Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. NA069049, Gary J. Ferrari, Judge.
J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Roy C. Preminger, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, ACTING P. J.
Defendant Eusebio Martinez appeals from his conviction of second degree murder. He contends the trial court failed to instruct sua sponte on voluntary manslaughter based on imperfect self-defense and that he received ineffective assistance of counsel. We affirm.
Defendant also filed a petition for writ of habeas corpus (case No. B210703), which we summarily deny in a separate order.
FACTUAL AND PROCEDURAL BACKGROUND
Rosario Aparicio was fatally shot on the night of February 1, 2006, in the alley behind the San Pedro apartment building in which defendant lived. Defendant, who was present at the time of the killing, was charged with first degree murder and various firearm enhancements. (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d).) His defense was that the shooting was an accident: he did not intend to shoot Aparicio, but the gun he was holding fired when Aparicio lunged at him. A jury convicted defendant of second degree murder and found true that he personally discharged a firearm causing great bodily injury. Defendant was sentenced to 40 years to life in prison.
We view the evidence in accordance with the usual rules on appeal. (People v. Zamudio (2008) 43 Cal.4th 327, 357-358.) Three men who were in the alley at the time of the shooting (Lino Ibarro, Carlos Macias and David Garcia) testified. Ibarro said that he was there drinking beer with defendant, Macias and Victor Castaneda when defendant went into the building to change clothes. While defendant was gone, Aparicio (the victim) and Garcia arrived in a car. Aparicio got out of the car and started arguing with Castaneda and Macias. When defendant returned, he joined in the argument. Ibarro saw defendant take a gun out of his waistband. After telling Aparicio to calm down, defendant fired one shot into the air. Aparicio then lunged at defendant; defendant backed up, but Aparicio continued trying to grab the gun. During the ensuing struggle for the gun, defendant and Aparicio fell to the ground. As they were falling, Ibarro heard two more shots fired. Defendant got up; Aparicio tried to get up, but could not. Ibarro saw that Aparicio was dead.
Macias testified he did not know how long he had been in the alley drinking beer with Ibarro, Castaneda and defendant that night, but he was very drunk (they had finished one case of 24 bottles of beer and had started on a second case) when Aparicio arrived with Garcia. Aparicio and Garcia started fighting with Castaneda and Macias while Ibarro and defendant watched. Macias did not see defendant with a gun and did not see the shooting, but heard gun shots while he was fighting with Garcia. Believing that he was being shot at, Macias began throwing beer bottles, one of which hit Aparicio in the head; Macias was unsure whether another bottle hit Garcia. When he realized someone had been shot, Macias quickly left the scene with defendant and Castaneda. Defendant asked Macias to hide the gun, but Macias refused.
Garcia testified that he and Aparicio each drank quite a few beers before arriving at the alley. While Garcia remained in the car, Aparicio got out and appeared to argue with Castaneda. When the argument escalated to pushing, Garcia got out of the car with the intention of breaking up the fight and bringing Aparicio back to the vehicle. But before Garcia could do so, Macias attacked him. When Garcia ran behind the car to avoid Macias, he lost sight of Aparicio and Castaneda. Garcia heard two shots and saw Castaneda throw a bottle at him. Castaneda and Macias ran away and Garcia went home. Garcia never saw defendant and Aparicio fighting that night.
Castaneda did not testify, but the detective who interviewed him the day after the shooting testified that Castaneda said Aparicio started an altercation with Castaneda, and defendant intervened. Castaneda was fighting with Garcia when he heard the gunshots, so he did not see anything. Afterwards, defendant said, “I shot him.”
Detective Frank Weber was the lead detective investigating Aparicio’s death. Defendant was arrested in the early morning on February 2, 2006. When Detectives Weber and Ana Pinell interviewed defendant at the police station later that morning, defendant did not appear intoxicated. During the interview, defendant initially denied being in the alley that night, but eventually explained that Castaneda and Macias argued with Aparicio; believing that he could stop the argument, defendant retrieved a gun that he brought into the alley; defendant “pointed it and told Mr. Aparicio to calm down. At that time the victim lunged at him and that’s when shots were fired.” Aparicio fell on top of defendant and they both fell to the ground. Defendant said he “kicked” Aparicio off of his body, then got up and left the scene.
The medical examiner noted that Aparicio had multiple facial injuries, lacerations and abrasions, but no bruising on the knuckles or other indication that Aparicio had hit someone else. Based on the angle of the gunshot wounds, he opined that Aparicio was trying to get out of the way of the gun when he was shot.
DISCUSSION
A. There Was Insufficient Evidence to Require Sua Sponte Instructions on the Imperfect Self-defense Theory of Voluntary Manslaughter
Defendant contends the judgment must be reversed because the trial court failed to instruct sua sponte on imperfect self-defense. He argues on appeal that “this was a classic case of imperfect self-defense because the decedent was the aggressor and out of the blue initiated an unprovoked attack on [Castaneda] by throwing punches at him” and then attacked defendant. We find no error.
The jury was not instructed on any theory of manslaughter. ~(CT 95 et seq.)~ Consistent with defendant’s accident defense, the jury was instructed that when a person commits an act by accident “under circumstances that show neither criminal intent nor purpose, he does not thereby commit a crime.” ~(CT 129)~
“Even without a request, a trial court must instruct on general principles of law that are closely connected to the facts before the court and that are necessary for the jury’s understanding of the case.... It must instruct sua sponte on a lesser included offense where there is evidence that, if believed by the trier of fact, would absolve the defendant of the greater offense, but not of the lesser.... However, the court need not instruct on a lesser offense when there is no evidence the offense was less than that charged.” (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 833, citations omitted.)
Voluntary manslaughter is a lesser included offense of murder. (People v. Montes (2003) 112 Cal.App.4th 1543.) One theory of voluntary manslaughter is imperfect self-defense. Our Supreme Court recently explained the doctrine’s factual underpinnings as follows: “ ‘An honest but unreasonable belief that it is necessary to defend oneself from imminent peril to life or great bodily injury negates malice aforethought, the mental element necessary for murder, so that the chargeable offense is reduced to manslaughter.’... [The defense] is ‘narrow’ and will apply only when the defendant has an actual belief in the need for self-defense and only when the defendant fears immediate harm that ‘ “ ‘ “must be instantly dealt with.”’ ” ’ ” (People v. Rogers (2006) 39 Cal.4th 826, 883 (Rogers), original italics, citations omitted.) Likewise, “one who kills in imperfect defense of others – in the actual but unreasonable belief he must defend another from imminent danger of death or great bodily injury – is guilty only of manslaughter.” (People v. Randle (2005) 35 Cal.4th 987, 997 (Randle), overruled on another point in People v. Chun (2009) 45 Cal.4th 1172, 1201; see also People v. Genovese (2008) 168 Cal.App.4th 817, 829.)
To be precise, imperfect self-defense (and imperfect defense of others) “is not a true defense; it is rather ‘a shorthand description’ of one form of the crime of voluntary manslaughter.... Thus, a trial court’s duty to instruct on this theory arises ‘whenever the evidence is such that a jury could reasonably conclude that the defendant killed the victim in the unreasonable but good faith belief in having to act in self-defense.’ ” (Rogers, supra, 39 Cal.4th at p. 883, citations omitted.) There must be evidence that the defendant actually feared imminent harm. (Randle, supra, 35 Cal.4th at pp. 995-996.) Evidence that is “ ‘minimal and insubstantial’ ” is not enough to trigger the trial court’s sua sponte duty to instruct. (People v. Barton (1995) 12 Cal.4th 186, 201 (Barton), quoting People v. Flannel (1979) 25 Cal.3d 668, 684; In re Lazor (2009) 172 Cal.App.4th 1185, 1198-1199, fn. 12; People v. Mejia-Lenares (2006) 135 Cal.App.4th 1437, 1448.)
The trial court’s duty to instruct sua sponte on manslaughter as a lesser included offense exists even if the instruction is inconsistent with the theory of defense “so long as the record contained substantial evidence from which a jury could reasonably conclude that defendant was not guilty of murder but only of voluntary manslaughter.” (Barton, supra, 12 Cal.4th at p. 201; see also People v. Villanueva (2008) 169 Cal.App.4th 41, 51-52 [“[D]efendant’s assertion of accident may be disregarded by the jury in an appropriate case, and will not foreclose jury instruction on self-defense when there exists substantial evidence that the shooting was intentional (and met other requirements of self-defense)”].) “However inconsistent the defendant’s version of the crime and whatever the arguments of the prosecutor and defense counsel, after Barton to obtain a guilty verdict on a charge of murder, the trial court must instruct the jury the People have the burden of proving beyond a reasonable doubt the defendant was not acting in imperfect self-defense whenever the record contains substantial evidence from which the jury could reasonably conclude the defendant was guilty only of voluntary manslaughter.” (In re Walker (2007) 147 Cal.App.4th 533, 537; see also People v. Elize (1999) 71 Cal.App.4th 605, 612 (Elize).)
In our determination of whether substantial evidence of imperfect self-defense or defense of others exists here, we find it useful to contrast the holdings of two of our Supreme Court cases on the subject, Barton and Rogers. In Barton, the theory of defense was accident, the same defense presented here. Defendant Barton testified that the victim swung at him with a knife, ignored the defendant’s demand to drop the knife, and then “made a sudden movement toward defendant, forcing him to step backward, at which time defendant’s gun accidentally discharged.” (Barton, supra, 12 Cal.4th at p. 202.) There was also evidence that the defendant repeatedly told the victim he would shoot if the victim did not drop the knife, the gun had a “medium pull,” and the defendant was an experienced marksman. (Id. at pp. 202-203.) Over defense objection, the trial court instructed on imperfect self-defense voluntary manslaughter. (Ibid.) Our Supreme Court affirmed, observing that a reasonable jury could conclude from defendant’s testimony that the defendant unreasonably believed the victim was armed and trying to attack him, and that defendant deliberately fired his gun in response to this perceived threat. (Id. at p. 202.)
In Rogers, supra, 39 Cal.4th 826, the defendant argued he did not form the requisite intent due to a “mental disturbance” stemming from childhood abuse. Our Supreme Court held the trial court had no sua sponte duty to instruct on voluntary manslaughter under an imperfect self-defense theory based on the following evidence: The defendant told the police that the victim (a prostitute) and the defendant (her customer) got into a physical altercation over money; afraid that she might scratch his face with her long fingernails, the defendant pointed a gun at the victim, “hoping it would ‘make her quit,’ but it did not. Instead, she continued to swing at him and kick him. The gun went off, wounding [the victim].” (Id. at p. 839.) At trial, the defendant testified that he pushed the victim out of his car when she made disparaging comments about his sexual performance; the victim “was walking toward him pointing her finger at him, and he felt threatened, so he pointed a gun at her, pulled the trigger, and shot her. A second or two later, he shot her five more times. [The defendant] was thinking only of protecting himself. He feared her and her reporting him. There was no argument about money.” (Id. at p. 844.) The court in Rogers found insufficient evidence from which the jury could have concluded the defendant actually believed he needed to defend himself from imminent threat to life or great bodily injury. Neither the defendant nor other witnesses testified about any life-threatening event; the defendant’s vague testimony that he felt threatened and afraid and shot the victim out of a generalized need to protect himself was legally insufficient. (Id. at p. 883.)
We find Rogers more analogous. As in Rogers, there was insufficient evidence from which a jury could conclude that defendant actually believed he needed to kill Aparicio in order to defend himself (or his companions) from imminent death or great bodily injury. Defendant neither testified nor told the police he feared for his own life or the lives of his friends. On the contrary, defendant maintained that the shooting was an accident. Evidence that defendant shot Aparicio in order to end a fist fight between Aparicio and defendant’s companions is simply not enough.
What distinguishes Rogers from Barton, the case on which defendant relies, is what distinguishes our case from Barton: the absence of imminent threat of great bodily harm. The record in Barton included evidence that the defendant believed the victim was armed with a deadly weapon, thus permitting the trier of fact reasonably to conclude the defendant shot the victim because he believed he needed to defend himself from that weapon. Here, Aparicio was not armed, there was no evidence that defendant believed Aparicio was armed, nor was there evidence defendant honestly and actually believed he needed to defend himself or others against imminent peril.
The absence of evidence of imminent peril also distinguishes this case from Elize, on which defendant also relies. There, the defendant, whose principal defense was the shooting was an accident, was being beaten by two women with iron pipes when he shot one of the women. The appellate court found sufficient evidence to warrant self-defense instructions. No comparable attack or appearance of an attack with deadly weapons was present here.
Finally, defendant’s reliance on our opinion in People v. Vasquez (2006) 136 Cal.App.4th 1176, 1179-1180 (Vasquez) is misplaced for two reasons. First, Vasquez deals primarily with whether a defendant who is the initial aggressor forfeits the right to imperfect self-defense. Consistent with the Supreme Court’s decision in Randle, supra, 35 Cal.4th at pages 992-993, we answered that question in the negative. That issue, however, is not present here, and respondent makes no such argument. Second, the defendants in both Vasquez and Randle set in motion the chain of events that resulted in the death of one of the participants. But in both cases, there was evidence that each defendant had an actual and honest belief of imminent peril -- being choked in Vasquez and suffering a severe beating in Randle. It is the absence of such peril that distinguishes the present case.
Without regard to who set in motion the chain of events that led defendant to shoot Aparicio -- Aparicio by starting a fight with Castenada, defendant by pointing a gun at Aparicio, or Aparicio by lunging at defendant to grab the gun away from him --there was no evidence that at any time during these events defendant ever actually and honestly believed Aparicio posed a threat of imminent death or great bodily injury to anyone. Under these circumstances, the trial court had no sua sponte duty to instruct on imperfect self-defense or defense of others.
B. Ineffective Assistance of Counsel
Defendant contends he received ineffective assistance of counsel because his trial counsel (1) relied exclusively on an accident defense and failed to pursue imperfect self-defense, and (2) failed to request an intoxication instruction. Both contentions fail.
To demonstrate ineffective assistance of counsel, a defendant must show that counsel’s performance “ ‘fell below an objective standard of reasonableness’ ” under prevailing professional norms, and the defendant was prejudiced as a result, i.e., that it is reasonably probable that, but for counsel’s unprofessional errors, the verdict would have been different. (In re Thomas (2006) 37 Cal.4th 1249, 1256, citing Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Two corollary principles operate here:
(1) We afford great deference to trial counsel’s tactical decisions (In re Fields (1990) 51 Cal.3d 1063, 1069-1070) and will reverse “ ‘only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.’ [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 979-980, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Where the record is silent, a claim of ineffective assistance is more appropriately made in a habeas corpus proceeding than on appeal, since a habeas proceeding allows defense counsel “to explain the reasons for his or her conduct.” (People v. Wilson (1992) 3 Cal.4th 926, 936.)
(2) Defense counsel is not required to advance unmeritorious arguments. (People v. McPeters (1992) 2 Cal.4th 1148, 1173 (McPeters), disapproved on another point in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.)
1. Imperfect Self-defense
As we have just observed, there was no evidence to warrant imperfect self-defense instructions. Accordingly, counsel could not have been ineffective in failing to request those instructions. (McPeters, supra, 2 Cal.4th at p. 1173.) Nothing in the record on appeal suggests counsel failed to investigate or elicit evidence that supported imperfect self-defense, or if some evidence existed, that counsel’s tactical choice to pursue the accident defense was unreasonable.
2. Intoxication
A trial court has no sua sponte duty to instruct that a defendant’s voluntary intoxication may be considered in determining the absence of the required criminal intent. Rather, the defendant must request a voluntary intoxication instruction. (See People v. Hughes (2002) 27 Cal.4th 287, 342; People v. Saille (1991) 54 Cal.3d 1103, 1119-1120.) To warrant the instruction, there must be substantial evidence of the defendant’s voluntary intoxication and that “ ‘the intoxication affected the defendant’s “actual formation of specific intent.” ’ [Citation.]” (People v. Roldan (2005) 35 Cal.4th 646, 715, quoting People v. Williams (1997) 16 Cal.4th 635, 677, disapproved on another point in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) The “mere fact a defendant may have been drinking prior to the commission of a crime” is not enough. (People v. Robinson (1970) 5 Cal.App.3d 43, 48.)
Here, there was no evidence of the level of defendant’s intoxication. Although among them, defendant, Ibarro, Castaneda and Macias apparently drank some 30 beers that night, there was no testimony about the length of time over which the beers were consumed or how many beers defendant (as opposed to the others) actually imbibed. There was also no evidence of the effect defendant’s alcohol consumption had on his thought processes or conduct. When Officer Pinell interviewed defendant in the early morning after the shooting, she observed no objective symptoms of intoxication; yet, it was undisputed that Pinell had expertise in recognizing alcohol symptoms. The mere presence of 30 beer bottles at the scene of the shooting and that defendant may have shared some unknown number of those bottles with three other men is not substantial evidence to support a voluntary intoxication instruction. As the evidence was legally insufficient to warrant an intoxication instruction, defense counsel was not ineffective in failing to request one.
DISPOSITION
The judgment is affirmed.
WE CONCUR: FLIER, J. BENDIX, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.