Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD214332, Jeffrey F. Fraser, Judge.
McCONNELL, P. J.
INTRODUCTION
A jury convicted Guillermo Olvera of second degree murder and found true an allegation he personally used a knife when he committed the offense (Pen. Code, §§ 187, subd. (a), 12022, subd. (b)(1)). The trial court sentenced Olvera to 15 years to life in prison for the murder conviction plus one year for the weapon use enhancement.
Further statutory references are also to the Penal Code unless otherwise stated.
Olvera appeals, contending the trial court's instruction on voluntary intoxication misled the jury. He also contends there is insufficient evidence to support the jury's true finding on the weapon use enhancement. We conclude these contentions lack merit and affirm the judgment.
BACKGROUND
Prosecution Evidence
Maria Ortega and her husband Gabino Rosas hosted a party in the courtyard of their apartment building. Among the attendees were Ortega's brothers; Ortega's sister and her family, including her common-law husband Jose Velasquez; and Olvera and his family, including his common-law wife, his two brothers, and his brother-in-law. Ortega's teenage neighbor, D.F., and her family also attended the party. Rosas, Olvera, Velasquez, and most of the other men at the party were drinking beer. A neighbor thought everyone appeared drunk.
At some point, several men, including Rosas, Olvera's brothers, and Olvera's brother-in-law, started pushing and punching one another. There was conflicting evidence about whether Olvera and Velasquez joined in the fight. There was no dispute, however, that both Olvera and his wife attempted to break up the fight, that Olvera was ultimately successful in ending it, and that the parties reconciled.
After the fight, Ortega told her brothers and Velasquez to leave. They and Ortega's sister went out to the alley. Olvera, his brothers, and his brother-in-law went to Olvera's apartment. Olvera's father, who also lived there, told Olvera's brothers and brother-in-law to leave and escorted them outside. Olvera left with them.
Meanwhile, D.F. and her family started cleaning up the courtyard. Olvera's wife subsequently joined them. While they were cleaning, they heard a loud crash coming from the front of the apartment building. D.F. went with Olvera's wife to see what happened. D.F. saw Velasquez on his knees. She also saw Olvera punch Velasquez in the back and shoulder on the left side about five times. D.F. did not see a knife, weapon, or anything else in Olvera's hand. There were three other men in the area, including Olvera's brother-in-law. One of them, Olvera's father, tried to pull the other two away.
D.F. briefly turned away because she did not want to see what was happening. When she looked back again, she saw Velasquez, who was bleeding, stand up and then fall sideways. Olvera and the other men were gone. Olvera's wife was in the courtyard, crouched down against a fence, with her hands in her face, shaking her head as if in disbelief.
At the time of the incident, Velasquez's daughter was D.F.'s best friend. Nonetheless, D.F. never voluntarily came forward as a witness. A police detective learned of her existence several months after the incident. When the detective interviewed D.F., she provided a statement consistent with her trial testimony. She also identified Olvera in a photographic lineup as the person she saw hitting Velasquez.
Around the same time D.F. and her family were cleaning up the courtyard, Loc Lai arrived to visit a friend who lived in an apartment building across the street from Olvera's apartment building. Lai saw a woman standing by the passenger side of Velasquez's truck. The two were talking loudly with each other through the open passenger side window. A man ran from the parking lot of Olvera's apartment building to the driver's side of the truck. The man spoke briefly to Velasquez and then punched Velasquez through the driver's side window. A short time later, two other men came running to the truck from the same direction as the first man. They also punched Velasquez and tried to pull him out of the truck.
As they were doing that, the first man ran over to the passenger side. He tried to open the passenger side door and punch through the now-closed passenger side window with his elbow. Velasquez tried to back up the truck and almost hit another car. The men then pulled Velasquez from the still-running truck and started hitting and kicking him.
Velasquez did not fight back. He tried to get up and get away, but one of the men knocked him down by striking him in the head with a metal bar as the other men continued hitting and kicking him. The three men then ran to the parking lot of Olvera's apartment complex. Two of the men got into a van and drove off. The other man got into a sedan and drove off in the same direction as the van. The woman got into another car and drove off, following them.
Lai could not describe any of the men involved in the incident. Lai's friend, Van Vo, saw portions of the incident and told a police detective the man hitting the passenger side door of Velasquez's truck was short, Hispanic and medium- to dark-skinned. His hair was cut short and he wore a white tank top. Vo also told the detective one of the other men was Hispanic, about five feet eight inches tall, and wore a white T-shirt and cowboy hat. Lai testified none of the men wore a cowboy hat. Olvera was wearing a green and white striped polo shirt that evening. The only men at the party wearing cowboy hats were Rosas and Ortega's brother.
When police officers arrived at the scene, they found Velasquez lying face down in the street. Velasquez had blood coming from his mouth and on his chest. Police officers found a baseball cap and a closed folding knife lying in the street approximately five feet from Velasquez. Both items had blood on them. In addition, police officers found a trail of blood from Velasquez's body to the bedroom in Olvera's apartment, and a set of bloody footprints leading from the apartment to the parking lot. They also found a two-foot-long metal bar in the bushes near Olvera's apartment. Velasquez was the major contributor to the DNA mixture in the blood on the folding knife and he could not be excluded as a source of the DNA on the shaft of the metal bar. Olvera was excluded as a source of the DNA on the shaft of the metal bar; however, his DNA matched the DNA in the blood on the baseball cap and in the blood trail.
Velasquez's belt had a knife holder on it. The knife holder was unsnapped and the folding knife fit inside it.
While police officers were investigating what happened to Velasquez, a man reported a collision involving a sedan two blocks down from Olvera's apartment building. When police officers arrived at the collision scene, Olvera was sitting in the driver's seat of the sedan, bleeding from his right leg. The trauma surgeon who treated Olvera testified Olvera had a stab wound on his right leg about two inches above the knee on the outside of his thigh. He had no defensive or other wounds. His blood alcohol level at the time of treatment was.15 percent. Although he was slightly drowsy, he could answer questions appropriately and did not appear to have any neurologic deficit. His Glascow Coma Score, which is used to evaluate mental status, was 15. This is the best possible score and is given to "someone awake like all of us."
In the front driver side of the sedan, police officers found a 13-inch knife with blood on it. Velasquez's DNA matched the DNA in the blood on one part of the knife blade. Neither Velasquez nor Olvera could be excluded as contributors to the DNA mixture in the blood on another part of the knife blade. Olvera was excluded, but Velasquez could not be excluded as a contributor to DNA found on the knife handle.
Police officers also found blood on Olvera's shirt and shoes. Olvera was included as a major contributor and Velasquez was included as a minor contributor to the DNA mixture in the blood on Olvera's shoes. Velasquez's DNA matched the DNA in two bloodstains found on the front of Olvera's shirt. Velasquez was included as a major contributor to the DNA mixtures in bloodstains found on the lower left front, the left shoulder, and the right sleeve of the shirt.
A deputy medical examiner determined Velasquez died from multiple stab wounds to the torso. The wounds included a two and three-quarter inch deep stab wound on his abdomen, a six and one-quarter inch deep stab wound on his left back near his shoulder, and a nine and three-quarter inch stab wound slightly below his left nipple that went through his heart and into his left lung. In addition, he had been struck in the head twice with a blunt object consistent with being the metal bar that police found in the bushes near Olvera's apartment. Velasquez also had several scrapes, bruises, and knife cuts, which were consistent with being defensive wounds. The knife found in the sedan Olvera was driving was consistent with having caused Velasquez's stab wounds and knife cuts, as well as the stab wound on Olvera's leg.
The prosecutor's theory was that Olvera accidentally stabbed himself while he was stabbing Velasquez.
Velasquez's blood alcohol level when he died was.26 percent. He also had.02 milligrams per milliliter of cocaine and.06 milligrams per milliliter of methamphetamine in his system. These levels are consistent with recent use.
Defense Evidence
Olvera's father, brothers, and brother-in-law have not been seen or heard from since the night of Velasquez's death. They are believed to be in Mexico.
Olvera's sister heard the fighting on the street and was in the apartment when Olvera, their brothers, their brother-in-law, and their father came in afterward. She heard them and Olvera's wife arguing. She saw Olvera bleeding, but she did not see him with a knife. Her father, brothers, and brother-in-law left. Then, Olvera left.
Rosas testified he did not see not see anyone with a knife or a metal bar during the initial altercation. Ortega's brother testified Velasquez was upset that night because Ortega's brother told Velasquez that Velasquez's wife was going to leave him. Velasquez was also acting "weird, " as he does when he has been drinking. Ortega's brother did not see Velasquez using drugs.
A forensic chemist testified about the effects of alcohol, cocaine and methamphetamine on the nervous system. He explained that a person with a.15 blood alcohol level would have impaired judgment and exaggerated emotional states. A person with a.26 blood alcohol would have even more impaired judgment and exaggerated emotional states. In addition, the person would experience short-term memory loss. A person with a.26 blood alcohol level plus.02 milligrams per milliliter of cocaine and.06 milligrams per milliliter of methamphetamine in his or her system would experience gross mental impairment, be unable to control any aggressive tendencies, make poor decisions, and have poor judgment. The person would also be completely unable to mentally or physically perform motor skills.
DISCUSSION
I
Instructional Error Claim
The trial evidence included evidence that Olvera, Velasquez, and other men at the party were voluntarily intoxicated. As to Olvera, "[e]vidence of voluntary intoxication [was] admissible solely on the issue of whether or not [he] actually formed a required specific intent, or... whether [he] premeditated, deliberated, or harbored express malice aforethought." (§ 22, subd. (b).) Consequently, using a tailored version of CALCRIM No. 625, the trial court instructed the jury: "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill or the defendant acted with deliberation and premeditation. A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance, knowing that it could produce an intoxicating effect or willingly assuming the risk of that effect. You may not consider evidence of voluntary intoxication for any other purpose." (Emphasis added.)
In its untailored form, CALCRIM No. 625 provides, "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill[, ] [or] [the defendant acted with deliberation and premeditation[, ]] [[or] the defendant was unconscious when (he/she) acted[, ]] [or the defendant .] [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] You may not consider evidence of voluntary intoxication for any other purpose."
Olvera's trial counsel did not comment on or object to this instruction, and it correctly states the law. (People v. Turk (2008) 164 Cal.App.4th 1361, 1381.) Nonetheless, Olvera contends on appeal that the last sentence of the instruction misled the jury into believing it could not consider the effect of Velasquez's intoxication on Olvera's mental state.
Preliminarily, we conclude Olvera has forfeited this claim by failing to request clarification of the instruction in the trial court. "A trial court has no sua sponte duty to revise or improve upon an accurate statement of law without a request from counsel [citation], and failure to request clarification of an otherwise correct instruction forfeits the claim of error for purposes of appeal." (People v. Lee (2011) 51 Cal.4th 620, 638.)
Even if Olvera had not forfeited the claim, we conclude it lacks merit. We review claims of instructional error de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1210; People v. Johnson (2009) 180 Cal.App.4th 702, 707.) " ' " "In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole... [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]' " [Citation.] "Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation." ' " (People v. Johnson, supra, at p. 707.)
In this case, the challenged language, considered in context, is neither misleading nor ambiguous. The language was part of an instruction on the specific topic of the limited use of evidence of Olvera's voluntary intoxication. None of the prior or subsequent instructions discussed voluntary intoxication in any other context. Thus, the challenged language could only be reasonably understood as relating to evidence of Olvera's voluntary intoxication.
Moreover, the trial court instructed the jury to consider evidence of provocation in deciding whether Olvera committed first versus second degree murder, and whether he committed murder versus voluntary manslaughter. The trial court also instructed the jury to consider "all the circumstances as they were known or appeared" to Olvera in deciding whether Olvera acted in self-defense or imperfect self-defense. These instructions could only be reasonably understood as relating to the effect of Velasquez's conduct on Olvera's actions, and they did not contain any limitations on the jury's consideration of Velasquez's intoxication. Given the absence of such limits in these instructions and the narrow context of the challenged language, we conclude the jury would not have understood the challenged language as limiting its ability to consider evidence of Velasquez's intoxication. Accordingly, we conclude the trial court did not err by failing to sua sponte clarify the challenged language for the jury.
Further, had we concluded the trial court actually erred, we would conclude the error was harmless under even the more stringent federal constitutional standard. (Chapman v. California (1967) 386 U.S. 18, 24.) While the defense forensic chemistry expert testified that a person with Velasquez's intoxication level and history of recent drug use would have grossly impaired judgment and an inability to control any aggressive tendencies, there is no evidence Velasquez did anything to provoke Olvera, or to cause Olvera to reasonably or unreasonably believe he needed to act in self-defense. To the contrary, the evidence shows that Olvera and his family members ran up to and started attacking Velasquez while Velasquez was sitting in his truck. When Velasquez tried to get away, Olvera and his family members pulled him from the truck and continued attacking him, including striking him on the head with a metal bar. At no time did Velasquez fight back. The attack culminated with Olvera stabbing Velasquez multiple times and ultimately killing him.
Although Velasquez was verbally arguing with a woman immediately before the attack, there is no evidence of any physical contact between the two of them or of the content of their argument from which to infer provocation or a threat. Likewise, although police officers found Velasquez's folding knife a few feet from Velasquez's body, the knife was closed, indicating it had not been used. The presence of defensive wounds on Velasquez's hands and arms and the absent of defensive wounds anywhere on Olvera support this conclusion. Also supporting this conclusion is the forensic chemist's testimony that a person with Velasquez's intoxication level and history of recent drug use would be physically and mentally unable to use his motor skills. The blood on the knife does not undermine this conclusion as the blood was mainly Velasquez's and inferably was spattered on the knife when Olvera stabbed Velasquez. Because of the lack of evidence of provocation or conduct prompting a reasonable or unreasonable belief in the need for self-defense, we have no difficulty concluding beyond a reasonable doubt that the trial court's failure to sua sponte clarify its voluntary intoxication instruction did not contribute to the jury's verdict. (Chapman v. California, supra, 386 U.S. at p. 24.)
II
Insufficient Evidence Claim
Olvera next contends we must reverse the jury's true finding on the weapon use enhancement because there is insufficient evidence he personally used a knife to assault Velasquez. We disagree.
"Our task in deciding a challenge to the sufficiency of the evidence is a well-established one. '[W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence that is reasonable, credible, and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] In cases in which the People rely primarily on circumstantial evidence, the standard of review is the same. [Citations.]' [Citation.] ' "An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise." ' " (People v. Solomon (2010) 49 Cal.4th 792, 811-812.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.) These standards apply equally to challenges to the sufficiency of the evidence to support weapon use enhancement findings. (People v. Wilson (2008) 44 Cal.4th 758, 806; People v. Alvarez (1996) 14 Cal.4th 155, 255.)
To find true an allegation a defendant personally used a knife during the commission of a crime, the jury must find that, during the crime, the defendant intentionally displayed a knife in a menacing manner or struck someone with a knife. (§ 12022, subd. (b)(1); People v. Wims (1995) 10 Cal.4th 293, 302, overruled on another ground in People v. Sengpadychith (2001) 26 Cal.4th 316, 325-326.) In this case, the evidence viewed in the light most favorable to the judgment shows that Olvera and his family members attacked Velasquez. During the attack, Olvera "punched" Velasquez multiple times in the back on the left side. Olvera then fled and Velasquez, who was bleeding, tried to stand up, but collapsed. Velasquez died from multiple knife wounds in the same area where Olvera "punched" him multiple times. A short time after Olvera "punched" Velasquez, police officers found a knife in the driver's side of a sedan Olvera was driving. The knife had Velasquez's blood on it and was consistent with one that could have caused Velasquez's wound. Police officers also found Velasquez's blood on the front of Olvera's shirt and on his shoes. A jury could have reasonably inferred from this evidence that Olvera intentionally struck Velasquez with a knife. Accordingly, we conclude there is substantial evidence to support the jury's true finding on the weapon use enhancement.
The conflicting evidence and credibility issues identified by Olvera in support of his position do not alter our conclusion. The jury decides how to resolve conflicting evidence and credibility issues. Where, as here, "the circumstances reasonably justify the trier of fact's findings, a reviewing court's conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment's reversal." (People v. Zamudio, supra, 43 Cal.4th at p. 358.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: O'ROURKE, J., IRION, J.