Opinion
F078726
02-23-2021
THE PEOPLE, Plaintiff and Respondent, v. ANDRES RIVERA ESPINDOLA, Defendant and Appellant.
Paul Couenhoven, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and Kimberley A. Donohoe, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VCF158291)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge. Paul Couenhoven, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and Kimberley A. Donohoe, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Andres Rivera Espindola was convicted by a jury of second degree murder after he stabbed another man in the upper leg during a fight, severing the man's femoral artery and causing fatal bleeding. He raises one issue on appeal: that his conviction should be reversed because the trial court did not instruct the jury on involuntary manslaughter. We conclude that because no reasonable jury would have found Espindola killed without malice (express or implied), substantial evidence did not support giving the instruction. As no error occurred, the judgment is affirmed.
STATEMENT OF THE CASE
On January 20, 2006, the Tulare County District Attorney filed a complaint alleging Espindola committed one count of premeditated, deliberated murder (Pen. Code, § 187, subd. (a); count 1), that he personally used a deadly weapon in committing that offense (§ 12022, subd. (b)(1)), and that he had served a prior prison term (§ 667.5, subd. (b)). On November 6, 2018, a Tulare County jury found Espindola not guilty of first degree murder, but guilty of the lesser second degree murder. Espindola admitted that he had a prior conviction, and on January 18, 2019, the trial court sentenced him to an aggregate term of 16 years to life in state prison, consisting of 15 years to life on count 1, plus a determinate one year term on the personal weapons use enhancement to begin after he served his determinate term on a separate case. Espindola filed a notice of appeal the same day.
Unlabeled statutory references are to the Penal Code.
The clerk's transcript does not contain an abstract of judgment for Espindola's sentence in this case; it only contains a minute order reflecting the sentence. The abstract of judgment was, however, attached to the Notice of Appeal.
STATEMENT OF FACTS
On January 14, 2006, Espindola stabbed Raymond Randle in the thigh, severing his femoral artery and killing him. The killing happened after a number of escalating encounters one afternoon between Espindola and individuals who lived in the apartment complex where Randle's girlfriend, K.B., lived.
To protect the privacy of the witnesses in this case, we will refer to them either by their first name and last initial, or by initials only if they have a distinctive name.
Around noon that day, Espindola had tried to break into Candice C.'s vehicle parked outside K.B.'s apartment, while Candice was visiting her. Marshall O., one of K.B.'s neighbors, saw Espindola looking into Candice's car and asked him if the car was his. Espindola responded, "You don't know me," and "Don't fucking worry about it." When Marshall told Candice that someone was looking in her car, Candice went outside and confronted Espindola.
Espindola claimed to be looking for some "sounds" that had been stolen from him and said, "The bitch that drives this car stole [them]." He got into an argument with Candice, and Candice eventually opened her car and showed Espindola they were not his. Espindola said, "Oh, this ain't mine," and shook Candice's hand. Espindola went across the street to his apartment, then came back again. He tried to open the gate that led to K.B.'s apartment building, saying he wanted to go upstairs to his friend Joey's apartment. When he did that, he pushed the gate and it hit Candice's four-year-old son. Espindola also taunted Marshall with kissing sounds, threatened to beat him up, and told him to come outside so they could handle things. Joey told Espindola, "[Y]ou can't come over here if you'll be bringing that type of drama over here." Espindola left the building and went back across the street.
Espindola returned, but K.B. and Marshall barred his entry at the gate to the apartment complex. Espindola said he wanted to go upstairs to "Shanae and Joey's house." K.B. and Candice told Espindola to leave and called the police. When police arrived, they contacted Espindola, who admitted to drinking, but was cooperative and responsive to the officers' requests and instructions. Espindola told them he was there visiting a friend. Around the same time, Joey came out of his upstairs apartment and told officers that Espindola was his friend. As the officers left, they saw Espindola walking upstairs and into Joey's apartment.
About 15 minutes later, another one of K.B.'s neighbors, Jesse G., was walking to his mailbox. Espindola was back outside again in the parking lot arguing with people. He confronted Jesse and said, "Why are you mad-dogging me?" When Jesse told him he had just come outside to put a letter in the mailbox, Espindola swung and punched Jesse. Espindola's brother-in-law, who lived across the street, came running over, and Jesse told him Espindola had sucker punched him. The brother-in-law tried to pull Espindola back to the other side of the street, as did Espindola's sister, who pulled on his shirt and told him to leave. Espindola tried to break free, and Jesse and he said to each other, "I know where you live."
Around that time, Randle drove up, along with his friend Adrian S. Randle arrived because Candice had told Randle over the phone that "there's some dude messing over here tripping." Randle was about six feet tall and 240 pounds. Espindola, Jesse, Marshall, and Marshall's friend J.J.F. were all in the street, talking and arguing. Randle got out of his car, told Marshall to get the neighborhood kids inside, and told K.B. to go inside. He was telling people to calm down, and some people heard others yelling, "Kick his ass." Adrian described the scene as "chaos, people running around, screaming, yelling."
When Randle asked Espindola what was going on, Espindola threatened to shoot him and said Randle was "too big." Espindola said to Randle, "I got something for you." According to one witness, Espindola and Randle "tussled [or] fought for a little bit," and Espindola then turned and ran 70 feet down the street to a white Taurus, where he opened the trunk, looked through it for approximately 30 seconds to a minute, took something out of it (hidden in a beanie), and ran back across the street to where Randle was standing in the road. Other witnesses testified Espindola and Randle did not fight before Espindola went to the car. In the confusion, some people thought Espindola had a gun.
In the meantime, Randle and Adrian had discussed using a "pincer" move to take Espindola down if he had a weapon when he returned, meaning that they would approach him from different angles. But Adrian "reacted too slow" and was not able to get a different angle on Espindola before Randle and Espindola met in the middle of the street.
Many witnesses testified about the fight that ensued. According to Adrian, Randle walked swiftly toward Espindola, lunged at him, and grabbed at Espindola's shoulder. Another witness claimed Randle and Espindola "went at each other"; when Espindola returned from the trunk of the car, he "ran up on Raymond," who pushed Espindola back. According to Candice, when Espindola returned with the knife, Randle and Espindola "met in the middle of the street." Candice said Espindola "walked fast" toward Randle and that Randle grabbed Espindola's hands. Marshall said Espindola "jog[ged] back and lunged at Randle." K.B., who was Randle's girlfriend, could not remember whether Randle or Espindola grabbed the other first. According to Jesse, Espindola lunged at Randle.
After Randle and Espindola engaged, Randle grabbed Espindola and put him in a headlock using his right arm, and used his other arm to grab the hand where Espindola was holding the beanie and a hidden knife with an eight-to-nine inch blade. Jesse estimated Randle had Espindola in a headlock for about a minute, and Candice estimated they wrestled for about 30-45 seconds. Randle eventually lost his balance and his grip on Espindola's wrist, and when he did so, Espindola stabbed Randle in the left thigh.
Randle pushed Espindola off him and began hopping on one leg. Espindola took a couple of steps back, looked at Randle, asked "Who wants some next?" or "Who else wants some?" He then turned around and ran toward the apartments across the street in the direction of the car from which he had retrieved the knife. A couple of men ran after him, but Espindola jumped a fence and was not seen again. He went to another country and did not return to the United States for 11 years.
Meanwhile, Randle hopped on one leg back toward his car and the apartment complex. His left leg was bleeding profusely, so Jesse fashioned a tourniquet out of a belt around Randle's upper thigh. He and others applied pressure to Randle's wound. Medical personnel and police arrived, and they took Randle to the hospital, where he later died due to exsanguination (blood loss) from the stab wound. His femoral artery had been severed.
DISCUSSION
I. The Trial Court Had No Duty to Instruct on Involuntary Manslaughter
Espindola contends the trial court had a duty to instruct the jury on involuntary manslaughter because there was substantial evidence to support a finding he acted without malice. He specifically contends substantial evidence showed he killed Randle unintentionally and committed the fatal act without a conscious disregard for Randle's life. The People counter that an involuntary manslaughter instruction was not required because there was insufficient evidence for a reasonable juror to find Espindola acted without malice. We agree with the People.
A. Relevant Legal Proceedings
When finalizing jury instructions, the trial court asked counsel for the parties whether the involuntary manslaughter instruction was required. Defense counsel asked the court to give it, but the prosecutor disagreed. After providing oral argument on the issue, the prosecutor requested a day to provide the court with written points and authorities on the issue, which the court granted.
The next day, the court and counsel again discussed whether the instruction was required. Defense counsel orally responded to the prosecution's written points and authorities by arguing that the evidence supported a finding of an absence of malice. Counsel argued that the evidence showed potential provocation, and that the underlying illegal activity was a misdemeanor brandishing of a weapon.
The prosecution again argued that the instruction was not necessary, given the evidence of malice, and that even if Espindola were to use the defense of imperfect self-defense, that would only reduce the offense to voluntary manslaughter, and not involuntary manslaughter. The prosecutor argued, in part, that involuntary manslaughter applied only to those deaths arising out of illegal misdemeanor or nondangerous felony conduct, not dangerous felony conduct. Because Espindola was engaged in a felonious assault, involuntary manslaughter was inapplicable.
After considering the arguments of counsel, the trial court held that the evidence was not substantial enough to instruct on involuntary manslaughter. The trial court reasoned that, even if there were imperfect self-defense, such a finding by the jury would reduce the offense to voluntary manslaughter, not involuntary manslaughter. "We have more here than just an all of a sudden fight. We have a situation where it seems undisputed by the evidence that [Espindola] purposely went back to his vehicle, got that knife and came back. [It w]asn't done by accident." The trial court held that the evidence could support voluntary manslaughter but not involuntary manslaughter and declined to give the instruction.
B. Standard of Review
" '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.' ... '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.' ... '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 lesser offense, but not the greater, was committed." ... "On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense." ' " (People v. Souza (2012) 54 Cal.4th 90, 115-116, citations omitted.)
C. Law and Analysis
"Second degree murder is the unlawful killing of a human being with malice aforethought, but without the additional elements required for first degree murder (e.g., willfulness, premeditation, and deliberation)." (People v. Chavez (2018) 22 Cal.App.5th 663, 682 (Chavez); § 187, subd. (a).) Malice may be either express or implied. (§ 188.) "Malice is express when a defendant manifests a deliberate intention to kill another person." (Chavez, at p. 682.)
"Malice is implied when the killing of another person is proximately caused by an act, the natural and probable consequences of which are dangerous to life, which act was deliberately performed by a person who knows his or her conduct endangers the life of another and acts with conscious disregard for life." (Chavez, at p. 682.) Implied malice can be conceptualized as having both a physical and mental component. (People v. Guillen (2014) 227 Cal.App.4th 934, 984 (Guillen).) " ' "The physical component is satisfied by the performance of 'an act, the natural and probable consequences of which are dangerous to life.' [Citation.] The mental component is the requirement that the defendant 'knows that this conduct endangers the life of another and ... acts with a conscious disregard for life.' " ' " (People v. Bryant (2013) 56 Cal.4th 959, 965 (Bryant).) In short, implied malice requires a defendant's awareness of engaging in conduct that endangers the life of another. (People v. Cravens (2012) 53 Cal.4th 500, 507 (Cravens).)
In contrast to murder, manslaughter, which is a lesser included offense of murder, "is an unlawful killing without malice." (People v. Elmore (2014) 59 Cal.4th 121, 133 (Elmore).) There are three types of manslaughter: voluntary, involuntary, and vehicular. (Ibid.)
"Two factors may preclude the formation of malice and reduce murder to voluntary manslaughter: heat of passion and unreasonable self-defense. [Citations.] Heat of passion is recognized by statute as a mitigating factor. [Citation.] Unreasonable self-defense is founded on both statute and the common law." (Elmore, supra, 59 Cal.4th at p. 133.) In contrast to voluntary manslaughter, involuntary manslaughter is a killing that occurs during the commission of "an unlawful act, not amounting to a 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).)
Espindola contends there were two theories of involuntary manslaughter suppported by the evidence. Under the first theory, described in People v. Brothers (2015) 236 Cal.App.4th 24 (Brothers), a defendant is guilty of involuntary manslaughter when he or she commits a killing, without malice, during an inherently dangerous assaultive felony. (Id. at pp. 33-35.)
Espindola's second theory of involuntary manslaughter appears to be a novel one: a defendant is guilty of involuntary manslaughter if he or she kills in unreasonable self-defense without the intent to kill and without conscious disregard for life. He apparently believes this theory is impliedly allowed by the Supreme Court's opinion in People v. Blakeley (2000) 23 Cal.4th 82 (Blakeley). In that case, the defendant was convicted of voluntary manslaughter after he stabbed another man in the chest during a fight. (Id. at pp. 86-87.) The trial court gave both voluntary and involuntary manslaughter instructions, but the defendant claimed the trial court should have given a different involuntary manslaughter instruction than the one it gave. (Ibid.) On appeal, he asserted "that one who unintentionally and unlawfully kills in unreasonable self-defense is guilty only of involuntary manslaughter." (Id. at p. 88.) The Supreme Court, however, concluded "that when a defendant, acting with conscious disregard for life, unintentionally kills in unreasonable self-defense, the killing is voluntary, not involuntary, manslaughter." (Id. at pp. 88-89.)
"In his dissenting opinion in [Blakeley], Justice Mosk contend[ed] that a defendant who kills in unreasonable self-defense may sometimes be guilty of involuntary manslaughter." (Blakeley, supra, 23 Cal.4th at p. 91.) The majority's opinion simply responded to that: "We have no quarrel with this view. We conclude only that a defendant who, with the intent to kill or with conscious disregard for life, unlawfully kills in unreasonable self-defense is guilty of voluntary manslaughter." (Ibid.) Espindola asserts this statement impliedly supports the proposition that a defendant who kills without intent to kill and without conscious disregard for life is guilty of involuntary manslaughter. Interesting though this line of analysis may be, we need not discuss it, for even assuming this is a legally valid theory of involuntary manslaughter, we conclude there was no substantial evidence supporting that Espindola acted without a conscious disregard for life, and therefore this theory could not succeed on the facts.
We return now to Espindola's first theory of involuntary manslaughter described in Brothers, supra, 236 Cal.App.4th 24. To explain how the Brothers court reached its conclusion that a killing, without malice, during an inherently dangerous assaultive felony is involuntary manslaughter, we begin at People v. Bryant (2013) 56 Cal.4th 959 (Bryant). There, our Supreme Court explained that although the Penal Code does not specify the type of manslaughter committed when a defendant kills without malice during an inherently dangerous assaultive felony, such a killing is not voluntary manslaughter. Because review was not granted on the issue, Bryant expressly declined to address whether a killing without malice during an inherently dangerous felony could support a conviction for involuntary manslaughter. (Id. at pp. 970-971.) However, Justice Kennard's concurrence analyzed the issue and concluded a defendant who kills unlawfully during an assault with a deadly weapon, but without malice, may be found guilty of involuntary manslaughter. (Id. at pp. 971-974, conc. opn. of Kennard, J..)
Brothers directly considered the issue not reached by Bryant but addressed in Justice Kennard's concurrence. The Brothers court agreed with Justice Kennard, explaining that "if an unlawful killing in the course of an inherently dangerous assaultive felony without malice must be manslaughter ... and the offense is not voluntary manslaughter ..., the necessary implication of the majority's decision in Bryant is that the offense is involuntary manslaughter. Accordingly, an instruction on involuntary manslaughter as a lesser included offense must be given when a rational jury could entertain a reasonable doubt that an unlawful killing was accomplished with implied malice during the course of an inherently dangerous assaultive felony." (Brothers, supra, 236 Cal.App.4th at pp. 33-34.) However, as the Brothers court cautioned, "when, as here, the defendant indisputably has deliberately engaged in a type of aggravated assault the natural consequences of which are dangerous to human life, thus satisfying the objective component of implied malice as a matter of law, and no material issue is presented as to whether the defendant subjectively appreciated the danger to human life his or her conduct posed, there is no sua sponte duty to instruct on involuntary manslaughter .... Otherwise, an involuntary manslaughter instruction would be required in every implied malice case regardless of the evidence. We do not believe that this is what the Supreme Court intended in Bryant." (Id. at p. 35.)
Espindola was entitled to an instruction on involuntary manslaughter pursuant to Brothers only if a rational jury could entertain a reasonable doubt that the killing, although occurring during a fight, was accomplished without malice. (Brothers, supra, 236 Cal.App.4th at pp. 33-34.) Again, "[m]alice is implied when an unlawful killing results from a willful act, the natural and probable consequences of which are dangerous to human life, performed with conscious disregard for that danger." (Elmore, supra, 59 Cal.4th at p. 133.) We discuss below how there was no substantial evidence of the absence of malice to warrant an involuntary manslaughter instruction pursuant to Brothers. Because we conclude in part that Espindola acted with a conscious disregard for life, our discussion under Brothers also disposes of Espindola's second theory of involuntary manslaughter derived from Blakeley, supra, 23 Cal.4th 82.
1. There Was No Substantial Evidence of the Absence of Malice to Warrant an Involuntary Manslaughter Instruction
Here, the evidence shows Espindola engaged in the type of aggravated assault the natural consequences of which are dangerous to human life, and that he subjectively appreciated the danger to human life his conduct posed and acted with a conscious disregard for life. He took a knife with an eight-to-nine-inch blade and stabbed it five-and-a-half inches into Randle's leg. This was a deep stab, not a slice or a shallow poke. There is no evidence the stab was an accident or a mistake. Indeed, the evidence is to the contrary. Before Espindola and Randle fought, Espindola called Randle "too big" and said he had "something for [him]" before going to the car trunk and obtaining the knife. The fight could have ended then, but Espindola decided to approach Randle again, this time armed with a knife hidden in a beanie. After the stabbing, Espindola stood back and asked, "Who else wants some?" before running away, which further evidences this was no accident or mistake.
Additionally, the evidence showed the natural and probable consequences of the stab were dangerous to human life. Again, this was not a slice or a shallow poke, and it strains credulity to posit that an adult would not know that the natural and probable consequences of plunging a knife that deep into someone's upper leg are dangerous to life. Indeed, the use of a knife during any violent hand-to-hand altercation inherently poses a risk of fatal injury, which unfortunately occurred here. Espindola argues, without any citation to the record, that Randle would not have died but for the knife severing his femoral artery. However, that assertion has no support in the record—the coroner never testified to that—and we cannot gratuitously assume that for Espindola. Additionally, given the severity of the stab wound and Espindola's incendiary conduct before the fight, and callous conduct after, the evidence strongly demonstrates Espindola acted with a conscious disregard for Randle's life.
Espindola places emphasis on Adrian's testimony that Randle lunged at Espindola first, which, if believed, may make Randle look like the initial aggressor. However, the evidence shows that Randle and Adrian knew Espindola had something hidden in his hand, which they believed to be a weapon. Thus, the strong implication would be that, if Randle lunged at Espindola first, it was because Randle was being preemptively defensive. Espindola also stresses the fact he was in a headlock. However, there was no evidence presented that Espindola was losing consciousness or was otherwise in any kind of danger; nothing that would support a finding that he had a reasonable, though erroneous, belief in the need to act in self-defense. Rather, the evidence strongly indicates Randle placed Espindola in a headlock and grabbed his hand in an effort to prevent Espindola from using the knife as a weapon. In sum, we do not believe it would be possible for a rational jury to reach conclusions in Espindola's favor regarding these emphasized facts.
There is no credible evidence for a reasonable juror to find either that the natural and probable consequences of the stab were not dangerous to Randle's life or Espindola acted without consciously realizing the risk to Randle's life. Specifically, there was no evidence presented to support, either expressly or inferentially, that the knife stab was not highly dangerous to Randle's life, or that Espindola did not consciously disregard this risk. As we mentioned, this was no accident or mistake, nor was there any evidence to suggest Espindola did not understand that plunging a knife deeply into the upper leg poses a great risk of causing fatal bleeding. The trial court therefore properly refused to instruct on involuntary manslaughter based on its finding that the evidence of Espindola's malice was overwhelming and that therefore there was no substantial evidence to allow a reasonable jury to find that he was guilty of the lesser offense of involuntary manslaughter but not the greater offense of second degree murder. (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137 (Millbrook).)
Espindola relies heavily on People v. Vasquez (2018) 30 Cal.App.5th 786 (Vasquez). In that case, Vasquez and his co-defendant beat a man during a robbery and the man died from a neck fracture. Specifically, Vasquez and his co-defendant punched the man, Vasquez stomped on the man's head, and Vasquez's co-defendant threw a trashcan that struck the man's hip. (Id. at pp. 791-792) The medical evidence indicated the beating would have resulted in nonlethal injuries but for the victim's particular susceptibility to a neck fracture due to a previous neck surgery involving the implantation of metal rods. (Ibid.) Vasquez could not have known of the victim's unusual situation. (Id. at p. 795.) The trial court denied the defense's request for an involuntary manslaughter instruction because the beating was "felonious conduct," and the jury convicted on second degree murder. (Id. at pp. 790, 795.) The Court of Appeal reversed, holding the trial court erred in not instructed on involuntary manslaughter "because there was substantial evidence ... from which a reasonable juror could have doubted that defendant was subjectively aware the beating could kill [the victim]." (Id. at p. 797.)
The facts of this case are quite different, making Vasquez inapposite. Here, Espindola actively went back to his vehicle and obtained a deadly weapon, a knife, which he concealed and then plunged deeply into the victim, whereas the co-defendants in Vasquez did not use a weapon. As mentioned, the use of a knife in an altercation inherently involves the high risk of fatal injury, whereas the strikes in Vasquez were per se nonlethal. Also unlike in Vasquez, Randle did not die due to an unusual susceptibility. To be clear, we are not categorically saying that an unarmed attack cannot ever be as dangerous as an armed one. What distinguishes Vasquez is not that no weapon was used, but that the co-defendants there did not commit an act that was inherently dangerous to the victim's life.
Based on this record, and considering the evidence in the light most favorable to Espindola, substantial evidence did not absolve him from guilt of the greater offense but not the lesser. (See People v. Cole (2004) 33 Cal.4th 1158, 1218.) The jury was not reasonably likely to have convicted Espindola of the lesser included offense of involuntary manslaughter had such an instruction been given. (See People v. Thomas (2012) 53 Cal.4th 771, 815.) As such, the trial court had no duty to give an instruction regarding involuntary manslaughter and this claim fails. (See Guillen, supra, 227 Cal.App.4th at p. 1028.) The trial court did not err in refusing to instruct on involuntary manslaughter. There was sound evidence Espindola stabbed Randle with implied malice, and there was no evidence from which a rational jury could find he acted without implied malice. More specifically, there is insufficient evidence to support a finding that either the natural and probable consequences of the stab were dangerous to Randle's life, or that Espindola acted without a conscious disregard for Randle's life. As explained previously, this conclusion disposes of both of Espindola's posited theories of involuntary manslaughter.
2. No Prejudice
Moreover, any error in failing to instruct the jury on involuntary manslaughter was harmless. There is currently a debate in the Courts of Appeal whether prejudice for instructional error on a lesser included offense should be reviewed under the federal standard articulated in Chapman v. California (1967) 386 U.S. 18 (Chapman) or under the state standard articulated in People v. Watson (1956) 46 Cal.2d 818 (Watson). (See People v. Wright (2015) 242 Cal.App.4th 1461, 1495, fn. 14; People v. Peau (2015) 236 Cal.App.4th 823, 830-831; Millbrook, supra, 222 Cal.App.4th at pp. 1145-1146; People v. Thomas (2013) 218 Cal.App.4th 630, 633, 641-645.) We need not resolve this issue. Instead, based on this record, we can declare that any presumed instructional error here was harmless beyond a reasonable doubt, satisfying the more stringent federal standard of review. (See Chapman, supra, 386 U.S. at p. 24.) As noted above, this record does not establish or even reasonably suggest Espindola accidentally stabbed Randle. Moreover, the jury found true the enhancement that Espindola personally used a deadly weapon during the commission of this crime. To find this enhancement true, the jury was instructed Espindola must have intentionally displayed the weapon in a menacing manner or hit someone with the weapon. The jury's true finding negates any claim of an accident. Additionally, based on the severity of the stab considered in combination with the attendant circumstances and Espindola's behavior before and after the fight, we can declare beyond a reasonable doubt that any presumed instructional error was harmless. (Chapman, supra, 386 U.S. at p. 24.) Accordingly, prejudice is not present under either standard of review and this claim fails.
DISPOSITION
The judgment is affirmed.
SNAUFFER, J. WE CONCUR: FRANSON, Acting P.J. MEEHAN, J.