Opinion
E067184
11-28-2017
THE PEOPLE, Plaintiff and Respondent, v. DANIEL GOMEZ, Defendant and Appellant.
Alissa Bjerkhoel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier, and Kathryn Kirschbaum, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB1402418) OPINION APPEAL from the Superior Court of San Bernardino County. Ronald M. Christianson, Judge. Affirmed. Alissa Bjerkhoel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier, and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
All statutory references are to the Penal Code.
Defendant Daniel Gomez, a homeless man, fatally stabbed another homeless man. A jury convicted defendant of second degree murder with a weapons enhancement. (§§ 187, subd. (a); 12022, subd. (b)(1).) The court sentenced defendant to a prison term of 16 years to life.
On appeal, defendant argues the prosecution failed to prove defendant did not act in imperfect self-defense. However, defendant admitted to the police that he acted out of frustration and he could have escaped the victim rather than stabbing him to death. We affirm the judgment.
II
FACTS
In his statement to police, Gomez said that he was a long-term heroin addict. On May 18, 2014, he had used heroin and drunk a beer. In the afternoon, he was near a Colton drug store—engaged in his usual practice of panhandling, looking for recyclables, and checking lottery tickets. While defendant was sitting on the store curb, Martin Moore sat down next to him. Defendant asked Moore to leave and, when Moore refused, defendant was angry and they began fighting. Defendant pulled out a knife and stabbed Moore multiple times in the chest, ear, face, arm, neck, and leg. Moore died from his chest wounds.
Defendant told police he was frustrated because Moore would not leave him alone and he stabbed him out of anger and fear. Defendant admitted Moore had no weapon and defendant could have escaped from Moore. Defendant claimed he was acting in self-defense because Moore "wouldn't stop bugging [him]."
A bystander witnessed the entire incident. Moore had a blood alcohol content of 0.10. There was also evidence that Moore was taller and heavier than defendant. Moore had prior convictions for carjacking in 2006 and battery in 2013. Defendant had no criminal record.
Two character witnesses testified on defendant's behalf that he was a peaceful person with a reputation for nonviolence.
III
SUBSTANTIAL EVIDENCE
Defendant contends insufficient evidence supports the jury verdict for second degree murder because the prosecutor failed to prove beyond a reasonable doubt that defendant did not act in imperfect self-defense. However, defendant's admissions to the police were sufficient to show that defendant was not in fear of death or great bodily injury when he stabbed the victim. Instead, defendant was annoyed and angry that the victim was "bugging" him.
The appellate 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. Johnson (1980) 26 Cal.3d 557, 578.) It is the jury, and 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 reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.'"'" (People v. Stanley (1995) 10 Cal.4th 764, 792-793; People v. Rodriguez (1999) 20 Cal.4th l, 11.)
Second degree murder is the unlawful killing of a human being with malice but without the elements of willfulness, premeditation, and deliberation for first degree murder. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 102; § 187, subd. (a).) Second degree murder may be reduced to voluntary manslaughter with evidence that negates malice. (People v. Barton (1995) 12 Cal.4th 186, 199; § 192.)
Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was "in imminent danger of death or great bodily injury," the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter. (In re Christian S. (1994) 7 Cal.4th 768, 771, 778-780; People v. Barton, supra, 12 Cal.4th at p. 199.) Imperfect self-defense is a "narrow" doctrine that requires "without exception that the defendant . . . had an actual belief in the need for self-defense." (People v. Manriquez (2005) 37 Cal.4th 547, 581.)
In that respect, the trial court instructed the jury: "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense . . . [because he] actually believed that he was in imminent danger of being killed or suffering great bodily injury, and . . . that the immediate use of deadly force was necessary to defend against the danger." Furthermore, "[a]t least one of those beliefs wasn't reasonable . . . . Imperfect self-defense does not apply when the defendant, through his own wrongful conduct, has created circumstances that justify his adversary's use of force. . . ." (CALCRIM No. 571.) It is the prosecution's burden to prove beyond a reasonable doubt that the defendant was not acting in imperfect self-defense. (CALCRIM No. 571; People v. Bloyd (1987) 43 Cal.3d 333, 349; People v. Rios (2000) 23 Cal.4th 450, 461-462.)
At trial, the prosecutor introduced defendant's statements to the police, which allowed the jury to find that defendant acted with malice and did not kill in imperfect self-defense. Immediately following the murder defendant exclaimed to the police: "[The victim] wouldn't stop bugging me. It was self-defense." During the police interview, defendant complained the victim was "harassing" him by asking him for directions and by sitting next to him on the curb. For that reason, they started fighting. When the victim threw defendant onto the hood of a parked car, it made defendant "very angry." According to the bystander's testimony, the stabbing may have begun before the two men slammed against a car.
Defendant's statement and the witness's testimony were inconsistent about when the stabbing first began. --------
Defendant admitted that he stabbed the victim because he wanted the victim to leave him alone and that he could have run away but he continued to stab the victim because he wanted to remain at the drug store. Defendant also admitted the victim did not have a knife or gun. Defendant's additional statements that he was scared and afraid were outweighed by the numerous statements about anger and irritation as his motivation. In other words, defendant acted with malice, and not out of fear of death or imminent harm.
Finally, because defendant admitted to police that he could have run away from Moore after stabbing him once, none of defendant's statements show a subjective belief that the use of deadly force was necessary. In the case relied upon by defendant, the appellate court held the defendant could not have a subjective belief in the need for deadly force: "Although defendant was aware that the victim owned a pistol, there was no indication that he had threatened defendant with that pistol. . . . Moreover, at the time of his death the victim was not armed with a weapon, and defendant did not testify that he believed that victim intended to use a weapon against him. The only intent on the part of the victim was to engage defendant in fisticuffs, to 'beat him up,' and the evidence did not establish that the victim was so physically overwhelming that defendant had reason to fear great bodily injury from such an encounter." (People v. Clark (1982) 130 Cal.App.3d 371, 380-381.) Although Moore may have been larger than defendant, he was not armed and defendant could have left the scene rather than stabbing Moore: "[A]ny right of self-defense is limited to the use of such force as is reasonable under the circumstances. [Citation.] The right of self-defense did not provide defendant with any justification or excuse for using deadly force to repel a nonlethal attack." (People v. Pinholster (1992) 1 Cal.4th 865, 966, citing Clark, at p. 380; People v. Hardin (2000) 85 Cal.App.4th 625, 629-634.)
IV
DISPOSITION
Defendant killed out of anger rather than actual, but unreasonable, fear of death or imminent harm. The jury rightfully rejected imperfect self-defense. We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. McKINSTER
J.