Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. TA078116
Jerry E. Johnson, Judge. Modified in part; affirmed in part; remanded for resentencing.
Mark L. Chistiansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Kesshawn Nelson was convicted, following a jury trial, of one count of first degree murder in violation of Penal Code section 187. The jury found true the allegation that appellant used a knife in the commission of the crime within the meaning of section 12022, subdivision (b)(1). Appellant admitted that he had suffered two prior serious or violent felonies within the meaning of sections 667, subdivisions (b) through (i) and 1170.12. The trial court granted appellant's motion to strike one of the prior convictions and sentenced him to a total term of 51 years to life in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appeals from the judgment of conviction, raising numerous contentions of error. We reduce appellant's conviction to second degree murder, but affirm the judgment of conviction in all other respects.
Facts
On February 21, 2005, appellant, Richard Calone, and Antonio and Deshawn Prince lived in a four-unit apartment building in the 11100 block of South Figueroa in Los Angeles. Calone lived upstairs in apartment number 4 with Tracy Watkins and their children Darnell and Daetwan. Appellant also lived upstairs, in apartment number 3, with his children. The Princes lived downstairs in apartment number 1 with Deshawn's daughters. Calone, appellant, and the Princes had lived in their units for several years, and they acted "like a family." Appellant and Prince were "tight" or "super close" friends who were frequently together, and Calone's apartment was where everybody socialized.
That evening, Calone arrived home from work. Calone's children were at home but Watkins was in the hospital. Calone changed his clothes and picked up his friend "Frank" who lived up the street. Later, Otis Thomas, another friend of Calone's, came to the apartment. Prince, appellant and appellant's son Kendrick also came to the apartment. About 7:00 p.m., the children went into a bedroom while the adults smoked a very large marijuana cigarette in the living room. It took them half an hour to smoke the marijuana. They were all "high" and were laughing and joking. Appellant displayed a marijuana-decorated knife and watch which he had received from his girlfriend. He passed the knife around, then returned it to his pocket.
Appellant made money by selling DVDs. He conducted this business out of a blue gym bag. Appellant had this bag with him at Calone's apartment. At about the same time that appellant showed his knife to the group, he sold some pornographic DVDs to Thomas. Shortly thereafter, Calone told the group that he needed to go to his mother's house, and the men had to leave.
Appellant, Prince, Frank and Calone walked down the apartment stairs together and went to the rear parking lot. Appellant had his gym bag with him, and was laughing with Prince. Appellant and Prince went to Prince's Expedition. Calone and Frank went to Calone's car. As Calone left in his car with Frank, Calone saw appellant and Prince inside Prince's adjacently parked Ford Expedition sports utility vehicle. Prince was in his driver's seat with his door open and headlights turned off, appellant was in the front passenger's seat with his door closed, and they were laughing.
About five or ten minutes later, Darnell went to the rear parking lot and saw appellant and Prince having a conversation standing side-by-side facing each other outside the back of Prince's Expedition with the engine turned off and an opened driver's door. They were not yelling. Darnell asked if he could have a DVD from appellant's gym bag, and appellant replied, "I'll give them to you in a minute." Darnell returned to Calone's apartment, believing that appellant would be up shortly.
Some minutes after returning to the apartment, Darnell heard someone who sounded like Prince shout, "Help, help, call 911." Darnell ran downstairs and saw two people on the ground near the SUV's opened driver's door; one person was on top of the other. When the person on top stood up and reached the lighted area of the lot, Darnell recognized the person as Prince.
As Prince was "staggering" towards Darnell, Darnell saw that appellant was standing next to Prince. As appellant approached Darnell, appellant raised his hands in the air and yelled, "Jesus Christ lives." Appellant looked angry. As Prince got closer, Darnell saw blood on Prince's face, and the front of his shirt was wet. As appellant got closer, Darnell saw a silver item about three inches long in one of appellant's hands. Scared that appellant had "flipped out" or "went crazy," Darnell ran upstairs to Calone's apartment, closed and locked the front door and called 911.
At about the same time, around 8:00 or 9:00 p.m., Deshawn was watching television in her living room with her daughters. She heard yelling in the parking lot area. She stepped outside to investigate, and saw Darnell, appellant, and Prince in the parking lot area. Appellant was standing next to Prince, who was bent over to the left of his SUV near trash cans. Prince staggered very slowly towards Deshawn and said, "Call 9-1-1." Deshawn saw blood coming down the left side of Prince's face.
Deshawn grabbed her telephone, dialed 911, then went back outside to try to help Prince. Appellant said about nine times, "Shawn, Jesus lives" or "Jesus wins." Appellant had an angry look. Deshawn replied, "Whatever you did, you're going to jail tonight." Prince had not acted aggressively towards anyone. He staggered into the middle of the street, then he fell on a sidewalk in a neighbor's driveway. Prince told Deshawn that appellant stabbed him.
Deshawn observed appellant wipe his hands inside his sweatshirt pocket. He then walked out the gate and went south on Figueroa. Appellant was not carrying his gym bag.
At 8:50 p.m., Los Angeles Police Department (LAPD) Officer Pete Cabral was conducting a nearby traffic stop when he saw a shirtless "male Black running" in the rain. The runner looked at the officer, then ran away from the officer east on 113th Street. When asked at trial if the male had anything on his head, Officer Cabral replied, "Braids."
About 9:15 p.m., LAPD officers arrived at the stabbing scene. It was raining, and Prince was lying on his back on a sidewalk receiving aid from Deshawn, surrounded by others. Police inspected Prince's SUV, and saw a pool of blood on the pavement on the driver's side. There was also a pool of blood in the SUV on the floorboard near the door rail on the driver's side, and blood was on the driver's seat and door. The engine was turned on, and both front doors were opened. Police found appellant's gym bag on the SUV's front passenger floorboard. Police also found a watch underneath the SUV's driver's side, and the watch's glass face was damaged. After paramedics arrived, they drove Prince to a hospital.
Prince died of stab wounds. He sustained twelve wounds altogether, to his head, neck and chest area. At the time of the autopsy, Prince had a blood alcohol level of 0.12 and tested positive for marijuana. On the day of the killing, appellant was five feet, ten inches tall and weighed one hundred seventy-five pounds. Prince was five feet, eleven inches tall and weighed two hundred twenty pounds. Prince had difficulty moving his neck from side to side due to a car accident; he had a five inch scar on the back of his neck.
About 9:17 p.m., police found a shirtless appellant holding a ski mask standing on the corner of 112th Street and Broadway. As police approached, appellant put his ski mask over his head and face. A blood trail was found from this area to 112th Street and Olive Street. Appellant had blood on his hands and back, cuts on his hands, and scratch marks on his back. He was arrested, and police found a shiny and clean "small folding" marijuana-decorated knife in his left rear pants pocket.
In his defense, appellant presented the testimony of Latanya Johnson, the mother of his daughter. She testified that in 2002, appellant told her that Prince had stated that Prince had "laid hands" on Deshawn when she got mad at him for hanging out in Calone's apartment. Appellant also told Johnson about another incident where Prince beat up another woman, who was the mother of one of his children. Johnson also testified that in 2003, while at appellant's apartment, Johnson anonymously dialed 911 in fear that Prince had hurt Deshawn due to the sound of glass breaking, screaming, and "bodies bouncing off the walls" downstairs in Prince's apartment. She told appellant about the incident the day it occurred. Later, Deshawn told Johnson that Prince threw her against a wall and broke a table because he did not want to babysit.
Johnson explained that she moved out of appellant's apartment in 2003 because she had fallen in love with someone else. She denied that there were problems with appellant. She denied that appellant had dragged her up the stairs, then chased and hit her, and that Calone had intervened.
Johnson stated that appellant came to her house on February 21 about 10:00 a.m. to bring her a gift for her birthday. Desarie Adkins, appellant's fiancé, picked appellant up about 7:00 or 8:00 p.m. and took him back to his apartment building. Appellant did not drink anything alcoholic at Johnson's house.
Appellant testified in his own defense. He acknowledged that he had two prior felony convictions, and one involved robbing employees at a McDonald's restaurant by gun-use.
When appellant returned to the apartment building from Johnson's house on February 21, he went to Calone's apartment. Prince and his sons were there, as was appellant's son Kendrick. There was a heavy-set bald man there who Calone referred to as "Frank." Appellant did not know Frank and had not seen him before at Calone's apartment. Appellant introduced himself to Frank, but Frank did not respond. Appellant thought this was unusual. Otis Thomas arrived at the apartment after appellant did. Frank prepared a very large marijuana cigarette, which the adults shared. Calone then said that he had to run an errand, so the men all got ready to leave the apartment.
Prince said that he wanted to talk to appellant, so they went to the parking lot together. It started to sprinkle, so the men got into Prince's SUV. They had a non-threatening conversation. During the conversation, appellant saw Frank walking toward the gate of the parking lot.
Prince started the engine, and appellant asked, "Where you going?" Prince replied, "I'm going around the corner." He seemed intoxicated. Appellant said that he was not going to ride along. Prince said that he had to relieve himself and got out of the vehicle. Appellant got out too, and went to the driver's side of the Expedition. He stood at the rear of the vehicle while Prince stood near the front and urinated against the wall.
Prince walked to appellant's position and the two men talked. Prince told appellant that he had frightened Deshawn by coming up behind her and startling her. Prince was talking somewhat bizarrely. Prince kept repeating to appellant that he looked like Prince's friend. Then Prince asked appellant if he was that friend. He did not appear to be joking. This was an unusual conversation. Prince then said, "Are you sure you not my home boy Candy Man?" Appellant replied, "Man, you know who I am. We been knowing each other for three years." This was when appellant first realized that Prince was intoxicated.
About that time, Darnell came over to them and asked appellant for some DVDs for the boys to watch. After appellant replied that he would bring up DVDs, Darnell left.
Appellant then noticed that Frank was at the gate and was looking at them. Appellant asked Prince who Frank was. Prince said, "Don't worry about him because if he wanted to do something to you, he would have did it to you." Appellant thought that was an odd response. He did not know Frank and so there was no reason that he would worry whether Frank wanted to do something to him. Appellant had been uncomfortable since he had first seen Frank in the parking lot, and remained so after Prince's response.
Appellant told Prince that he was going to his apartment, then they started shaking hands. Prince would not release appellant's hand, and he asked appellant to go around the corner with him. Appellant said that he could not go because he had to get Kendrick ready for school in the morning. Prince again asked appellant to come with him, and appellant again refused.
Prince still would not let go of appellant. Appellant wondered why Prince was being so insistent. Prince had never tried to force appellant to go anywhere with him before.
Appellant asked, "Man, what's going on, you know? I mean, everything all right?" Prince replied, "Yeah. Me and [De]shawn had a little difficulties, you know what I'm saying, but everything straight." Prince continued to hold appellant's hand for about two minutes, and asked appellant to go around the corner. Appellant again refused, and again asked what was going on. Prince said that nothing was going on. Appellant repeated that he was not going with Prince.
Prince started pulling appellant, trying to get him into the Expedition. Appellant was really nervous and frightened now. He did not know what Prince and the others were up to.
Appellant had heard in general conversation that Prince had assaulted Deshawn and also the mother of one of his children. Prince had told him about a 1998 event where a police officer arrested Prince for hitting Deshawn's back with a beer bottle. Johnson had told appellant about her 911 call when Prince and Deshawn fought over babysitting. Prince told appellant that he had once shot a man.
The officer involved in the arrest told the jury: (1) Prince seemed intoxicated during his 1998 arrest; (2) Deshawn never alleged that Prince used a weapon; (3) Deshawn did not seek a restraining order even though she said she was afraid of Prince; and (4) Deshawn said she and Prince had no "history" of violence.
As Prince was pulling appellant toward the open door of the Expedition, appellant was scared. He tried to break free but could not. Appellant grabbed his black knife which had been clipped to his pocket. Prince pushed appellant against a wall, then tackled him. Appellant slid down the wall. The two struggled for control of the knife. Appellant believed that when the two men went down, Prince may have fallen on the knife. Appellant did not know how many times he stabbed Prince. All he could think of was defending himself. Appellant knew Prince could be dangerous and he was afraid for his life. He believed that Prince was trying to kill him. Appellant believed that wounds on his hands were inflicted during the struggle for the knife.
Prince got off appellant, went to the vehicle's door to shut off the ignition and started calling out for someone to call an ambulance. Appellant stayed on the ground to see what Prince would do.
Prince started toward the front of the building and appellant followed. Appellant had been praying during the fight for Jesus to help him. When he got up, he put his hands in the air and said "Jesus wins." He still had the knife in his hands. The blade was only about two inches long, and he did not realize the extent or seriousness of Prince's wounds. Appellant was still afraid.
Prince had previously told appellant that he kept guns in his apartment. Appellant was afraid that Deshawn would use the guns on him. He left the area. While heading to 112th Street, appellant took off his shirt to check for wounds. After hearing a gunshot or car backfire, he dropped his shirt, ran towards the 110 freeway. He threw away the black knife because he feared police would shoot him upon seeing it. He was so afraid that he ran across all freeway traffic lanes to get away from whomever might have had a gun.
Appellant was arrested. At that point, he had blood on his hands. The marijuana decorated knife was still in his pocket. Appellant gave a statement at the police station. He was scared. He was not aware that Prince had died. He tried to respond to police questions honestly. He believed that his testimony at trial was essentially the same as his statements to police. There were some details that he did not mention to police. This was because he was not given an opportunity to do so.
Appellant also offered the testimony of Dr. Ronald Markman, a psychiatrist, qualified drug and alcohol expert, and an expert on injuries. Dr. Markman opined that alcohol can produce "severe aggressive behavior." He opined that Prince's blood alcohol level showed that there was the equivalent of six drinks circulating in Prince's system at the time of testing. The actual amount consumed by Prince would have been greater. Dr. Markman also opined that appellant's hand wounds were caused by a knife and may well have been inflicted in a "defensive struggle." Abrasions on appellant's elbows were consistent with on-going contact with a rough surface.
It was stipulated that in June 1990, Prince was convicted of discharging a firearm with negligence in violation of section 246.3.
In rebuttal, the People offered the testimony of Detective Arenas that, during appellant's interview with police, appellant never said Prince was violent, had used guns, was drunk when stabbed, became violent when intoxicated or had pushed appellant before the stabbing. Appellant gave non-stabbing causes for his hand cuts. Calone testified that he was unaware of prior violence by Prince.
On cross-examination, Detective Arenas acknowledged that he had never asked appellant if Prince was violent or had beaten his wife or was intoxicated, nor had he asked appellant if he knew that Prince used guns or got violent when drunk. Appellant did tell the detective that he was dyslexic and that this condition confused him.
Calone was also called in rebuttal and testified that he was unaware of any prior violence by Prince. He did testify about one act of violence by appellant against Johnson, and one time that he heard yelling and banging coming from appellant's apartment.
Discussion
1. Retained counsel
Appellant contends that the trial court erred in denying his request for retained counsel. We do not agree.
"The right to the effective assistance of counsel 'encompasses the right to retain counsel of one's own choosing. [Citations.]' [Citation.] Underlying this right is the premise that 'chosen representation is the preferred representation. Defendant's confidence in his lawyer is vital to his defense. His right to decide for himself who best can conduct the case must be respected wherever feasible.' [Citation.]" (People v. Courts (1985) 37 Cal.3d 784, 789.) The erroneous deprivation of a defendant's counsel of his choice is a structural error requiring reversal, and is not subject to harmless error analysis. (United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 149-150.)
"Generally the trial court has discretion whether to grant a continuance to permit a defendant to be represented by retained counsel. [Citation.]" (People v. Jeffers (1987) 188 Cal.App.3d 840, 850.) "A continuance may be denied if the accused is 'unjustifiably dilatory' in obtaining counsel, or 'if he arbitrarily chooses to substitute counsel at the time of trial.' [Citation.]" (People v. Courts, supra, 37 Cal.3d at pp. 790-791.) Trial courts should accommodate requests for continuances to obtain retained counsel "'to the fullest extent consistent with effective judicial administration.' [Citation.]" (Id. at p. 791.) In determining whether denial of a continuance is so arbitrary as to violate due process, courts look to the circumstances of each particular case, particularly the reasons presented to the trial court. (Ibid.)
Here, it appears that appointed counsel first learned of the proposed retention of new counsel three days before the date set for trial, from appellant's aunt. He was unable to speak with appellant until the day of trial because counsel was in court on one of the intervening days and appellant was transferred to an inaccessible location on the other day. Thus, it was on the morning of April 13, 2007, the date set for trial, that appointed counsel first spoke with appellant about this topic, and first raised the issue with the court.
We see no abuse of discretion in the trial court's finding that the request for new retained counsel was untimely. It had been two years since the preliminary hearing was held in this matter. No explanation was offered for appellant's decision to wait until three days before trial to request retained counsel. There was no showing that appellant or his family had been searching for counsel or had been trying to raise funds to pay for counsel during the time the case had been pending, or even during the time that had elapsed since the amended information had been filed.
That hearing occurred on April 30, 2005.
Appointed counsel told the court that proposed new counsel could be ready for trial in 30 days. Since he had not spoken with the new counsel, he presumably obtained this information from appellant and his family. There was no reason for the court to believe that this estimate was accurate, since proposed new counsel had not spoken with current counsel about the case. This was not a simple or short case.
There was also no reason for the court to believe that the arrangement with proposed counsel was a formal and finalized one. The proposed new counsel had not contacted the court or prepared a substitution of attorney form, and thus the court could not even be sure that the proposed retained counsel had firmly agreed to take the case. The trial court also could not be sure that appellant and his family could afford to pay proposed counsel for her services. Even assuming she had given the family an estimate of her fees, that estimate was necessarily based on incomplete information about the case, given that counsel had not spoken with current counsel or reviewed any of the evidence or pretrial materials in counsel's possession.
On appeal, appellant says both that his family was "arranging to retain" a lawyer when the request was made and had had "success in obtaining" a lawyer at that time.
In summary, the case was two years old. Appointed counsel had been on the case for over seven months, and appellant had no complaints about appointed counsel's representation. Body attachments had been issued for witnesses. Jurors were waiting for selection to begin. There was no certainty that appellant's proposed counsel had agreed to take the case, or could actually be ready in the time specified. Thus, a continuance would have caused a clear disruption to the judicial process in this case. There was no abuse of discretion in the trial court's denial of a continuance. (See People v. Lau (1986) 177 Cal.App.3d 473, 479; People v. Turner (1992) 7 Cal.App.4th 913, 919.)
2. Sufficiency of the evidence – premeditation
Appellant contends that there is insufficient evidence of premeditation and deliberation to support the jury's verdict of first degree murder. We agree.
In reviewing the sufficiency of the evidence, "courts apply the substantial evidence test. Under this standard, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which 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. Cuevas (1995) 12 Cal.4th 252, 260-261, internal quotation marks and citations omitted.)
"The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also 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, internal quotation marks and citations omitted.)
Courts apply "the tripartite test of People v. Anderson (1968) 70 Cal.2d 15, in deciding whether the evidence is sufficient to support a finding of premeditation and deliberation based on these three factors: (1) planning activity; (2) motive (established by a prior relationship and/or conduct with the victim); and (3) manner of killing. [Citations.]" (People v. Sanchez (1995) 12 Cal.4th 1, 32.) Verdicts of first degree murder are sustained "typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3)." (People v. Anderson, supra, 70 Cal.2d at p. 27.)
The Anderson factors are "descriptive, not normative [however]. [Citation.] The goal of Anderson was to aid reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse. [Citation.]" (People v. Sanchez, supra, 12 Cal.4th at pp. 32-33.) "[I]t is not necessary that the Anderson 'factors be present in some special combination or that they be accorded a particular weight.' [Citation.] Nonetheless, we are guided by the factors in our determination whether the murder occurred as a result of 'preexisting reflection rather than unconsidered or rash impulse.'" (People v. Sanchez, supra, 12 Cal.4th at p. 33.)
Here, there is no evidence of planning. In some circumstances, possession of a weapon can support an inference of planning. Such circumstances are not present here. Appellant left the apartment building in the early morning and spent the day at his ex-girlfriend's residence. When he returned to his apartment building that evening, he went straight to Calone's apartment. Thus, appellant must have had the black knife in his possession when he left in the morning. There is no evidence to suggest that he knew that Prince would be in Calone's apartment, either when he left in the morning or when he returned that evening.
The prosecutor in the trial court and respondent on this appeal devote much effort to arguing that it is reasonable to infer that appellant concealed the black knife in his blue gym bag, and that his failure to drop off the bag in his apartment before going to the parking lot shows planning. We see no basis for such an inference. Appellant testified that the black knife was clipped to his pocket. Calone testified that he did not remember what appellant was wearing in Calone's apartment that evening. Calone was not specifically asked if he saw a knife clipped to appellant's pocket, nor was Calone's son Darnell asked such a question. The jury was free to disbelieve appellant's statement that the black knife was clipped to his pocket, but it was not free to speculate about the location of the knife, including whether it was concealed or visible.
The prosecutor and respondent also argue that appellant concealed his ski mask in the gym bag, and that his failure to drop off the bag in his apartment before going to the parking lot shows planning. There is no evidence to support an inference that the ski mask was in any specific location when appellant was in Calone's apartment. Further, assuming that the mask were in the gym bag, we see no basis for arguing that the mask was "concealed" because it was inside a gym bag. Putting a piece of clothing in a gym bag does not carry any suggestion of stealth. Even assuming that it was reasonable to infer the ski mask was in the bag, such an inference does not show planning. Appellant did not use the ski mask in the commission of the crime or in his immediate flight from the scene. Possession of an item not used to facilitate a crime or escape cannot logically show planning of that crime.
The manner of killing does not support an inference of premeditation. The wounds were numerous, but not inflicted in an exacting manner. The wounds were spread out over the victim's head, neck and torso. Only two wounds were immediately or definitely fatal. A third wound might have resulted in death in several days if not treated. A fourth wound involved an impact to the head. Impacts to the head can be fatal, but it was impossible for the coroner to judge in this case if this wound alone would have been fatal. Eight wounds, or three-quarters of the total wounds, were not fatal or even potentially fatal.
We cannot agree with respondent that the jury could have inferred that the first wound inflicted by appellant was the one delivered to Prince's head from behind, thus showing a planned attack. The coroner did not opine on the order in which the wounds were inflicted. We also cannot agree with respondent that the jury could have inferred that appellant inflicted this wound as Prince was getting back into the truck with his back to appellant. The coroner did not opine as to the position of the victim or the stabber when any of the wounds were inflicted. The jury would only be speculating if it found that the wounds occurred in any particular order or that Prince or appellant were in any particular position when a wound was inflicted.
There is no evidence of motive. Respondent suggests that appellant might have killed Prince to protect something in his blue gym bag. This is pure speculation. There is nothing to suggest that Prince tried to take anything from appellant's bag or that there was anything particularly valuable in the bag. Appellant left the bag behind when he fled after the stabbing.
Respondent also suggests that appellant's motive was revenge, and that the revenge may have involved Prince's wife Deshawn. Respondent points to the number of stab wounds and to statements by Deshawn after the stabbing.
It is not reasonable to infer from the mere fact that a killer inflicted 12 stab wounds that the killer was acting out of a desire for revenge. Anger, panic, lack of experience in using knives, and sadism are equally plausible explanations for such injuries, to name just a few possibilities.
There is also no basis to infer that Deshawn somehow figured into the stabbing. Deshawn testified that she had a good relationship with appellant in the three years before the stabbings. Deshawn's post-stabbing statements to appellant do not show that she "privately" knew why appellant would desire or intend to kill Prince. Before Deshawn made her statements to appellant, she had seen Prince staggering and bleeding and heard him say "Call 911." Appellant was next to Prince. Deshawn's statements that appellant was going to go to jail and that she would kill appellant if Prince died were obvious responses to seeing Prince; neither implies some secret knowledge predating the stabbing. To the extent that respondent contends that Prince's statement to appellant that appellant may have "scared" or "startled" Deshawn a couple of times by walking up behind her provides a basis for appellant to seek revenge, we do not agree. No reasonable person would seek revenge for such a statement or reaction, and there is nothing to suggest that appellant had a reason to respond differently.
Respondent also sees evidence of a desire for revenge in appellant's statement that "Jesus wins" or "Jesus lives" or "Jesus loves." Respondent contends that appellant seemed celebratory, praiseful, angry and mean after the stabbing when he made these statements, and that this shows a pre-existing desire for revenge. The Jesus statements could have a wide variety of meaning, the most obvious of which is the speaker's relief at surviving a violent physical altercation. It is difficult to understand the statements as an expression that the speaker wished ill on someone before a fight.
Since there is insufficient evidence to support the jury's finding of premeditation and deliberation, we reverse that finding. As we discuss in section 2, infra, there is sufficient evidence of an intent to kill. Accordingly, we reduce appellant's conviction to second degree murder.
3. Sufficiency of the evidence - intent to kill
Appellant contends that there is insufficient evidence that he had an intent to kill. We see sufficient evidence.
Of the 12 total wounds, two were fatal and two more were potentially or possibly fatal. This is a high percentage of fatal wounds. Of the two fatal wounds, one was to the heart and one was through the eye into the brain. Neither wound would have been particularly easy to inflict. It is reasonable to infer an intent to kill from the number and nature of these wounds. (See People v. Seaton (2001) 26 Cal.4th 598, 667.)
4. Instructional error
Appellant contends that the trial court erred in failing to instruct the jury on manslaughter and on the ability of provocation to raise a doubt as to premeditation and deliberation.
a. Instructional error – second degree murder
Appellant contends that the trial court erred in refusing his request to instruct the jury with CALCRIM No. 522. This instruction discussed the use of provocation to negate or raise a reasonable doubt as to premeditation and malice, thereby leaving the homicide as second degree murder. Since we have ordered the conviction reduced to second degree murder, we need not consider the effect of any possible error in failing to give this instruction.
b. Heat of passion manslaughter
Appellant contends that the trial court erred in failing to instruct the jury on voluntary manslaughter under the heat of passion theory. We do not agree.
An unlawful killing is voluntary manslaughter if it is committed "upon a sudden quarrel or heat of passion." (§ 192, subd. (a).)
"Heat of passion arises when at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment. [Citations.] (People v. Manriquez (2005) 37 Cal.4th 547, 584, internal quotation marks omitted.) The passion aroused need not be anger or rage but can be any "violent, intense, high-wrought or enthusiastic emotion." (People v. Breverman (1998) 19 Cal.4th 142, 163.)
"'[T]he heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively. As we explained long ago in interpreting the same language of section 192, "this heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances," because "no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man." [Citations.]'" (People v. Manriquez, supra, 37 Cal.4th at p. 584.)
Here, the trial court found that there was no evidence of provocation, that is, no action by the victim which would arose the heat of passion in an ordinarily reasonable person. We agree.
An ordinarily reasonable person would not be aroused to the heat of passion by a good friend's attempt to drag the person into a vehicle for a short ride. No reasonable person would believe that a newly met stranger was lurking nearby and was violent or armed and that his good friend was planning to take him to that dangerous stranger.
c. Imperfect self-defense manslaughter
The trial court instructed the jury on self-defense. Appellant contends that the court erred in failing to also instruct on imperfect self-defense. We do not agree.
It is true that when there is sufficient evidence to instruct the jury on self-defense, that same evidence will almost always require an instruction on imperfect self-defense. Here, we find that the trial court erred in finding that there was sufficient evidence to instruct on self-defense. (See People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1270 [court erred in giving self-defense instruction where there was no substantial evidence of imminent danger, thus there was no error in failing to give imperfect self-defense instruction].)
A defendant acts in self-defense when he reasonably believes that he was in imminent danger of being killed or suffering great bodily injury and the immediate use of deadly force was necessary to defend against that danger and the defendant uses no more force than reasonably necessary to defend against that danger.
There was simply no basis for appellant to reasonably believe that he was in imminent danger of death or great bodily injury. Prince may have been confused about who appellant was, but Prince still seemed to believe that appellant was a friend. Prince was not armed, and had never acted violently toward appellant in the past. Appellant articulated no basis for believing that Prince was going to take him to Frank, or for a reasonable belief that Frank was violent, harmed or wished to harm appellant. (See People v. Rodriguez, supra, 53 Cal.App.4th at p. 1270 [court erred in giving self-defense instruction where there was no substantial evidence of imminent danger].)
The trial court did not err in failing to instruct on imperfect self-defense.
A defendant acts in imperfect self-defense when he actually but unreasonably believes he is in imminent danger and the immediate use of deadly force is necessary. (See People v. Flannel (1979) 25 Cal.3d 668, 674-680.)
"Fear of future harm -- no matter how great the fear and no matter how great the likelihood of the harm -- will not suffice. The defendant's fear must be of imminent danger to life or great bodily injury. '"[T]he peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with." . . . [¶] This definition of imminence reflects the great value our society places on human life.' [Citation.]" (In re Christian S. (1994) 7 Cal.4th 768, 783.)
Appellant's own testimony shows that he did not believe that death was imminent. He thought Prince was acting oddly, but did not think that Prince himself was going to harm him. At most, he thought Prince was going to take him to another location, where Frank would harm him. This is prospective danger, not imminent danger. (See People v. Rodriguez, supra, 53 Cal.App.4th at p. 1270 [no error in failure to give imperfect self-defense instruction where there was no substantial evidence of imminent danger].)
Prince's attempt to pull appellant toward the SUV, as described by appellant, was at most a simple assault. Appellant had no right to use deadly or other excessive force. (See People v. Valencia (2008) 43 Cal.4th 268, 288 [defendant's fear of a punch in the arm from victim would not justify defendant's stabbing victim to death].) Once appellant displayed the knife, Prince had the right to self-defense, not appellant. (People v. Quach (2004) 116 Cal.App.4th 294, 301 [where original aggressor is not guilty of deadly attack, but of simple assault, victim has no right to use deadly or other excessive force; if victim uses such force, aggressor's right of self-defense arises].)
Appellant did testify that, during the struggle, he became afraid that Prince was going to kill him. By then, appellant had displayed the knife to Prince and become the aggressor. Thus, he had created the circumstances under which Prince's attack became justified. Appellant could not claim self-defense. (In re Christian S., supra, 7 Cal.4th at p. 773, fn. 1 [defendant may not claim self-defense when through his own wrongful conduct he has created circumstances under which his adversary's attack or pursuit is legally justified]; People v. Oropeza (2007) 151 Cal.App.4th 73, 83; People v. Bates (1967) 256 Cal.App.2d 935, 939; § 197.)
d. Involuntary manslaughter
Appellant contends that the trial court erred in refusing to instruct the jury on involuntary manslaughter. We see no error.
An unlawful killing without malice is involuntary manslaughter when it occurs "in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." (§ 192, subd. (b).)
Appellant contends that involuntary manslaughter could be based on his negligent holding and subsequent negligent use of the knife.
The primary flaw in appellant's argument is that he only identified one fatal wound, the chest wound, as unintended. Appellant believed that Prince received that wound when he fell onto the knife during the struggle. If that were the only wound, or even the only fatal wound, appellant would be entitled to an instruction on involuntary manslaughter. (See People v. Lee (1999) 20 Cal.4th 47, 61 [error to omit involuntary manslaughter instruction where defense theory was that gun held by defendant accidentally discharged during struggle].) It was not. When only one of several fatal blows is accidental or unintended, an involuntary manslaughter instruction is not appropriate. (See People v. Manriquez, supra, 37 Cal.4th at p. 588 [no involuntary manslaughter instruction required when defendant claimed one fatal gunshot occurred accidently when he pushed the victim with the gun but did not claim that one additional fatal gunshot and three nonfatal gunshots were accidental or unintended].)
5. Expert on appellant's mental condition
Appellant contends that the trial court erred in refusing to allow him to call an expert witness to show that he had below normal intelligence and was dyslexic.
There is no evidence of contents of the expert's report on this appeal. It does not appear that the report was even marked for identification. Without knowing the content of the report, or the proposed substance of the expert's testimony, it is difficult to accurately assess whether the trial court abused its discretion in excluding the expert. For that reason alone, appellant's claim would fail.
Based on the record before us, we see no reasonable probability that appellant would have received a more favorable result if an expert had testified that appellant was dyslexic and had below normal intelligence. Appellant testified at length in this trial. That testimony does not suggest that appellant was below normal intelligence to any significant or noticeable degree. We find it unlikely that the jury would have believed an expert who testified otherwise.
Appellant himself testified that he is dyslexic. Such a condition could have explained appellant's confusion over movements during his encounter with Prince. However, appellant's general explanation for that confusion was that he was frightened and was concentrating on preventing Prince from injuring him or getting the knife. If the jury found appellant at all credible, this fear would have been a more than adequate explanation for the confusion and lack of recall. A confirmation that appellant had dyslexia would have added little to appellant's explanation. Further, we see no reason to believe that the jury's credibility determination hinged on appellant's confusion about movements during a struggle. Even when a person plans a killing, confusion may well ensue if the victim resists. There was ample evidence of such resistance here.
6. CALCRIM No. 361
Appellant contends that the trial court erred in instructing the jury with CALCRIM No. 361 concerning a defendant's failure to explain or deny evidence.
CALCRIM No. 361 provides: "If a defendant failed in his testimony to explain or deny evidence against him, and if he could reasonably be expected to have done so based on what he knew, you may consider his failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove each element of the crime beyond a reasonable doubt. [¶] If the defendant failed to explain or deny, it's up to you to decide the meaning and importance of that failure."
Even assuming for the sake of argument that the trial court erred in giving CALCRIM No. 361, the instruction is conditional. It tells the jury to determine whether appellant failed to explain or deny evidence. Since there was no such failure, the jury presumably ignored the instruction. (People v. Ballard (1991) 1 Cal.App.4th 752, 756.)
7. Impeachment
Appellant contends that the trial court erred in permitting the prosecutor to impeach him "by omission." He contends that silence and "non-statements" are not prior inconsistent statements and that he had no duty to volunteer information. He further contends that it is unfair for a prosecutor to comment on a defendant's silence. We do not agree.
"A witness's prior statement is admissible if it tends to contradict or disprove the testimony or any inference to be deduced from it. It is enough if the prior statement, taken as a whole, either by what it says, or by what it omits to say, permits the jury to conclude that the witness' true recollection is different from his or her present testimony. Inconsistency is to be determined, not by individual words alone, but by the whole impression or effect of what has been said or done." (People v. Boyd (1990) 222 Cal.App.3d 541, 566, internal quotation marks and citations omitted; emphasis added.)
Appellant identifies several areas where he contends the prosecutor improperly relied on omissions to show inconsistency.
Appellant points first to his failure to mention the name "Candy Man" to police. A jury could reasonably find that appellant's omission of this name showed that the appellant's true recollection was different from his testimony. At trial, appellant testified that Prince said that appellant looked like his friend, and that it was not unusual for Prince to say that. Appellant then added that Prince asked him "Are you sure you not my home boy Candy Man?" Appellant replied that he did not know who Candy Man was. Appellant testified that this question was unusual and was what caused him to believe that Prince was intoxicated.
Appellant earlier told police that Prince said that he looked like his homeboy, but did not mention the question or the name "Candy Man." This gives a different impression of the exchange between the two men, and its significance, than does appellant's trial testimony. Thus, we see no error in permitting impeachment with this prior statement.
Appellant next points to his failure to mention Prince's violence toward others and prior gun use to police. Appellant did tell police that he was concerned because he knew that Prince knew karate. He also told police that he was concerned that the guy at the gate (Frank) might have a gun. At trial, appellant testified about prior acts of violence by Prince, and Prince's prior gun use, and claimed that these acts were in his mind during the encounter. By leaving out his awareness of Prince's prior violence, appellant's statement to police gives a different impression of his mental state and fears than does his trial testimony. Thus, we see no error in permitting impeachment with this prior statement.
Appellant also points to his failure to tell police that he believed that Prince was intoxicated. At trial, appellant testified that Prince was intoxicated. Appellant's realization of Prince's intoxication was linked at trial to the Candy Man statement and was given as a reason for appellant's concern and fear. By leaving out his awareness of intoxication, appellant's statement to police gives a different impression of his encounter with Prince than does his trial testimony. Thus, we see no error in permitting impeachment with this prior statement.
We do agree with appellant the trial court erred in permitting the prosecutor to show that appellant never told Detective Arenas that Prince was armed. Appellant did not testify at trial that Prince was armed (or that he believed that Prince was armed). Appellant's position was thus entirely consistent. We find this error to be harmless, however. The jury was no doubt well aware that appellant made no claim at trial that Prince was armed during their encounter. The fact that he had not at any previous time claimed that Prince was armed during their encounter was meaningless.
To the extent that appellant contends that the impeachment was improper under various United States Supreme Court decisions aimed at protecting a defendant's right to remain silent, we do not agree.
The opinion in Harris v. New York (1971) 401 U.S. 222 permits the use for impeachment of a defendant's statement obtained in violation of his right to counsel. That is what happened here. Nothing in the other cases cited by appellant hold otherwise.
The opinion in Doyle v. Ohio (1976) 426 U.S. 610 protects a defendant who invokes his right to silence after being arrested and advised of his Miranda rights. It prevents the People from using a defendant's invocation of the right to silence to impeach his exculpatory story by cross-examining the defendant on his post-arrest silence. Appellant did not elect to stand silent. He elected to speak with police. His failure to give complete answers is not protected by Miranda or Doyle.
The opinion in Wainwright v. Greenfield (1986) 474 U.S. 284 explains that the reasoning of Doyle prevents the People from using a defendant's post Miranda silence to prove the defendant's sanity. Appellant did not elect to stand silent.
The opinion in Edwards v. Arizona (1981) 451 U.S. 477 concerns a situation where police re-initiate contact with a suspect after he has invoked his right to counsel. It holds that such a statement cannot be used against the suspect at trial. It does not overrule Harris or in any way prevent the use of such statements for impeachment when a defendant testified at trial. The opinion in Arizona v. Roberson (1988) 486 U.S. 675 holds that the Edwards rule applies to police-initiated interrogation following a suspect's request for counsel in the context of a separate investigation. It does not overrule Harris either.
The holding of Griffin v. California (1965) 380 U.S. 609 protects a defendant who elects not to testify at trial. Appellant chose to testify at trial.
8. Prince's arrest
Appellant introduced evidence that Johnson reported Prince to police for beating Deshawn. Deshawn denied the beating. Appellant contends that the trial court erred in excluding on relevance grounds evidence that police arrested Prince for the beating. We see no error.
"'It has long been recognized that where self-defense is raised in a homicide case, evidence of the aggressive and violent character of the victim is admissible.' [Citations.] Under Evidence Code section 1103, such character traits can be shown by evidence of specific acts of the victim on third persons as well as by general reputation evidence. [Citation.]" (People v. Wright (1985) 39 Cal.3d 576, 587.)
Appellant contends that evidence of Prince's arrest would have corroborated Johnson's testimony about the incident, been proof of Prince's violent nature, and also impeached Deshawn.
The prosecutor objected to a question to Johnson about whether Prince was arrested. Testimony from Johnson about the arrest would have been an elaboration on her testimony about the beating, not corroboration of it. Similarly, Johnson's testimony about the arrest could not have "impeached" Deshawn's claim that Johnson's testimony was not true.
Testimony from the arresting officers themselves might have corroborated Johnson's testimony that Prince beat Deshawn and impeached Deshawn. While the mere fact of an arrest would prove little, the officers' observations might have been relevant to show Prince was violent. For example, the officers might have observed cuts or bruises on Deshawn but not on Prince. Appellant did not attempt to offer such evidence, however.
9. Prince's shooting of another
Counsel asked appellant if Prince had stated that he "went to jail" for shooting someone. Appellant replied that he had. The prosecutor objected on relevance grounds. The court sustained the objection and struck the answer. There is no further mention of this topic in the record. On appeal, appellant assumes that Prince's statement about going to jail refers to a sentence for a criminal conviction. Respondent believes that it refers to an arrest. We agree that the trial court erred, but find the error harmless.
If appellant had offered admissible evidence that Prince had been convicted of shooting someone, that evidence would have been admissible. Appellant did not offer such evidence, however. Appellant offered only Prince's hearsay statement that he had suffered a conviction. This statement was not admissible to prove the truth of the matter asserted therein, that Prince had suffered a conviction. It was admissible only to show appellant's state of mind, that is that he believed that Prince had gone to jail for committing a crime.
The question and answer are ambiguous. However, we will assume for the sake of argument that the question referred to a sentence, not a mere arrest.
We see some relevance in appellant's belief that Prince's shooting of a man was a crime resulting in jail time, as opposed to an accidental shooting or one done in self-defense. Thus, the relevance objection should not have been sustained.
The potential flaw with the evidence was that its probative value might have been outweighed by its potential for prejudice or the consumption of time to show whether or not Prince had in fact suffered a conviction. We would find no abuse of discretion if the trial court had sustained such an objection under Evidence Code section 352.
We find the trial court's error harmless. The additional probative value of the evidence was slight. Appellant was permitted to testify that Prince stated that he shot some guy. This testimony does not suggest that appellant believed that the shooting was accidental or justified. Thus, evidence that showed that appellant did not believe the shooting was accidental or justified would have been largely cumulative. We see no reasonable possibility or probability that appellant would have received a more favorable outcome if this evidence had been admitted.
10. Apartment beating
Appellant contends that the trial court abused its discretion in permitting Calone to testify about an incident Calone overheard occurring in appellant's apartment.
During Calone's direct testimony, he testified that he heard yelling, arguing and banging coming from appellant's apartment and indicated that he believed that the conflict involved appellant's brother. At this point, appellant had not yet offered proof that Prince had a character for violence. Appellant objected that it was not relevant and also that it lacked foundation.
To the extent that respondent argues that appellant somehow forfeited this claim because he elicited testimony about the fight, we do not agree. During appellant's cross-examination of Calone, Calone volunteered that appellant's brother had moved out of appellant's apartment because "they got into it." Appellant did not ask Calone any questions about this statement. On redirect, the prosecutor asked what Calone meant by "got into it." Appellant promptly objected.
We agree with appellant that this evidence was premature. Evidence that appellant had a character for violence should only have been admitted after appellant introduced evidence that the victim had a violent character. (Evid. Code, §§ 1101, 1103.) We see no harm from this error, as appellant did subsequently introduce evidence that Prince was violent, and so Calone's testimony would have been properly admitted in rebuttal. Calone was in fact called as a rebuttal witness to provide testimony about other acts of violence by appellant.
When Calone was called as a rebuttal witness, the prosecutor asked him what acts of violence he had seen occur between appellant and Johnson. Calone described one occasion when he saw appellant drag Johnson up the stairs at the apartment building by her hair, follow her when she ran away and slap her one time across the face, hard. Calone testified that he then intervened to prevent further hitting. Appellant did not object to this testimony, and so he has forfeited his right to claim that the admission of this evidence was error.
The prosecutor next asked Calone if he had witnessed any other acts of violence or aggression by appellant. Calone replied: "I didn't see, but I heard." Appellant' counsel objected on hearsay grounds, and the court limited the answer to Calone's statement that he did not see. The prosecutor then asked Calone what he heard from appellant's apartment. Appellant's counsel objected that there was a lack of foundation. The objection was overruled, and Calone replied that he heard "banging, bumping against the wall" and "yelling, arguing, banging up against the wall."
We agree with appellant that the trial court erred in overruling the foundational objections made during Calone's direct and rebuttal testimony. At a minimum, the prosecutor needed to establish that Calone recognized one of the voices as appellant's. Further, to be relevant as proof of an act of violence, the prosecutor needed to establish much more than that appellant was yelling and arguing. The prosecutor needed something to suggest that appellant was the one causing someone else to bang and bump up against the wall, and that doing was an act of aggression. It might be possible to make such an inference from the substance of the yelling, but no such substantive evidence was offered.
We see no reasonable probability that appellant would have received a more favorable verdict in the absence of the error. The evidence showed only that someone had an argument in appellant's apartment. It does not show that appellant was violent, or was the aggressor. There was nothing to suggest that anyone was hurt. Thus, the evidence was not inflammatory, and did not suggest that appellant was violent. There was other properly-admitted evidence that directly showed that appellant acted violently on one occasion.
11. Photographs
Appellant contends that the trial court erred in admitting photographs of him taken shortly after his arrest in which he was not wearing a shirt. The photos showed tattoos on appellant's back. Appellant contends that the photographs should have been excluded pursuant to Evidence Code section 352 because they had no probative value and constituted prejudicial gang evidence. We do not agree.
At least one photograph showed appellant with a ski mask on.
We agree that the probative value of the photos was not strong. Appellant did not contest that he had removed his shirt, and had done so because it was saturated with blood. We see no prejudicial potential from the photos, however. Appellant contends that heavy tattooing evokes a generalized assumption of gang membership. We do not agree. People choose to get tattoos for many innocuous reasons, including artistic self-expression and pride in military service. Appellant further contends that his tattoo "looks like" a gang tattoo. The trial court found that the tattoo did not have any references to a gang. The court added: "I'm not aware of any way you can relate that particular tattoo to a gang unless it comes up in evidence." No such evidence was offered at trial. We see no reason to believe that the jury would speculate that appellant was a gang member based on his tattoos.
12. Restraints
Appellant contends that he was restrained throughout trial and that this use of restraints was unjustified and prejudicial. Respondent contends, and we agree, that appellant has failed to demonstrate that he was in fact restrained during trial.
"'A criminal defendant cannot be physically restrained in the jury's presence unless there is a showing of manifest need for such restraints.'" (People v. Combs (2004) 34 Cal.4th 821, 837.) "'A shackling decision must be based on facts, not mere rumor or innuendo.' [Citation.] "The imposition of physical restraints in the absence of a record showing of violence or a threat of violence or other nonconforming conduct will be deemed to constitute an abuse of discretion." [Citation.]" (Ibid.)
It is clear from the record that appellant was restrained before jury selection began. The reason for the restraint is less clear. In response to counsel's request to uncuff appellant or just cuff him to the chair, the trial court replied: "Counsel, we have a serious security problem here today, and that might be one of the reasons. If you could let the bailiff call his supervisor, but I don't have any problem with it. If they do, then you might have to deal with them." The court's comments certainly suggest that it was not appellant's behavior which had led to the restraints.
It is not clear that appellant did remain cuffed throughout trial. Appellant's counsel asked that appellant be uncuffed during the motions, so that appellant and counsel could confer. The trial court ultimately denied this request, explaining: "I think that because of the security concerns of the Sheriff's Department, that [appellant] would remain cuffed prior to the jury coming in. [¶] Once the jury comes in, then perhaps we can revisit that. So the appearance and the ability to assist you, we may have to revisit that, but between now and the time the jury's actually called in, [appellant] would remain cuffed."
There is no further discussions of restraints in the record. The most reasonable inference from this silence is that the restraints were removed. The court clearly indicated that the matter could be revisited. It is reasonable to infer that appellant's counsel would have revisited the matter as the court suggested if the restraints had not been removed. Appellant acknowledges that he was not restrained during his testimony. We cannot agree with appellant that a five-minute recess before he testified could only have been for the purpose of removing his restraints. If there is evidence outside the record that appellant remained restrained during trial, appellant is free to raise this issue in a petition for writ of habeas corpus.
13. CALCRIM No. 371
Appellant contends that the trial court erred in instructing the jury with CALCRIM No. 371. We do not agree.
CALCRIM No. 371 provides: "If the defendant tried to hide evidence that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself."
Appellant contends that he did not try to hide evidence. Although he threw away his bloody shirt, he kept his bloody pants. He threw away the knife because he was afraid that police would view it as a threat when he was arrested.
It was for the jury to decide if appellant was trying to hide evidence when he disposed of the shirt and knife. It would have been more than reasonable for the jury to find that appellant disposed of the bloody knife (but kept the marijuana knife) in an attempt to hide critical evidence. There was ample evidentiary support for the instruction.
Appellant also contends that the first sentence assumes guilt and so the instruction is improper even if supported by evidence. We do not agree that the sentence assumes guilt. Further, the predecessor instruction to CALCRIM No. 371 has long been viewed as proper. (See, e.g., People v. Pride (1992) 3 Cal.4th 195, 249.) Appellant has given us no reason to find otherwise.
Disposition
Appellant's conviction is reduced to second degree murder. The judgment is affirmed in all other respects. We remand this matter for resentencing.
We concur: TURNER, P. J., KRIEGLER, J.