Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. VA089442, Thomas I. McKnew, Judge.
Landra E. Rosenthal, 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, Steven E. Mercer and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
MALLANO, Acting P. J.
Oscar Munoz, Jr., appeals from the judgment entered following a jury trial in which he was convicted of second degree murder with the use of a knife. He contends that the jury was improperly instructed on voluntary manslaughter and that the trial court prejudicially erred by instructing under CALJIC No. 2.62. We affirm.
BACKGROUND
Shortly after midnight on January 12, 2005, defendant stabbed Jim Kwok to death at the gas station and convenience store on Firestone Boulevard in South Gate where Kwok worked. Witnesses to the event heard screaming and saw the two men struggling near the gas pumps. One of the witnesses, who saw Kwok on the ground and defendant standing over him, told defendant to leave Kwok alone. Kwok then got up and walked toward the witness, but defendant grabbed Kwok from behind and stabbed him in the chest multiple times. Defendant next released Kwok, who went inside the convenience store of the station. Other witnesses saw defendant flee from the area; they summoned the police. Officers found Kwok inside the convenience store, bleeding and gasping for breath. Blood was found near the gas pumps of the station as well as inside the convenience store.
At a time not specified in the record, Kwok expired from his wounds. An autopsy established that Kwok had sustained 11 stab wounds, three to five of which would have been independently fatal.
Investigation led to defendant and revealed the murder weapon, a knife, inside a trash can near defendant’s home. A security tape showed that as Kwok was closing the convenience store, defendant entered the store and went to the restroom. When defendant came out of the restroom, Kwok unlocked the door to let defendant out, and Kwok handed defendant a bag of chips and spoke with him, whereupon defendant attacked Kwok.
Defendant testified in his own behalf. He stated that he was 16-years-old, lived with his family near the gas station, and was acquainted with Kwok, having made purchases from the convenience store. About a month before the stabbing, Kwok confronted defendant about money that defendant owed for some chips. At that time, Kwok tried to ram defendant with a shopping cart and spat on him. Also, as defendant walked away from the store, Kwok drove his car close to defendant.
On the day of the incident, defendant was drunk and went to the store to buy chewing gum. When defendant entered the store, Kwok asked for $1 that defendant owed for the chips. Defendant bought a pack of gum, and Kwok told defendant he had better come back with the money owed or Kwok would shoot him, stating that he had a gun behind the counter. Defendant went home and got a dollar to pay Kwok. Defendant then returned to the store.
Once inside the store, Kwok threatened defendant and called him a “beaner.” This upset defendant, who hit Kwok. Kwok ran out of the store and defendant followed. The two exchanged punches and defendant thought he saw the handle of a gun in Kwok’s pocket. Defendant then took out a kitchen knife he had been carrying to protect himself because he had been assaulted a couple of months before. Defendant started swinging the knife at Kwok. As the struggle continued, Kwok threatened to kill defendant and reached for what defendant thought was a gun. Defendant again stabbed Kwok and ran into the convenience store. Kwok followed him inside the store, after which defendant went home.
Defendant continued that he did not want to kill Kwok, but just wanted him to leave defendant alone. He did not know that Kwok had died until the police came for him.
In rebuttal, an officer who interviewed defendant the day after the stabbing testified that defendant did not mention that he thought he had seen a gun. A search of the gas station area did not yield a gun.
The jury was instructed on premeditated murder, unpremeditated murder, voluntary manslaughter, involuntary manslaughter, voluntary intoxication relevant to specific intent, complete self-defense, and imperfect self-defense. The prosecutor argued to the jury that defendant had committed murder and that, based primarily on the number of stab wounds, the murder was premeditated. The prosecutor further urged that whatever provocation might have come from Kwok was inadequate to arouse heat of passion in a reasonable person. Defendant argued his intoxication had negated the intent required for express malice and emphasized the elements of imperfect self-defense.
DISCUSSION
1. Manslaughter Instructions
“Manslaughter is ‘the unlawful killing of a human being without malice.’ [Citation.] A defendant lacks malice and is guilty of voluntary manslaughter in ‘limited, explicitly defined circumstances: either when the defendant acts in a “sudden quarrel or heat of passion” [citation], or when the defendant kills in “unreasonable self-defense” . . . [citations].’ [Citation.]” (People v. Lasko (2000) 23 Cal.4th 101, 108 (Lasko).) Prior to 2000, when the Supreme Court decided Lasko and People v. Blakeley (2000) 23 Cal.4th 82 (Blakeley), “it had been held that the intent to kill was an essential element of voluntary manslaughter. [Citation.] In Blakeley and Lasko, however, our high court held to the contrary. Instead, voluntary manslaughter may also occur when one kills with a conscious disregard for life but no intent to kill. Following the decisions in Blakeleyand Lasko, former CALJIC No. 8.40 was revised to include as a required element of the crime of voluntary manslaughter proof that ‘[t]he perpetrator of the killing either intended to kill the alleged victim, or acted in conscious disregard for life . . . .’ [Citation.]” (People v. Parras (2007) 152 Cal.App.4th 219, 223–224.)
The post-Blakeley and Lasko version of CALJIC No. 8.40 was given in this case. Defendant nevertheless contends that this and the other instructions given were inadequate to satisfy the trial court’s sua sponte duty under People v. Breverman (1998) 19 Cal.4th 142, 154–155, to instruct on essential elements and defenses because “[t]hey do not clearly state that voluntary manslaughter can be based on an unintentional killing, where the evidence shows sudden quarrel and heat of passion.” Put differently, defendant argues the CALJIC No. 8.40 instruction given in this case “suggests that a finding of intent to kill is necessary to a voluntary manslaughter conviction,” thereby failing to explain to the jury that if defendant “killed Mr. Kwok without intending to do so, he should be convicted of voluntary manslaughter, rather than of second degree murder.” There is no merit in defendant’s contention.
Defendant’s jury was instructed under CALJIC No. 8.40 as follows: “Every person who unlawfully kills another human being without malice aforethought but either with an intent to kill, or with conscious disregard for human life, is guilty of voluntary manslaughter in violation of Penal Code section 192, subdivision (a). [¶] There is no malice aforethought if the killing occurred upon a sudden quarrel or heat of passion or in the actual but unreasonable belief in the necessity to defend oneself or another person against imminent peril to life or great bodily injury. [¶] The phrase, ‘conscious disregard for life,’ as used in this instruction, means that a killing results from the doing of an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his or her conduct endangers the life of another and who acts with conscious disregard for life. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A human being was killed; [¶] 2. The killing was unlawful; and [¶] 3. The perpetrator of the killing either intended to kill the alleged victim, or acted in conscious disregard for life; and [¶] 4. The perpetrator’s conduct resulted in the unlawful killing. [¶] A killing is unlawful, if it was neither justifiable nor excusable.”
The specific words with which defendant urges the jury should have been instructed were not requested as part of a special instruction, nor has the language of such an instruction been set forth by defendant in his briefing to this court. Accordingly, absent determination that the omission of such words deprived defendant of instruction on an essential element or defense (People v. Breverman, supra, 19 Cal.4th at pp. 154–155) or that defendant’s substantial rights were violated (Pen. Code, § 1259), defendant’s argument has been waived.
In addition, we perceive no fault with the instructions given. Had the jury believed defendant’s testimony that Kwok had insulted and threatened defendant and further believed that those words and conduct would have aroused the passions of a reasonable person in the same circumstances, the instructions given would have resulted in a verdict of voluntary manslaughter. Accordingly, defendant’s argument must be rejected.
Defendant’s jury was properly instructed under CALJIC No. 8.42 that “[t]he heat of passion which will reduce a homicide to manslaughter must be such a passion as naturally would be aroused in the mind of an ordinarily reasonable person in the same circumstances.”
2. CALJIC No. 2.62
Defendant contends that the trial court erred prejudicially by instructing the jury with CALJIC No. 2.62. We disagree.
CALJIC No. 2.62 provides: “In this case defendant has testified to certain matters. [¶] If you find that the defendant failed to explain or deny any evidence against him introduced by the prosecution which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of this evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable. [¶] The failure of a defendant to deny or explain evidence against him does not, by itself, warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt. [¶] If a defendant does not have the knowledge that he would need to deny or to explain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain this evidence.”
In asserting error, defendant carefully reviews the evidence against him and points to the portions of his testimony that constituted explanation or denial. The Attorney General counters that the issue is waived because defendant did not object and that in any event the instruction was proper because “[defendant’s] testimony was not believable” and “[defendant’s] testimony regarding provocation was not credible.” Finally, the Attorney General asserts that any error in instructing under CALJIC No. 2.62 was harmless.
Although defendant’s version of events was somewhat far-fetched, we are not in a position to deem it inherently incredible. Because defendant did not fail to explain or deny any evidence against him, and notwithstanding that his testimony may have been rejected by the jury, the trial court erred in giving CALJIC No. 2.62. But we do agree with the assertion of harmless error.
Error in giving CALJIC No. 2.62 is measured under the standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Lamer (2003) 110 Cal.App.4th 1463, 1471.) And as Lamer observes, no published opinions have found the error prejudicial. (Id. at p. 1472.) Given defendant’s version of the events in question, we may reasonably conclude that the jury, heeding the directive of CALJIC No. 17.31 to disregard inapplicable instructions, found CALJIC No. 2.62 inapplicable, and, instead, examined whether defendant’s version of events was credible. We conclude it is not reasonably probable that defendant would have obtained a more favorable result absent the CALJIC No. 2.62 instruction.
CALJIC No. 17.31 provides: “The purpose of the court’s instructions is to provide you with the applicable law so that you may arrive at a just and lawful verdict. Whether some instructions apply will depend upon what you find to be the facts. Disregard any instruction which applies to facts determined by you not to exist. Do not conclude that because an instruction has been given I am expressing an opinion as to the facts.”
DISPOSITION
The judgment is affirmed.
We concur: VOGEL, J., ROTHSCHILD, J.