Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. SA060998 of Los Angeles County, Robert P. O’Neill, Judge. Affirmed.
Murray A. Rosenberg, 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, Assistant Attorney General, Jaime L. Fuster and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P.J.
Defendant and appellant Alan G. Corado appeals his conviction of voluntary manslaughter. He claims error with respect to several instructions on self-defense and justifiable homicide in defense of another. He asserts the court abused its discretion in allowing a gang expert to testify about gang culture and also erred in sentencing him to the high term for manslaughter and personal use of a firearm. We find no error and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
John Soriano and the victim, Rene Sansaricq, had been friends for about two years. Sansaricq was 17 years old, 6’3” tall, and weighed about 200 pounds. On the evening of April 29, 2006, the two young men went to a party at a ground floor level apartment in Venice. Twenty or 30 minutes later, appellant arrived with Benny Guidino and Jason Garcia. Guidino was about the same size as Sansaricq. He was wearing a jacket and a black hat with a yellow “P” on it, which stood for “Pozers,” a gang. Soriano and Sansaricq did not know these individuals, and did not speak to them when they arrived.
The three individuals were inside the apartment when Robert Pullard, a friend of Soriano and Sansaricq, arrived. Guidino asked Pullard where he was from. Pullard understood he was being asked whether he was a gang member, and he answered “No.”
Sometime later that evening, the person hosting the party told everyone to leave. As he was leaving, Guidino tripped on a table and knocked over a lamp. Sansaricq said something to the effect of “‘Why are you disrespecting this house?’” Guidino responded angrily. Sansaricq and Guidino started arguing, and then moved outside, where they began to fight. The other people in the apartment, including Soriano and Pullard, followed them out.
Sansaricq rushed Guidino and started swinging. He grabbed Guidino, wrestling his jacket off. Sansaricq was getting the better of the fight. Soriano joined the fight, assisting Sansaricq. At that point, appellant came up behind Sansaricq, pulled a gun from his waistband, and hit Sansaricq on the head with the butt end of the gun. He did this six or seven times. The blows did not initially seem to have any effect on Sansaricq, but eventually he turned toward appellant and hit him once in the face. Appellant backed away and fumbled with his gun. Sansaricq turned around with his fists clenched and seemed to be ready to move toward appellant; he looked like he was dazed or dizzy. Appellant raised his arm and shot Sansaricq in the chest. Sansaricq died from the gunshot wound. Appellant, Guidino and Garcia got into a car and drove away.
None of the young adults in the area admitted seeing the shooting. Pullard told police officers who responded to the scene that he heard the shot from inside, and that he did not see anything. Appellant later was identified as the shooter and was arrested in July 2006. In a recorded interview, he told Detective Joe Lumbreras that on the day of the shooting, he had picked up a.38 caliber revolver at Guidino’s home as Guidino had instructed. When he, Guidino and Garcia arrived at the party, the gun was in the car, but he retrieved it when he thought Garcia was about to leave the party. Appellant returned to the party with the gun. When Guidino and Sansaricq began fighting, appellant believed Guidino was losing the fight, so he hit Sansaricq with the butt of the gun. Sansaricq then turned to face appellant, who was much smaller than Sansaricq. When Sansaricq “came at him,” appellant raised his arm to cover his face, and the gun went off.
Appellant was charged with the murder of Sansaricq, with allegations of personal and intentional discharge of a firearm and personal use of a firearm. He was found guilty of voluntary manslaughter and the personal use of a firearm allegation was found true. He was sentenced to the high term of 11 years for the voluntary manslaughter and 10 years for the firearm enhancement. He appeals from the judgment of conviction.
DISCUSSION
I
Appellant claims the evidence was insufficient to support his conviction for voluntary manslaughter. In considering a claim of insufficient evidence, we review the entire record in the light most favorable to the judgment to determine whether it contains evidence which is reasonable, credible, and of solid value, from which the jury could find the defendant guilty beyond a reasonable doubt. (People v. Carter (2005) 36 Cal.4th 1114, 1156.) In this case, it does.
Manslaughter is the unlawful killing of a human being without malice. (Pen. Code, § 192; statutory references are to this code unless otherwise indicated.) A defendant lacks malice and is guilty of voluntary manslaughter 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 [citations].” (People v. Barton (1995) 12 Cal.4th 186, 199.)
The jury was instructed on voluntary manslaughter based only on the doctrine of “imperfect self-defense.” The doctrine requires that a defendant have an actual belief in the need for self-defense. (In re Christian S. (1994) 7 Cal.4th 768, 783.) “When the trier of fact finds that a defendant killed another person because the defendant actually but unreasonably believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and cannot be convicted of murder.” (Ibid.)
The jury also was instructed on justifiable homicide in self-defense. The killing of another person in self-defense is justifiable when the person who does the killing actually and reasonably believes in the need to defend against imminent danger of death or great bodily injury. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) Only the amount of force necessary to repel an attack may be used in self-defense; force which exceeds the necessity is not justified. (People v. Hardin (2000) 85 Cal.App.4th 625, 629.) And deadly force or force likely to cause great bodily injury may be used only to defend against an attack which is in itself deadly or likely to cause great bodily injury. (Id. at pp. 629-630.) Under these principles, a person may be guilty of unlawful homicide even where the evidence establishes the right of self-defense if the nature of the attack does not justify the resort to deadly force, or if the force used in self-defense exceeded that which was reasonably necessary. (Id. at p. 630.)
Appellant testified that his friend Guidino was fighting with Sansaricq, then Soriano joined the fight against Guidino, and Guidino “was going down. That’s my friend, so I immediately went and-I was running over there, and I felt the gun slipping out of my waist. So I grabbed it, and I grabbed the barrel. I mean, I didn’t want to shoot the guy. So I grabbed it by the barrel, and I started hitting him over the head.” He hit Sansaricq with the butt of the gun several times (three or four by his account, six or seven by Pullard’s account). Sansaricq turned and hit appellant, and appellant stumbled backward, away from him.
According to appellant, “Once I went back, Mr. Sansaricq turned around and saw me. He, like, got down in this crazy stance, like he was going to rush me or something. He looked pretty crazy. So I immediately got scared and was fiddling with my waistband, and I had the gun in there. So I seen him rush me. He started to run towards me, and I just raised my hands and a shot went off.” Appellant estimated the distance between himself and Sansaricq as five to six feet.
The jury also heard the testimony of Robert Pullard, who stated that Sansaricq appeared kind of dazed after appellant hit him with the gun and backed up. Sansaricq turned toward appellant with his fists clenched. He “[l]ooked like he was about to motion himself towards the defendant. To me it looked like he might have been dizzy.” Sansaricq was facing appellant, “looking like he was trying to catch his balance. But you could tell that he was going to go after [appellant].” Appellant backed up, fumbled with his gun, then extended his arm and shot Sansaricq. When appellant fired the shot, Sansaricq had not yet moved toward him. Pullard estimated the distance between appellant and Sansaricq as 15 feet at the time the gun was fired. Sansaricq had no weapons with him that night.
The jury was entitled to credit appellant’s testimony that he was afraid for his safety, yet reject his testimony that Sansaricq was moving toward him and was only five or six feet away. Instead it apparently believed Pullard’s testimony that Sansaricq appeared to be dazed and dizzy, was trying to get his balance, did not move toward appellant, and was substantially farther away from appellant when he was shot. The jury also heard evidence that Sansaricq was not armed. This evidence supports the conclusion that at the time he shot Sansaricq, appellant actually but unreasonably believed in the necessity to defend against imminent peril to life or great bodily injury, as required for voluntary manslaughter. It also supports the conclusion that appellant’s use of lethal force was unreasonable since the victim was unarmed and appeared at most to be threatening to use his fists.
Appellant argues that Pullard’s testimony was implausible, in part because he initially told the 911 dispatcher and the police that he was inside the apartment at the time of the shooting and only later gave a statement to police detectives. Pullard testified that he originally denied seeing the events. He did so, he claimed, because he had a criminal record and was on probation. He knew some of the officers who responded at the scene and “they weren’t going to do nothing.” Months later, he asked to talk to a detective; he preferred detectives to street officers. The jury was able to consider this in evaluating Pullard’s credibility. The fact that Pullard identified the gun appellant used as a.22 caliber, rather than a.38, did not require the jury to reject all his testimony. The jury was properly instructed to that effect.
Appellant also claims the evidence of the trajectory of the bullet was inconsistent with Pullard’s testimony that appellant extended his arm out when he shot Sansaricq. The medical examiner testified that the bullet traveled in a slightly downward direction within Sansaricq’s body. Appellant argues that since he was much shorter than Sansaricq, he would have had to raise his arm high above his head to cause that downward trajectory. But Pullard testified that Sansaricq was not standing up straight, and appeared to be trying to catch his balance. This posture would have altered the height difference between the two men.
Appellant also claims Pullard’s testimony that appellant was 15 feet from Sansaricq when he fired the shot was disputed by Los Angeles Police Department criminalist Diana Paul’s analysis of the gunshot residue on the victim’s two shirts. Ms. Paul testified that she found “two possible gunpowder particles” on one of the shirts, but from that she could not tell the distance between the firearm muzzle and the shirt. She could rule out one distance-a contact shot. She could not say for sure whether the gunpowder came from the immediate firing of a firearm, or whether it was transferred from another garment or from the hands of a person with gunpowder particles on them. If the particles traveled with the bullet itself, she would have expected them to be right at the bullet hole, and they were not. If the particles traveled in the cloud of gunpowder from the discharge, they would only have traveled several feet. She agreed that the cloud “very rarely travels hundreds of feet” nor does it travel 15 or 20 feet. These general principles did not establish the distance at which the shot was fired; Ms. Paul was only able to state for certain that it was not a contact shot.
Viewing the evidence in the light most favorable to the judgment, we find sufficient evidence supports appellant’s conviction of voluntary manslaughter.
II
Appellant claims the court erred in allowing expert witness testimony on gang culture. Although there was no criminal street gang allegation under section 186.22, there was evidence at trial that after he was arrested, appellant admitted to Detective Lumbreras that he and his friend Guidino were members of the Pozers gang, and that he had been in the gang for five to six years. He told Detective Lumbreras that on the day of the shooting, Guidino told him to get the gun, and that he knew where it was kept. Asked if the gun belonged to the gang, so that anybody in the gang could use it, appellant said, “You could say that, yes.”
On the night of the shooting, Guidino was wearing a black baseball cap with the letter “P” on it, which was an indication he was involved with the Pozers. During the party, Guidino asked Pullard where he was from, which Pullard understood as asking what gang he belonged to. When appellant was in custody, awaiting trial, he tried to send a written note to “all the homies” in the “varrio” to pressure Guidino to testify that Pullard was not outside in the parking lot during the fight and shooting. Asked what he meant by “all the homies in the varrio,” appellant admitted that meant all the other gang members from the Pozers.
After this evidence was presented, the prosecution wanted to call Detective Lumbreras in rebuttal on the issue of motive. The prosecutor explained, “My theory of the motive is that it was a gang-related shooting because a gang member was disrespected by high school kids in front of other gang members and the gang will not tolerate it.” The court agreed that the gang evidence would be relevant and allowed the expert to testify. We find no abuse of discretion.
Detective Lumbreras testified that “respect is what the gang is all about. The gang members within a gang want respect from their peers.” Asked what should happen from the perspective of a gang if one of its members has been disrespected, the detective explained: “There should be some type of retaliation from that same gang, retaliation of force, which will gain the respect back to that gang. If they don’t do anything about what is going on, then they’re open for rival gangs to come in and take over their neighborhoods, show more disrespect to them by taunting them in regards to an issue where they didn’t show any force.” In a situation where a gang members is present when a fellow gang member is losing a physical fight, “A gang member within that gang, if one of their fellow gang members, homies, is losing a fight, is getting his ass kicked, that person, his friend, has to do something to help his friend, back him up. If he doesn’t do anything, and if the word gets back to his gang in that neighborhood, he may get beat up by his own gang or he may be kicked out of the gang or it could be even worse.”
The culture and habits of gangs are proper subjects of expert testimony when relevant to motive, identity, or other issues in a case. (People v. Williams (1997) 16 Cal.4th 153, 193.) We find no authority limiting such evidence to cases that charge the criminal street gang enhancement or special circumstance. While motive was not an element of the charged crime or enhancements in this case, its presence or absence was a circumstance which could tend to establish or refute appellant’s claim of accident or self-defense. (See People v. Ashraf (2007) 151 Cal.App.4th 1205, 1213.) And since gang membership already had been established, Detective Lumbreras’s brief testimony on this subject was not unduly prejudicial.
The jury was instructed accordingly.
III
Appellant claims the court committed reversible error by failing to instruct the jury on justifiable homicide based on lawful defense of another and failing to give other related instructions.
CALJIC No. 5.13 states: “Homicide is justifiable and not unlawful when committed by any person in the defense of [himself] [herself] [his] [her] if [he] [she] actually and reasonably believed that the individual killed intended to commit a forcible and atrocious crime and that there was imminent danger of that crime being accomplished. A person may act upon appearances whether the danger is real or merely apparent.”
The trial court primarily used the CALJIC instructions in this case.
A forcible and atrocious crime is defined in CALJIC No. 5.16 as “any felony that by its nature and the manner of its commission threatens, or is reasonably believed by the defendant to threaten life or great bodily injury so as to instill in [him] [her] a reasonable fear of death or great bodily injury.”
CALJIC No. 5.14, intended for use with No. 5.13, provides: “The reasonable ground of apprehension does not require actual danger, but it does require (1) that the person about to kill another be confronted by the appearance of a peril such as has been mentioned; (2) that the appearance of peril arouse in [his] [her] mind an actual belief and fear of the existence of that peril; (3) that a reasonable person in the same situation, seeing and knowing the same facts, would justifiably have, and be justified in having, the same fear; and (4) that the killing be done under the influence of that fear alone.”
These instructions were properly refused because they were not supported by the evidence. There was evidence that appellant came to the defense of Guidino when Guidino was attacked by Sansaricq and Soriano. Further, this was a fist fight, with no weapons involved. The fact that Guidino appeared to be on the losing end of the fight did not convert it to a forcible and atrocious crime which threatened life or great bodily injury, as defined in CALJIC No. 5.16.
More importantly, after appellant repeatedly hit Sansaricq on the head with the butt of his gun, Sansaricq turned his attention to appellant and Guidino was no longer in peril. As to the events that followed, the jury was fully instructed on appellant’s claims that he shot Sansaricq by accident, in self-defense, or in an actual but unreasonable belief in the need for self-defense.
IV
Appellant claims the court erred in refusing to instruct the jury on self-defense for participants in mutual combat in terms of CALJIC No. 5.56. That instruction provides that the right of self-defense is only available to a person who engages in mutual combat who has actually tried, in good faith, to refuse to continue fighting; has clearly informed his or her opponent that he or she wants to stop fighting; has clearly informed his or her opponent that he or she has stopped fighting; and has given his or her opponent the opportunity to stop fighting. Only after he or she has done these four things does the person have the right to self-defense if his or her opponent continues to fight.
The court refused this instruction because it found no evidence of pre-existing mutual intent, consent, or agreement preceding the initiation of hostilities. The court was correct. “‘[M]utual combat’ consists of fighting by mutual intention or consent, as most clearly reflected in an express or implied agreement to fight. The agreement need not have all the characteristics of a legally binding contract; indeed, it necessarily lacks at least one such characteristic: a lawful object. But there must be evidence from which the jury could reasonably find that both combatants actually consented or intended to fight before the claimed occasion for self-defense arose.” (People v. Ross (2007) 155 Cal.App.4th 1033, 1046-1047.)
Even if there had been an agreement to fight, and even if appellant actually tried to refuse to continue fighting when he backed away from Sansaricq, he did not inform Sansaricq that he wanted to stop fighting, or that he had actually stopped fighting, nor did he give Sansaricq the opportunity to stop fighting. Without taking these steps, appellant was not entitled to the right of self-defense as a participant in mutual combat, and the court properly refused to give this instruction.
Appellant claims the court erred in instructing, over his objection, with CALJIC No. 5.54, which addresses the right of self-defense by an aggressor, and in omitting its last paragraph. That instruction, similar in pattern to CALJIC No. 5.56, requires the aggressor to try to refuse to continue fighting, to clearly inform his or her opponent that he or she wants to stop fighting and to clearly inform his or her opponent that he or she has stopped fighting. The portion omitted by the court provides that if “[t]he victim of simple assault responds in a sudden and deadly counter assault, the original aggressor need not attempt to withdraw and may use reasonably necessary force in self-defense.”
As between appellant and Sansaricq, appellant was the aggressor. Until appellant hit Sansaricq with his gun, the two had no interaction at the party. Given that appellant was asserting he acted in self-defense, it was not error for the court to instruct on self-defense by an aggressor. The jury was instructed to “[d]isregard any instruction which applies to facts determined by you not to exist.”
As to the omitted portion of the instruction, the evidence was that Sansaricq clenched his fists and appeared to be readying himself to rush at appellant, or under appellant’s version, actually began to move toward him. This evidence did not suggest that Sansaricq responded in a sudden and deadly counter assault, which is the subject of the omitted paragraph. Given the state of the evidence, there was neither error nor harm in the court’s omission of the final portion of this instruction.
Appellant also claims the court erred in giving CALCRIM No. 3472, which provides: “A person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use force.” As we have explained, there was no contact between appellant and Sansaricq until appellant hit Sansaricq over the head several times with the butt of his gun. Only then did Sansaricq hit appellant, and appear to be ready to charge at him. Under these facts, the instruction was appropriate.
Finding no error, we need not address appellant’s argument that the cumulative effect of the claimed errors was prejudicial.
V
Appellant claims the court abused its discretion in sentencing him to the high term for voluntary manslaughter because the only aggravating factor relied upon by the court to justify imposition of the high term was that appellant initiated the events that led to Sansaricq’s death, and “that assertion is false and thus not viable, leaving only the factor in mitigation that appellant had no criminal record.” Appellant also claims the court engaged in circular reasoning by relying on the fact that appellant brought a concealed gun to the party to justify imposing the upper term on the section 12022.5, subdivision (a) firearm enhancement.
Respondent asserts these claims are forfeited by failure to object in the trial court. In People v. Scott (1994) 9 Cal.4th 331, 353, the Supreme Court held that “the waiver doctrine should apply to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, mis weighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.” Appellant failed to object to the court’s reasons, and has therefore forfeited his claims of error.
Even if he had preserved them, we would find no abuse of discretion. In exercising his or her discretion in selecting one of the three authorized prison terms, “the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. The relevant circumstances may be obtained from the case record, the probation officer’s report, other reports and statements properly received, statements in aggravation or mitigation, and any evidence introduced at the sentencing hearing.” (Cal. Rules of Court, rule 4.420(b).) “A fact that is an element of the crime upon which punishment is being imposed may not be used to impose a greater term.” (Cal. Rules of Court, rule 4.420(d).)
In selecting the high term for manslaughter, the court relied on the fact that appellant “initiated the events by pistol whipping the victim on his head several times with the butt of a gun.” This fact demonstrates viciousness and cruelty (Cal. Rules of Court, rule 4.421(a)(1)), given that appellant engaged in this conduct to break up a fist fight that involved no weapons.
In selecting the high term for the firearm use enhancement, the court relied on the fact that appellant “brought the firearm to the party, available to use it should the need arise, and, indeed, carried it concealed on his person.” Bringing a concealed weapon to a party for protection demonstrated a degree of planning (Cal. Rules of Court, rule 4.421(a)(8)), which ultimately resulted in the shooting death of Sansaricq.
The court’s statement of circumstances in aggravation adequately supports its exercise of discretion in imposing the high terms for manslaughter and for the firearm enhancement.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J. MANELLA, J.