Opinion
G056477
09-25-2019
THE PEOPLE, Plaintiff and Respondent, v. BERNARDO ALEJANDRO MARES, Defendant and Appellant.
Stephen M. Hinkle, 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, Lise S. Jacobson and Robin Urbanski, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17WF0995) OPINION Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed. Stephen M. Hinkle, 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, Lise S. Jacobson and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Bernardo Alejandro Mares was convicted of attempted first degree murder. On appeal, he raises three arguments, all of which involve the failure to instruct the jury on various defense theories. Finding no prejudicial error, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On April 30, 2017, between 12:30 and 1:30 p.m., Kirk Johnson was at a bus stop in Westminster, California when he was approached by defendant. Defendant asked what time it was and when the bus was coming. Defendant then asked Johnson if he wanted to buy marijuana. Johnson declined, stating that he was already high, but the two used defendant's pipe to smoke "a little bit" of marijuana; Johnson took "three to four hits." Johnson asked defendant if he wanted to use Johnson's access card to ride the bus. Defendant declined and walked away. During their entire interaction, defendant and Johnson did not argue, and neither was hostile or aggressive toward the other.
A few minutes later, Johnson felt himself being hit in the neck, shoulder, and back and felt a sharp pain. He got up off the bus stop bench, turned and saw defendant standing behind the bench. Johnson said, "Oh, you must want to fight. What did I do to do this [sic]? But if you want to fight, come from behind that bench." Johnson "had a lot of adrenalin going. " Johnson noticed defendant had a knife in his hand and thought defendant would kill him.
Johnson fell backwards into the street. As defendant came toward Johnson and swung at him, Johnson placed his hand in his pocket and said, "What's going on? Why are we doing this? What did I do to upset you? Did I say anything?" Defendant continued coming toward Johnson and swinging his fists. Johnson was still on the ground, flailing his legs, when he put his hands in his jacket pocket and said, "I have a gun. You should back up. I have a gun." Johnson did not, in fact, have a gun.
Eventually, Johnson got to his feet, and defendant chased him around the street for a few seconds before running off. Defendant did not say anything during the entire attack.
Johnson ran across the street to a 7-Eleven and realized he had been stabbed and was bleeding. He was taken to the hospital by ambulance. He received stitches and staples to close eight stab wounds. One of the stab wounds had fractured his shoulder blade. None of the stab wounds was life threatening, although one was near the carotid artery, and a penetrating injury to the neck can be fatal.
Two individuals observed the altercation while in their respective cars at the intersection. One testified he saw a black man and a skinny, shirtless Hispanic man with a shaved head and a red backpack having a verbal argument that was progressing to pushing. The black man was walking backwards into the street with "his hands up in sort of a defensive motion" while the Hispanic man was pushing toward him. The Hispanic man had a knife and was making stabbing and thrusting motions with it towards the black man. Feathers were coming out of the down jacket the black man was wearing. The black man then retreated toward a 7-Eleven on the other side of the street. The Hispanic man took off through a strip mall in the opposite direction. This witness twice identified defendant as the Hispanic man he had seen—in the field and at trial.
The other witness saw a black man and a Hispanic man with a shaved head at a bus stop. Her attention was first drawn to the sight of feathers flying into the air, which she later realized were coming from the black man's jacket. She saw the two men come into the street and saw the Hispanic man raise a knife. She screamed. The Hispanic man ran into a nearby strip mall. She also identified defendant as the Hispanic man she had seen, both in the field and at trial.
Officer Miguel Gradilla of the Westminster Police Department received a dispatch about the stabbing at 1:31 p.m.; the assailant was described as a bald Hispanic male, wearing black pants and a red backpack, but no shirt. In a nearby residential area, Gradilla saw defendant "frantically" trying to start a weed whacker. Defendant did not have a red backpack, but otherwise matched the description of Johnson's assailant. Gradilla told him to put down the weed whacker and sit down; defendant eventually complied. Defendant was sweating and out of breath. Defendant said he lived at the house he was in front of, but someone in the house opened the door and indicated that defendant did not live there. Gradilla observed that the weed whacker engine was full of spider webs and had no gas in the tank. Gradilla found a folding knife near the weed whacker; the blade was in a fixed, open position and had been inserted into the lawn with the handle extending outward. Defendant said he used the knife as a screwdriver and to cut boxes. Gradilla also found a red backpack in a planter in the front patio area of the house; inside the backpack he found defendant's identification, a pipe with marijuana, and a methamphetamine pipe, among other things.
A medical doctor testified on behalf of defendant, based on photos of Johnson's injuries, that the wounds could have been, but had not necessarily been, caused by a knife. He had not reviewed Johnson's medical records.
A defense expert on eyewitness identification testified regarding the connection between stress and the accuracy of an identification. The expert also testified that in-field identifications have the highest rate of error and the lowest rate of accuracy, as compared with photo lineups or in-person lineups.
A forensic scientist at the Orange County Sheriff's Crime Lab testified she could not develop a DNA profile on the blade or the handle of the knife recovered by Gradilla.
A jury found defendant guilty of attempted murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a)), and found true the allegations that defendant (1) committed the crime willfully, deliberately, and with premeditation (id., § 664, subd. (a)), (2) personally used a deadly or dangerous weapon (id., § 12022, subd. (b)(1)), and (3) personally inflicted great bodily injury on Johnson (id., § 12022.7, subd. (a)). The trial court sentenced defendant to 11 years to life in prison.
DISCUSSION
I.
LESSER INCLUDED OFFENSE INSTRUCTION
Defendant argues the trial court prejudicially erred by denying a request to instruct the jury on the lesser included offense of attempted voluntary manslaughter based on imperfect self-defense. Imperfect self-defense means that "a defendant acts in the actual but unreasonable belief that he is in imminent danger of death or great bodily injury." (People v. Duff (2014) 58 Cal.4th 527, 561.) A trial court must instruct the jury on a lesser included offense "if there is substantial evidence from which a jury can reasonably conclude the defendant committed the lesser, uncharged offense, but not the greater." (People v. Brothers (2015) 236 Cal.App.4th 24, 29.) We review de novo the trial court's denial of the request to instruct the jury on a lesser included offense. (People v. Avila (2009) 46 Cal.4th 680, 705.)
The trial court did instruct the jury on attempted voluntary manslaughter based on a heat of passion theory. Defendant argues the same facts that supported the giving of that instruction also supported the giving of an instruction based on an imperfect self-defense theory: Johnson had his "adrenalin going," asked defendant "do you want to fight," tried to punch defendant when the altercation moved into the street, and told defendant he had a gun.
Defendant argues that the instruction on imperfect self-defense was proper despite the clear evidence that he stabbed Johnson before, not after, Johnson tried to throw a punch or pretended to have a gun. The only evidence to which defendant points is the testimony of the two witnesses, who both testified they could see feathers flying from Johnson's down jacket when Johnson and defendant were in the street. However, the testimony of Johnson and both witnesses was that defendant and Johnson were facing each other the entire time the altercation was occurring in the street, both when Johnson was on the ground and when he was upright. Therefore, it would have been physically impossible for defendant to stab Johnson in the back after the time Johnson told defendant he had a gun.
Even if the evidence supported the giving of an instruction on attempted voluntary manslaughter based on imperfect self-defense, we would conclude the error was not prejudicial. A trial court's failure to instruct on a lesser included offense is an error under California law (People v. Breverman (1998) 19 Cal.4th 142, 165, superseded by statute on another ground; People v. Watson (1956) 46 Cal.2d 818, 836); we may only reverse if defendant demonstrates a reasonable probability he would have achieved a more favorable verdict if the court provided the requested instruction. There are two reasons we cannot reach such a conclusion.
First, the trial court instructed the jury on attempted voluntary manslaughter based on sudden quarrel or heat of passion. Defendant argues the same facts supporting the instruction on that theory supported the instruction on the separate theory before us on appeal. If the jury found those facts did not negate malice under the heat of passion theory, it is not reasonably probable it would have found the same facts negated malice under the imperfect self-defense theory.
Second, because the jury made a true finding of premeditation and deliberation, it "implicitly rejected defendant's version of the events, leaving no doubt the jury would have returned the same verdict had it been instructed regarding imperfect self-defense." (People v. Manriquez (2005) 37 Cal.4th 547, 582.)
Defendant argues this analysis of harmless error is incorrect, citing People v. Berry (1976) 18 Cal.3d 509, 518 (Berry) and People v. Ramirez (2010) 189 Cal.App.4th 1483, 1488 (Ramirez), in which the courts held the erroneous omission of an instruction on voluntary manslaughter was not harmless despite the jury's findings that the defendants in those cases were guilty of first degree murder. Berry and Ramirez are in direct conflict with People v. Wharton (1991) 53 Cal.3d 522 (Wharton) and cases following it, including People v. Franklin (2018) 21 Cal.App.5th 881 (Franklin), and People v. Speight (2014) 227 Cal.App.4th 1229 (Speight), decided by another panel of this court.
In People v. Peau (2015) 236 Cal.App.4th 823 (Peau), the court sought to reconcile the tension between the Berry and Wharton lines of cases. The court in Peau focused on the fact that the Berry court "did not even mention that first degree murder must be willful, deliberate, and premeditated. Instead, it focused only on the fact that the instruction distinguishing between first and second degree murder in that case 'made passing reference to heat of passion and provocation for the purpose of distinguishing between' the two types of murder. [Citation.] We think this strongly suggests that the sole issue considered in Berry was whether the error was harmless because the jury received some instruction on the concepts of heat of passion and provocation, not whether the error was harmless because the jury found the murder was willful, deliberate, and premeditated and such a finding was inconsistent with a finding that the defendant acted in a heat of passion." (Peau, supra, 236 Cal.App.4th at pp. 831-832.) In Wharton, by contrast, where the jury was instructed that first degree murder is the result of premeditation and deliberation, the jury's finding that the murder was of the first degree was "manifestly inconsistent" with the heat of passion defense. (Wharton, supra, 53 Cal.3d at p. 572; see Peau, supra, 236 Cal.App.4th at p. 831.)
In Franklin, supra, 21 Cal.App.5th at page 886, the defendant was convicted of premeditated and deliberate attempted murder. He contended on appeal that the trial court committed prejudicial error by improperly responding to the jury's question regarding the requirements for attempted voluntary manslaughter based on heat of passion. (Ibid.) Although the trial court's response to the jury's question was incorrect, the appellate court held that the error was not prejudicial. "Franklin's jury was instructed that it could not find premeditation and deliberation unless the People proved beyond reasonable doubt that he 'carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill.' [Citation.] The instructions further specified that '[a] decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated.' [Citation.] The erroneous heat of passion instruction, which was explicitly limited to 'attempted voluntary manslaughter,' did not affect these other instructions. We cannot see how a determination that Franklin carefully weighed his choice to act and did not decide rashly or impulsively can coexist with the heat of passion, which '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."' [Citation.] In other words, the jury's finding of premeditation and deliberation is 'manifestly inconsistent with having acted under the heat of passion' and nullifies any potential for prejudice here." (Id. at p. 894, italics omitted; see Speight, supra, 227 Cal.App.4th at p. 1246 [jury's finding that the defendant acted willfully, deliberately, and with premeditation is "manifestly inconsistent" with heat of passion defense].)
We agree with Peau's reconciliation of the apparent conflict between Barry and Ramirez, on the one side, and Wharton, Franklin, and Speight on the other. Any error in failing to instruct the jury regarding attempted voluntary manslaughter based on imperfect self-defense was harmless in light of the jury's finding of premeditation and deliberation.
II.
DEFENSE OF SELF-DEFENSE INSTRUCTION
Defendant argues that the trial court erred by failing to sua sponte instruct the jury regarding the defense of self-defense. The trial court must instruct the jury on any affirmative defense for which there is substantial evidence, whether or not the defendant formally requests such an instruction. (People v. Boyer (2006) 38 Cal.4th 412, 469, superseded by statute on another ground; see People v. Blair (2005) 36 Cal.4th 686, 744, overruled on another ground by People v. Black (2014) 58 Cal.4th 912.)
Defendant contends there was a "lack of clarity in the evidence as to whether [defendant] stabbed Johnson before or after he was threatened with a gun." To the contrary, the only evidence on this point is crystal clear—defendant stabbed Johnson before Johnson claimed to have a gun. Johnson testified he felt sharp pain from being stabbed in the back and shoulder while he was sitting on the bus stop bench. Johnson then stood up and turned around, stepped back, and fell on his back in the street. Only then, while he was lying on his back flailing his legs to fend off defendant, did Johnson tell defendant he had a gun. The evidence does not support a finding that defendant had an honest and reasonable belief in the need to defend himself from Johnson against imminent great bodily harm or death. (People v. Flannel (1979) 25 Cal.3d 668, 674-675, superseded by statute on another ground.) The trial court did not err.
III.
VOLUNTARY INTOXICATION INSTRUCTION
Defendant argues his trial counsel rendered ineffective assistance of counsel by failing to request a jury instruction on voluntary intoxication. To prevail on a claim of ineffective assistance of counsel, defendant must prove by a preponderance of the evidence that his trial counsel's representation failed to meet an objective standard of reasonableness, and that absent counsel's deficient performance, there is a reasonable probability the result would have been more favorable to defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) As to the first prong, our scrutiny of counsel's performance is "highly deferential" and we "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Id. at p. 689.) Further, "[i]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation." (People v. Gray (2005) 37 Cal.4th 168, 207.)
To a limited extent, a jury may consider evidence of a defendant's voluntary intoxication and its effect on the required mental state. Defendant argues that the jury should have been instructed to consider whether his alleged voluntary intoxication prevented him from forming the specific intent to kill. (Pen. Code, § 29.4, subd. (b) ["Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent"]; People v. Lee (1987) 43 Cal.3d 666, 670 [specific intent to kill is element of attempted murder].)
In this case, trial counsel could well have declined to request an instruction on voluntary intoxication because there was no substantial evidence of voluntary intoxication. Johnson testified that, before the attack, he and defendant smoked marijuana at the bus stop. Johnson testified he personally took "three to four hits." There was no evidence showing the amount of marijuana defendant consumed, or whether it had any effect on his ability to form a specific intent.
"A defendant is entitled to . . . an instruction [on voluntary intoxication as a defense to a specific intent crime] only when there is substantial evidence of the defendant's voluntary intoxication and the intoxication affected the defendant's 'actual formation of specific intent.'" (People v. Williams (1997) 16 Cal.4th 635, 677.) Merely showing that defendant consumed marijuana before committing a crime, without evidence of its effect on him, would have been insufficient to warrant an instruction on voluntary intoxication. (Id. at pp. 677-678 [even if evidence of the defendant's voluntary intoxication was "substantial," the instruction was properly denied because "there was no evidence at all that voluntary intoxication had any effect on defendant's ability to formulate intent"]; People v. Marshall (1996) 13 Cal.4th 799, 848 [trial court did not err in denying voluntary intoxication instruction when crimes committed after the defendant had gone for 24 hours without sleep and ingested alcoholic beverages; "evidence of the effect of defendant's alcohol consumption on his state of mind is lacking"]; People v. Williams (1988) 45 Cal.3d 1268, 1312 ["testimony to the general effect that defendant may have consumed LSD on the night of the killing and was acting as though he had" was insufficient to support request for instructions for voluntary intoxication and diminished capacity], abrogated on another ground by People v. Diaz (2015) 60 Cal.4th 1176, 1190.)
Here, there was no evidence of how much marijuana defendant ingested; Johnson testified only that he himself had taken "three to four hits." More importantly, there was no evidence that the marijuana had any effect on defendant, much less that it could have affected his ability to form a specific intent. Given the state of the evidence, defendant's trial counsel could reasonably have made a tactical decision not to request an instruction on voluntary intoxication. Had such a request been made, the trial court could properly have denied it. The failure to make a futile or unmeritorious argument is not deficient performance. (People v. Beasley (2003) 105 Cal.App.4th 1078, 1092.)
DISPOSITION
The judgment is affirmed.
FYBEL, ACTING P. J. WE CONCUR: IKOLA, J. GOETHALS, J.