Opinion
G055218
09-13-2019
THE PEOPLE, Plaintiff and Respondent, v. JUAN ANGEL RIVERA, Defendant and Appellant.
Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER DENYING PETITION FOR REHEARING AND MODIFYING OPINION; NO CHANGE IN JUDGMENT
It is hereby ordered that the opinion filed herein on September 13, 2019, be modified in the following particulars:
1. On page 4, the last paragraph that starts with "On cross-examination," and continues on the top of page 5, delete that entire paragraph and replace with the following:
"During his testimony, appellant admitted knowing that knives are dangerous and that a person can die if they are stabbed. However, he also made it clear that at the time he stabbed Alfaro, he was consumed by his own situation and was simply trying to avoid being crushed to death."
2. On page 7, top of the page, line 1, the sentence that begins "In fact," delete that sentence and the citations that follow it, to the end of the paragraph. Replace with the following:
"That is, appellant was not desirous of the deadly consequences brought about by his actions."
3. On page 8, second full paragraph, first sentence, insert the word "not" between "were" and "objectively" so it now reads "his actions were not objectively unreasonable,".
4. On page 9, top paragraph, the sentence that begins "It is hard to say", delete that sentence and the sentence that follows to the end of the paragraph. Replace with the following:
"We recognize these arguments are not conclusive for purposes of our harmless error analysis. However, they do underscore why a verdict of voluntary manslaughter was not a foregone conclusion in this case. While such a verdict was not unreasonable, the case did not cry out for such a conviction."
These modifications do not effect a change in the judgment.
The petition for rehearing is DENIED.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. FYBEL, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CF0605) OPINION Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Reversed. Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Juan Angel Rivera was convicted of voluntary manslaughter for fatally stabbing Nathan Alfaro during a barroom brawl. He contends the trial court prejudicially erred in failing to instruct the jury on the lesser included offense of involuntary manslaughter, and we agree. We therefore reverse the judgment.
FACTS
On the night of March 3, 2016, there was a punk rock show at the Underground bar in downtown Santa Ana. Alfaro was there to see his friend's band play, and appellant was there with a group of his friends. Before the show began, appellant, was overheard saying he was going to "fuck shit up tonight." As was his usual practice, he was also carrying a sheathed knife on his belt.
When the band commenced, appellant tried to start a "mosh pit" by circling around the dance floor and bumping into people. Although this is a common occurrence at punk rock shows, appellant's aggressive dancing was met with mixed results. A few people joined in with him, but others found him annoying, including Alfaro, who, at nearly 300 pounds, was twice the size of appellant. When appellant bumped into Alfaro, Alfaro shoved him back, and they got into an altercation. By some accounts, the incident was nothing more a brief shoving match; others described it as a full-fledged fistfight. Either way, order was restored after other patrons intervened and broke up the fight.
A short time later, the band resumed playing and appellant began circling the dance floor again. This time, Alfaro was ready for him. When appellant came around and bumped into him, he grabbed him, and they began to fight. As they were grappling and trading punches, they fell near the stage and several others jumped on top of them in a "dog pile." Amid the chaos, appellant and Alfaro continued fighting. Some of the witnesses saw Alfaro on top of appellant, punching him, and some saw appellant swinging at Alfaro. None of them noticed that at some point during the scrum, appellant pulled his knife and stabbed Alfaro multiple times.
Following the stabbing, appellant crawled out of the pile and got to his feet. His shirt was torn, his head and hand were bleeding, and he appeared dazed. He was holding his knife. After sheathing the weapon, he left the bar and walked to his nearby apartment. There, a friend took the knife from him and buried it in a potted plant.
Alfaro, meanwhile, was struggling for his life. Having sustained multiple stab wounds, he collapsed just outside the bar and died a short time later, after he was transported to the hospital. His autopsy revealed he had been stabbed twice in the arm pit, once in the chest and side, and once behind his left arm. His blood-alcohol level was .05 percent, and he had marijuana in his system.
Appellant had also been drinking that evening. Some of the people at the bar said he was acting like he was drunk, but appellant said he only had one tall beer before the show. He was arrested the day after the stabbing and charged with murder.
At trial, the prosecution presented evidence that nine weeks before the stabbing, appellant was involved in an altercation with Roberto Vidal. According to Vidal, appellant damaged his car at a party. When he confronted appellant about it, appellant twice chased him with a knife before eventually backing off. Appellant had multiple knives in his possession when he was arrested at his home in connection with that incident. He told police he always carried a knife for protection because he lived in a rough neighborhood.
In closing argument, the prosecution theorized appellant was obsessed with knives and itching to start a fight with Alfaro on the night in question. In fact, the prosecutor argued appellant intentionally baited Alfaro into attacking him so he could use his knife on him. He contended even though Alfaro may have been on top of appellant at some point during the fracas, appellant had no right to stab him five times. Under these circumstances, the prosecutor argued, appellant was guilty of first degree premeditated murder.
The defense disagreed, claiming appellant acted in self-defense. To support this claim, the defense presented expert testimony about the innate "fight or flight" response that is triggered when a person is facing a life-threatening danger such as suffocation. In that situation, the rational part of the person's brain is eclipsed by the will to survive, resulting in a "very primitive level of thinking." Rather than weighing the consequences of one's actions or considering possible alternative solutions, the person will react instinctively in an attempt to diffuse the particular danger that is confronting them.
Consistent with this theory, appellant testified he stabbed Alfaro because he was being crushed by him and others and thought he was going to die. He said he has attended many punk rock shows and seldom has he had any problems trying to get a mosh pit started. But when he first came up to Alfaro, Alfaro grabbed him and threw him to the floor. Appellant said he was taken aback by Alfaro's aggressive behavior, but he shook it off and kept dancing.
Moments later, however, appellant's world went dark as he blacked out completely. He testified he doesn't know what caused him to lose consciousness, but when he woke up, he was lying on his back on the floor, gasping for air. His head was throbbing and there was a tremendous amount of weight on him. To make matters worse, Alfaro was straddling his chest, raining punches down on his head. He did his best to defend himself, but he was losing the battle and fading fast. Unable to breathe, and on the verge of passing out, he grabbed his knife and frantically began thrusting it in an upward direction. He wasn't trying to kill Alfaro, he was just trying to alleviate the stress and strain on his own body so he could breathe again. After making several quick stabbing gestures, the weight on him subsided and he was able to make his way out of the pile.
On cross-examination, appellant admitted knowing that knives are dangerous and that a person can die if they are stabbed. However, he said he wasn't thinking about that at the time he stabbed Alfaro. Instead, he was consumed by his own situation and was simply trying to avoid being crushed to death.
The jury was instructed malice is an essential element of murder that is evidenced by the intent to kill (express malice) or the conscious disregard of life (implied malice). It was also instructed on two theories of voluntary manslaughter, heat of passion and imperfect self-defense, as well as perfect self-defense. However, when defense counsel requested instructions on involuntary manslaughter, the trial judge said he did not believe the facts fit that offense and denied the request.
Ultimately, the jury convicted appellant of voluntary manslaughter and found he used a deadly weapon in the commission of that offense. At sentencing, the judge struck the weapon enhancement and sentenced appellant to 11 years in prison.
DISCUSSION
Appellant contends the trial judge prejudicially erred in denying his request for instructions on involuntary manslaughter. He is correct.
Involuntary manslaughter is a lesser included offense of murder. (People v. Rios (2000) 23 Cal.4th 450, 460.) The difference between those crimes is that murder is characterized by malice, whereas involuntary manslaughter involves only gross negligence. (See Pen. Code, § 192, subd. (b); People v. Elmore (2014) 59 Cal.4th 121, 133; People v. Ochoa (1998) 19 Cal.4th 353, 423.) "If the evidence presents a material issue of whether a killing was committed without malice, and if there is substantial evidence the defendant committed involuntary manslaughter, failing to instruct on involuntary manslaughter would violate the defendant's constitutional right to have the jury determine every material issue." (People v. Cook (2006) 39 Cal.4th 566, 596; see also People v. Brothers (2015) 236 Cal.App.4th 24, 33-35 (Brothers) [instructions on involuntary manslaughter are required when the jury could reasonably doubt whether the defendant harbored malice during the course of an inherently dangerous assault].)
Substantial evidence in this context is evidence from which the jury could reasonably conclude the defendant committed involuntary manslaughter as opposed to murder. (See People v. Shockley (2013) 58 Cal.4th 400, 403-404.) In determining whether the evidence rises to this level, the trial court should not evaluate the credibility of witnesses, which is a task for the jury. (People v. Breverman (1998) 19 Cal.4th 142, 162.) Rather, the evidence must be viewed in the light most favorable to the accused. (People v. Barnett (1998) 17 Cal.4th 1044, 1145.) The trial court must also keep in mind that the testimony of a single witness, including the defendant, can constitute substantial evidence requiring instructions on a lesser included offense. (People v. Lewis (2001) 25 Cal.4th 610, 646.) On appeal, we independently review whether such instructions were required in a given case. (People v. Verdugo (2010) 50 Cal.4th 263, 293.)
The Attorney General argues the evidence of malice in this case was so strong that instructions on involuntary manslaughter were unwarranted. In his view, appellant was a knife-obsessed provocateur who amply displayed express malice by repeatedly stabbing Alfaro in a vulnerable part of his body. He adds that implied malice can be inferred from appellant's admission that he knew stabbing a person with a knife could be fatal. Conversely, substantial evidence of involuntary manslaughter by means of gross negligence was lacking because appellant stabbed Alfaro intentionally, not accidentally.
However, intentionality and negligence are not mutually exclusive concepts. We would have more empty courtrooms if it were not possible for an act to be both intentional and negligent. The issue here is not whether appellant stabbed Alfaro intentionally - which he admittedly did - but whether the jury could reasonably find he acted with gross negligence as opposed to malice.
As for express malice, appellant testified his only purpose in stabbing Alfaro was self-survival; he was simply trying to get Alfaro off of him so he could breathe again. Therefore, while he stabbed Alfaro in a vulnerable part of his body, the jury might conclude he acted without the intent to kill. In fact, by acquitting appellant of murder and convicting him of manslaughter, the jury apparently determined that was the case. (See People v. Nieto Benitez (1992) 4 Cal.4th 91, 102 [in contrast to murder, "manslaughter is the unlawful killing of a human being without malice."]; accord, People v. Elmore, supra, 59 Cal.4th at p. 133.)
But the element of implied malice may also have been negated in this case. There is no question appellant was generally aware of the life-threatening risk posed by stabbing someone with a knife; he readily admitted this on the witness stand. However, to obtain a conviction for implied malice murder, the circumstances surrounding the killing must show the defendant acted with an "abandoned and malignant heart." (People v. Chun (2009) 45 Cal.4th 1172, 1181.) This requires proof the defendant was "aware of the risk to life that his or her actions created and consciously disregarded that risk." (CALCRIM No. 580, italics added; People v. Bryant (2013) 56 Cal.4th 959, 965 (Bryant); People v. Cook, supra, 39 Cal.4th at p. 596.) If the defendant intentionally and unlawfully kills another without conscious disregard of the risk to human life, his crime is involuntary manslaughter, not murder. (Brothers, supra, 236 Cal.App.4th at pp. 32-34.)
Here, there was substantial evidence appellant did not consciously disregard the risk to Alfaro's life in the process of stabbing him. Appellant testified the stabbing was necessitated by the fact Alfaro and several other people were piled on top of him. He said the weight of the pile was suffocating him, rendering him unable to breathe. Panic-stricken and fearing for his life, he reached for his knife and began thrusting it an upward direction in the hope of alleviating his distress.
In this regard, appellant's actions were consistent with the "fight or flight" response the defense expert said can be triggered when a person is confronted by a life-threatening danger. As explained by him, a person's thinking in that situation is very primitive because it is consumed by the danger. Rather than thinking in rational terms, the person becomes transfixed on how to eliminate the threat being faced. This survival-mode mindset is at odds with the conscious disregard requirement of implied malice murder. Therefore, given the predicament appellant was facing, the jury could reasonably conclude he lacked the requisite intent for implied malice murder. (Compare Brothers, supra, 236 Cal.App.4th at pp. 34-35 [no error in failing to instruct on involuntary manslaughter absent evidence the defendant was mentally or emotionally impaired during the killing]; People v. Guillen (2014) 227 Cal.App.4th 934, 1028 [same]; People v. Evers (1992) 10 Cal.App.4th 588, 597 [same].)
We recognize that by rejecting appellant's self-defense claim, the jury likely determined his actions were objectively unreasonable, but that does preclude a finding of involuntary manslaughter. In fact, involuntary manslaughter is typically characterized by conduct the defendant perceives to be necessary but which is not objectively reasonable under the circumstances presented. (People v. Butler (2010) 187 Cal.App.4th 998, 1008.) Here, there was a legitimate basis for the jury finding appellant was grossly negligent in attempting to protect himself from the threat posed by Alfaro. Indeed, appellant admitted he blindly flailed away with his knife in close proximity to several other people. Even if he subjectively believed his life was in danger, the jury could reasonably find he acted "without due caution and circumspection" so as to support a verdict of involuntary manslaughter. (Pen. Code, § 192, subd. (b); People v. Penny (1955) 44 Cal.2d 861, 879.) That being the case, it was error for the trial court not to instruct the jury on that offense.
The Attorney General argues the error was harmless because there was strong evidence appellant committed at least voluntary manslaughter. However, in closing argument, the prosecutor dismissed the heat of passion theory of voluntary manslaughter out of hand for lack of evidentiary support, and he assailed the imperfect-self-defense theory on the basis it rested solely on appellant's own testimony, which he described as contrived and self-serving. It is hard to say the evidence was strong for voluntary manslaughter on a record that includes such a closing argument. Suffice it to say, voluntary manslaughter was a reasonable verdict, but the case did not cry out for such a conviction.
As we have explained, there was substantial evidence from which the jury could reasonably conclude appellant acted with gross negligence rather than implied or express malice, which is what makes the failure to instruct on involuntary manslaughter erroneous. Without instructions on that offense the jury did not have the full range of verdict options borne out by the evidence. We cannot say that had it been provided with them it is not reasonably probable appellant would have achieved a more favorable outcome. Therefore, we cannot say the instructional error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The judgment is reversed.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. FYBEL, J.
Brothers derived this conclusion from Bryant, in which our Supreme Court held a killing committed without malice during an inherently dangerous assault is not voluntary manslaughter. Although Bryant did not consider whether such a killing is involuntary manslaughter, Brothers determined that was the necessary implication of its holding, and in her concurring opinion in Bryant, Justice Kennard reached the same conclusion. (Bryant, supra, 56 Cal.4th at pp. 971-975 (conc. opn. of Kennard, J.).) The Attorney General does not argue otherwise.