Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF015079, Timothy F. Freer, Judge.
Marianne H. Cox-Harguindeguy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr. and Kamala Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, Kristine A. Gutierrez and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
Defendant Shayondelice Terazah Sledge challenges her second-degree murder conviction and her prison term of 15 years to life. Defendant argues: 1) the trial court committed prejudicial error when it refused to instruct the jury on accident as a complete defense to second degree murder; and 2) the trial court abused its discretion when it refused to grant defendant probation as an “unusual case.” As discussed below, we affirm after concluding that the trial court committed no error and acted well within its discretion.
Facts and Procedure
The facts are essentially undisputed. Defendant discovered that her boyfriend, Steven Jordan (Jordan), was being unfaithful. On the evening of January 18, 2006, the two began arguing, physically fighting and throwing objects in their apartment, which they shared with their baby. Defendant’s best friend, Yourvangenique Stanford (Stanford), lived in the apartment next door. Also in Stanford’s apartment were defendant’s brother, Hezekiah Brown, and their friends Harold McGinnis (McGinnis) and Nicholas Mose (Mose). When Stanford heard defendant yell for Jordan to get off of her, Stanford believed that Jordan was physically abusing defendant as she had observed in the past.
Stanford told police that during this incident defendant picked up the telephone and said she was going to call the police, but dropped the phone after Jordan tried to slam her hand in the bathroom door.
The group of friends went to defendant’s apartment to help, but found the door locked. Mose then climbed up to the second floor balcony and went through the sliding glass door to let the others into the apartment. Defendant was very upset and crying. While she and Jordan continued to yell at each other, defendant repeatedly demanded that Jordan leave. Stanford tried to calm defendant down and then took the baby to Stanford’s mother’s apartment in the same complex. Jordan did not appear upset, but was instead “just there, ... he was making his remarks and throwing his [verbal] jabs here and there.”
Defendant took Jordan’s clothes from the master bedroom and began cutting them up with a serrated steak knife. Defendant was crying and telling Jordan to leave. Jordan was laughing and taunting defendant. McGinnis told defendant to put the knife down so nothing would happen. Defendant said she was not going to do anything to Jordan, but that she just wanted him to leave. Defendant continued cutting up the clothes until McGinnis gave her a lighter to hold. Defendant put down the knife and tried to use the lighter to burn Jordan’s clothes, until McGinnis took the lighter away. Defendant threw some of Jordan’s clothes off the balcony. At one point, Jordan refused to come out of the bathroom because he said he was afraid defendant would stab him. Defendant said she was not going to stab Jordan, then threw the knife to the ground. Defendant continued to tell Jordan to leave, but Jordan said he would not leave until he found his cell phone. The others in the apartment helped him to look for his phone to try to get him to leave. Jordan continued to laugh and smirk at defendant.
Eventually, Jordan was convinced to leave without his phone. Defendant opened the front door for Jordan to step through. The two then had a conversation at the front door. Jordan taunted defendant by rocking from one foot to another, with one foot on the edge of the doorway and another outside. Defendant was “hysterical” and “really crying hard” and telling Jordan to leave. Jordan apparently pushed defendant and defendant said “Don’t put your fucking hands on me.” Jordan said something that caught defendant’s attention. Defendant then apparently stabbed Jordan once in the chest with a steak knife. She slammed the front door. None of the witnesses saw the stabbing, they only saw or heard the door slamming. Jordan stepped back against the wall in the hallway outside and slumped to the ground while holding his chest and gasping. According to the forensic pathologist, defendant stabbed Jordan through the cartilage in his ribs, his lung, and aorta, and that he likely bled out within a few seconds and died within a few minutes.
Defendant walked towards Stanford in the kitchen, crying and complaining about Jordan being unfaithful. Mose and Stanford asked defendant if she had stabbed Jordan, because the knife had blood on it. When they pointed this out to defendant, her eyes widened like she was in shock and she dropped the knife and said “Oh, my God. Oh, my God.” The group carried Jordan to defendant’s car, and defendant and Stanford drove Jordan to the hospital. A police officer at the hospital asked defendant what happened and she stated “we got into an argument and I stabbed him.” Jordan was pronounced dead at 9:39 p.m.
The forensic pathologist testified that the stab wound was four-to-six inches deep and required “a good amount of force” to inflict. The wound went almost straight into Jordan’s body, front to back, slightly from the right to the left. The pathologist expressed the opinion that the wound would had to have been inflicted intentionally because of the amount of force required. In addition, the amount of force required would be more with the “not-so-well built kitchen steak knife” that defendant used than with a sharper knife. The pathologist was not able to tell from the wound whether defendant was moving forward or backward at the time of the stabbing, but could tell that he was not moving to either side or struggling.
On January 28, 2009, the People charged defendant in an amended information with one count of second degree murder (Pen. Code, § 187, subd. (a)). The People alleged that defendant personally used a deadly weapon, a knife (§§ 12022, subd. (b), 1192.7, subd. (c)(23)).
All further statutory references are to the Penal Code unless otherwise indicated.
On February 10, 2009, the jury found defendant guilty of second degree murder and found true the deadly weapon allegation.
On March 20, 2009, the trial court sentenced defendant to 15 years to life on count one and stayed the one-year term for the personal use allegation pursuant to section 654. Defendant timely appealed.
Discussion
1. Accident Instruction
Defendant first argues the trial court committed prejudicial error when it refused to instruct the jury on accident as a complete defense to second degree murder. During discussions about jury instructions, the defense asked the trial court to instruct the jury using Judicial Council of California Criminal Jury Instruction CALCRIM No. 3404, which instructs the jury that if it does not find that defendant had the requisite intent to commit the crime, but instead acted accidently, it must find her not guilty.
CALCRIM No. 3404 states, in pertinent part, “The defendant is not guilty of the crimes charged if she acted without intent required for that crime, but acted instead accidentally. You may not find the defendant guilty of the crime charged unless you are convinced beyond a reasonable doubt that she acted with the required intent.”
A trial court must give appropriate instructions, either upon request or sua sponte, whenever there is evidence substantial enough to merit consideration by the jury. (People v. Manriquez (2005) 37 Cal.4th 547, 581 (Manriquez); People v. Cunningham (2001) 25 Cal.4th 926, 1008.) But, “‘[a] party is not entitled to an instruction on a theory for which there is no supporting evidence.’ [Citation.]” (People v. Roldan (2005) 35 Cal.4th 646, 715, overruled on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) On appeal, we apply a de novo standard of review. (Manriquez, supra, at p. 581.)
Defendant contends that whether she accidentally stabbed Jordan was a material issue presented by the evidence. She contends that her defense was that she did not intentionally stab Jordan, but that it was an accident. Defense counsel stated so in closing argument, suggesting that somehow defendant accidentally stabbed Jordan as she slammed the door. However, there is no actual evidence to support this. Despite defense counsel’s closing argument, no evidence was presented at trial to support the theory that defendant accidentally stabbed Jordan while closing the door. Defense counsel stressed several points: that the door slammed very hard, that not one of the three witnesses actually saw defendant stab Jordan, and that defendant seemed surprised and distraught that she had stabbed Jordan when it was pointed out to her. However, none of this is substantial evidence that she stabbed him accidentally. This is especially true in view of the pathologist’s testimony, which was the only testimony addressing how the stabbing could have happened. The pathologist testified that the stabbing required a “good” or “significant” amount of force, and concluded that the stabbing could only have happened “from someone intentionally stabbing someone or forcing a knife into someone’s chest.” No evidence at all was offered to show that, or how, defendant could have inflicted the wound by accident. As the trial court stated when it denied the defense request for CALCRIM No. 3404: “There’s simply no evidence in the record that would suggest that there was an accident in terms of the actual stabbing, and the record is devoid of any mentioning of inadvertent activity or inadvertent handling of the steak knife.” Thus, we conclude that the trial court did not err when it denied defendant’s request to instruct the jury with CALCRIM No. 3404.
2. Probation
Defendant was presumptively ineligible for probation under section 1203, subdivision (e)(2), which states “(e) Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons:... (2) Any person who used... a deadly weapon upon a human being on connection with the perpetration of the crime of which he or she has been convicted.” Defendant argues the trial court abused its discretion when it chose not to grant her probation.
At the sentencing hearing, the trial court stated that, while it did consider that there were mitigating factors, they did not rise to the level that would warrant an unusual case. The court did not extensively discuss the factors it considered in making this determination under California Rules of Court, rule 4.413(c). The trial court added that, even if one were to consider this an unusual case, the trial court did not consider probation to be appropriate based on the balance of mitigating and aggravating factors. The court then enumerated in detail the factors it considered in making this determination under rule 4.414.
All further references to rules are to the California Rules of Court, unless otherwise indicated.
A grant or denial of probation is a matter within the discretion of the trial court. (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1225 [Fourth Dist., Div. Two]; People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831 (Du).) The trial court’s discretion in determining whether to grant probation is broad. (People v. Stuart (2007) 156 Cal.App.4th 165, 178-179.) Likewise, the standard for reviewing a trial court’s finding that a case is or is not unusual is abuse of discretion. (Du, at p. 831.)
“‘“[T]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citations.]” (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) “[A] ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citations.]” (Id. at p. 377.) “[T]hese precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Ibid.)
In determining whether or not a case is “unusual, ” the court applies the criteria set forth in rule 4.413(c). If the court finds that the case is unusual, it must then decide whether to grant probation, applying the criteria in rule 4.414. (Du, supra, 5 Cal.App.4th at p. 830.)
Defendant argues the trial court abused its discretion, both when it found that this is not an unusual case according to the criteria set forth in rule 4.413, and when it stated that, even if this were an unusual case, it did not consider probation to be appropriate according to the criteria set forth in rule 4.414.
Under rule 4.413, defendant contends this qualifies as an unusual case because: 1) she was young at the time of the crime, with no significant criminal record (rule 4.413(c)(2)(C)); and 2) she committed the crime under circumstances of great provocation or stress, and had no recent record of committing violent crimes (rule 4.413(c)(2)(A)). We agree with defendant that she was young at the time of the crime, and that she had no significant criminal record. Whether she committed the crime under circumstances of great provocation or stress is a closer matter. The probation officer concluded in the pre-sentence report that defendant did commit the crime under great provocation or stress and recommended the court find this to be an unusual case in which probation could be considered. The trial court ultimately disagreed.
“In the instant matter, during a heated argument with her boyfriend, the defendant stabbed him with a kitchen knife as she pushed him out the door of their apartment.” “It appears the defendant acted rashly and in the heat of the moment. It is believed she was motivated by rage and intense emotion that obscured her better judgment.”
In any case, the trial court clearly acted within its discretion when it concluded that, even if this was an unusual case, defendant was ineligible for probation under the criteria set forth in rule 4.414.
The trial court found the following mitigating factors apply: defendant is willing and able to comply with the terms of probation (rule 4.414(b)(3) & (4)); the effect of imprisonment on defendant and her dependents is likely to be serious (rule 4.414(b)(5)); defendant is remorseful (rule 4.414(b)(7)); and the crime did not demonstrate criminal sophistication (rule 4.414(a)(8)).
However, the trial court disagreed with the pre-sentence report, in that it believed defendant could be a danger to others if not imprisoned (rule 4.414(b)(8)). Defendant argues the court was wrong on this point. However, the court was persuaded, as are we, by the evidence that defendant was warned by several people to put the weapon down and refused to listen. We note that defendant put the knife down once and at some point chose to re-arm herself. We further note that defendant re-armed herself, not for the purpose of self-defense, but rather out of pure anger. Thus, the trial court acted reasonably when it held this factor to act against defendant.
The trial court also found that defendant was armed with and used a weapon (rule 4.414(a)(2)) and inflicted physical and emotional injury (rule 4.414(a)(4)), and that the crime is serious compared to other instances of the same crime. Defendant contends the evidence shows exactly the opposite-that the crime was less serious than other instances. Defendant cites to the testimony at the sentencing hearing from three people who were present the night of the crime, and who testified for the prosecution: Stanford, McGinnis, and Mose. All three made statements at the sentencing hearing to the effect that defendant did not intend to kill Jordan, but rather did so either accidentally or “in the heat of the argument” and that she would never intentionally kill Jordan. However, this testimony by defendant’s friends is overshadowed on this point by the evidence that the stabbing was not in fact accidental, that defendant purposely, if rashly, plunged the knife quite deep into Jordan’s chest with such “significant” force that it tore through his rib cartilage and lung until it severed his aorta, and caused him to bleed out within seconds and to die within minutes, thus making medical intervention futile.
To conclude, while reasonable minds could possibly differ on whether defendant should have been granted probation, the evidence in the record firmly supports the trial court’s decision as solidly within the bounds of reason and thus not an abuse of discretion.
Disposition
The judgment is affirmed.
We concur: HOLLENHORST, J., MILLER, J.