P. v.
Filed 5/20/13 P.
v. Juarez CA2/6
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE
COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
MANNIE JUAREZ, JR.,
Defendant and
Appellant.
2d Crim.
No. B239807
(Super. Ct. No.
KA095140)
(Los
Angeles County)
Mannie Juarez, Jr.
appeals a judgment following conviction of voluntary
manslaughter, with a finding of personal use of a deadly weapon. (Pen. Code, §§ 192, subd. (a), 12022,
subd. (b)(1).)
title="">[1] We affirm.
FACTS
AND PROCEDURAL HISTORY
In the early evening of August 7, 2011,
Ricardo Vargas attended a neighborhood gathering at a Garo
Street residence in Hacienda
Heights.
women sat on chairs in the driveway.
Lucero was intoxicated and "very affectionate with everybody." Ricardo knew the residents and many of the
guests, but did not know Juarez.
Eduardo, Walter Martin,
and Robert Valdez arrived after attending a pool party. The women sitting in the driveway teased the
men for not inviting them to the pool party.
Lucero was excited and attempted to hit Martin in the face, but struck
him in the shoulder instead. Martin
responded: "What the hell was
that? What's wrong with you." He recognized that Lucero was intoxicated,
however, and walked away.
Eduardo then walked in
the driveway and Lucero struck him twice in the chin and tore his shirt. Eduardo responded: "What the hell did you do that for? You ripped my shirt, Caroline." Eduardo was "dumbfounded" by
Lucero's actions and tried to "bear hug" her.
Juarez
"snapped," and pushed Eduardo, stating that Lucero was his
friend. Eduardo responded, "Hey,
you don't know me like that. Who the
hell do you think you are? Why did you
push me? Who are you?" Juarez
moved to push Eduardo again, but Lucero interceded and pulled Juarez
away.
Ricardo then informed Juarez
that "This is family," and "We don't fight here." Juarez
taunted Eduardo and stated, "What's up?
What's up fool? Come
back." Ricardo, Eduardo, and Martin
then decided to leave the party. As they
walked home, they heard Juarez
state, "Fuck this. I want to
fuckin' fight. I'll fuck him up."
Suddenly, the men heard
loud voices, turned around, and saw Valdez
punch Juarez
in the face. Juarez
fought back and kicked at Valdez. Valdez
yelled at Juarez
to "[g]et off my property."
Eduardo, Ricardo, and Martin then ran back to the gathering and
approached Juarez. Martin nudged or pushed Juarez
on the shoulder and ordered him to leave.
At the same time, Juarez
"lunged forward" and stabbed Eduardo near his heart with a
"punching motion."
Eduardo stated that he
had been stabbed, and revealed a large stab wound in his chest. Thereafter, he fell in the driveway and died.
Valdez
then struck Juarez
in the face and threw a child's bicycle at him.
Juarez
stated, "Fuck you," and ran down the street. Valdez,
Ricardo, and Martin followed Juarez
in Ricardo's automobile. When they saw Juarez,
he was walking "like nothing had ever happened." Juarez
turned and saw that the men were in pursuit.
He ran to the residence of Alberto Rosas and "bang[ed]" on the
front door and tried to force his way inside the home. Rosas saw Juarez
throw a knife into his backyard.
Meanwhile, Ricardo
stopped his automobile and Martin obtained a tire iron from the trunk. Police officers quickly arrived in response
to Rosas's telephone call. Martin
returned the tire iron to the trunk of the automobile. Ricardo later made a field identification of Juarez.
Police officers
recovered the knife from the Rosas backyard.
Later DNA laboratory testing established that blood on the knife blade
matched Eduardo's DNA profile. Officers
also found the knife's sheath in the front yard. It had been modified to remove a button wrap
meant to hold the knife in place. The
knife measured nine and one-half inches long, with a blade length of five inches.
Following Juarez's
arrest and advisement of rights pursuant to Miranda
v. Arizona (1966) 384 U.S. 436, police officers interviewed him. Juarez admitted taking a knife with him to
the Garo Street gathering because he had argued previously with one of the
Valdez brothers.
Doctor Cho Lwin, deputy
medical examiner for Los Angeles County, performed an autopsy on Eduardo's
body. He opined that Eduardo died from a
fatal stab wound that penetrated the subclavian artery. Lwin also opined that Eduardo was stabbed by
a forward pushing motion.
At a pretrial court
hearing, Juarez winked at Ricardo and mouthed "You're dead" to
him. The trial judge presiding over the
hearing warned Juarez not to wink at or communicate with audience members.
The jury acquitted
Juarez of murder but convicted him of voluntary
manslaughter. It also found that he
personally used a deadly weapon.
(§§ 192, subd. (a), 12022, subd. (b)(1).) The trial court sentenced Juarez to a 12-year
prison term, consisting of an upper term of 11 years for the manslaughter
conviction, and one year for the personal weapon use finding. The court imposed a $2,200 restitution fine,
a $2,200 parole revocation restitution fine (stayed), a $40 court security assessment,
and a $30 criminal conviction assessment, ordered restitution, and awarded
Juarez 246 days of custody credit.
(§§ 1202.4, subd. (b), 1202.45, 1465.8, subd. (a)(1); Gov. Code,
§ 70373.)
Juarez appeals and
contends that the trial court erred by not instructing regarding the
lesser-included offense of involuntary manslaughter under theories of
misdemeanor manslaughter and the use of excessive force in
DISCUSSION
I.
Juarez argues that the trial
court erred by refusing an instruction regarding involuntary manslaughter based
upon the misdemeanor crime of brandishing a weapon. (§ 417, subd. (a); e.g., People v. Thomas (2012) 53 Cal.4th 771, 814 [involuntary
manslaughter may be committed when firearm fires accidentally during
struggle].) He points out that he
requested the instruction based upon the theory that "the knife
. . . was swung . . . not to kill [but] to ward off the attacker."
The trial court must
instruct upon lesser-included offenses sua sponte whenever there is substantial
evidence raising a question whether every element of the charged offense is
present. (People v. Cunningham (2001) 25 Cal.4th 926, 1008.) Conversely, even on request, a trial court
has no duty to instruct on any lesser-included offense unless there is
instruction. (Ibid.) Speculation is an
insufficient basis upon which to require an instruction concerning a
lesser-included offense. (
116.) Rather, substantial evidence –
evidence that a reasonable jury could find persuasive – must exist. (Ibid.) We independently determine whether the trial
court was required to instruct regarding a lesser-included offense. (People
v. Cook (2006) 39 Cal.4th 566,
596.)
Involuntary manslaughter
is committed either by "an unlawful act, not amounting to felony" or
by committing "a lawful act which might produce death, in an unlawful
manner, or without due caution and circumspection." (§ 192, subd. (b).) Involuntary manslaughter is an unlawful
killing without malice, without an intent to kill, and without a conscious
disregard for life. (
v. Butler (2010) 187 Cal.App.4th 998, 1006-1007; CALCRIM No. 580.) One of three acts may support a judgment of
involuntary manslaughter: a misdemeanor,
a lawful act, or a noninherently dangerous felony. (Butler,
at p. 1007.)
Here the trial court
refused the involuntary manslaughter instruction, stating that Juarez acted
with "a dead shot straight into the chest with a stabbing
instrument." The trial court
properly refused the instruction because there is no substantial evidence that
Juarez committed this lesser offense. (
displayed the knife with the intent of frightening Valdez or Eduardo. Moreover, witnesses to the stabbing testified
that Juarez "lunged" at Eduardo, creating a knife wound with a
"punching motion" that deeply penetrated his chest near his
heart. The witnesses to the stabbing
were surprised by Juarez's attack and seemed unaware that he had a knife. In sum, there is insufficient evidence of
misdemeanor brandishing to have warranted the involuntary manslaughter
instruction.
II.
Juarez contends that the
trial court erred by not instructing sua sponte regarding involuntary
manslaughter based upon the use of excessive force in self-defense. He claims that this theory satisfies the
statutory definition of "the commission of a lawful act which might
produce death, in an unlawful manner, or without due caution and
circumspection." (§ 192, subd.
(b).) Juarez relies upon
91, holding that "a defendant who kills in unreasonable self-defense may
sometimes be guilty of involuntary manslaughter" but that a defendant
"who, with the intent to kill or
with conscious disregard for life, unlawfully kills in unreasonable
self-defense is guilty of voluntary manslaughter."
Our Supreme Court in
or unreasonable self-defense and voluntary and involuntary manslaughter. "[W]hen a defendant, acting with a
conscious disregard for life, unintentionally kills in unreasonable
self-defense, the killing is voluntary rather than involuntary
manslaughter." (
life can be found from evidence that Juarez stabbed Eduardo in the chest most
likely to the bottom of the five-inch knife blade, with a single lunge, punch,
or swing. Although Valdez, Ricardo, and
Martin demanded that Juarez leave the gathering, he did not do so until after
stabbing Eduardo. A person who
intentionally uses a deadly weapon against another has acted with either an
intent to kill or a conscious disregard for life. (People
v. Colantuono (1994) 7 Cal.4th
206, 219 ["if one deliberately employs a lethal weapon . . .
with actual or presumptive knowledge that if utilized in the manner in which it
is being used the infliction of serious bodily injury to another is very likely
to occur, he is presumed to have intended the natural consequences of his
deliberate act"].) No instruction
concerning involuntary manslaughter was required. (Blakeley,
at p. 91.)
The judgment is
affirmed.
NOT TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN, J.
PERREN, J.
>
Bruce F.
Marrs, Judge
Superior
Court County of Los Angeles
______________________________
Mark J. Shusted, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Linda C. Johnson, Supervising
Deputy Attorney General, Blythe J. Leszkay, Deputy Attorney General, for
Plaintiff and Respondent.
name="_ftn1" title="">[1] All statutory references
are to the Penal Code unless stated otherwise. References to section 12022
are to the version in effect prior to January 1, 2012.
name="_ftn2" title="">[2] We shall refer to Ricardo
Vargas and the victim, Eduardo Vargas, by their first names not from
disrespect, but to ease the reader's task.
