P. v. Kundrat
Filed 4/11/13 P. v. Kundrat CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
KADE KUNDRAT,
Defendant and Appellant.
D060318
(Super. Ct.
No. SCN264386)
APPEAL from
a judgment of the Superior Court
of
County, K. Michael Kirkman, Judge. Affirmed.
Kade
Kundrat appeals a judgment following his jury conviction of
§ 187, subd. (a)).
name="_ftnref1" title="">[1] On appeal, he contends the evidence is
insufficient to support the jury's findings that: (1) he acted with an intent
to kill; (2) he acted with premeditation and deliberation; (3) he did not act
in a heat of passion or sudden quarrel; and (4) he did not act in actual, but
unreasonable, self-defense (i.e., imperfect self-defense).
FACTUAL
AND PROCEDURAL BACKGROUND
On July 12, 2009, Adam Schmidt
(Schmidt), the younger brother of Kundrat's ex-boyfriend, Joshua Schmidt
(Joshua), was staying at Kundrat's Oceanside
apartment for a few days. Kundrat lived
there with his infant son, K. Kundrat
was friends with Nicole Munoz and her fiancé, David Jacobson.
Between 8:30 p.m. and 10:00
p.m., Schmidt went with Jacobson to meet Munoz at the train
station. After meeting her, Jacobson and
Schmidt bought a bottle of vodka and then all three headed to Kundrat's
apartment. Kundrat, his infant son, and
Kalvin Ratsch were there when they arrived.
Ratsch was staying at the apartment that weekend. Schmidt, Jacobson and Munoz drank vodka and
smoked marijuana. Jacobson and Munoz
argued about her use of her cell phone to try to get drugs. Jacobson left the apartment. Munoz then left to find drugs at someone
else's house. When she returned,
Jacobson was not there. She left to look
for him and found him at a bar. Jacobson
met a friend, Buddah, and all three went back to Kundrat's apartment. Ratsch was sleeping on the floor, Kundrat was
sleeping in the bedroom with his son, and Schmidt was trying to sleep on the
couch.
Munoz and
Jacobson began arguing again because she wanted to do drugs and he did not want
her to. Jacobson "popped" her
on the back of the head. She grabbed
him, threw him to the floor, and began choking him. When she let Jacobson go, he grabbed her
phone and tried to leave. She wrestled
him to the floor again, grabbed her phone, and then went into Kundrat's bedroom
because Jacobson was scaring her.
Jacobson and Schmidt followed her into the bedroom. Munoz told Kundrat she was afraid of Jacobson
because he hit her and wanted Jacobson to leave the apartment, and Kundrat told
Jacobson to leave. He refused and told
Schmidt to leave. Schmidt stated he was
staying there and didn't have to leave.
Jacobson punched Schmidt in the nose, knocking him to the floor. When he tried to jump on Schmidt, Kundrat
pulled him off. Kundrat told Jacobson he
had to leave.
title="">[2] Either Jacobson or Buddah kicked Ratsch, who
was lying on the floor, and took his cell phone.
don't hit my boyfriend's little brother in my house in front of my 18-month-old
son." Kundrat's son was awake and
crying. Schmidt's nose was
bleeding. Kundrat appeared distraught
that Schmidt's nose was broken. Schmidt
held a towel to his bloody nose, and tried to call his brother (Joshua), which
upset Kundrat, but Joshua did not answer his phone.
At about 1:50 a.m., Jacobson called Munoz and tried to
apologize. Munoz refused to accept his
apology and hung up on him. Kundrat
asked her to call Jacobson back and see if he was still there. When she called, Guitar Joe, who lived five
minutes away, answered the phone and said Jacobson had left. Munoz told Kundrat that Jacobson was not
there and he should not bother looking for him.
Kundrat
left the apartment to look for Jacobson, stating he would be right back. He told Munoz to keep the door locked and not
to open it for anyone. Kundrat seemed
very tense, angry, and upset. After he
left, Guitar Joe called Munoz and asked her to tell Jacobson that he left with
his (Guitar Joe's) marijuana pipe.
Kundrat returned about five to 10 minutes later. He went to the kitchen, rattled some
silverware, grabbed something off the counter (presumably a knife), and rushed
back to the front door, stating he would be right back. Ratsch asked him about his phone and Kundrat
replied, "Fuck your Blackberry."
At about 2:00 a.m., Erica Valenzuela-Greb and her
husband, Shane Greb, who lived in apartment
18 in Kundrat's apartment building, were awakened by a loud
scream.
sitting against the staircase.
Between
five and 15 minutes after he left, Kundrat returned to his apartment, told the
others not to look, and turned off all the lights. He went straight to the kitchen, ran water,
washed something, and placed something in a plastic bag. When they asked what was happening, Kundrat
told them to "[s]hut the fuck up."
He ordered them to go into the bedroom and stated: "Nobody is
leaving, not even to take a shit."
Kundrat, Munoz, Schmidt, and Ratsch went into the bedroom where K. was
and Munoz closed its windows and curtains.
Kundrat told everyone to give him their cell phones. Munoz and Schmidt handed him their phones and
he removed their batteries. Kundrat then
changed his clothes in the dark. When
Munoz asked what happened, Kundrat told her nothing happened.
Kundrat
appeared distraught and upset and was chain-smoking. Kundrat told Munoz that she "better give
up the pussy or the mouth" because he was "going to be going away for
a long time." He told Schmidt that he
was safe now and was "straight" for getting hit. He told Munoz that she was
"straight" for Jacobson's putting hands on her. He told Ratsch that he could not find his
phone, but he was "straight" for that. Kundrat said he had "hurt that kid"
and they did not have to worry about getting slapped or punched anymore. He told Ratsch to "F" his military
career and that "[e]verybody's lives are at risk." Kundrat stated that if anyone asked, he was
with his child all night.
At about 2:30 a.m., Dawn MacDonald, who lived in apartment
20 in Kundrat's apartment building, left her apartment with her
mother to go to her car. She saw blood
running into the street from the driveway in front of the stairs. She then saw Jacobson's body and called 911.
Later that
night, Kundrat called Joshua and asked him to pick up K. At some point, Kundrat saw police outside and
stated he would not be able to get K. and Schmidt out of the apartment. At about 3:40
a.m., Kundrat opened the apartment door and saw Oceanside Police Officer
Jeffrey Killion outside. Killion told
Kundrat that detectives needed to talk to residents before they left. When Killion asked Kundrat for
identification, Kundrat pulled his wallet out of his waistband and handed it to
Killion. Killion asked Kundrat to take
his identification out of his wallet and hand it to him. Kundrat's hands were shaking as he complied.
Police
found Jacobson's body seated next to a staircase. A pipe and two cell phones, one of which was
Ratsch's, were found in his pockets. A
pool of blood surrounded the body and there also was a large amount of blood
outside the laundry room. A trail of
blood was found in the interior hallway of the apartment building. A subsequent examination of Jacobson's body
showed he had sustained four stab wounds, each of which was significant or
life-threatening. The first stab wound
was three inches deep and to the back of the right side of his neck. The second stab wound was four and
three-quarter inches deep and was just below his left armpit on the left side
of his chest. The third stab wound was
about the same depth and was just below the second one on the left side of his
chest. The fourth stab wound was also
about the same depth and was to the left side of his chest behind the third
stab wound. The cause of Jacobson's
death was determined to be stab wounds to the thorax and neck. He died within seconds to a few minutes after
sustaining those injuries. His blood
alcohol content was 0.18 percent and tests showed the presence of cannabinoids
(i.e., marijuana) in his system.
A search by
police of Kundrat's apartment found a pillowcase with a significant amount of
blood on it, blood on the bedroom's wall, and a shoe with apparent blood on
it. In the kitchen, police found a few
droplets of blood and a bloodstained hand towel near the sink.
six and three-quarter inches long, with a single sharp edge, and could have
been used to inflict Jacobson's injuries.
A folding knife was found on the floor under a storage cabinet in the
kitchen. Because the medical examiner
was unable to open it, no conclusion was made whether it could have caused
Jacobson's injuries.
name="_ftnref6" title="">[6] Jacobson's blood was on clothing found in
Kundrat's apartment, including a black T-shirt, a pair of shorts, and a pair of
shoes. Kundrat's DNA was found on those
shoes and he could not be excluded as a contributor to the DNA found on the
shorts. No blood or DNA was found on the
blade of the knife found in the sink or on the folding knife found under the
cabinet.
An
information charged Kundrat with first degree murder (§ 187, subd. (a))
and alleged that in committing that offense he personally used a deadly weapon,
a knife (§§ 12022, subd. (b)(1)), 1192.7, subd. (c)(23)). It also alleged he had four prior prison
convictions (§§ 667.5, subd. (b), 668) and seven convictions that made him
ineligible for probation (§ 1203, subd. (e)(4)).
At trial,
the prosecution presented evidence substantially as described above. In his defense, Kundrat testified that he had
a drink or two the afternoon of July 12, 2009, but was not intoxicated. Apparently that evening, he was sleeping with
his son and awoke to find Jacobson, Munoz, and Schmidt in his bedroom. Jacobson and Munoz were arguing. Jacobson punched Schmidt, who curled up into
a ball. Although Schmidt was crying,
Kundrat did not feel any responsibility to protect him because he was a grown
man who could take care of himself. He
also did not feel responsible to take care of Munoz. Kundrat picked up his crying son and asked
Jacobson to leave. As Kundrat walked
down a hallway, he saw a bald Hispanic man (presumably Buddah) he did not know. He was angry someone had brought a stranger
into his home and told him to get out.
Kundrat begged Jacobson to leave.
Jacobson kicked Ratsch and took his phone and then he and the stranger
left the apartment.
Later,
Kundrat left the apartment to find Jacobson and tell him not to return to the
apartment until he was sober. He took a
knife with him. Unsuccessful in finding
Jacobson, Kundrat returned home. When
Munoz finished a call on her cell phone, she told Kundrat that Jacobson was at
Guitar Joe's. Kundrat told her to tell
Jacobson to stay there. When Guitar Joe
called and said Jacobson had left with his pipe, Kundrat believed that meant
Jacobson was on his way back to the apartment.
Kundrat left the apartment, hoping to convince Jacobson to stay at
Guitar Joe's for the rest of the night.
He took his folding knife, in its opened position, with him because he
was worried about Jacobson's friend, "the Mexican dude with the bald
head." Kundrat walked down the
stairs in the apartment building, turned, and then saw Jacobson rushing at
him. He saw Jacobson's fist coming
toward him and he thought he was about to get hit or stabbed. In a split-second decision, Kundrat reacted
by stabbing Jacobson twice. He thought
his knife went only part of the way into Jacobson. Although Kundrat thought Jacobson was trying
to stab him, he did not see a knife in his hand. Kundrat testified that he did not intend to
kill Jacobson when he left his apartment to look for him. Kundrat did not think he killed Jacobson, but
only "nicked" him. Kundrat saw
blood on his fingers and on the ground outside the laundry room.
Kundrat
returned to his apartment, yelled for someone to turn off the lights, and Munoz
did so. Kundrat went to the kitchen and
washed off his hands and the folding knife.
He then hid the knife under the closet because he knew that, as a felon,
he was not allowed to have a folding knife of that size. Kundrat told everyone to keep quiet, turn out
the lights, and close the windows so no one would know anyone was home. Although he told everyone to go into the
bedroom, he did not prevent them from leaving the bedroom or calling
police. He told them he "might be
gone for like five years." He told
Schmidt that he "hurt that kid."
He borrowed Munoz's cell phone and called Joshua to have him pick up K.
and Schmidt. Kundrat heard voices outside,
saw reflections of red and blue lights, and thought Jacobson had called
police. Early that morning (July 13,
2009), Kundrat opened his door to take K. to Joshua, who was at the beach. He saw the police and ultimately was taken to
the police station and interviewed.
However, during the interview Kundrat did not tell police he was afraid
of Jacobson, Jacobson charged at him, or that he stabbed Jacobson.
Kundrat
testified that he remembered stabbing Jacobson only twice in his side. He did not remember stabbing him in the back
of the neck or the third time in his torso.
Although Kundrat was larger than Jacobson, he was aware of Jacobson's
reputation as a good fighter. Kundrat
denied he was angry at Jacobson that night, but was "a little upset about
the whole ordeal, in general."
In
rebuttal, the prosecution presented the testimony of a police detective who
testified that during his interview of Kundrat on July 13, 2009, Kundrat never
told him he was afraid of Jacobson, Jacobson lunged at him, he feared for his
life, or that he was afraid of Jacobson's friend who was in the apartment that
night (presumably Buddah). Kundrat never
told him he had stabbed Jacobson.
The jury
found Kundrat guilty of first degree murder and found true the allegation he
personally used a deadly weapon in committing that offense. In a separate bench trial, the trial court
found true the prior conviction
allegations. The court sentenced
Kundrat to an indeterminate term of 25 years to life in prison for the first
degree murder offense, plus a total determinate term of five years for the
enhancements, for a total term of 30 years to life in prison.
DISCUSSION
I
When a defendant challenges a
claim of insufficiency of the evidence, "the reviewing court's task is to
review the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence--that is, evidence that is
reasonable, credible, and of solid value--such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt." (People
v. Rodriguez (1999) 20 Cal.4th 1, 11, citing People v. Johnson (1980) 26 Cal.3d 557, 578.) "Resolution of conflicts and
inconsistencies in the testimony is the exclusive province of the trier of
fact. [Citation.] Moreover, unless the testimony is physically
impossible or inherently improbable, testimony of a single witness is
sufficient to support a conviction."
(People v. Young (2005) 34
Cal.4th 1149, 1181.)
The
substantial evidence standard of review involves two steps. "First, one must resolve all explicit
conflicts in the evidence in favor of the respondent and presume in favor of
the judgment all reasonable
inferences. [Citation.] Second, one must determine whether the
evidence thus marshaled is substantial.
While it is commonly stated that our 'power' begins and ends with a
determination that there is substantial evidence [citation], this does not mean
we must blindly seize any evidence in support of the respondent in order to
affirm the judgment. . . .
[Citation.] '[I]f the word
"substantial" [is to mean] anything at all, it clearly implies that
such evidence must be of ponderable legal significance. Obviously the word cannot be deemed
synonymous with "any" evidence.
It must be reasonable . . . , credible, and of solid value
. . . .' [Citation.] The ultimate determination is whether a
found for the respondent based on the whole
record." (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627,
1632-1633, fns. omitted.) "[T]he
power of an appellate court begins
and ends with the determination as to
whether, on the entire record, there
is substantial evidence, contradicted or uncontradicted, which will support the
determination, and when two or more inferences can reasonably be deduced from
the facts, a reviewing court is without power to substitute its deductions for
those of the trial court.
of no consequence that the trial court believing other evidence, or drawing other
reasonable inferences, might have reached a contrary conclusion." (Bowers
v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)
The
standard of review is the same in cases in which the prosecution relied
primarily on circumstantial evidence. (
932.) In applying the substantial
evidence standard of review to cases primarily involving circumstantial
evidence, Bean stated: "Although
it is the duty of the jury to acquit a defendant if it finds that
circumstantial evidence is susceptible of two interpretations, one of which
suggests guilt and the other innocence [citations], it is the jury, not the
appellate court[,] which must be convinced of the defendant's guilt beyond a
reasonable doubt. ' "If the
circumstances reasonably justify the trier of fact's findings, the opinion of
the reviewing court that the circumstances might also be reasonably reconciled
with a contrary finding does not warrant a reversal of the
judgment." ' " (
sufficient to connect a defendant with the crime and to prove his guilt beyond
a reasonable doubt." (
210.)
II
Kundrat
contends his conviction of first degree murder must be reversed because the
evidence is insufficient to support the jury's finding he killed Jacobson with
malice aforethought.
A
Murder is
the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Malice may be either express or implied. (§ 188; People v. Knoller (2007) 41 Cal.4th 139, 151.) Malice is express when there is an unlawful
intent to kill. (§ 188 [defining
express malice as "a deliberate intention unlawfully to take away the life
of a fellow creature"]; People v.
Blakeley (2000) 23 Cal.4th 82, 87.)
"Malice is implied when the killing is proximately caused by
' "an act, the natural consequences of which are dangerous to life,
which act was deliberately performed by a person who knows that his conduct
endangers the life of another and who acts with conscious disregard for
life." ' [Citation.] In short, implied malice requires a
defendant's awareness of engaging in conduct that endangers the life of
another--no more, and no less." (
B
Because the
jury found Kundrat guilty of willful, premeditated, and deliberate murder, it
necessarily found he killed Jacobson with an intent to kill him. As noted above, an intent to kill constitutes
express malice. We conclude there is
substantial evidence to support the jury's finding that he had the intent to
kill Jacobson. Because there rarely is
direct evidence of a defendant's intent, a defendant's intent to kill may be
inferred from his or her acts and the circumstances of the crime. (People
v. Smith (2005) 37 Cal.4th 733, 741.)
The record supports a reasonable inference that Kundrat stabbed Jacobson
four times with a knife and killed him.
Kundrat stabbed Jacobson once in the back of his neck and three times on
the left side of his chest below his armpit.
Each of the four stab wounds was at least three inches deep and was
life-threatening. Based on the nature of
the knife attack and location and depth of each stab wound, there is
substantial evidence to support the jury's finding that Kundrat stabbed
Jacobson with the intent to kill him, thereby satisfying the malice requirement
for murder. (Cf. People v. Bolden (2002) 29 Cal.4th 515, 560-561 [single stab wound,
five to six inches deep, to victim's back that penetrated victim's lungs and
spleen supported inference that defendant had an intent to kill];
1105, 1114 [defendant stabbed victim in abdomen, an extremely vulnerable area,
supporting inference defendant had a specific intent to kill].) To the extent Kundrat argues there is
substantial evidence that would have supported a contrary finding (i.e., that
he did not have an intent to kill), he misconstrues and/or misapplies the
substantial evidence standard of review.
III
Deliberation
Kundrat
contends his conviction of first degree murder must be reversed because the
evidence is insufficient to support the jury's finding he killed Jacobson with
premeditation and deliberation.
A
Murder that
is willful, deliberate, and premeditated is murder of the first degree. (§§ 187, subd. (a), 189.) "An intentional killing is premeditated
and deliberate if it occurred as the result of preexisting thought and
reflection rather than unconsidered or rash impulse. [Citations.]
However, the requisite reflection need not span a specific or extended
period of time.
' " 'Thoughts may follow each other with great rapidity
and cold, calculated judgment may be arrived at quickly . . . .' " ' " (People
v. Stitely (2005) 35 Cal.4th 514, 543.)
Alternatively stated, " 'premeditated' means 'considered
beforehand,' and 'deliberate' means 'formed or arrived at or determined upon as
a result of careful thought and weighing of considerations for and against the
proposed course of action.' "
(People v. Mayfield (1997) 14
Cal.4th 668, 767.)
In
reviewing the evidence to support a finding of premeditated and deliberate
murder, "[a]ppellate courts typically rely on three kinds of evidence
. . . : motive, planning activity, and manner of killing. [Citations.]
These factors need not be present in any particular combination to find
substantial evidence of premeditation and deliberation. [Citation.]
However, '[w]hen the record discloses evidence in all three categories,
the verdict generally will be sustained.'
[Citation.] In conducting this
analysis, we draw all reasonable inferences necessary to support the
judgment." (People v. Stitely, supra,
35 Cal.4th at p. 543.) Those three
factors "are not exclusive, nor are they invariably
determinative." (
850.)
B
Based on
our review of the whole record, we conclude there is substantial evidence to
support the jury's finding that Kundrat's intentional killing of Jacobson was
premeditated and deliberate. We conclude
that finding is supported by evidence of Kundrat's motive, planning activity,
and manner of killing. The jury could
reasonably infer from the evidence that Kundrat had a motive to kill Jacobson. The jury could infer Kundrat was angry
because Jacobson: (1) argued with and hit Munoz; (2) awoke him and his baby
causing his baby (K.) to cry; (3) punched Schmidt in the nose; (4) brought a
stranger (i.e., Buddah) into his apartment; and (5) kicked Ratsch and took his
phone. Based on that anger toward
Jacobson, the jury could infer Kundrat wanted revenge and retaliated against
Jacobson by stabbing and killing him, thereby, in Kundrat's mind, making Munoz,
Schmidt, and Ratsch "straight" for what Jacobson did to them. There is evidence showing Kundrat had a
motive to kill Jacobson.
Second,
there is also evidence Kundrat planned the killing in advance. He armed himself with an open knife when he
went left the apartment to find Jacobson.
Although Kundrat testified he took the knife because he was afraid of
Jacobson's friend (i.e., Buddah), the jury could properly reject that testimony
and, instead, reasonably infer that Kundrat took the knife with the plan to use
it to stab and kill Jacobson. (
1250 ["As to planning, the jury could infer that defendant carried the
fatal knife into the victim's home in his pocket, which makes it 'reasonable to
infer that he considered the possibility of homicide from the
outset.' "]; People v. Koontz
(2002) 27 Cal.4th 1041, 1081-1082 [planning was shown by defendant's arming
himself with two concealed and loaded handguns]; People v. Miranda (1987) 44 Cal.3d 57, 87 [defendant's bringing of
loaded gun and shortly thereafter using it to kill victim "reasonably
suggests [he] considered the possibility of murder in advance"];
401 [planning was shown by defendant's bringing of gun to store and shooting
victim in back of head].)
Third,
evidence of the manner in which Kundrat killed Jacobson supports a reasonable
inference he did so with premeditation and deliberation. Kundrat stabbed him four times. He stabbed him once in the back of the neck
and three times in the torso. All of the
stab wounds were life-threatening. Based
on the location and depth of the stab wounds, the jury could reasonably infer
Kundrat carefully thought about and reflected on his plan to kill Jacobson,
even if only for a brief time, and then deliberately carried out his plan by
fatally stabbing Jacobson multiple times.
Based on
the evidence of Kundrat's preexisting motive, planning activity, and manner of
killing, as well as other evidence in the record, we conclude there is
substantial evidence to support the jury's finding that Kundrat killed Jacobson
with premeditation and deliberation. (
v. Mayfield, supra, 14 Cal.4th at
p. 767.) To the extent Kundrat argues
there is substantial evidence that would have supported a contrary finding
(i.e., that he did not kill Jacobson with premeditation and deliberation), he
misconstrues and/or misapplies the substantial evidence standard of appellate
review.
IV
Substantial
Evidence to Support Finding Killing Was Not Done
in a Heat of
Passion or Sudden Quarrel
Kundrat
contends his conviction of first degree murder must be reversed because the
evidence is insufficient to support the jury's finding that his killing of
Jacobson was not done in a heat of passion or sudden quarrel and therefore was
not, at most, voluntary manslaughter.
A
Manslaughter
is "the unlawful killing of a human being without malice." (§ 192.)
"A defendant lacks malice and is guilty of
explicitly defined circumstances: either when the defendant acts in a
"sudden quarrel or heat of passion" (§ 192, subd. (a)), or when
the defendant kills in "unreasonable self-defense"--the unreasonable
but good faith belief in having to act in self-defense
[citations].' " (
108.) In proving a defendant had the
malice required for murder, the prosecution has the burden to prove beyond a
reasonable doubt that the killing was not done in a heat of passion or sudden
quarrel or in imperfect self-defense. (
454, 462.)
Although
section 192, subdivision (a), refers to "sudden quarrel or heat of
passion," the "factor which distinguishes the 'heat of passion' form
of voluntary manslaughter from murder is provocation. The provocation which incites the defendant
to homicidal conduct in the heat of passion must be caused by the victim
[citation], or be conduct reasonably believed by the defendant to have been
engaged in by the victim. [Citations.] The provocative conduct by the victim may be
physical or verbal, but the conduct must be sufficiently provocative that it
would cause an ordinary person of average disposition to act rashly or without
due deliberation and reflection.
[Citations.] 'Heat of passion
arises when "at the time of the killing, the reason of the accused was
obscured or disturbed by passion to such an extent as would cause the
ordinarily reasonable person of average disposition to act rashly and without
deliberation and reflection, and from such passion rather than from judgment." ' " (People
v. Lee (1999) 20 Cal.4th 47, 59.)
The heat of
passion theory of manslaughter has both an objective and a subjective
component. (People v. Moye (2009) 47 Cal.4th 537, 549; People v. Wickersham (1982) 32 Cal.3d 307, 326-327.) The objective component is set forth in
defendant to have killed while under the actual influence of a strong passion
induced by the victim's provocative conduct.
(Moye, at p. 550.) No specific type of provocation is required
for heat of passion. (
can "be any '[v]iolent, intense, high-wrought or enthusiastic
emotion.' " (
elapsed between the provocation and the fatal blow for passion to subside and
reason to return, the killing is not voluntary
manslaughter . . . ."
(Ibid.) Alternatively stated,
" ' "[i]f sufficient time has elapsed for the passions of
an ordinarily reasonable person to cool, the killing is murder, not
manslaughter." ' " (
705.)
B
Although
Kundrat asserts the evidence is insufficient to support the jury's finding he
did not kill Jacobson in a heat of passion or sudden quarrel, his appellant's
opening brief does not contain any substantive analysis applying the law to the
evidence in this case in support of his assertion.
argument that "with substantial evidence the record establishes that [his]
actions were instinctive [and] rash."
Accordingly, he has waived or forfeited on appeal any contention that
the evidence is insufficient to support the jury's finding that he did not act
in a heat of passion or sudden quarrel.
(People v. Ham (1970) 7
Cal.App.3d 768, 783 [where point is asserted without any substantive argument,
it is deemed to be without foundation and requires no discussion], disapproved
on another ground by People v. Compton (1971)
6 Cal.3d 55, 60, fn. 3; Jones v. Superior
Court (1994) 26 Cal.App.4th 92, 99 [if appellate contentions are not
supported by substantive argument, the issues are considered waived];
(1995) 39 Cal.App.4th 691, 699-700 [same]; Ochoa
v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3
[contention was deemed waived because "[a]ppellant did not formulate a
coherent legal argument nor did she cite any supporting authority"];
Cal.App.4th 1293, 1301, fn. 2 ["[t]he dearth of true legal analysis in her
appellate briefs amounts to a waiver of the [contention] and we treat it as
such"]; Bayside Auto & Truck
Sales, Inc. v. Department of Transportation (1993) 21 Cal.App.4th 561,
571.)
In any
event, assuming arguendo Kundrat has not waived this contention, we conclude
his appellate argument regarding heat of passion or sudden quarrel is
incoherent, incomprehensible, vague and/or conclusory and therefore he has
present persuasive substantive
argument and analysis showing reversible error.
(Denham v. Superior Court
(1970) 2 Cal.3d 557, 564; Fundamental
Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971;
Cal App.4th 68, 105 [conclusory claims did not persuade appellate court].)
Furthermore,
our review of the record shows there is substantial evidence to support the
jury's finding that Kundrat did not kill Jacobson in a heat of passion or
sudden quarrel. First, there is
substantial evidence to support the jury's finding that Jacobson did not engage
in any conduct sufficiently provocative to cause an ordinary person of average
disposition to act rashly or without due deliberation and reflection. (People
v. Lee, supra, 20 Cal.4th at p.
59.) Alternatively stated, the record
supports the finding that Jacobson did not engage in any conduct, and Kundrat
did not reasonably believe he engaged in any conduct, that would cause the
ordinarily reasonable person of average disposition to act rashly and without deliberation
and reflection, and from that passion rather than from judgment. (Ibid.) The jury could reasonably find that
Jacobson's earlier actions that night (i.e., arguing with and hitting Munoz,
waking up Kundrat and his baby, punching Schmidt, and kicking Ratsch and taking
his phone) were insufficient for an ordinarily reasonable person of average
disposition to act rashly and without deliberation and reflection, and stab and
kill Jacobson from passion rather than from judgment. Furthermore, there is substantial evidence to
support a finding by the jury that, even if Jacobson's conduct were initially
sufficient to cause a reasonable person to act rashly, the period of time
between that conduct and Kundrat's killing of Jacobson was sufficient for the passions
of a reasonable person of average disposition to cool and therefore not act
rashly and without deliberation. (
Although
the record does not specifically establish how much time elapsed between
Jacobson's conduct and Kundrat's stabbing of him, the jury could estimate,
based on the sequence of events, that the separation in time between those
events was at least 20 to 30 minutes and probably much greater. The evidence presented by the prosecution
supported the finding that Kundrat armed himself with a knife, went looking for
Jacobson, and stabbed him four times when he found him, showing Kundrat acted
with reflection and deliberation and not in a heat of passion. Because there is substantial evidence to
support the jury's finding that the objective component was not satisfied,
there is substantial evidence to support the jury's finding that Kundrat did
not kill Jacobson in a heat of passion or sudden quarrel. We need not address whether there is substantial
evidence to support an alternative finding by the jury on the subjective
component, i.e., that Kundrat did not kill Jacobson while under the
induced by his provocative conduct.
v. Moye, supra, 47 Cal.4th at p. 550.)
V
Substantial
Evidence to Support Finding Killing
Was Not Done in
Imperfect Self-Defense
Kundrat
contends his conviction of first degree murder must be reversed because the
evidence is insufficient to support the jury's finding that his killing of
Jacobson was not done in imperfect (i.e., actual, but unreasonable)
self-defense and therefore was not, at most, voluntary manslaughter.
A
"When
the defendant killed in the actual but unreasonable belief that he or she was
in imminent danger of death or great bodily injury, this is termed 'imperfect
self-defense,' and the killing is reduced from murder to voluntary
manslaughter." (
645; see also In re Christian S.
(1994) 7 Cal.4th 768, 771.) The
defendant must fear an imminent peril that must be immediately dealt with. (In re
Christian S., at p. 783.) In proving
a defendant had the malice required for murder, the prosecution has the burden
to prove beyond a reasonable doubt that the killing was not done in imperfect
self-defense. (People v. Rios, supra, 23
Cal.4th at pp. 454, 462.)
B
Based on
our review of the record, we conclude there is substantial evidence to support
the jury's finding that Kundrat did not act in imperfect self-defense when he
killed Jacobson. There is evidence to
support a reasonable inference by the jury that Kundrat was angry at Jacobson,
armed himself with a knife, and went looking for him with the intent to stab
and kill him. When Kundrat found
Jacobson, he stabbed him four times, causing wounds that were deep and
life-threatening. He stabbed Jacobson
once in the back of the neck and three times on the left side of his
torso. Accordingly, the jury could reasonably
infer Kundrat acted with malice and not in the actual, but unreasonable, belief
that he was in imminent danger of death or great bodily injury.
It was
within the jury's province to weigh the credibility of the witnesses and the
strength of the evidence. In so doing,
the jury reasonably rejected Kundrat's testimony at trial that he, in effect,
honestly believed he was in imminent danger of death or great bodily
injury. Furthermore, the evidence
supporting his claim of imperfect self-defense was weak, at best. Although Kundrat claimed he saw Jacobson
rushing at him with his arm raised, Kundrat did not see any weapon in his
hand. To the extent Kundrat claimed he
was afraid of Jacobson's friend (Buddah), there was no evidence Kundrat saw
Buddah at the crime scene or believed he was nearby and posed an imminent
threat to him. Also, based on the
location and nature of the four stab wounds, the jury could reasonably infer
Kundrat did not stab Jacobson in actual, but unreasonable, self-defense, but
rather intentionally killed him with malice, premeditation, and
deliberation. Based on the whole record,
we conclude there is substantial evidence to support the jury's finding that
Kundrat did not kill Jacobson in the actual, but unreasonable, belief in the
need to defend himself from an imminent danger of death or great bodily injury. To the extent Kundrat argues there is
substantial evidence that would have supported a contrary finding (i.e., that
he acted in imperfect self-defense), he misconstrues and/or misapplies the
substantial evidence standard of review.
DISPOSITION
The judgment
is affirmed.
McDONALD,
J.
WE CONCUR:
HUFFMAN,
Acting P. J.
NARES, J.
name="_ftn1" title="">[1] All statutory references are to the Penal Code.
name="_ftn2" title="">[2] At trial, Munoz testified that Kundrat did not use force to
make Jacobson leave. In contrast, Ratsch
testified Kundrat held Jacobson by the shirt and led him to the door.
