Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD189649, John M. Thompson, Judge.
McCONNELL, P. J.
Jose Armando Alarid was convicted by a jury of second degree murder (Pen. Code, § 187, subd. (a)) and admitted he had a prior conviction that qualified as a prior serious felony (§ 667, subd. (a)(1)) as well as a strike conviction (§ 667, subds. (b)-(i)). The court sentenced him to an indeterminate term of 30 years to life (15 years to life doubled due to his prior strike conviction) plus a consecutive term of five years for the prior serious felony conviction.
All statutory references are to the Penal Code unless otherwise specified.
The jury was unable to reach a verdict on a charge of assault with a deadly weapon by means of force likely to cause great bodily injury and this charge was later dismissed. On the People's motion, allegations that Alarid had personally used a deadly weapon, a knife, and that he personally used a knife to inflict great bodily injury (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(8) & (23)) were dismissed.
Alarid contends his conviction must be reversed because the court failed to sua sponte instruct the jury that one of the witnesses was an accomplice whose testimony required corroboration and cautious treatment; the court improperly admitted evidence the victim was soon to be married and had a child; and the prosecution failed to prove the victim's attack on him was insufficient provocation to mitigate the killing to voluntary manslaughter. We affirm the judgment.
FACTS
On March 5, 2005, Yvonne Quarters invited Alarid to her apartment in Paradise Hills. Alarid arrived with his brother, his brother's girlfriend, two other males and Leticia Silvas. While at the apartment, the group listened to music, talked and drank beer.
There were other people in the apartment including one of Quarters's female friends, her sisters, a boyfriend of one of her sisters and friends of the other sister.
About 3:00 a.m., Quarters received a phone call from a friend, Javier Hernandez, asking if he could come over with two of his friends. She did not want him to come over. Quarters was afraid that if Hernandez and his friends came to her apartment there would be trouble because one of Hernandez's friends liked to "start problems." Hernandez kept calling, insisting that she let him come over. At one point, Alarid answered the phone. After awhile, Quarters either picked up the phone and immediately hung up or let the phone ring without answering it. Alarid asked Quarters what was going on and if someone was going to start problems. She told him nothing was going to happen and not to answer the door if people came over.
Hernandez and his two friends arrived at the apartment and pounded on the door. Quarters "panicked." She told people to be quiet and not to answer the door. The pounding went on for about 30 seconds. Alarid, flanked by three or four men, opened the door.
The two groups yelled at each other, using confrontational phrases like "What's up?" and "Let's go outside" and "were calling each other out." They stood within inches of each other. Both groups went downstairs to the parking lot. Alarid was angry, said "Fuck that" and took off his shirt. Other people in the apartment also went outside or watched from the apartment's balconies or windows. The two groups fought. There were varying accounts of what occurred. According to one witness, Hernandez and Alarid were verbally confronting each other when Hernandez suddenly hit Alarid with a beer can or bottle. More than one witness saw Hernandez spray mace. There was testimony that several people from Alarid's group, including Alarid, attacked Hernandez. At one point, one of Hernandez's friends tried to come to Hernandez's aid, but he was stabbed twice from behind. When the confrontation ended, Alarid's group fled. Hernandez had been cut or stabbed 29 times on his chest, back, left flank, chin, left wrist and hands. He had an abrasion on his forehead consistent with a shoe print and blunt-force injuries on his head. He bled to death at the scene.
Alarid's group fled to a nearby apartment. While at the apartment, Alarid washed mace out of his eyes and he and another man called "Craft" bragged about stabbing Hernandez and Hernandez's friend .
In his defense, Alarid claimed that Hernandez's consumption of alcohol and cocaine caused Hernandez to be violent and aggressive and that Hernandez provoked the fight. Alarid also presented evidence that when Hernandez sprayed him with mace, he was blinded, remained on his knees during the fight and Alarid's brother had to lead him away from the scene of the stabbing. Additionally, Alarid attacked the credibility of Silvas who had told the police Alarid had bragged about stabbing Hernandez.
DISCUSSION
I
Accomplice Instructions
Alarid contends his conviction must be reversed because the court failed to sua sponte instruct the jury that Silvas was an accomplice whose testimony had to be corroborated and viewed with caution.
Silvas was one of the people who accompanied Alarid to the party. During part of the fight, she was at the bottom of the stairs. At one point, Hernandez pointed a can of mace in Silvas's direction, but she was too far away to be affected by it. Silvas told the police Alarid was one of the people who attacked Hernandez. She saw Alarid in an initial confrontation attacking Hernandez, including kicking him after Hernandez sprayed him with mace and then in a later physical confrontation with Hernandez but she did not see Hernandez being stabbed. She told the police that when the group went to the nearby apartment, Alarid went to the bathroom to wash his eyes and that he was one of two people who bragged about stabbing Hernandez.
An accomplice is a person "who is liable to prosecution for the identical offense charged against the defendant on trial." (§ 1111.) Section 1111 requires the testimony of an accomplice be corroborated "by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." Section 1111 applies to both extrajudicial statements as well as in-court testimony. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1133.)
If there is evidence from which the jury could find a witness to be an accomplice, the court must sua sponte instruct the jury (1) an accomplice's statements should be viewed with caution and (2) the defendant cannot be convicted on the basis of an accomplice's statements unless it is corroborated. (People v. Guiuan (1998) 18 Cal.4th 558, 569; People v. Zapien (1993)4 Cal.4th 929, 982.)
Reversal for failure to properly instruct the jury on an accomplice's statements is required only if the error was prejudicial, that is, if it is reasonably likely the outcome would have been more favorable if the jury had been properly instructed. (People v. James (1987) 196 Cal.App.3d 272, 285.) " '[T]he failure to instruct on accomplice testimony pursuant to section 1111 is harmless where there is sufficient corroborating evidence in the record.' " (People v. Zapien, supra, 4 Cal.4th 929, 982.) Corroborating evidence " ' "is sufficient if it connects defendant with the crime, although such evidence 'is slight and entitled, when standing by itself, to but little consideration.' " ' " (People v. Williams (1997) 16 Cal.4th 635, 681.)
Alarid contends Silvas was an accomplice because she was present at the beginning and ending of the fight at the bottom of the stairs and fled with Alarid's group. This evidence, however, merely shows Silvas was present at the scene. Moreover, even if we were to accept Alarid's theory that Silvas acted as an accomplice by positioning herself "at the bottom of the stairs, . . . intentionally blocking one path of escape, at least part of the time," we would not reverse because any error in failing to give the instructions was clearly harmless.
There was abundant evidence connecting Alarid to the offense. Alarid was the individual who opened the door, he immediately engaged in a verbal confrontation with Hernandez's group and followed Hernandez's group downstairs. Numerous people testified Alarid and his group fought with Hernandez's group. That confrontation ultimately ended in the fatal stabbing of Hernandez. In sum, there was sufficient evidence corroborating that Alarid was involved in the offense.
II
Admission of Evidence
Alarid contends his conviction must be reversed because, over his Evidence Code section 352 objection, the court allowed Hernandez's fiancée to testify she and Hernandez were planning to get married within a year and had a young child together. He contends the evidence was irrelevant and he was prejudiced because it was "sympathy evidence" that undermined his defense based on the victim's provocation.
We agree with Alarid that the evidence had little relevance to the issues in the case, but disagree with his conclusion reversal is merited. Not only was the testimony extremely brief but the jury was specifically instructed not to "let any bias, [or] sympathy" affect their decision. In the absence of any evidence to the contrary, we must presume the jury followed these instructions. (People v. Holt (1997) 15 Cal.4th 619, 662; People v. Williams (2000) 79 Cal.App.4th 1157, 1171.)
III
Adequacy of Provocation
Alarid contends the prosecution's evidence failed to prove Hernandez's mace attack on Alarid was insufficient provocation to mitigate the homicide to voluntary manslaughter. In other words, Alarid challenges the sufficiency of the evidence to support his conviction of second degree murder.
"Murder is the unlawful killing of a human being . . . with malice aforethought." (§ 187, subd. (a).) Express malice exists when the defendant harbored an intent unlawfully to kill. (§ 188.) Implied malice exists " 'when a person does an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. . . .' " (People v. Nieto Benitez (1992) 4 Cal.4th 91, 104.) Second degree murder is an unlawful killing with malice but without premeditation and deliberation. (Id. at p. 102.)
Voluntary manslaughter is a killing which results from "a sudden quarrel or heat of passion" or from an imperfect self-defense. (§ 192, subd. (a); In re Christian S. (1994) 7 Cal.4th 768, 773, 780 & fn. 4.) "The shorthand reference to 'a sudden quarrel or heat of passion' is provocation; it is the element of provocation that distinguishes voluntary manslaughter from other crimes." (People v. Spurlin (1984) 156 Cal.App.3d 119, 123-124.) "The 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. . . . '[T]his 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 [person.]' " (People v. Steele (2002) 27 Cal.4th 1230, 1252- 1253.) "To satisfy the objective or 'reasonable person' element of . . . voluntary manslaughter, the accused's heat of passion must be due to 'sufficient provocation.' " (People v. Wickersham (1982) 32 Cal.3d 307, 326, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200-201.) "[T]he provocation which incites the killer to act in the heat of passion case must be caused by the victim or reasonably believed by the accused to have been engaged in by the decedent." (People v. Lujan (2001) 92 Cal.App.4th 1389, 1411-1412.) A heat of passion defense may not be based on revenge. (People v. Williams (1995) 40 Cal.App.4th 446, 453.)
When an appellant challenges the sufficiency of the evidence to support a conviction, "we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Jennings (1991) 53 Cal.3d 334, 364.) We " ' "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Davis (1995) 10 Cal.4th 463, 509; In re Manuel G. (1997) 16 Cal.4th 805, 822.) We draw all reasonable inferences in support of the judgment. (People v. Pensinger (1991) 52 Cal.3d 1210, 1237; People v. McCleod (1997) 55 Cal.App.4th 1205, 1220-1221.)
Here, substantial evidence showed Alarid's and Hernandez's groups had an animosity toward each other from the moment Alarid opened the door. After a short verbal confrontation at the door, both groups went downstairs with the evident purpose of fighting one another. Alarid took off his shirt before going downstairs, an act not necessary if he was intending to engage only in further discussions with Hernandez's group. Thus, there was evidence that even before Hernandez pulled out the mace and sprayed Alarid, Alarid and his group were intending to assault Hernandez's group. Furthermore, after the confrontation, Alarid and another person in his group bragged about stabbing members of Hernandez's group. Given these facts, a reasonable jury could conclude the physical confrontation was not provoked by the mace and Alarid did not act out of a heat of passion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, J. IRION, J.