Opinion
E071692
06-25-2020
THE PEOPLE, Plaintiff and Respondent, v. JAMES BECKHAM FORTNEY, Defendant and Appellant.
Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1800013) OPINION APPEAL from the Superior Court of Riverside County. Charles W. Campbell, Judge. (Retired Judge of the Ventura Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions. Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
In a Walmart parking lot following two road rage incidents, defendant and appellant, James Beckham Fortney, a 20-year retired Navy veteran, stabbed 19-year-old Kevin R. in the middle of the chest, killing him. When Kevin R.'s girlfriend, J.C., ran toward Kevin R. to assist him, defendant ran toward J.C., saying, "You're next."
A jury found defendant guilty of the second degree murder of Kevin R. (Pen. Code, § 187, subd. (a); count 1) and of criminally threatening J.C. (§ 422; count 3). The jury further found that defendant personally used a deadly weapon, a knife, in the commission of the murder, but found not true an allegation that defendant personally used a knife in the commission of the criminal threat. (§ 12022, subd. (b)(1).)
Undesignated statutory references are to the Penal Code.
In count 2, defendant was separately charged with voluntary manslaughter, but count 2 was dismissed during trial.
The jury was instructed on second degree murder, complete self-defense, and voluntary manslaughter based on a sudden quarrel or heat of passion and imperfect self-defense. The court denied defendant's motion to modify the verdict in count 1 by reducing his murder conviction to voluntary manslaughter based on imperfect self-defense. (§ 1181, subd. (6).)
Defendant was sentenced to 15 years to life for the murder. The court imposed a concurrent 16-month term (the low term) for the criminal threat conviction, and stayed a one-year term on the personal use enhancement at the People's request.
In this appeal, defendant claims (1) insufficient evidence supports his second degree murder conviction and (2) the court applied an incorrect legal standard in denying his motion to reduce his second-degree murder conviction to voluntary manslaughter based on imperfect self-defense. He argues the evidence "overwhelmingly" shows that he stabbed and killed Kevin R. in imperfect self-defense—in the actual and unreasonable belief in the need to defend himself from death or great bodily injury—and that the court failed to independently review the evidence in denying his motion to reduce his murder conviction to voluntary manslaughter. Thus, he claims, this court must reduce his second-degree murder conviction to voluntary manslaughter.
We conclude that substantial evidence supports defendant's second degree murder conviction and that the trial court applied the correct legal standard, by independently reviewing the evidence, in denying defendant's motion to reduce his murder conviction to voluntary manslaughter. We remand the matter with directions to consider whether to strike the personal use enhancement on defendant's second degree murder conviction in the interests of justice (§ 1385), given that the order staying the one-year term constitutes an unauthorized sentence. We affirm the judgment in all other all respects.
II. FACTUAL BACKGROUND
A. Prosecution Evidence
1. Defendant Stabbed and Killed Kevin R.
Around 12:00 p.m. on November 29, 2017, then 18-year-old J.C. drove her mother's Honda Pilot to the Walmart store on Temecula Parkway in Temecula. J.C. was carrying three passengers: her boyfriend, Kevin R., then age 19, in the front passenger seat, and her sister, T.C., then age 23, and T.C.'s two-year-old daughter in the backseat.
On their way to Walmart, they stopped at the intersection of Margarita Road and Temecula Parkway. There, they noticed an "angry" man whom they had never seen before, in the lane to their right and one car behind them, driving a Land Rover and honking his horn at the car in front of him. At trial, J.C. identified defendant as the man in the Land Rover. Defendant's wife, S.F., was in the passenger seat. When the light was yellow, an elderly couple in a Cadillac moved in front of the Land Rover and "abruptly" stopped at the crosswalk before the light turned red. Defendant honked his horn two or three times, then "held" the horn. He looked "angry" and "irritated," and he raised his middle finger at the elderly couple. At that point, no one in the Honda said anything to defendant or made any gestures toward defendant.
When the light turned green, J.C. drove on to the Walmart. At an intersection in the Walmart parking lot, J.C. "rolled" through a stop sign and "cut . . . off" the Land Rover, without noticing it. J.C. looked into her rearview mirror, saw that defendant was honking his horn—this time at her—and saw that the Land Rover had "sped up" to "catch up" with her. Defendant and S.F. "flipped off" the Honda by raising their middle fingers, and J.C., T.C., and Kevin R. did the same. The Land Rover was closely following the Honda and J.C. slowed and stopped in the parking aisle to make defendant slow down, "irritate" him, and "teach" him "some patience."
J.C. parked, and defendant parked one parking aisle over from J.C. Defendant and his wife, S.F., walked toward the Walmart with their dog, and everyone in the Honda got out of the car. From his attitude and demeanor, J.C. saw that Kevin R. was being "protective" and was "annoyed" because J.C., T.C., and T.C.'s young daughter were scared. Kevin R. told J.C. to park somewhere else, and J.C., T.C., and T.C.'s daughter got back in the Honda. Kevin R. then walked toward the Walmart, and, from his posture and attitude, J.C. believed he was going to confront defendant.
At trial, J.C. did not recall what else Kevin R. said before he walked away, but she remembered he said something. J.C. acknowledged that, later on the day Kevin R. was killed, she told a sheriff's deputy that, when Kevin R. told her to move the Honda, he said, "I'm so pissed off," then walked toward the Land Rover, saying, "I'm going to go scare him off." J.C. also acknowledged telling an investigator, on the same day, that Kevin R. was trying to "be a tough guy" and confront defendant.
J.C. moved the Honda out of its parking space and drove down the parking aisle toward the Walmart. Defendant then came out of the Walmart and quickly walked toward Kevin R. Defendant "looked angry" and was saying something J.C. could not hear. Defendant was holding a cell phone in his left hand and a dog leash in his right hand, which was attached to his dog's collar. Defendant began recording Kevin R. with his cell phone, and defendant and Kevin R. began yelling at each other. Kevin R. was keeping his head and both of his hands down, and he was not being physically aggressive toward defendant.
After they exchanged words, Kevin R. turned away from defendant and began walking toward the Walmart, but defendant closely followed Kevin R. and continued to record him with his phone. As he continued to walk away, Kevin R. looked over his shoulder at defendant. Defendant then noticed the Honda in the parking aisle and walked directly in front of it while holding his dog on its leash. J.C. stopped the Honda and, while standing in front of the Honda, defendant began recording the Honda with his phone. From the driver's seat of the Honda, J.C. asked defendant, "Are you going to move?" and defendant said, "Nope."
By this time, Kevin R. was walking back from the Walmart, toward the Honda and defendant, but Kevin R. did not raise his fists, run, or charge at defendant. As Kevin R. approached him, defendant grabbed Kevin R. by the throat with his right hand and used his "whole force" to choke Kevin R. A bystander, J.B., saw defendant "grabbing the younger gentlemen [Kevin R.] by the throat[,] lifting him with one hand," and choking him. According to J.B., Kevin R. was "flailing" his arms, "trying to get loose." Fearing for Kevin R.'s safety, J.B. yelled for defendant to "stop."
J.B. saw that, when defendant had his left hand around Kevin R.'s throat and the two men were facing each other, Kevin R. punched defendant once in the face, with a closed fist. The punch caused defendant to bleed from his mouth and bruised his face. After he was punched, defendant released his hold, and Kevin R. backed away from defendant. Defendant then pulled a knife from his pocket, lunged at Kevin R., and stabbed Kevin R. once in the middle of his chest.
Without seeing the knife in defendant's hand, J.C. got out of the Honda, ran toward Kevin R., and yelled at defendant, "Don't touch him! Get your fucking hands off him!" Defendant turned toward J.C., began "running after" her with his "fists out" and said to her, "You're next." J.C. was "terrified" and got back in the Honda, but by this time she could see that Kevin R. was hurt.
Kevin R. walked toward the Walmart and slumped against a wall. An off-duty EMT assisted Kevin R., called 911, and performed CPR. During the 911 call, the EMT, who had not seen the confrontation between Kevin R. and defendant, handed his phone to defendant, who then told the 911 operator, "He went over to my vehicle and did something to the front wheel. I confronted him, he struck me, and I pulled my knife out, and he ran at me."
An off-duty sheriff's deputy assisted the EMT. When the deputy asked where the suspect was, defendant said something like, "I know who the suspect is, but I don't know where they're at." Defendant helped the EMT administer CPR and helped keep bystanders away so the EMT could work. But Kevin R. quickly bled to death at the scene; the stab wound was fatal and pierced his heart, aorta, and left pulmonary vein. No drugs or alcohol were in Kevin R.'s system.
When an on-duty sheriff's deputy responded to the 911 call and asked where the suspects were, defendant said, "I am the suspect," and admitted he stabbed Kevin R. Defendant was calm and did not seem "mad or angry." Defendant was handcuffed and taken into custody. The knife that defendant used to stab Kevin R.—a folding knife with a four and one-half inch to five-inch blade—was in defendant's right front pocket.
As noted, Kevin R. was 19 years old on November 29, 2017. He was 5 feet 8 inches tall, weighed 151 pounds, and was fit and athletic. Defendant was 40 years old, had served in the Navy for more than 20 years, was 6 feet 3 inches tall, and weighed 265 pounds.
On November 29, 2017, defendant was not limping or using a cane. L.S., J.C.'s mother, testified that, when she saw defendant in court on January 29, 2018, defendant was using a cane. But when L.S. saw defendant outside a Temecula store in February 2018, he was not using a cane and appeared to be loading water into his vehicle. And, in March 2018, defendant was not using a cane when L.S. saw him in a Temecula restaurant.
2. Defendant's Interview
Around 8:00 p.m. on November 29, 2017, Riverside County sheriff's investigators interviewed defendant at the Temecula sheriff's station after he waived his Miranda rights. The interview was recorded and played for the jury.
Miranda v. Arizona (1966) 384 U.S. 436.
During the interview, defendant said he decided to watch his Land Rover from the Walmart's front windows after he and his wife went into the Walmart. From there, he saw Kevin R. go over to the Land Rover and bend down by its front driver's side wheel. He could not see what Kevin R. was doing, but he assumed that Kevin R. was damaging the Land Rover. He walked out of the Walmart, walked over to Kevin R., and began video recording him, saying, "I see what you're doing to that car. You need to stop. You got caught." Kevin R. said, "Whatever man, what are you going to do?" Defendant then said, "I'm just going to take a picture, and I'm going to deal with it another way."
Officers found no damage to defendant's Land Rover, although the front left tire was missing its valve stem cover.
Next, defendant said he "turned around to get the white Honda's picture," and Kevin R., "pushed me, and I kind of pushed back, and he slugged me, and my dog came off her leash, and I grabbed her and also grabbed my knife out at the same time, and I said, "Look man, stop!" And when he didn't . . . um I don't know if I jabbed, he came at me, I'm not sure where it happened, um but once he stepped back, I put the knife away, put it back in my pocket, got my dog back together, and started walking towards Walmart to get a security guy."
Defendant claimed that, after Kevin R. struck him in the face, he feared for his safety because his physical disabilities prevented him from fighting back. He said that Kevin R., "hit me . . . he clocked me . . . and all I know is to defend myself." Defendant was "a 100 [percent] disabled vet." He had a bad back and had three back surgeries, and he could not move his left leg like he used to because he suffered from neuropathy in his left leg. He was 40 years old and had spent over 20 years in the Navy where he received "hand to hand combat" training, though he had not served in a combat role. He retired from the Navy in January 2017 due to "injuries." He suffered from depression and PTSD (posttraumatic stress disorder), but he denied having any "anger issues." He had a service dog for his anxiety.
Defendant admitted that Kevin R. did not threaten to kill him or hurt him; he did not see any weapons on Kevin R.; and Kevin R. did not act like he had a weapon. When asked whether he thought Kevin R. was going to kill him with Kevin R.'s hands, he said, "I know I can't fight back. I'm not the person I was at one time. I have a problem walking a half mile. I have a handicap, like I don't have the strength and the stamina to do this anymore." When asked whether he knew there was "the potential" of Kevin R. "being seriously hurt, maybe dying" when he stabbed Kevin R., defendant said: "That was not the intent. The intent was to stop the attack on me." When asked whether it had occurred to him that Kevin R. could die from being stabbed, defendant said, "No. I was worried for myself."
When asked whether he grabbed Kevin R. by the throat, defendant said, "I think I pushed him, yeah, to get him away from me." Then, when asked whether he pushed Kevin R. before or after Kevin R. struck him, defendant said, "I'm not sure. It feels like I pushed. I did that before. After he made contact when he came back up and got in my face." Defendant then said, "he came at me and struck me." Defendant did not admit that he grabbed Kevin R. by the throat or lifted him off the ground. Rather, he said he had been "taught to make distance" and that he "pushed" Kevin R. "in the throat" to get Kevin R. away.
After defendant pushed Kevin R., Kevin R. struck defendant, and defendant responded by pulling out his knife. When told that a video showed him "walk forward to [Kevin R.] and do a motion," and asked whether that was when he stabbed Kevin R., defendant said, "No. I told him to stop coming at me first. I said, 'I got a knife. Stop!' And then that's when he stepped and I stepped forward . . . ." Defendant later explained, "I felt him coming towards me, and that's when he got stabbed." He thought Kevin R. was going to punch him again. He said, "I got hit and I felt that he was going to keep coming because of all the shit that that car load of people had already done." He feared that a second or third punch from Kevin R. would have put him "on the ground," and "then there's no telling what would have happened."
When later told that the Walmart video showed him "lunging towards" Kevin R. and asked why he thought "the threat [was] still active" at that point, defendant said, "The threat was still active. I got hit. The threat was still active until it wasn't . . . and I didn't feel it was at that point." Defendant denied he intended to hurt or kill Kevin R. and claimed he only intended to stop the "threat." He aimed the knife at the "center mass" of Kevin R. "to stop the attack."
Defendant denied he "flipped . . . off" the elderly couple at the intersection; denied flipping off the Honda after it ran the stop sign; and denied threatening J.C. by telling her, "You're next," or "I'm going to get you next," saying, "There is no fucking way I said anything like that." Defendant gave the investigators the passcode to his phone, and they retrieved defendant's phone recordings and photos. Defendant's recordings showed that he threatened J.C. by saying, "You're next," after he stabbed Kevin R. and J.C. got out of the Honda. The recordings did not show that defendant warned Kevin R. that he had a knife, or told Kevin R. to stop, before defendant stabbed Kevin R. A still photo from defendant's phone showed Kevin R. standing, with his right fist clenched, before the stabbing but after defendant grabbed Kevin R's throat. B. Defense Case
1. J.V.'s Testimony
Another bystander, J.V., was at the Walmart with her husband and young son on November 29, 2017. While standing by the trunk of her vehicle in the Walmart parking lot, J.V. saw defendant, with his cell phone in his hand, closely following Kevin R. Defendant was within 18 to 24 inches of Kevin R., and Kevin R. was trying to get away from defendant. Defendant was telling Kevin R. that he was recording what Kevin R. was doing or had done, and that he was going to "show the police."
After her groceries were loaded into her car, J.V. looked around the parking lot for her husband, M.V., and saw M.V. at the cart return. When she looked back, she saw that defendant's dog had come out of its collar. As defendant reached down to put the collar back on, she saw Kevin R. punch defendant in the face. She did not see defendant touch Kevin R., grab his throat, or choke him. Defendant was not looking at Kevin R. when Kevin R. "sucker punched" him. After he was punched, defendant put his phone in his pocket, pulled out a knife, and stabbed Kevin R. After the stabbing, defendant immediately put the knife back in his pocket. J.V. did not know defendant or Kevin R. and had never seen them before.
J.V.'s vehicle was parked two or three spaces down from where the Honda was parked, farther from the Walmart than the Honda. J.V. recalled that she walked past the Honda to get to her car, before she saw the confrontation between defendant and Kevin R. She remembered seeing two young "girls" putting a baby into the Honda. Before Kevin R. was stabbed, the Honda backed out of its space, moved forward, and stopped. The Honda was not obstructing J.V.'s view when Kevin R. punch defendant in the face.
J.V. admitted she did not see everything that happened on the other side of the Honda after it stopped. She said, "I'm sure I didn't see the entire thing." And, when the Honda was not obstructing her view of defendant and Kevin R., she did not see Kevin R.'s hand hit defendant's face, because defendant's back was to her; she "saw the swing" and saw defendant's "head going to the side slightly." She did not see the knife enter Kevin R.'s body, because defendant was blocking her view of Kevin R. She saw defendant's back and left side. When shown a surveillance video, taken from the front of the Walmart and facing into the parking lot (the Walmart video), J.V. also admitted she did not see defendant approach J.C., as shown in the Walmart video, or hear defendant threaten J.C.
2. M.V.'s Testimony
J.V.'s husband, M.V. overheard and saw part of the confrontation between defendant and Kevin R. As he was putting bags into his and his wife, J.V.'s, car, he heard a commotion which "caught" his "attention." He heard defendant saying, "You're vandalizing the car," "I have you on my cell phone," and "I'm recording you." M.V. put his cart away and began watching the confrontation to see if there was something he could do.
Defendant was following Kevin R. and recording him with his cell phone, and Kevin R. was walking away from defendant. Kevin R. was saying "fuck you" and telling defendant to get away from him. The Honda pulled up, "the girls" in the Honda told Kevin. R. to get in the Honda, and Kevin R. got in the Honda. Defendant was walking around the Honda when it was moving, then he walked in front of the Honda, and the Honda stopped. Kevin R. got out of the Honda and started arguing with defendant in front of the Honda. Defendant's dog came out of its collar, and when defendant reached down to put the collar back on, Kevin R. punched defendant in the face.
M.V. watched the physical altercation from behind the Honda. He did not see Kevin R. punch defendant, but he heard the punch. The punch caused defendant to bleed from his mouth and almost made defendant lose his balance. Defendant then took the knife from his pocket and stabbed Kevin R., who was "fairly close" to defendant. M.V. did not see any physical contact between the two men before Kevin R. punched defendant. He did not see defendant grab Kevin R. by the throat or choke Kevin R.
M.V. admitted he did not see parts of the altercation because the Honda was blocking his view, or his line of sight. After viewing the Walmart video, M.V. also admitted that Kevin R. must not have gotten into the Honda after defendant confronted Kevin R. He further admitted he may have gotten the sequence of events "wrong." But the first physical contact he saw between defendant and Kevin R. was when Kevin R. punched defendant after defendant's dog "got loose."
3. S.F.'s Testimony
At the time of trial in October 2018, defendant and S.F. had been married for 20 years and had two children. Defendant retired from the Navy in early 2017 with a "100 percent disability rating." He sometimes needed help getting dressed and needed a cane to walk steadily, but on some days he could "manage" without a cane. He kept his dog with him for his depression and anxiety. Despite his physical disabilities, he occasionally enjoyed physical activities, including hiking. Around two weeks before he stabbed and killed Kevin R., he went pheasant hunting.
On November 29, 2017, defendant and S.F. went to the Walmart; defendant was driving; on the way, a car pulled in front of them and defendant almost hit the car with the Land Rover. Defendant honked his horn, but neither he nor S.F. yelled or made any gestures. Later that day, S.F. told police that she told defendant to "calm down" after the incident involving the elderly couple.
They continued to the Walmart, where the Honda ran a stop sign in front of them. Defendant honked his horn, and the people in the Honda rolled down their windows and "flipped . . . off" defendant and S.F. Someone leaned out of the Honda's front passenger window and yelled at them, and S.F. gave "the finger" back to the Honda. According to S.F., defendant did not flip off the Honda because, "That's not what he does. He's not a finger flipper."
Next, the Honda "slammed" on its brakes in front of the Land Rover, then began moving very slowly. S.F. denied that defendant was angry or hostile, but later that day she told police that he seemed "a little agitated." He parked the Land Rover and he and S.F. went in the Walmart. He was concerned that the Honda's occupants did not come into the Walmart, so he went to the front windows to look outside while S.F. went shopping. S.F. did not see any part of the altercation between defendant and Kevin R.
To impeach S.F.'s claim that defendant did not have trouble controlling his anger, the prosecution was allowed to introduce a photo from defendant's Facebook page. The photo showed a car parked askew in a parking lot; it was using three parking spaces; defendant had "encircled" the car with shopping carts, and wrote, "Don't park like a dick. I am a bigger one."
4. Defendant's Testimony
Defendant testified in his own defense. He grew up in Kentucky and joined the Navy when he was 17. After serving for 20 years, he retired in January of 2017. They designated him as 100 percent disabled due to spinal and other injuries he suffered during his service. He suffered from chronic back pain, for which he took medication, but he was able to walk and participate in other activities. He always had his dog Leia with him to help him with social anxiety. He had owned the knife he used in the stabbing for eight or 10 years and carried it every day; it had been part of his Navy uniform dress.
Before he and S.F. arrived at the Walmart, a car changed lanes in front of him; he thought it would go through the green light, but it stopped. He honked his horn, but he was not angry. He did not see a Honda beside him. When he drove into the Walmart parking lot and came to an intersection where he had the right of way, he saw a Honda approaching from the right and not stopping, and he had to hit his brakes to avoid hitting the Honda. The Honda turned; its driver yelled and gave defendant the finger. The Honda then stopped for a few seconds and all of its occupants gave defendant the finger.
Defendant admitted he was "annoyed," because he almost "had a wreck" with the elderly couple, then, less than one minute later, the Honda ran a stop sign, nearly causing another accident. Still, he denied honking his horn at the Honda and claimed he did "nothing" in response to being yelled at and given the finger. He told S.F., "Put your hand down," and "It's not worth it." He parked his Land Rover, and the Honda parked one aisle over. He, his dog, and S.F. walked into the Walmart, but his "Spidey senses went off"; "something felt odd, wrong," and he began to fear that the people in the Honda would vandalize his SUV. He stood at the front windows and watched outside while S.F. shopped. He saw three people from the Honda "mull around the rear of the vehicle, kind of watching back and forth to see . . . if anybody was paying attention," which they did for about two minutes. Kevin R. then walked over to the Land Rover and bent down by the front "driver tire." Defendant could not see what Kevin R. was doing, but he assumed that Kevin R. was flattening his tire.
Defendant walked out of the Walmart with his dog, approached Kevin R., and loudly said, "Hey, you got caught. You're on my camera. I'm going to turn it over to [the] police." Defendant was holding his phone in his left hand and his dog's leash in his right hand. He intended to get a photo of Kevin R. and the Honda's license plate, and turn the photos over to the police if his Land Rover had been damaged. He remembered that the Honda had a Florida license plate on the back. He came within two feet of Kevin R. Kevin R. responded to defendant, saying, "That's fine. What are you going to do about it?" Kevin R. then turned and started walking away.
As shown in the Walmart video, defendant then turned his attention to the Honda to photograph its license plate, but the Honda did not have a front license plate. The video showed defendant walking in front of the Honda. J.C. asked defendant if he was going to get out of the way. Defendant said no, and J.C. replied, "Well, then I'll run over you." At that point, Kevin R. walked up to defendant, said "excuse me" twice, then "cold-cocked" defendant. Defendant claimed he had just bent down to put his dog's collar back on when Kevin R. "smacked" him twice. He had not seen Kevin R. walking back toward him, and he did not touch Kevin R. before Kevin R. "smacked" him twice.
With his right hand, defendant pushed Kevin R. to move him away. He claimed he touched Kevin R. on the collarbone. He explained that, "in training for the military, you always want to create a distance between you and your attacker." After he pushed Kevin R., Kevin R. punched him in the face. Defendant claimed it was not a "planned punch"; rather, Kevin R. was "react[ing]" to having been pushed back. At some point, defendant's glasses came off. After Kevin R. was pushed back, defendant saw that Kevin R. "kind of stopped, and kind of reassessed," and looked at defendant as defendant was looking at his dog. Kevin R. then took two steps forward and clenched his right fist. Defendant believed that Kevin R. was going to punch him again, harder than the first time; his life was in danger because of his physical limitations; and if he went to the ground he might not be able to get back up.
Defendant explained, "I can't physically do what I used to be able to do. And, as a 40-year-old man that just got out of the military, that's pretty difficult. I can't run a mile-and-a-half in nine minutes anymore. I can't . . . do those physical things that I had trained all those years. [¶] So I knew and I know my limitations, and I know that I just had back surgery the week before. And if something were to happen, I don't know if I would ever stand up again. I don't know that, if I hit the ground, I could ever get off the ground." So he defended himself by pulling out his knife and stabbing Kevin R. to stop the confrontation.
Defendant denied he intended to kill Kevin R. or stab Kevin R. specifically in the heart. He reacted as "a scared man trying to save himself." He then put away his knife. He admitted he said, "You're next," to J.C. because his phone's recordings showed he said it, but he claimed he had no recollection of saying it. He also admitted he was wrong when he told the investigators that he warned Kevin R. to stop, to get back, and that he had a knife, because his phone's recordings showed he did not say those things. He claimed he thought those things in his mind and believed he had said them, but he did not say them because everything happened so quickly. After he stabbed Kevin R., he put his dog's collar back on and continued to record Kevin R. with his phone. When he realized that he had badly injured Kevin R., he put away his phone and tried to help.
5. John Pride's Expert Testimony Concerning the Use of Force
John Pride testified for the defense as an expert on self-defense and the use of force. Pride was an Army veteran and a retired police detective, had training in hand-to-hand combat, and spent a large portion of his police career as a tactics and training officer. He was an expert in the use of force, among other things. He reviewed videos, crime scene photos, and witness interviews concerning defendant's fatal stabbing of Kevin R.
Pride testified that a smaller person can inflict injury on a larger person; a person's fists can cause significant injury; and a single punch can cause death. In his opinion, Kevin R.'s clenching of his fist and taking a step forward after being pushed back could have been seen as an act of aggression, and the fact that defendant had a cell phone in one hand and a dog leash in the other would have hindered his ability to defend himself from an attack. More generally, factors that affect a person's decision to use force in self-defense include having escape routes partially blocked by cars, not knowing the other person's fighting capabilities, and the rapid unfolding of the situation.
III. DISCUSSION
A. Substantial Evidence Supports the Jury's Second Degree Murder Verdict and Does Not Solely Support a Verdict of Voluntary Manslaughter Based on Imperfect Self-Defense
Defendant claims the evidence is insufficient to support his second degree murder conviction and is only sufficient to support a verdict of voluntary manslaughter based on imperfect self-defense. Thus, he claims, this court must modify the judgment to reduce his second degree murder conviction to voluntary manslaughter based on imperfect self-defense. (§ 1260; People v. Navarro (2007) 40 Cal.4th 668, 671.) We disagree.
1. Standard of Review and Applicable Law
In considering a claim that insufficient evidence supports a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have found the defendant guilty of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Johnson (1980) 26 Cal.3d 557, 578.) "The standard of review is the same in cases in which the People rely mainly on circumstantial evidence." (People v. Cravens (2012) 53 Cal.4th 500, 507.) " ' "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." ' [Citations.]" (People v. Bean (1988) 46 Cal.3d 919, 933.) "The conviction shall stand 'unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [it]." ' " (People v. Cravens, at p. 508.)
Murder is the unlawful killing of a human being "with malice aforethought." (§ 187, subd. (a).) "Second degree murder is the unlawful killing of a human being with malice aforethought, but without the elements, such as willfulness, deliberation, and premeditation . . . that would support a conviction of first degree murder." (People v. Lewis (2006) 139 Cal.App.4th 874, 882.) Malice may be either express or implied. (§ 188, subd. (a).)
"Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature." (§ 188, subd. (a)(1).) " '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 . . . .' [Citation.]" (People v. Cravens, supra, 53 Cal.4th at p. 507.) "[T]he state of mind of a person who acts with conscious disregard for life is, 'I know my conduct is dangerous to others, but I don't care if someone is hurt or killed.' " (People v. Olivas (1985) 172 Cal.App.3d 984, 988.) Implied malice may be proved by circumstantial evidence. (People v. Superior Court (Costa) (2010) 183 Cal.App.4th 690, 697.)
"Manslaughter is the unlawful killing of a human being without malice." (§ 192.) A defendant commits voluntary manslaughter, not murder, if the defendant kills intentionally (express malice) or with a conscious disregard for life (implied malice) in one of two limited circumstances: (1) "upon a sudden quarrel or heat of passion" (§ 192, subd. (a)) or (2) in unreasonable or imperfect self-defense—that is, in the defendant's unreasonable but actual, good faith belief in the need to defend against imminent death or great bodily injury. (People v. Blacksher (2011) 52 Cal.4th 769, 832-833; In re Christian S. (1994) 7 Cal.4th 768, 773; People v. Flannel (1979) 25 Cal.3d 668, 679.) But a killing is lawful and justified if it is committed in complete self-defense—in the actual and objectively reasonable belief in the need to defend against imminent death or great bodily injury. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082; § 197; CALCRIM No. 505.)
2. Relevant Instructions
The jury was instructed on second degree murder (CALCRIM No. 520), complete self-defense (CALCRIM No. 505), voluntary manslaughter based on a sudden quarrel or heat of passion (CALCRIM No. 570), and imperfect self-defense (CALCRIM No. 571). The jury was instructed that, to prove defendant guilty of second degree murder, the People had the burden of proving beyond a reasonable doubt that defendant's killing of Kevin R. was not justified because it was not committed in complete self-defense (CALCRIM No. 505), and it was not voluntary manslaughter because it was not committed in a sudden quarrel or heat of passion or imperfect self-defense (CALCRIM Nos. 570, 571.)
The jury was further instructed on the mutual combat and initial aggressor exceptions to the right of self-defense: "A person who engages in mutual combat or who starts a fight has a right to self-defense only if: [¶] 1. He actually and in good faith tried to stop fighting; [¶] AND [¶] 2. He indicated, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wanted to stop fighting and that he had stopped fighting; [¶] AND [¶] 3. He gave his opponent a chance to stop fighting. [¶] If the defendant meets these requirements, he then had a right to self-defense if the opponent continued to fight. . . ." (CALCRIM No. 3471.) The jury was further instructed that the right to self-defense may not be contrived: "A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force." (CALCRIM No. 3472.)
The principles set forth in CALCRIM Nos. 3471 and 3472 limit the right to kill in complete self-defense and imperfect self-defense. (People v. Enraca (2012) 53 Cal.4th 735, 761.) "The concepts of perfect and imperfect self-defense are not entirely separate, but are intertwined. . . . '[T]he ordinary self-defense doctrine—applicable when a defendant reasonably believes that his safety is endangered—may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical attack . . .), has created circumstances under which his adversary's attack or pursuit is legally justified. [Citations.] It follows, a fortiori, that the imperfect self-defense doctrine cannot be invoked in such circumstances.' [Citation.]" (People v. Valencia (2008) 43 Cal.4th 268, 288; see People v. Eulian (2016) 247 Cal.App.4th 1324, 1333.)
We presume that the jury understood and followed the trial court's instructions. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 447.) Thus, in finding defendant guilty of second degree murder, the jury necessarily concluded that defendant stabbed and killed Kevin R. with express malice (intent to kill) or implied malice (conscious disregard for life), and that defendant did not kill Kevin R. in complete or perfect self-defense, a sudden quarrel or heat of passion, or imperfect self-defense.
3. Substantial Evidence Supports the Jury's Second Degree Murder Verdict
Contrary to defendant's claim that the record only supports a verdict of voluntary manslaughter based on imperfect self-defense, substantial evidence supports the jury's second degree murder verdict. As noted, "[t]he elements of second degree murder are: (1) an unlawful killing; (2) accomplished with malice aforethought, whether express or implied." (People v. Malfavon (2002) 102 Cal.App.4th 727, 735.)
First, substantial evidence shows and the jury reasonably could have concluded that defendant acted with either express malice (intent to kill) or implied malice (a conscious disregard for Kevin R's life), when he stabbed Kevin R. in the chest and killed him. The Walmart video showed that, as Kevin R. was backing away from defendant, defendant lunged several steps toward Kevin R. and, with his four and one-half inch to five-inch knife raised high in his right hand, deliberately aimed the knife at the center of Kevin R.'s chest. During his interview, defendant admitted that he aimed the knife at Kevin R.'s "center mass" to "stop the attack." Given defendant's military experience and "hand to hand combat" training, the jury reasonably could have inferred that defendant knew, and was consciously aware, that stabbing Kevin R. in the middle of his chest was very likely to kill him.
Second, the jury reasonably rejected defendant's claim that he killed Kevin R. in complete self-defense and that the killing was therefore lawful and justified. (CALCRIM No. 505.) Substantial evidence shows that defendant was the initial aggressor in the physical confrontation between himself and Kevin R. that took place in front of the Honda. (CALCRIM No. 3471.) The record shows that, after defendant stopped pursuing Kevin R. in the Walmart parking lot, defendant walked in front of the Honda that defendant's girlfriend, J.C., was driving, then expressly refused to move out of its way. Kevin R. then walked up to defendant and said "excuse me" twice. Although Kevin R. did not touch defendant, raise his fists, run, or charge at defendant, defendant grabbed Kevin R. by the throat with his right hand and used his "whole force" to choke Kevin R. Then, while "flailing" his arms and trying to loosen himself from defendant's grip, Kevin R. punched defendant in the face with a closed fist. Defendant released his hold, Kevin R. backed away, and defendant then lunged several steps toward Kevin R., with the knife high in his right hand, and stabbed Kevin R. in the middle of his chest, killing him.
The jury reasonably could have concluded that defendant's act of grabbing Kevin R.'s throat started the fight and made defendant the initial aggressor in the fight. And, in order to claim that the killing was in complete self-defense and therefore lawful, defendant, as the initial aggressor, had a duty to make a good faith effort to stop the fight that he had just started with Kevin R. (CALCRIM No. 3471.) But substantial evidence shows that defendant did not try to stop the fight; he did not indicate to Kevin R., by words or conduct, that he wanted to stop the fighting. Nor did he give Kevin R. a chance to stop the fight before he stabbed and killed Kevin R. (Ibid.) Instead, the record shows that defendant lied during his interview when he claimed he told Kevin R. to "stop" and that he had a knife, before he stabbed Kevin R. When confronted at trial with his phone recordings which showed he did not say anything to Kevin R. after Kevin R. punched him, defendant admitted he was wrong when he told investigators that he warned Kevin R. to stop and that he had a knife.
J.B.'s testimony also showed that defendant was the initial aggressor in the fight with Kevin R. J.B. was the bystander who saw defendant grab Kevin R.'s throat, nearly lift him off the ground, and choke him. J.B. saw that Kevin R. was "flailing his arms" and trying to get loose from defendant's grip when Kevin R. punched defendant once in the face.
The jury reasonably discredited the defense testimony two other bystanders, J.V. and M.V., who claimed that Kevin R. punched defendant when defendant was retrieving his dog's leash or collar, and that they did not see defendant grab Kevin R.'s throat or choke him. Both J.V. and M.V. admitted they did not see the entire physical confrontation between defendant and Kevin R. because the Honda was partially obstructing their views.
Substantial evidence also shows that defendant provoked the fight with Kevin R. "with the intent to create an excuse to use force" and, for this reason as well, did not lawfully kill Kevin R. in complete self-defense. (CALCRIM No. 3472.) The Walmart video showed that defendant was aggressively pursuing Kevin R. in the Walmart parking lot, while recording Kevin R. with his phone, and that defendant continued to pursue Kevin R. after he no longer needed to record him.
After Kevin R. kept walking away from defendant, defendant walked in front of the Honda, obstructing its path and refusing to move, even though defendant could see that the Honda did not have a front license plate that he could record with his phone. At trial, defendant recalled that the Honda did not have a front license plate and had a rear, Florida license plate. But defendant never explained why he obstructed the Honda's path to record it even though he could see that it did not have a front license plate. Then, when Kevin R. walked up to him and twice said excuse me, defendant grabbed Kevin R. by the throat and started the fight that ended with defendant stabbing and killing Kevin R. All of this evidence showed that defendant provoked the fight with Kevin R. in order to create an excuse to use force.
Substantial evidence also shows that, by stabbing Kevin R. in the middle of his chest, defendant used far more force than was reasonably necessary to defendant himself against any physical threat that Kevin R. may have posed to him. (CALCRIM No. 505.) Indeed, defendant admitted that Kevin R. never threatened to hurt or kill him; he did not see any weapons on Kevin R.; and Kevin R did not act as though he had a weapon. And, at 6 feet 3 inches tall and weighing 265 pounds, defendant was physically much larger than Kevin R., who was only 5 feet 8 inches tall and weighed only 151 pounds. On the Walmart video, it appears that defendant was nearly twice the size of Kevin R.
Lastly, the Walmart video does not support defendant's claim that he acted as "a scared man trying to save himself" when he stabbed and killed Kevin R. To the contrary, the Walmart video shows that defendant was behaving in a physically aggressive and menacing manner throughout his entire encounter with Kevin R., the Honda, and J.C. The Walmart video coupled with defendant's phone recordings show that, without saying a word, brandishing his knife, or giving any kind of warning, defendant lunged several steps toward Kevin R. and deliberately aimed his knife at the middle of Kevin R.'s chest when he stabbed and killed Kevin R.
Although the defense emphasized and the Walmart video shows that Kevin R. walked two steps toward defendant, and had his right fist clenched, shortly before defendant lunged toward Kevin R. and stabbed him, the jury reasonably could have concluded that Kevin R. was not about to punch defendant just before defendant stabbed him. Rather, the Walmart video indicates that Kevin R., by taking two steps toward defendant and clenching his fist, was preparing to defend himself in case defendant tried to grab his throat again or hit him. Indeed, the Walmart video shows that Kevin R. was quickly backing away from defendant as defendant, without warning, lunged several steps toward Kevin R., aimed his knife at the center of his Kevin R.'s chest, and stabbed him. Immediately after he stabbed Kevin R., defendant threatened a frightened and frantic J.C. by saying, "You're next," as he chased J.C. to the back of the Honda. Defendant then retrieved his dog's leash and followed the Honda in a physically aggressive and menacing manner as J.C. drove the Honda to the front of the Walmart where Kevin R. lay dying.
4. Defendant's Imperfect Self-Defense Claim Disregards the Entire Record
Defendant claims the evidence only supports a verdict of voluntary manslaughter based on imperfect self-defense, and there is "no substantial evidence" that he was the initial aggressor in the fight with Kevin R. He argues the record contains "overwhelming evidence" that he honestly and actually believed he was in imminent danger of death or great bodily injury; that Kevin R. "slapped him first, while he was bent over trying to put his dog's collar on"; and that he honestly and actually believed his use of deadly force "was necessary to defend against the danger." These claims lack merit because (1) they rely on selected evidence that the jury reasonably discredited, and (2) they disregard the substantial evidence, discussed ante, that amply supports the jury's conclusion that defendant was guilty of second degree murder.
Defendant points out that he was a 20-year Navy retired veteran "with no criminal record" when he stabbed and killed Kevin R. "in a crowded parking lot." Then, after he realized that Kevin R. was badly injured, he attempted to help; he spoke with the 911 dispatcher and "explained what had just happened"; he cooperated with the sheriff's deputies when they arrived and "even volunteered" that he had stabbed Kevin R. He then "freely spoke" with the investigators and gave them access to his iPhone so they could view the recordings he had taken. He argues, "[t]hese are the actions of a man who believed that what he did was right and necessary. It is simply an unreasonable interpretation of the evidence to find that [he] did not believe he was in imminent danger of suffering great bodily injury, or that he did not believe deadly force was necessary to defend himself." We disagree.
Defendant repeatedly emphasizes that he had no criminal history, but no evidence concerning defendant's criminal history, or lack of criminal history, was presented at trial. --------
The jury reasonably discredited defendant's interview statements and trial testimony in which he claimed he stabbed Kevin R. "to stop the attack" because he feared for his life or great bodily injury. As discussed, substantial evidence shows that defendant lied during his interview and at trial. During his interview, he claimed he warned Kevin R. to stop and that he had a knife before he stabbed Kevin R., but at trial he admitted he was wrong when he claimed he said those things. He also claimed during his interview that he "pushed" Kevin R. in the throat before Kevin R. struck him, and that he responded to being struck by pulling out his knife. But he did not claim until he testified at trial that Kevin R. "smacked [him] twice" and "cold-cocked" him. As also discussed, the Walmart video discredited defendant's claim that he acted as "a scared man trying to save himself." The Walmart video did not show that defendant was fearful; it showed him being physically aggressive toward Kevin R., J.C., and the Honda, even after he stabbed Kevin R. in the chest.
Therefore, we disagree with defendant's assertions that the evidence only supports a verdict of voluntary manslaughter based on unreasonable self-defense. B. The Court Independently Reviewed the Evidence in Denying Defendant's Motion to Reduce His Second Degree Murder Conviction to Voluntary Manslaughter
Defendant claims the trial court abused its discretion in denying his posttrial motion to reduce his second degree murder conviction to voluntary manslaughter based on imperfect self-defense. He argues the court "failed in its duty to act as a 13th juror and independently examine the evidence." Again, we disagree.
1. Relevant Background
Defendant filed a posttrial motion to modify the jury's second degree murder verdict in count 1, arguing the evidence was insufficient to support the verdict and was only sufficient to support a verdict of voluntary manslaughter based on imperfect self-defense. (§ 1181, subd. (6).) The People filed opposition on the ground the evidence was sufficient to support the second degree murder verdict.
At the hearing on the motion, the court denied the motion, saying, "I believe that the jury conscientiously weighed the evidence. I don't find anything that would cause me to disregard their findings. I think they're supported by substantial evidence. So the motion to reduce the conviction is denied."
2. Applicable Law and Standard of Review
A defendant may move to modify a verdict when "the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein . . . ." (§ 1181, subd. (6).) In ruling on such a motion, the trial court is to extend "no evidentiary deference" to the verdict. (Porter v. Superior Court (2009) 47 Cal.4th 125, 133; see People v Carter (2014) 227 Cal.App.4th 322, 327 [accord].) "[T]he trial court's duty is to review the evidence independently and satisfy itself that the evidence as a whole is sufficient to sustain the verdict." (People v. Dickens (2005) 130 Cal.App.4th 1245, 1251.) In independently reviewing the evidence, the trial court "sits, in effect, as a '13th juror.' [Citations.]" (Porter v. Superior Court, supra, at p. 133.)
"The trial court has broad discretion in determining whether the evidence has sufficient probative value to sustain the verdict [citation], and its order will not be reversed on appeal 'absent a manifest and unmistakable abuse of that discretion.' [Citation.]" (People v. Dickens, supra, 130 Cal.App.4th at p. 1252.) "[T]here is a strong presumption" that the court "properly exercised" its discretion in ruling on a motion for a new trial or to modify a verdict. (People v. Davis (1995) 10 Cal.4th 463, 524.)
3. Analysis
Defendant claims the court abused its discretion in denying his motion because it "failed to give [him] the benefit of its independent conclusion as to the sufficiency of credible evidence to support the [second degree murder] verdict." (People v. Robarge (1953) 41 Cal.2d 628, 634.) He argues there is no indication that the court independently reviewed the evidence in ruling on his motion—because the court made no express factual findings or credibility determinations, and made "no statement to the effect that its ruling was based on an independent review of the evidence." Thus, he claims, the court based its denial of the motion on an incorrect legal standard (People v. Knoller (2007) 41 Cal.4th 139, 156), and reversal and remand are required so the court may properly exercise its discretion, in the first instance, by independently reviewing the evidence supporting the jury's second degree murder verdict. (People v. Robarge, supra, at p. 634-635; People v. Watts (2018) 22 Cal.App.5th 102, 114.)
We disagree that the court made "no statement to the effect that its ruling was based on an independent review of the evidence." As noted, the court said that it did not "find anything" that would "cause" it to "disregard" the jury's implied factual "findings" supporting the jury's second degree murder verdict, and that substantial evidence supported the jury's verdict. (Italics added.) The court's statements show that the court did not, as defendant claims, improperly defer to the jury's verdict or merely review the verdict for substantial evidence. To the contrary, the court's statements show that it independently weighed the evidence supporting the verdict and agreed with the jury's conclusion that defendant was guilty of second degree murder, not voluntary manslaughter based on imperfect self-defense. (See People v. Davis, supra, 10 Cal.4th at pp. 523-524 [trial court's independently reviewed evidence supporting the jury's first degree murder verdict based on similar statements].) C. Remand to Consider Whether to Strike the Personal Use Enhancement in Count 1
At sentencing, the People asked the court to stay the one-year term on the personal use enhancement on defendant's second degree murder conviction (§ 12022, subd. (b)(1)) and the court did so. In this appeal, the People point out that the stay was unauthorized and ask this court to lift the stay and impose the one-year term. We decline to do so, given that the People invited the error. (See People v. Vargas (2001) 91 Cal.App.4th 506, 561.)
For his part, defendant correctly points out that his abstract of judgment for his indeterminate sentence in count 1 erroneously shows that the court imposed the one-year term on the personal use enhancement. He asks this court to remand the matter with directions to the court to strike the personal use enhancement in the interests of justice (§ 1385), because this was the court's intent. We disagree. The record does not indicate that the court intended to strike the enhancement in the interest of justice. Rather, in staying the one-year term, the court simply stated that it was doing so "at the People's request." But courts are required to impose a lawful sentence (People v. Vergara (1991) 230 Cal.App.3d 1564, 1569) and there was no lawful basis for staying the one-year term. Thus, we remand the matter to the trial court with directions to consider whether to strike the enhancement in the interests of justice (§ 1385) or impose the one-year term on the enhancement.
IV. DISPOSITION
The matter is remanded to the trial court with directions to consider whether to strike the personal use enhancement (§ 12022, subd. (b)(1)) on defendant's second degree murder conviction in the interests of justice (§ 1385) or to impose the one-year term on the enhancement, given that the current judgment staying the one-year term constitutes an unauthorized sentence. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: MILLER
Acting P. J. CODRINGTON
J.