18; Pen. Code, §
1259.) However, there was no error. The portion of the court's response
addressing the meaning of imminent danger was derived from People v. Aris (1989) 215 Cal.App.3d 1178. The court correctly told the jury that the
defendant must have believed there was imminent danger at the time the shots
were fired. (Id. at p. 1187.) The court
also properly directed the jury to the definition of reasonably necessary force
as explained in CALCRIM No. 505, and to CALCRIM No. 200 which told the jury to
give words their ordinary meaning unless instructed otherwise.
There was
no error in the court's response to the jury's request for the definitions.
III. Refusal
To Exclude Officer Sweeney's Testimony
Defendant
asserts error based on the trial court's refusal to grant his motion to exclude
the testimony of Officer Barry Sweeney on the basis that the officer was
present in the courtroom during part of defendant's testimony.
During its
rebuttal case, the prosecution presented the testimony of Officer Sweeney, who
investigated the 1989 shooting a few hours after its occurrence. Officer Sweeney testified that when he
interviewed Flores on the night of the shooting, Flores told him that while
they were in the garage "all of a sudden, [defendant] pulled a gun out of
his waistband and shot [the victim] numerous times." Flores claimed that as soon as defendant
started shooting, Flores reached into his pocket to grab a knife, but he was
stopped by another person. When Officer
Sweeney asked Flores why defendant would shoot the victim, Flores answered that
two years earlier the victim had killed defendant's brother. When Officer Sweeney asked if defendant had
mentioned any problems with the victim, Flores responded that defendant had not
mentioned any problems. Officer Sweeney
testified that Flores never stated during the interview that he had heard that
the victim was in town looking for him and defendant to kill them.
Prior to
Officer Sweeney's testimony, defense counsel had moved to exclude the testimony
because Officer Sweeney had been in the courtroom earlier that afternoon during
a portion of defendant's testimony, which was contrary to the court's pretrial
ruling excluding witnesses from the courtroom.
After an unreported sidebar conference, the court ruled that the officer
could testify. After Officer Sweeney
testified, the court summarized on the record its reasons for allowing him to
testify and discussed the matter further with the parties. The court stated that shortly before the
afternoon break, it noticed that Officer Sweeney was in the courtroom while
defendant was testifying. The court did
not know at what point the officer had arrived, but it knew he had not been in
the courtroom "for a long period of time." The prosecutor was unaware of his
presence. When the prosecutor was told
the officer was there (apparently at the time of the afternoon break), she told
him to wait outside the courtroom, which he did.
The court
explained that it denied the defense request to exclude Officer Sweeney's
testimony because his presence was "an innocent mistake on his part." The portion of defendant's testimony heard by
the officer involved defendant's demonstration of the manner in which he
approached the victim at the time of the shooting, which would not have
"in any way, shape or form" impacted Officer Sweeney's narrow
testimony about what Flores said to Officer Sweeney during his interview. Further, Officer Sweeney's testimony was
based on the information he had written in his 1989 police report, and if he
had testified inconsistently with his report, defense counsel would have
elicited this on cross-examination.
Hence, the court concluded there was no prejudice to defendant.
Defense
counsel agreed that the prosecutor was acting in good faith and was unaware
that Officer Sweeney had been present in the courtroom, and agreed that Officer
Sweeney most likely did not hear testimony from defendant that was related to
the subject of Officer Sweeney's testimony.
Nevertheless, defense counsel argued that the testimony of a witness who
violates a witness exclusion order should automatically be excluded. The court rejected this approach and adhered
to its ruling based on the absence of any prejudice to defendant.
A witness's
violation of a witness exclusion order does not alone "make such witness
incompetent nor furnish grounds for a refusal to permit him to
testify." (People v. Duane (1942) 21 Cal.2d 71, 80.) Generally, matters related to witness
exclusion "lie[] within the sound discretion of the trial
judge." (People v. Ortega (1969) 2 Cal.App.3d 884, 894; see
537, 542.) A trial court abuses its
discretion if it exercises the discretion in an arbitrary, capricious, or
patently absurd manner that results in a manifest miscarriage of justice. (People
v. Carrington (2009) 47 Cal.4th 145, 195.)
Defendant
has presented no argument to refute the court's finding that Officer Sweeney's
testimony was not impacted by his improper presence in the courtroom. Defendant merely argues that Officer
Sweeney's testimony "did contribute to the prosecutor's ability to impeach
[defendant's] testimony on a salient point, whether there were rumors the
victim was in town looking for him before the murder." The fact that Officer Sweeney's testimony
supported the prosecution's case does not show that the court erred in finding
Sweeney's testimony was not influenced by his presence in the courtroom during
defendant's testimony. Without some
indication that Officer Sweeney's testimony was improperly impacted by his presence
in the courtroom during defendant's testimony, defendant has not shown the
court abused its discretion in admitting the officer's testimony.
IV. No
Cumulative Error
Because we have found no error, defendant's claim of
cumulative error fails.
DISPOSITION
The judgment is affirmed.
HALLER, Acting P. J.
WE CONCUR:
AARON, J.
O'ROURKE, J.
name="_ftn1" title="">[1] At trial, defense counsel made no objection to this
argument.
name="_ftn2" title="">[2] At trial, defense counsel objected to this portion of the
prosecutor's argument on the basis that the prosecutor had misstated the law. In response, the court admonished the jury to
read carefully and follow the instructions as they related to imperfect
self-defense.
