Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. No. PA050469, Harvey Giss, Judge.
Lynda A. Romero, 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, Senior Assistant Attorney General, Kristofer Jorstad and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Lazaro Aranda accosted defendant Isaac Morquecho at a party, began arguing with defendant, and physically challenged defendant by raising his fists like a boxer. Defendant, who was carrying a loaded rifle underneath his coat, fired a shot into the air as a warning for Aranda to back off. Aranda, who was unarmed, took off his shirt, kept his fists raised, and said to defendant: “Shoot me if you have the balls.” Defendant shot him in the chest area and killed him. A jury convicted defendant of second-degree murder with a firearm enhancement. (Pen. Code §§ 187, 12022.53). On appeal, defendant contends that substantial evidence does not support the jury’s conviction of second degree murder, and the trial court prejudicially erred by excluding evidence of methamphetamines found in Aranda’s system and expert testimony on the effects of methamphetamines and alcohol on a person’s behavior. We affirm the judgment.
Unless otherwise specified, all section references are to the Penal Code.
BACKGROUND
A. Information
The prosecution charged defendant with one count of murder (§ 187). The information alleged: (1) defendant personally and intentionally discharged a firearm (a rifle), which proximately caused great bodily injury and death within the meaning of section 12022.53.
B. The Prosecution’s Case
1. The shooting
On March 23, 2002, Nancy and Reynaldo Melchor hosted a “combination dance party/birthday party” in Pacoima, California. The Melchors advertised the party through fliers and more than a hundred people showed up. Nancy stood at the entrance to the party, charged an admission fee, and searched the attendees for weapons.
At one point in the evening, Lazaro Aranda arrived at the party with his cousin and some other friends. Aranda behaved aggressively toward several people at the party, moved around the party as though he was “wound up,” and was breathing heavily, which prompted the host to believe Aranda “was drunk or on drugs.” Sometime later in the evening, defendant and three of his friends arrived at the party. Upon their arrival, Aranda and a group of his friends approached defendant and defendant’s friends and began insulting them and acting aggressively. Aranda stepped forward from the group, raised his fists, and began dancing in front of defendant like a boxer. Defendant pulled out a rifle from his coat (which had been sawed to the length of two feet) and shot in the air once. Several people, including two of defendant’s friends, attempted to physically restrain defendant and urged him to calm down. Defendant lowered the rifle.
Aranda took off his shirt, kept his fists raised, and stated: “If you have the balls, shoot me.” Aranda’s friends, who were standing behind him, made similar challenging statements. Defendant shot Aranda, who was standing five to 10 feet from him, in the chest area and killed him. Approximately five seconds passed between the first warning shot and the second fatal shot.
After defendant shot Aranda, he and his friends ran from the scene. Three years later, a police detective interviewed defendant about the shooting. Initially, defendant denied attending the party. Later during the interview, defendant admitted he was at the party but claimed his friend (Rafael Ochoa) shot Aranda.
2. Eyewitness accounts
Silvia Palacio, who witnessed the shooting, testified that Aranda was expressionless as he challenged defendant and behaved as though he was very drunk and possibly under the influence of methamphetamines. She further testified that she did not see Aranda, who was shirtless, carrying any weapons in his hands or the waistband of his pants as he challenged defendant. Finally, she testified that when defendant shot Aranda, he looked directly at Aranda and not at his surroundings or the people around Aranda.
Samuel Diaz, who witnessed the shooting, likewise testified that he did not see Aranda carrying any weapons as he challenged defendant. Diaz also testified that he did not recall seeing Aranda “rush” or move toward defendant in a sudden manner prior to being shot. On the night of the shooting, however, Diaz told police officers that when Aranda was approximately eight feet from defendant, Aranda tried to rush defendant, which prompted defendant to shoot him.
William Alvarado, a friend of defendant who also witnessed the shooting, testified that as soon as he and defendant (and two other friends) arrived at the party, Aranda and eight to nine other men approached them and began insulting them and acting aggressively. Although Alvarado did not recognize Aranda, he did recognize some of the other men with Aranda because Alvarado and defendant “had problems with them before.” Alvarado testified that Aranda and his friends looked like “cholos,” which he defined as people with shaved heads who carried weapons. Alvarado confirmed the testimony of other witnesses that Aranda was not carrying any visible weapons at the time he challenged defendant. Alvarado further testified that he did not see Aranda rush defendant after the first warning shot, and that defendant shot Aranda just five seconds after the warning shot. Alvarado testified that he thought defendant appeared “blinded” with rage and anger.
Because defendant also had a shaved head and was carrying a weapon at the time of the shooting, Alvarado admitted that defendant could also have been a “cholo” as well.
Finally, Alvarado testified that after the first warning shot, he saw one of Aranda’s friends (who was standing six to seven feet away from Aranda) begin to pull out a gun. Before Aranda’s friend could pull out the gun, Alvarado testified that he put his hand over the man’s hand and said: “Don’t pull it out . . . We came to a party to have a good time.” Neither Alvarado, nor anyone in the crowd, announced the presence of a second gun before defendant shot Aranda.
3. The medical examiner’s report
The medical examiner testified that Aranda died as a result of massive blood lost from one gunshot to the chest area. Given the absence of gun soot or stipling on Aranda’s body, the examiner estimated that defendant was anywhere from two to 12 feet away from Aranda at the time he fired the rifle.
C. The Defense
Defendant testified and admitted to shooting Aranda.
According to defendant, the rifle belonged to his friend Alvarado. Alvarado asked defendant to hold the rifle once they arrived at the party so Alvarado could dance. Not long after defendant and his friends arrived, a “bunch” of people approached them and started “screaming” at them. These people insulted defendant and his friends and made statements like: “Sons of a bitch . . . What fucking business do you have here? . . . Motherfuckers leave.” Defendant claims that he and his friends wanted to retreat, but the men who approached them began raising their hands signaling a desire to fight. Defendant pulled out the rifle because he believed “they were going to jump us.” After the men refused to back down, defendant shot in the air as a warning. At this point, Aranda stepped in front of the rest of the group and said: “Shoot me or you’re going to be worth nothing. We’re going to fuck you up.” Defendant shot Aranda once.
Defendant gave conflicting testimony about the reasons why he shot Aranda. First, defendant testified that Aranda was being “aggressive” and acting “crazy.” When asked whether he believed Aranda posed a threat to him, defendant testified that he believed Aranda was going to beat him to death and for this reason, he shot Aranda. At the time, defendant measured 5’10” and weighed 130-140 pounds. Aranda measured 5’2” and weighed 96-97 pounds. Defendant later testified that after he fired the first warning shot, he saw someone approximately three to four feet from Aranda pull out a gun. When he saw this gun, Defendant testified: “Just like an instinct, I fired.” According to defendant, he was not aiming at Aranda. Nor was he aiming at the person with the gun. Rather, he fired the gun instinctually and Aranda happened to be in front of him.
Defendant also gave conflicting testimony about whether Aranda’s friends “rushed” him or moved forward in a threatening manner. He first testified that after one of the men pulled out a gun, the entire group “rushed” him. Later on, defendant testified that Aranda “rushed” him, but he could not be sure whether the entire group rushed him as well.
D. Evidence Code § 402 hearing, jury instructions, verdict, sentence, and post-trial motion
After defendant testified, the trial court conducted an Evidence Code section 402 hearing to determine the admissibility of evidence pertaining to the presence of methamphetamines in Aranda’s system, and the testimony of defendant’s expert, Dr. Terrence McGee. Defense counsel offered McGee’s testimony to “explain the effects of methamphetamine and alcohol on the human body” and the “connection between methamphetamine use and violence and irrational behavior,” which, according to defendant, would corroborate his claim of self-defense. During the hearing, McGee testified that the medical examiner detected .05 grams/ml of methamphetamines and .10 to .15 of blood alcohol in Aranda’s system. McGee testified that the level of methamphetamines in Aranda’s system was consistent with a therapeutic or treatment level, such as the amount given to patients who want to lose weight.
When asked by the court what type of behavior one could expect from a male with the same height, weight, and levels of alcohol and methamphetamines found in Aranda, McGee testified: “It’s unpredictable, your Honor. You can’t really know. People with this level of methamphetamine and alcohol can be brooding and introspective and watching television and no problem at all; and yet, on the other hand, they can be wildly aggressive and impulsive and get involved in behavior that makes no sense for that situation.” Likewise, when asked by the prosecution whether McGee could testify that Aranda would have behaved differently without methamphetamines in his system, McGee responded “no.” The trial court concluded the probative value of McGee’s expert testimony and evidence of methamphetamines in Aranda’s system was substantially outweighed by the likelihood of undue prejudice, and excluded both under Evidence Code section 352.
Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
The trial court instructed the jury on first degree murder, second degree murder, voluntary manslaughter based on heat of passion and sudden quarrel, voluntary manslaughter based on imperfect self defense, and justifiable homicide based on perfect self defense.
The jury found defendant guilty of second degree murder and found true the allegation that defendant personally and intentionally discharged a firearm in a manner that proximately caused death.
The trial court sentenced defendant to serve 15 years to life for second degree murder, and an additional 25 years to life for the weapon enhancement. (§ 12022.53.) The trial court awarded defendant 860 days in custody credit.
Defendant moved for a verdict modification and/or new trial, arguing that the evidence at trial compelled a verdict of voluntary manslaughter based on heat of passion and imperfect self defense. The trial court denied the motion. Defendant timely appealed from the judgment.
DISCUSSON
I. Substantial evidence supports the conviction for second degree murder
A. Standard of review
In assessing a claim of insufficiency of evidence, the reviewing court’s task is to “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) “[I]t is the jury, not the appellate court[,] which must be convinced of the defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
“‘It [is] the function of the [trier of fact], not this court, to resolve inconsistencies and contradictions, if any, in the testimony of [the witness]. The trier of fact may believe and accept a portion of the testimony of a witness and disbelieve the remainder. On appeal that portion which supports the judgment must be accepted, not that portion which would defeat, or tend to defeat, the judgment. [Citations.] A judgment cannot be set aside on appeal unless it clearly appears that on no hypothesis whatever is there sufficient substantial evidence to sustain it. [Citation.] . . . Testimony is not inherently improbable unless it appears that what was related or described could not have occurred . . . .’” (People v. Sanders (1962) 206 Cal.App.2d 479, 482.)
“‘It is blackletter law that any conflict or contradiction in the evidence, or any inconsistency in the testimony of witnesses must be resolved by the trier of fact who is the sole judge of the credibility of the witnesses. It is well settled in California that one witness, if believed by the jury, is sufficient to sustain a verdict. To warrant the rejection by a reviewing court of statements given by a witness who has been believed by the trial court or the jury, there must exist either a physical impossibility that they are true, or it must be such as to shock the moral sense of the court; it must be inherently improbable and such inherent improbability must plainly appear. [Citations.]’” (People v. Breault (1990) 223 Cal.App.3d 125, 140-141.)
B. Heat of passion
In People v. Manriquez (2005) 37 Cal.4th 547, 583 (Manriquez), our Supreme Court explained the distinction between murder and manslaughter: “An unlawful killing with malice is murder. (Pen. Code, § 187.) Nonetheless, an intentional killing is reduced to voluntary manslaughter if other evidence negates malice. Malice is presumptively absent when the defendant acts upon a sudden quarrel or heat of passion on sufficient provocation (Pen. Code, § 192, subd. (a)), or kills in the unreasonable, but good faith, belief that deadly force is necessary in self-defense. [Citation.] Only these circumstances negate malice when a defendant intends to kill. [Citations.]”
A killing is upon “a sudden quarrel or heat of passion” if the killer’s reason was obscured by a “provocation” sufficient to cause an “ordinary person of average disposition” “to act rashly or without due deliberation and reflection.” (People v. Ochoa (1998) 19 Cal.4th 353, 423.) There is both an objective and a subjective component to the heat of passion requirement: (1) subjectively, the defendant must actually kill under the heat of passion and (2) objectively, the provocation must be such as would naturally arouse such passion in the mind of an ordinarily reasonable person. To be sufficient, the provocation may be physical or verbal, but it must have been caused by the victim or the defendant must have reasonably believed that the victim engaged in the provocative conduct. (People v. Najera (2006) 138 Cal.App.4th 212, 225.)
On appeal, defendant argues that we should reverse his conviction for second degree murder because “there was substantial evidence of both physical and verbal provocation.” Defendant misunderstands his burden on appeal.
Where, as here, the jury has been properly instructed on voluntary manslaughter as a lesser included offense of murder, a finding that the defendant is guilty of second degree murder includes an implicit finding that the prosecution proved beyond a reasonable doubt that the killing was not done in the heat of passion or upon a sudden quarrel. Thus, “[e]ven if defendant’s testimony provided some evidence of provocation for the jury to consider, it remains the jury’s exclusive province to decide whether the particular facts and circumstances are sufficient to create a reasonable doubt as to whether the defendant acted under a heat of passion.” (People v. Bloyd (1987) 43 Cal.3d 333, 350.) If substantial evidence supports the jury’s finding that the defendant did not act under a heat of passion, then we will affirm the conviction. (Ibid.)
Thus, our inquiry is not whether there was substantial evidence of provocation. Rather, our inquiry is whether substantial evidence supports the jury’s finding that defendant did not act under a heat of passion, i.e., that the defendant did not act in the way an “ordinary person of average disposition” would have acted given the same level of provocation.
Our review of the record shows that substantial evidence supports the jury’s finding. The only evidence of provocation was that Aranda removed his shirt, raised his fists, and danced around like a boxer, while taunting defendant with statements like: “If you have the balls, shoot me” and “Shoot me or you’re going to be worth nothing. We’re going to fuck you up.” Even if we assume that defendant actually killed Aranda in the heat of passion (the subjective component), Aranda’s conduct and statements would not have caused an ordinarily reasonable person to become so inflamed as to act rashly and without reason and judgment (the objective component). Manriquez, supra, 37 Cal.4th 547, is instructive. In Manriquez, the decedent approached the defendant in a bar, began insulting defendant by calling him “a mother fucker,” and then told the defendant that if he “had a pistol, he should take it out and use it.” (Id. at p. 564.) After the decedent taunted the defendant with this challenge two or three times, defendant shot him. The Court held that this provocation was “plainly . . . insufficient to cause an average person to become so inflamed as to lose reason and judgment.” (Id. at p. 586.) If the provocation in Manriquez, which involved multiple challenges to use a weapon, was insufficient to make an ordinary person lose his reason and judgment, then Aranda’s provocation was likewise insufficient.
C. Imperfect self defense
Imperfect self-defense is the actual belief of “‘imminent peril that negates malice in a case of complete self-defense; the reasonableness of the belief simply goes to the justification for the killing.’ [Citation.] . . . ‘An [actual] 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.’ [Citation.]” (In re Christian S. (1994) 7 Cal.4th 768, 773.)
The Supreme Court has stressed that the doctrine of imperfect self-defense is a narrow one. “It requires without exception that the defendant must have had an actual belief in the need for self-defense.” (In re Christian S., supra, 7 Cal.4th at p. 783 .) Furthermore, “[f]ear of future harm-no matter how great the fear and no matter how great the likelihood of the harm-will not suffice. The defendant’s fear must be of imminent danger to life or great bodily injury. . . . An imminent peril is one that, from appearances, must be instantly dealt with. . . . Put simply, the trier of fact must find an actual fear of an imminent harm. Without this finding, imperfect self-defense is no defense.” (Ibid.) The Court also emphasized “that whether the defendant actually held the required belief is to be determined by the trier of fact based on all the relevant facts. It is not required to accept the defendant’s bare assertion of such a fear.” (Ibid.)
On appeal, defendant contends that we should reverse his conviction for second degree murder because there was evidence at trial that defendant “shot Aranda because he actually believed he was in imminent danger of death or great bodily injury.” Again, defendant misunderstands his burden on appeal. Where, as here, the jury has been properly instructed on voluntary manslaughter as a lesser included offense of murder, a finding that the defendant is guilty of second degree murder includes an implicit finding that the prosecution proved beyond a reasonable doubt that the killing was not done in imperfect self defense. Thus, if substantial evidence supports the jury’s finding that defendant did not have an actual belief of death or great bodily injury, then we will affirm the conviction.
Although defendant testified that he feared Aranda would beat him to death, the jury was entitled to disregard this testimony and consider other evidence, such as their stark differences in height and weight, the fact that defendant was carrying a loaded rifle, and testimony that Aranda was approximately five to 10 feet away from defendant when defendant shot him. Moreover, even though defendant testified that Aranda “rushed” him, the jury was entitled to disregard this testimony in favor of testimony by two other witnesses that Aranda did not “rush” or surge at the defendant, and that Aranda was not carrying any visible weapons with which he could injure defendant. Finally, even though defendant testified that he saw one of Aranda’s friends pull out of a gun and feared this friend would shoot him, the jury was entitled to disregard this testimony and credit the testimony of Alvarado, who testified that he prevented Aranda’s friend from pulling the gun out, and other eyewitness testimony that defendant focused solely on Aranda and did not look at any of Aranda’s friends when he shot Aranda. As a whole, this evidence supported the jury’s conclusion that defendant shot an unarmed man from a distance of five to 10 feet with malice, and not in self defense.
II. Exclusion of evidence pertaining to methamphetamines and expert testimony
Defendant challenges the trial court’s ruling precluding his expert, McGee, from testifying about: (1) the levels of methamphetamines found in Aranda’s system at the time of death and (2) the effects of methamphetamines combined with alcohol on a person’s behavior. According to defendant, this evidence supported his claim of imperfect self defense because it “would have corroborated [his] belief that a resort to deadly force was warranted under the circumstances and would have corroborated the fact that there was no possibility Aranda would back down.” By excluding this evidence, defendant contends the trial court committed reversible error by denying him due process and the right to present a defense. We disagree.
We review the trial court’s rulings on the admission and exclusion of testimony for an abuse of discretion. (People v. Harrison (2005) 35 Cal.4th 208, 230; People v. Kipp (2001) 26 Cal.4th 1100, 1123 [relevance objection]; People v. Greenberger (1997) 58 Cal.App.4th 298, 352 [Evid. Code, § 352 objection].) The trial court’s discretion “‘is as broad as necessary.’” (People v. Kwolek (1995) 40 Cal.App.4th 1521, 1532.) “‘[I]n most instances the appellate courts will uphold its exercise whether the [evidence] is admitted or excluded.’” (Ibid.) “‘A trial court’s exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice.’” (Id. at p. 1533.) “‘[W]hen the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion.’” (Ibid.) Abuse occurs when the trial court “exceeds the bounds of reason, all of the circumstances being considered.” (People v. Giminez (1975) 14 Cal.3d 68, 72.)
McGee’s testimony had limited probative value for several reasons: First, when asked what type of behavior McGee would expect from a man with the same weight, height, and levels of alcohol and amphetamines as Aranda, he testified: “It’s unpredictable . . . . People with this level of methamphetamine and alcohol can be brooding and introspective and watching television and no problem at all; and yet, on the other hand, they can be wildly aggressive and impulsive and get involved in behavior that makes no sense for that situation.” Thus, McGee’s testimony, which was equivocal about the level of violence one could expect from a person with similar toxin levels, would have added nothing to the eyewitness accounts, all of whom agreed that Aranda acted aggressively, crazily, and without due regard for his safety. Second, when asked whether Aranda would have acted any differently if he had not ingested methamphetamines, McGee testified that it was possible Aranda would have acted the exact same way. In other words, Aranda could have behaved the same way without methamphetamines in his system. Thus, evidence that Aranda had the drug in his system would not have been probative of his aggression level. Third, defendant never testified that he believed deadly force was necessary to stop Aranda because Aranda was on methamphetamines. Defendant simply testified that he believed nothing short of deadly force was necessary to stop Aranda because Aranda was acting aggressive and as though he were “crazy.” Thus, the fact that Aranda may have acted the way he did because he was under the influence of methamphetamines is not probative of whether defendant believed he was in imminent peril.
While the excluded evidence may have had some limited corroborative value, the trial court acted within its broad discretion when it determined that the probative value of the evidence was outweighed by the likelihood that its introduction would confuse the issues and consume an undue amount of time. In any event, for the reasons discussed above, the evidence was of such limited probative value that its exclusion was not prejudicial.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P. J., ROTHSCHILD, J.