Opinion
D070424
04-04-2017
THE PEOPLE, Plaintiff and Respondent, v. HERIBERTO RIVAS, Defendant and Appellant.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Adrian R. Contreras, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD185253) APPEAL from a judgment of the Superior Court of San Diego County, Joan P. Weber, Judge. Affirmed. David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
Heriberto Rivas appeals from the judgment of conviction entered after a jury found him guilty of first degree murder (Pen. Code, § 187, subd. (a)), and found true the allegation he personally used a deadly and dangerous weapon within the meaning of section 12022, subdivision (b). After the jury returned its verdict, Rivas admitted he served a prior prison term within the meaning of section 667.5, subdivision (b), and also admitted he suffered a prior serious felony conviction within the meaning of section 667, subdivision (a)(1). The court sentenced Rivas to state prison for six years plus 25 years to life.
All further statutory references are to the Penal Code.
Rivas appeals, contending the court prejudicially erred in failing to instruct the jury sua sponte on the lesser included offense of voluntary manslaughter based on heat of passion. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The People's Case
On or about July 10, 1993, Magdalena Delrosario drove her 20-year-old son, Michael Rebana, to a friend's house on Skyline Drive in San Diego. She never saw Rebana alive again.
Skyline Drive is near Jamacha Road. In July 1993 Rivas lived in a house on Jamacha Road. Rivas sold drugs there.
In July 1993 James Ciani went to Rivas's house to buy drugs. Rebana was inside and answered the door. Ciani asked for Rivas, who then came to the door. Rivas told Ciani he did not have any drugs to sell, so Ciani left.
About two days later, Ciani returned to Rivas's house to buy drugs. Rivas answered the door and asked Ciani to come inside because he had a "problem." When Ciani entered, he saw a dead body, just past a partially opened door. The body was partially covered, but Ciani saw a leg and an arm. Rivas told him the dead body was Rebana, whom Rivas had killed. Rivas told Ciani he killed Rebana because Rebana stole drugs from him.
Lorenzo Martinez has known Rivas for 40 years; they grew up in the same neighborhood. In July 1993 Martinez was living about a quarter mile from Rivas's home.
In July 1993 Rivas asked Martinez to help him "dispose of a body." Rivas told Martinez he killed Rebana because Rebana stole money or a coat from Rivas or Rivas's mother. Martinez testified:
"Q: Now, [c]ounsel also asked you questions with regards to the defendant telling you why he killed Mike. You stated that you remember in part that the defendant told you something about that [Rebana] was wearing the defendant's mom's coat?
"A: Yes.
"Q: Could you describe that please, or what was said?
"A: I think I just asked him why he killed him, and he told me that he caught him wearing his mother's coat, and that he stole his mother's coat from him."
Rivas told Martinez that he killed Rebana by hitting him in the back of the head with a hammer. Martinez described Rivas as being "pretty much always under the influence of drugs," and he testified Rivas would "get out of his mind at times."
For the next several days, Rivas kept asking Martinez to help dispose of Rebana's body. People living near Rivas's home noticed a foul odor that lasted about a week. Rivas's next door neighbor testified the odor was so bad she had to keep her windows closed.
On or about July 17, 1993, Martinez drove Rivas to the home of a mutual friend, Michael Amador. Like Martinez, Amador had known Rivas for many years. Nervous and agitated, Rivas told Amador he killed Rebana because Rebana stole something from Rivas's mother's house:
"Q: What did the defendant say to you then?
"A: Well, it was kind of like, get more information out of him, like, 'What happened?' He said he had killed somebody; he killed a kid. I said, 'Really?' I said, 'Well, who was it?' I mean—and he didn't know him. I mean, he didn't tell me who, but I asked him, 'Why did you kill the kid?' And he said that he killed him because he stole something from his mom's house for some odd reason or something like that. Or he stole something from him."
Rivas told Amador he killed Rebana by tricking him to look at something on the floor and when Rebana bent over he repeatedly hit Rebana in the back of the head with a hammer and then stepped on Rebana's throat. Amador testified:
"A: . . . I said, 'Well, how did you kill him?' And he said he lured him to look at something. And as he bent over, as he went over, he hit him with the hammer in the back of the head. And he repeatedly hit him with the hammer in the back of the head.
"Q: The defendant told you he repeatedly hit him with the hammer?
"A: Yes, ma'am.
"Q: Now, what did you say, if anything, in response to that?
"A: I was kind of like, wow. Just because he stole something, I'm thinking to myself, you know, I asked him what else happened. And he said—'Did you kill them then, or,' you know. And he says, 'No, he didn't die.' So what I did is, I straddled over his body and put my foot over his throat, and I strangled him to death."
Later, Martinez drove Rivas to a store to buy bleach to clean blood splatters inside Rivas's house, and Martinez gave Rivas plastic sheeting to wrap Rebana's body. When they returned to Rivas's home, Martinez went inside and saw a leg and foot protruding from a plastic trash can.
About a week later, Rivas drove to Ciani's house. He told Ciani he wanted to "get rid of the body." The trunk of Rivas's car was partially open, and Ciani saw a large trash can, some plastic, and a hand or arm protruding from the trash can. Describing the odor, Ciani testified, "Imagine like when you're taking out the trash can, and your trash didn't go out for a while. That rank smell, magnify that 10,000 times." Rivas asked Ciani for a gasoline can; Ciani gave him one.
On July 21, 1993 at about 1 a.m., the Escondido Fire Department received a call of a dumpster fire. When fire department personnel arrived, they found a body on the ground, wrapped in plastic, burning next to a fully engulfed dumpster.
Apparently when the gasoline ignited in the dumpster, an explosion occurred ejecting Rebana's body.
Police arrived after the flames were extinguished but while the dumpster and body were still smoldering. The body was covered in burnt plastic resembling plastic bags and a melted plastic garbage can. There was an odor of gasoline coming from the dumpster. Police also found burnt carpet inside the dumpster.
Police were able to obtain a fingerprint from the body's left hand. The print matched that of Rebana.
Mark Super, a forensic pathologist, performed an autopsy on Rebana's body. The body was covered in layers of melted plastic; the outer layer was from a plastic garbage can, suggesting Rebana was inside it when burned. Super testified Rebana had been dead for approximately one week. The cause of death was blunt force trauma to the head. Super testified Rebana's skull was fractured into multiple pieces, consistent with being repeatedly hit with a hammer.
Super determined there were "at least ten separate impact sites" and Rebana also suffered a fractured sternum (breast bone) and fractured ribs before his death. Super testified his findings were consistent with someone being beaten to death with a hammer:
"Q: [B]ased on your findings, would it be a reasonable conclusion a person with the same type of injuries that you have described to this jury was beat [sic] to death with some type of hammer, then wrapped in several layers of plastic and shoved into a garbage pail, left for several days and then dumped and set on fire?
"[Defense counsel]: Objection: Assumes facts not in evidence.
"Court: Overruled. You may answer, [D]octor.
"A: I think that would explain all the injuries very well, actually."
The People also offered evidence that in 1999 Rivas repeatedly stabbed his brother with a knife because, according to Rivas, he was "tired of [his brother] taking his stuff." Rivas pleaded guilty to assault with a deadly weapon and served a prison sentence in that case.
B. Defense Case
Rivas testified that in 1993 he was living in his car and consuming large quantities of drugs, almost daily. Rivas stated his mother was living in the house on Jamacha, but often stayed elsewhere with her boyfriend. Rivas testified he would often sneak into the house in the evening to shower when his mother was not home.
Rivas testified that one night in July 1993 when he was in the Jamacha residence, Rebana entered, pointed a gun at him, and demanded drugs and guns. Rivas testified that he had never met Rebana before and when he told Rebana he had no drugs or guns Rebana began hitting him with a tire iron that Rebana wielded in one hand, while pointing a gun on Rivas with the other.
Rivas is 5 feet 11 inches tall and weighs 160 pounds. Rebana was 5 feet one inch tall and weighed less than 115 pounds.
Rivas testified that Rebana stole a coat and an audio player. He testified that Rebana threatened to kill him unless Rivas gave him guns and drugs. Rivas testified he tricked Rebana by telling him, "The reason you can't find [drugs] is because it's in the hole in the floor covered by the carpet underneath the bed." Rivas testified that when Rebana fell for the ruse and turned around to look under the bed, Rivas jumped on him, knocking the gun out of Rebana's hand.
Rivas testified a struggle ensued. As Rebana was swinging the tire iron, Rivas grabbed a hammer that happened to be there and hit Rebana twice in the head.
Rivas testified the hammer blows only made Rebana angry, leading to a chase inside the house. With Rebana giving chase, Rivas took a baseball bat, which happened to be in one of the rooms, and repeatedly hit Rebana in the head with it. Rivas testified he believed he had to incapacitate Rebana to prevent him from retrieving the gun. Rivas testified he could not recall what happened next because he "kind of blanked out," and when "it was over," Rebana was dead.
Rivas testified he did not call the police because he feared he would not be believed and would be convicted of murder.
C. Procedural History
1. Cold case
Although Rebana was killed in July 1993, police had no investigative leads until the case was reopened in 2003. After renewed investigation, in 2004 a felony complaint was filed charging Rivas with murder and a warrant for his arrest was issued.
However, by 2004 Rivas was no longer in the United States, having been deported to Mexico following his release from prison in 1998 on unrelated charges.
In 2011 the Escondido Police Department began working with the U.S. Border Patrol to locate individuals in Mexico who had outstanding arrest warrants for homicide in the United States. Rivas was arrested in Mexico in 2013, and in 2014 Mexico extradited Rivas to the United States.
2. The Information
Rivas was charged with murder (§ 187, subd. (a)). The People also alleged that in committing the offense, Rivas personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1). The People also alleged that in 1990 Rivas was convicted of assault with a deadly weapon other than a firearm (§ 245, subd. (a)(1)), which constituted a prison prior (§ 667.5, subd. (b)), a serious felony prior (§ 667, subd. (a)(1)), and a strike prior (§ 667, subd. (b)-(i)).
3. Lesser included offense instruction, imperfect self-defense
During trial, the subject of jury instructions for lesser included offenses was discussed. After Ciani, Martinez, and Amador testified, but prior to the pathologist's testimony (and prior to Rivas's testimony), the following colloquy occurred outside the jury's presence between the court and defense counsel, David A. Thompson:
"Court: Are you asking for any lessers? Obviously we're giving a second [degree murder instruction].
"Mr. Thompson: I'm going to look at that. Depends on—I think we've got some evidence of voluntary intoxication. I think all that does is get rid of premeditation. I've got to talk with Mr. Rivas tomorrow about whether he's going to testify. In that event, I might. As it stands right now, I can't think of any lessers the evidence shows.
"Court: Other than second [degree murder].
"Mr. Thompson: Right."
After Rivas testified, the court and counsel again discussed lesser included offense instructions. Rivas's lawyer stated he wanted the court to instruct on voluntary manslaughter on an imperfect self-defense theory:
"Court: Are you requesting a vol, sir?
"Mr. Thompson: Yes.
"Court: It would seem based on his testimony that a vol would be appropriate.
"Prosecutor: Based on the testimony, I would agree.
"Court: Okay. So we'll need to have you pull vol.
"Prosecutor: I will do that.
"Court: And I take it your theory is imperfect self-defense?
"Mr. Thompson: Yes, your Honor."
"[I]mperfect self-defense occurs when a defendant acts in the actual but unreasonable belief that he or she is in imminent danger of great bodily injury or death." (People v. Simon (2016) 1 Cal.5th 98, 132.) "Because imperfect self-defense reduces an intentional, unlawful killing from murder to voluntary manslaughter by negating the element of malice, this form of voluntary manslaughter is considered a lesser and necessarily included offense of murder." (Ibid.)
The next morning, outside the jury's presence, the court and counsel again discussed jury instructions. In compiling the jury instructions overnight, the prosecutor had mistakenly selected CALCRIM No. 570 entitled, "Voluntary Manslaughter: Heat of Passion—Lesser Included Offense" rather than CALCRIM No. 571 entitled, "Voluntary Manslaughter: Imperfect Self Defense or Imperfect Defense of Another—Lesser Included Offense." When the court and counsel discovered that mistake, counsel agreed the jury should be instructed on imperfect self-defense, and not heat of passion:
"Court: And then we give vol, 570. So you pulled it as heat of passion, right, as opposed to imperfect self-defense?
"Prosecutor: Well, the problem is I wasn't sure where the defense was going with that and what they—
"Court: We talked about that yesterday. I thought Mr. Thompson said his theory was imperfect self-defense. Right?
"Mr. Thompson: Right. Which was essentially what I told them—
"Court: In your opening.
"Mr. Thompson: —in my opening.
"Court: So we need to modify 570. It should be 571 instead, right, for imperfect self-defense?
"Prosecutor: Okay. I pulled the wrong one.
"Court: No worries. That's why I didn't have them [the jury] come back until 10:00. So that one will be modified."
4. Closing arguments
In closing argument, the prosecutor told the jury Rivas killed Rebana because he believed Rebana had stolen something from him. Highlighting Rivas's testimony that he lured or tricked Rebana into a position of vulnerability before striking him with a hammer, the prosecutor asserted the killing was premeditated and not self-defense.
In his closing argument, Rivas's attorney disputed the prosecution theory, stating, "But would someone stealing a coat be a sufficient motive for anybody to kill? I can't see that." Counsel added, "He's got no motive other than self-defense. Nothing. A jacket? Somebody stole a jacket?"
The court instructed the jury on first and second degree murder and voluntary manslaughter: imperfect self-defense, as a lesser included offense.
After one day of deliberations, the jury returned its verdict finding Rivas guilty of first degree murder. The jury also found that in committing this offense, Rivas personally used a deadly and dangerous weapon with the meaning of section 12022, subdivision (b).
Subsequently, the court sentenced Rivas to 25 years to life on the murder conviction, plus one consecutive year for the weapon enhancement, and a five-year consecutive sentence for the prior serious felony conviction, for a total prison term of six years plus 25 to life. Apart from his challenge to the conviction itself, Rivas does not challenge this sentence on appeal.
DISCUSSION
I. THE COURT HAD NO DUTY TO SUA SPONTE INSTRUCT ON VOLUNTARY
MANSLAUGHTER: HEAT OF PASSION
"'The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request.' [Citations.] 'That obligation encompasses instructions on lesser included offenses if there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser.' [Citations.] 'To justify a lesser included offense instruction, the evidence supporting the instruction must be substantial—that is, it must be evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist.'" (People v. Souza (2012) 54 Cal.4th 90, 115-116.)
"'Conversely, even on request, the court "has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction."' [Citation.] This substantial evidence requirement is not satisfied by '"any evidence . . . no matter how weak,"' but rather by evidence from which a jury composed of reasonable persons could conclude 'that the lesser offense, but not the greater, was committed.' [Citation.] 'On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense.'" (People v. Avila (2009) 46 Cal.4th 680, 705.)
"Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of the lesser included offense of voluntary manslaughter. (§ 192.) But a defendant who intentionally and unlawfully kills lacks malice only in limited, explicitly defined circumstances: either when the defendant acts in a 'sudden quarrel or heat of passion' (§ 192, subd. (a)), or when the defendant kills in 'unreasonable self-defense'—the unreasonable but good faith belief in having to act in self-defense." (People v. Barton (1995) 12 Cal.4th 186, 199 (Barton).)
For voluntary manslaughter on a heat-of-passion theory, there is "'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.'" (People v. Cole (2004) 33 Cal.4th 1158, 1215-1216.)
"The fundamental inquiry when examining heat of passion in the context of manslaughter '"is whether or not the defendant's reason was, at the time of his act, so disturbed or obscured by some passion . . . to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment."' [Citation.] Heat of passion is 'a state of mind caused by legally sufficient provocation that causes a person to act, not out of rational thought but out of unconsidered reaction to the provocation.' [Citation.] Further, the 'proper standard focuses upon whether the person of average disposition would be induced to react from passion and not from judgment.'" (People v. Nelson (2016) 1 Cal.5th 513, 538-539 (Nelson).)
"This, however, 'does not mean that a defendant does not form malice unless he thinks rationally or exercises sound judgment.' [Citation.] For purposes of the heat of passion doctrine, 'provocation is sufficient not because it affects the quality of one's thought processes, but because it eclipses reflection. A person in this state simply reacts from emotion due to the provocation, without deliberation or judgment.' [Citation.] The standard requires more than evidence that a defendant's passions were aroused. The facts and circumstances must be '"sufficient to arouse the passions of the ordinarily reasonable man."' [Citation.] Moreover, the defendant must 'actually be motivated by passion in committing the killing'; that is, he or she must be acting '"'under the smart of that sudden quarrel or heat of passion.'"' [Citation.] Accordingly, it is not sufficient that a person 'is provoked and [then] later kills.'" (Nelson, supra, 1 Cal.5th at p. 539, italics omitted.)
Rivas acknowledges that his attorney did not request an instruction on voluntary manslaughter under a heat of passion theory. When the prosecutor mistakenly placed CALCRIM No. 570—voluntary manslaughter: heat of passion—in the proposed jury instructions, Rivas's lawyer did not argue the instruction should be given. To the contrary, he acquiesced that it be removed. Moreover, after Ciani, Martinez, and Amador testified that Rivas told them he killed Rebana because Rebana stole drugs or a coat, Rivas's lawyer told the court there was no evidence to support instructing on any lesser included offenses.
The Attorney General does not contend Rivas's appellate argument is precluded by the doctrine of invited error, and therefore we do not consider and express no opinion on that issue. (Barton, supra, 12 Cal.4th at p. 198 ["[A] defendant may not invoke a trial court's failure to instruct on a lesser included offense as a basis on which to reverse a conviction when, for tactical reasons, the defendant persuades a trial court not to instruct on a lesser included offense supported by the evidence. [Citations.] In that situation, the doctrine of invited error bars the defendant from challenging on appeal the trial court's failure to give the instruction."].)
Nevertheless, on appeal Rivas contends the testimony he killed because he believed Rebana stole a jacket or drugs is "ample evidence" to support a heat of passion instruction because such circumstances "would have provoked a reasonable person." Rivas's appellate attorney points to evidence that Rivas responded to his brother's thefts by stabbing and threatening to kill him and asserts, "A jury could infer that Mr. Rivas was similarly 'sick and tired' of what he believed was Mr. Rebana's stealing."
Rivas's argument is untenable because on this record, there is no substantial evidence of adequate provocation to support instructing on a heat of passion theory of voluntary manslaughter. No defendant may set up his own standard of conduct and justify or excuse himself because his passions were aroused unless the facts and circumstances were sufficient to arouse the passions of an ordinary person. (People v. Steele (2002) 27 Cal.4th 1230, 1252-1253.) "[T]he test whether the provocation is adequate is whether 'an average, sober person would be so inflamed that he or she would lose reason and judgment.'" (People v. Rangel (2016) 62 Cal.4th 1192, 1226.)
To the extent Rivas relies on evidence that Rebana stole Rivas's drugs, his argument fails. Stealing illegal drugs is not what the law regards as adequate provocation. (See State v. Ligon (1992) 332 N.C. 224, 242 [420 S.E.2d 136, 146] [theft of cocaine is not adequate provocation for voluntary manslaughter].)
Similarly, no jury could reasonably find that theft of Rivas's mother's coat or other personal property is adequate provocation to support a voluntary manslaughter, heat of passion instruction. "'To be adequate, the provocation must be one that would cause an emotion so intense that an ordinary person would simply react, without reflection.'" (People v. Wright (2015) 242 Cal.App.4th 1461, 1482, italics omitted.) Rivas has not cited any published California authority stating or even suggesting that theft of a coat or other personal property would cause an emotion so intense that an ordinary person would lose self-control, reason, and judgment. Our own research of out-of-state cases shows courts have rejected arguments similar to the one Rivas makes here. (See Carroll v. State (Ala.Crim.App., Aug. 14, 2015, No. CR-12-0599) 2015 Ala.Crim.App. Lexis 65, *57 [theft of cell phone not adequate provocation for voluntary manslaughter]; State v. Clark (Ohio Ct.App., Nov. 10, 2004, No. 83474) 2004 Ohio App. Lexis 5410, *9 [theft of car speakers no adequate provocation]; People v. Middleswart (Ill.App.Ct. 1984) 124 Ill.App.3d 35, 39 [463 N.E.2d 1050, 1053] [trespass to property not adequate provocation]; State v. Small (N.J.Super.Ct.App.Div., July 7, 2011, No. A-3552-07T4) 2011 N.J.Super.Unpub. Lexis 1782, *36 [theft of $50 not adequate provocation].)
In his reply brief, Rivas asserts the Attorney General "does not dispute that a theft can be sufficiently provocative to justify a heat of passion instruction." Rivas's assertion is incorrect. The Attorney General's brief states Rivas "cites no authority for the proposition that a reasonable person who has personal property stolen from them would have their emotions so inflamed . . . ." The Attorney General argues the objective standard of provocation does not include "every conceivable negative life experience" and the jury in this case could not have reasonably concluded the applicable standard was met. --------
An ordinary sober person would not be so inflamed that he or she would lose reason and judgment upon discovering a jacket, an audio player, or other personal property has been stolen. Where, as here, there is no substantial evidence of sufficient provocation that would arouse passion in an ordinarily reasonable person, a court need not instruct on voluntary manslaughter, heat of passion. (People v. Kanawyer (2003) 113 Cal.App.4th 1233, 1245.) There is no error.
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J. WE CONCUR: HALLER, J. AARON, J.