Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA103489 Dewey L. Falcone, Judge.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
BIGELOW, P. J.
Appellant Gilbert Hernandez was convicted by a jury of murder in the first degree. He contends on appeal that there was insufficient evidence to establish premeditation and deliberation and that the trial court committed instructional error. We affirm the judgment.
FACTS
I. The Murder
On November 29, 2007, appellant arrived at the Slam Dunk, a sports bar, at approximately 10:00 p.m. with his cousin, Tommy Hernandez. The bouncer for the Slam Dunk, Juan Rodriguez, suggested that it would be safer if they moved their car closer to the bar and Tommy backed the car into a spot right outside the front door of the bar. A football game between the Dallas Cowboys and the Green Bay Packers had just ended, which the Cowboys won. Tommy was wearing a Testaverde jersey and appellant was in a Cowboys jacket and baseball cap. Although Tommy had been to the bar before, appellant had never been. There were approximately 60 people in the Slam Dunk that night, including Gabriel Ramirez, who had arrived at approximately 7:30 p.m. Gabriel was six feet and weighed 300 pounds.
Vincent Testaverde was the quarterback for the Dallas Cowboys from 2004 to 2005.
When appellant and Tommy entered the bar, they sat down near Gabriel. At 11:00 p.m., Tommy, who had been bragging about the Cowboys’ win, asked Gabriel what team he liked. Gabriel replied, “My team is the Raiders.” Tommy said, “The Raiders suck.” Gabriel said, “Well, that’s my team. So?” Nothing more was said.
At 12:30 a.m., after he had had five or six beers, the bartender stopped serving Gabriel and told him to call his wife to pick him up because he appeared intoxicated. Gabriel had begun slurring his speech and was fumbling around. He also knocked over a bar stool and fell to the ground.
Meanwhile, appellant and Tommy shared three pitchers and one bottle of beer at the bar that night; their bar tab came to $27. As the night progressed, the bouncer noticed that appellant and Tommy got louder. When appellant paid his tab at 12:30 a.m., the bartender did not think he was intoxicated because he was not slurring his words and was in control of his faculties.
Last call was announced at approximately 1:15 a.m. The bouncer tried to ensure that customers did not loiter and continue drinking in the parking lot or otherwise cause trouble after last call. Accordingly, he made it his usual practice to escort customers out. That night, the bouncer walked appellant and Tommy out after last call. He did not think they were drunk and they voluntarily went with him without protest. Appellant immediately got into the passenger side of the car and yelled to Tommy, “Come on. Let’s go. Let’s roll.” Tommy was talking to Gabriel, who was smoking outside, but neither appeared to be angry to the bouncer. Because he believed Tommy and appellant would leave without incident, the bouncer went back into the bar to begin cleaning up and left Gabriel to finish his cigarette.
Five to 10 minutes later, the bouncer heard a commotion near the front door. Gabriel Rodela, another customer, was headed for the door with another patron but was unable to leave because the door was blocked. When he looked out of the window, he saw appellant and Tommy fighting with Gabriel just outside of the door. He saw Gabriel on his back, wrestling with appellant, who was on top of him. Tommy was kicking Gabriel. It appeared to Rodela that Gabriel was trying to get away. Rodela forced the door open, and appellant and Tommy ran to their car. When the bouncer rushed out to the parking lot, he saw appellant and Tommy “blow out” of the parking lot.
Gabriel came back into the Slam Dunk with blood flowing out of his mouth and a knife in his hand. He said, “They got me.” The bouncer took the knife from Gabriel and placed it on top of the jukebox. The police later recovered a folding knife with a black handle from the jukebox. A Cowboys baseball cap was also recovered from the scene.
Gabriel died from multiple stab wounds: one to his left elbow, two to the area in front of his heart and one behind his ear. Gabriel also sustained seven cuts: one to the back of his head, another to his back, and five to his right hand. He also had a bruise on his chin and fresh abrasions to his knees. One of the stab wounds to his chest was fatal because it perforated the chest wall, passed through the lung lining and penetrated the septum of the heart. The wound was four and three-fourth inches deep and seven-eighths inch wide. Toxicology results showed that Gabriel’s blood alcohol level was 0.20 at the time of death.
Tommy drove appellant to the hospital that night. He had two puncture wounds in the middle of his back and a towel duct-taped over them. The towel was saturated with blood, but the bleeding had slowed. The doctor who treated appellant did not believe he was intoxicated. At the hospital, appellant was asked multiple times how and when he was stabbed. Appellant was reluctant to answer any of those questions, only stating that “some guys had jumped him.”
Because the hospital was required to notify police when it appeared a patient was a victim of a violent crime, Whittier Police Department officers interviewed appellant at the hospital at approximately 3:15 a.m. Appellant was alert and coherent and he did not appear intoxicated when he was interviewed. Appellant initially told officers that he called for a taxi to take him from Hacienda Heights to Whittier and Colima. As he was walking down the street in that area, three men drove by and “[s]tarted talking shit.” When appellant responded in kind, they stopped the car and stabbed appellant during a fight. Appellant described the men as Hispanic and bald wearing white T-shirts. Appellant then told officers he jogged from Whittier and Colima to the hospital after he was stabbed. Appellant initially told the officers he had about 30 drinks, “here, there, everywhere” but later stated he had three “big” Hefeweizen beers.
Appellant was taken to the Whittier police station and interviewed a second time after he was discharged from the hospital at 4:45 a.m. In appellant’s medical screening form, the officer marked “yes” to the question whether appellant was under the influence of alcohol or drugs. After appellant was told he was being held on suspicion of murder, appellant told officers that he and his cousin went to a sports bar in Whittier called the National. A fight broke out as they were leaving and according to appellant, “[t]he next thing I know I just get hit, boom, fall. The next thing I know, I get up and I’m stabbed, you know.” He did not want to involve his cousin in the matter so he “hitched” a ride from a good samaritan to the hospital.
When he was told that a video of the fight at the Slam Dunk showed him on top of Gabriel making stabbing motions, he admitted, “I might have stabbed him. I don’t know.... But I just, like, blanked out....” He admitted he had a black folding knife in his back pocket and he pulled it out because he felt threatened by Gabriel. After further questioning, appellant agreed with the officer that he stabbed Gabriel, who took the knife from him, and then stabbed him in the back.
A search of appellant and Tommy’s home on November 30, 2007, revealed a Dallas Cowboys’ jacket with half-inch slits on the back of the jacket. The search also revealed a Testaverde football jersey in Tommy’s closet. Tests performed on stains in appellant’s car showed blood on the passenger’s side of the back seat and on the seat belt locking mechanism.
II. The Trial
Appellant was charged in an information for one count of murder in the first degree (Pen. Code, § 187, subd. (a)) and one count of assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)). As to the murder count, it was further alleged that appellant personally used a deadly and dangerous weapon and personally inflicted great bodily injury on Gabriel Ramirez. (§§ 12022, subd. (b)(1), 1203.075, subd. (a).) Appellant pleaded not guilty and denied the allegations.
All further section references will be to the Penal Code, unless otherwise specified.
A jury trial began on January 12, 2010. The prosecution presented evidence of the events leading to Gabriel’s murder and the subsequent police investigation, as described above. The jury also viewed videotape of a portion of the fight at the Slam Dunk as well as heard the taped interviews of appellant by the Whittier police. On January 21, 2010, the jury found appellant guilty of first degree murder and also found true the allegations that he committed the murder with premeditation and deliberation, that he used a deadly weapon and that he inflicted great bodily injury. Appellant was sentenced to prison for a term of 25 years to life, plus 1 year pursuant to Penal Code section 12022, subdivision (b)(1) with credit for 848 days in actual custody. Appellant was further ordered to pay a restitution fine in the amount of $200 (Pen. Code, § 1202.4, subd. (b)), a court security fee of $30 (Pen. Code, § 1465.8, subd. (a)(1)), a criminal conviction assessment of $30 (Gov. Code, § 70373, subd. (a)) and victim restitution in the amount of $7,500, plus interest at the rate of 10 percent per annum (Pen. Code, § 1202.4, subd. (f)). This appeal followed.
DISCUSSION
I. Substantial Evidence Supports a Finding of Premeditation and Deliberation
Appellant asserts the evidence adduced at trial was insufficient to support the jury’s finding that he killed Gabriel Ramirez with premeditation and deliberation because there was no evidence of planning or preexisting motive. Instead, there was ample evidence that appellant acted “rashly and without deliberation.”
The Supreme Court in People v. Anderson (1968) 70 Cal.2d 15 (Anderson) identified three factors relevant to proving premeditation and deliberation: planning activity, motive, and manner of killing. The high court later explained that “ ‘ “Anderson was simply intended to guide an appellate court’s assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. [Citation.]” ’ [Citation.]” (People v. Combs (2004) 34 Cal.4th 821, 850.) It is settled law that the reflection necessary to establish premeditation and deliberation is not measured by duration of time because “[t]houghts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly....” (People v. Thomas (1945) 25 Cal.2d 880, 900-901.) Thus, the mere fact that defendant may have had little time to deliberate does not require a conclusion that he could not have done so. (Ibid.)
To determine whether the prosecution met its burden to prove premeditation and deliberation, we review the record for substantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 403.) Accordingly, we must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Davis (1995) 10 Cal.4th 463, 509.) “Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.” (People v. Maury, supra, at p. 403.) We also presume the existence of every fact the trier could reasonably deduce from the evidence to support the judgment. (Ibid.)
The record amply supports a finding that appellant acted with premeditation and deliberation. Although safely in his car, appellant left it deliberately to go back to the entrance of the Slam Dunk. Appellant admitted that he had a six-inch knife in his back pocket, indicating he had considered the possibility of a violent encounter that night. (See People v. Lee (2011) 51 Cal.4th 620, 636.) Rather than retreat to the safety of the car and leave, he and his cousin Tommy fought with Gabriel Ramirez. He did not stop when he had Gabriel pinned to the floor and Tommy was kicking him in the head. He did not stop when Gabriel appeared to be trying to get away. Instead, the video from the Slam Dunk showed that appellant continued to fight, stabbing and cutting Gabriel multiple times. In fact, appellant stabbed Gabriel with sufficient force to sink the knife four and three-fourth inches into Gabriel’s body, perforating his chest wall, passing through the lung lining and penetrating the septum of the heart. Appellant at all times appeared to witnesses to be in control. He did not slur his words. He did not stumble. He did not appear to have “blanked out” as he told the officers.
The record also shows that appellant was a fan of the Dallas Cowboys; he was wearing a baseball cap and a jacket with the Dallas Cowboys’ logo. The Cowboys had just won a game against the Green Bay Packers. Gabriel told appellant and Tommy that he was a Raiders fan. Appellant told police that “everybody was all hyped up” and “[Gabriel] was talking shit in the beginning... talking stuff to me, and I just walked out.” Although, as in many senseless killings of this type, the motivation was unreasonable, the jury could nevertheless infer from these facts that appellant’s motive was to defend his football team’s honor. This is more than sufficient to establish premeditation and deliberation under the Anderson factors.
Appellant proposes an alternate version of events: he was “just fighting” and had no motive to kill Gabriel because he did not know him and was not upset that he was a Raiders fan. While such a scenario might have been possible, it is not one the jury accepted. Substantial evidence supports the jury’s verdict; we cannot reevaluate the credibility of witnesses or resolve factual conflicts at this stage of the proceedings. (People v. Booker (2011) 51 Cal.4th 141, 147.)
II. The Trial Court Did Not Err When it Refused to Instruct on Heat of Passion and Self-defense
Appellant further contends that his conviction must be reversed because the trial court’s failure to instruct on heat of passion and both perfect and imperfect self-defense denied him a right to have the jury determine every material issue presented by the evidence. According to appellant, it was insufficient for the trial court to instruct the jury only on first and second degree murder, and on voluntary manslaughter due to voluntary intoxication. We disagree.
The title of appellant’s claim is that his “conviction must be reversed because [of] the trial court’s failure to instruct on heat of passion and imperfect self-defense....” However, in the body of the brief in this area, appellant addresses only the trial court’s failure to instruct on perfect and imperfect self-defense. We address all three claims.
The principles controlling the trial court’s sua sponte duty to instruct the jury are well-established. A trial court is required to sua sponte instruct on all lesser included offenses when those lesser offenses are supported by the evidence, that is, when they are substantial enough to merit consideration by the jury. (People v. Breverman (1998) 19 Cal.4th 142, 162.) This does not mean that the existence of “any evidence, no matter how weak” justifies an instruction on a lesser included offense. (Ibid.) Instead, it must be evidence a reasonable jury could find persuasive. (Ibid.)
A necessary element of murder is malice aforethought. (§ 187, subd. (a).) Malice, however, can be negated in certain situations: “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.) A defendant who kills without malice is guilty only of voluntary manslaughter, which is considered a lesser necessarily included offense of murder. (Id. at pp. 201-202.) “ ‘ “An imminent peril is one that, from appearances, must be instantly dealt with.” ’ [Citation.]” (In re Christian S. (1994) 7 Cal.4th 768, 783.) “An intentional, unlawful homicide is ‘upon a sudden quarrel or heat of passion’ (§ 192(a)), and is thus voluntary manslaughter (ibid.), if the killer’s reason was actually obscured as the result of a strong passion aroused by a ‘provocation’ sufficient to cause an ‘ “ordinary [person] of average disposition... to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.” ’ [Citations.]” (People v. Breverman, supra, 19 Cal.4th at p. 163.) Here, there is no evidence of heat of passion. Indeed, all of the evidence points to the contrary – no one saw appellant angry or upset.
Imperfect self-defense is a narrow doctrine that requires the defendant have an actual fear of imminent danger to life or great bodily injury. “ ‘ “[T]he peril must appear to the defendant as immediate and present and not prospective or even in the near future.” ’ ” (In re Christian S., supra, 7 Cal.4th at p. 783.) “The subjective elements of [perfect] self-defense and imperfect self-defense are identical.” (People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262.) The sole difference is the reasonableness of the defendant’s belief, a question for the trier of fact. (Ibid.)
We also conclude that appellant did not present substantial evidence of either perfect or unreasonable self-defense. The only evidence of an imminent threat is appellant’s statement to the police that he pulled out his folding knife because he felt threatened by Gabriel. Specifically, appellant confirmed that he felt threatened while they were “facing each other talking.” From appellant’s statements, there is no indication that Gabriel attacked him or otherwise exhibited any behavior that posed an imminent threat to appellant. Further, there was no evidence that Gabriel was violent or aggressive. Indeed, all of his interactions with appellant and Tommy were peaceful and nonconfrontational. The trial court did not err in refusing to instruct the jury on heat of passion, and a perfect or imperfect self-defense.
III. The Trial Court Did Not Err When it Refused to Instruct the Jury Regarding Involuntary Manslaughter due to Voluntary Unconsciousness
Appellant next contends that he was entitled to an instruction regarding involuntary manslaughter due to unconsciousness. Appellant relies on his statement to the police that he “blanked out” during the fight to show substantial evidence justifying such an instruction. Appellant reasons that he must have been intoxicated because he drank much more than Gabriel that night, who outweighed him by 100 pounds and was obviously intoxicated after only consuming five or six beers over a five-hour period. By contrast, appellant shared three pitchers and one bottle of beer with Tommy over a two and one-half hour period in addition to drinks he consumed before he arrived at the Slam Dunk.
Voluntary intoxication is a species of mental state evidence which, in a homicide case, can show that the defendant “did not in fact form the intent unlawfully to kill (i.e., did not have malice aforethought).” (People v. Saille (1991) 54 Cal.3d 1103, 1117.) Therefore, “[a] defendant is entitled to such an instruction only when there is substantial evidence of the defendant’s voluntary intoxication and the intoxication affected the defendant’s ‘actual formation of specific intent.’ [Citations.]” (People v. Williams (1997) 16 Cal.4th 635, 677.) “When a person renders himself or herself unconscious through voluntary intoxication and kills in that state, the killing is attributed to his or her negligence in self-intoxicating to that point, and is treated as involuntary manslaughter.” (People v. Ochoa (1998) 19 Cal.4th 353, 423.) Unconsciousness for this purpose does not necessarily mean that the defendant lies still and is unresponsive; he can physically commit the act at issue, but is not, at the time, conscious of acting. (Id. at p. 424.)
As with voluntary manslaughter, involuntary manslaughter is typically treated as a lesser included offense of murder. (People v. Ochoa, supra, 19 Cal.4th at p. 422.) Accordingly, a trial court is required to sua sponte instruct on any and all lesser included offenses which are supported by substantial evidence. (Ibid.)
We find there was no substantial evidence to warrant an instruction on involuntary manslaughter due to unconsciousness. Appellant relies only on the fact that he drank a “substantial amount” of alcohol and did not recall certain facts about the crime as evidence sufficient to warrant an instruction on involuntary manslaughter. This is not sufficient to warrant instruction on unconsciousness and involuntary manslaughter.
In addition, it overlooks the fact that appellant did not have a complete failure of recall as to the facts of the case, but only a selective recall. Indeed, appellant also told the police he recalled feeling threatened by Gabriel, pulling out his knife from his back pocket and then starting to fight. He stated that he was worrying about himself during the fight and was not paying attention to what Tommy was doing. He also recalled telling Tommy that his back hurt as they were leaving. While evidence of forgetfulness may be “an element in the proof of unconsciousness.... There must be something more than [defendant’s] mere statement that he does not remember what happened to justify a finding that he was unconscious at the time of [the charged] act.” (People v. Coston (1947) 82 Cal.App.2d 23, 40.) That appellant may not have remembered exactly how the fight progressed and how he was stabbed does not establish the requisite level of unconsciousness in this case.
Further, witnesses did not believe appellant was intoxicated and testified that he appeared at all times to be in control of his faculties. The bartender testified he did not think appellant was intoxicated when he paid his tab at 12:30 a.m. because he appeared to be in control of his faculties, was not fumbling and was not slurring his words. The bouncer also did not believe appellant was intoxicated when he walked them out to the parking lot that night. The doctor who examined appellant at the hospital also did not believe he was intoxicated. The police officers noted that appellant was alert and coherent and did not appear intoxicated when they interviewed him at the hospital at 3:15 a.m., only two hours after the fight.
Even if appellant had been intoxicated, however, there was no substantial evidence to show that his intoxication rendered him unconscious to the point where he was not conscious of acting. As a result, the trial court did not err in refusing to instruct the jury on involuntary manslaughter due to unconsciousness.
Finally, we note that any error in failing to instruct on involuntary manslaughter based upon unconsciousness was clearly harmless. Error through failure to instruct on a lesser included offense is evaluated under the standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Breverman, supra, 19 Cal.4th at pp. 177-178.) In this case, the jury found appellant guilty of first degree murder even though they were given the option of convicting of second degree murder and manslaughter based on voluntary intoxication. The jury was instructed that it could consider voluntary intoxication in deciding whether appellant had the specific intent to kill, premeditation or deliberation. Defense counsel argued to the jury that as a result of his intoxication he did not harbor those prerequisites for a conviction of murder. The verdict demonstrates they found no credence in his claim. Given such circumstances, had the jury been given the option of considering whether appellant was intoxicated to the point of unconsciousness, it is not reasonably probable that a more favorable verdict – that of the lesser offense of involuntary manslaughter – would have resulted.
IV. The Trial Court Property Imposed a $30 Criminal Conviction Assessment
Government Code section 70373 imposes an assessment of $30 for each misdemeanor or felony conviction to ensure and maintain adequate funding for court facilities. (§ 70373, subd. (a)(1), added by Stats. 2008, ch. 311, § 6.5.) Section 70373 became effective January 1, 2009. Appellant contests the $30 criminal conviction assessment under section 70373 on the grounds that the statute was enacted after the date of his crimes and the assessment violates ex post facto principles. Both of these arguments have been rejected by the Third District in People v. Castillo (2010) 182 Cal.App.4th 1410, 1414-1415 (Castillo). Castillo holds that the date of conviction, not the date of the crime, controls application of section 70373. (Ibid.) Here, appellant was convicted on January 21, 2010, for an offense that occurred on November 30, 2007. Therefore, application of section 70373 was proper under Castillo since his conviction occurred after the statute became effective.
Castillo also confirms that the statute does not violate ex post facto principles because “the assessment is not punitive because it was adopted as one component of the effort to address a budget shortfall; it is not denominated a “fine”; the amount per conviction is small; and the amount is not dependent on the seriousness of the offense.” (Castillo, supra, 182 Cal.App.4th at p. 1413 .) Our colleagues in Division Two agree with the analysis in Castillo (People v. Mendez (2010) 188 Cal.App.4th 47, 61), as does the Fifth Appellate District (People v. Phillips (2010) 186 Cal.App.4th 475, 477) and the Fourth Appellate District (People v. Lopez (2010) 188 Cal.App.4th 474, 479). We see no compelling reason, and appellant has not provided us with one, to reconsider these holdings.
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, J.GRIMES, J.