Opinion
B230162
01-17-2012
THE PEOPLE, Plaintiff and Respondent, v. ABRAHAM SANCHEZ, Defendant and Appellant.
Richard A. Levy, by appointment of the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Mary Sanchez and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA348103)
APPEAL from a judgment of the Superior Court of Los Angeles County, George G. Lomeli, Judge. Affirmed.
Richard A. Levy, by appointment of the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Mary Sanchez and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Abraham Sanchez appeals from a judgment of conviction for first degree murder. He contends his conviction should be reversed because (1) the trial court erred by failing to instruct the jury, sua sponte, on the heat-of-passion theory of voluntary manslaughter; (2) the jury was instructed with an erroneous instruction, CALJIC No. 5.17; (3) the prosecutor committed misconduct; and (4) the court abused its discretion in excluding evidence about the victim's character. Finding no prejudicial error, we affirm.
STATEMENT OF THE CASE
Appellant was charged with one count of murder (Pen. Code, § 187, sub. (a).). It was further alleged that he personally used a deadly weapon, a knife, to commit the crime. (§ 12022, sub. (b)(1).) A jury found appellant guilty of first degree murder, and found true the weapon allegation. The trial court sentenced appellant to 26 years to life. Appellant timely appealed.
All further statutory citations are to the Penal Code, unless otherwise stated.
STATEMENT OF THE FACTS
Appellant was a member of San Gabriel Valley Unity (Unity), a group of punk-rock fans. On the night of February 9, 2008, appellant and about 14 other members or aspiring members of Unity arrived at Safari Sam's, a music venue in Hollywood, to attend a punk-rock concert. The group gathered in the parking lot of the venue, drinking beer and socializing, before heading toward the entrance. Upon arriving at the entrance of Safari Sam's, they learned the concert was sold out.
The victim, Steven Clark, was attending the concert with some friends, including Marek Bozek, Jeffrey Neahr, and Christopher Shinn. Clark and some of his friends were socializing in a patio area by the entrance when the Unity group was denied admission. Members of both the Unity group and Clark's group had been involved in a fight three months earlier at the same venue. Some Unity members, including appellant, began looking at Clark's group. The Unity members started to "mad dog" Clark and his friends, staring and glaring at them in an attempt to provoke and intimidate them. The Unity members also made "U" signs to signify the Unity group. They focused their mad-dogging on Clark, who was approximately 6'4'' tall and weighed at least 300 pounds.
After 10 to 15 minutes, the Unity members left and went to a nearby area where they resumed drinking and socializing, hoping to get into the venue later if some patrons left early. Shortly after midnight, they returned to the entrance but were again denied admission. Once again, appellant and some Unity members stared at Clark and his friends, who were in the patio during a break in the music. Other Unity members began to harass people leaving the venue; they created a gauntlet that the patrons had to pass through in order to get to the parking lot.
Some people in Clark's group were concerned about the gauntlet created by the Unity members. Bozek testified he was uneasy because "[t]he demeanor of the group that was standing in front seemed hostile, not relaxed, calm, they seemed very aggressive, so we figured that since we're the three biggest guys there that they were probably going to mess with us." The men sent the women out by a side entrance, and then gathered together to leave the venue and go to the parking lot. They passed the gauntlet without incident and managed to reach the parking lot when a Unity member grabbed a 12- or 13-year-old boy who was in the rear of Clark's group.
Shinn yelled at the man to "Stop it" and ran up to him. Neahr recognized the man, who was not appellant, as someone who had been involved in the fight three months earlier. Feeling he "had a green light to whip his ass at that point," Neahr ran up to the man to fight him. Bozek and Clark also ran back to help their friends. The members of the Unity group and Clark's group began fighting each other.
Clark, Bozek, Neahr, and Shinn held their own in the fight, which died down after about 30 seconds. Unity members "began retreating" and "sort of running away." Clark then yelled out: "Come and get some"; "Go home"; "Get away"; "Get the hell out of here"; "You're done"; "We pretty much beat you up"; "Why are you standing here?"; "It's over"; and "It's done with."
Suddenly, appellant ran up to Clark from behind and stabbed him several times in the neck. Clark died from the stab wounds. Appellant ran off and drove away in a car with another Unity member. At trial, appellant admitted he ran away after stabbing Clark because he "knew [he was] wrong for stabbing [Clark]."
Appellant testified he attacked Clark because Clark "was beating up most of my friends. He was doing the most damage to everybody." It appeared to appellant that Clark "was going to hurt my friend right at the current time," so he panicked and stabbed Clark. However, Shinn and Bozek testified and a tape of the fight showed that Clark was not fighting with anyone at the time of the stabbing.
DISCUSSION
Appellant contends his conviction should be reversed because (1) the trial court should have instructed the jury, sua sponte, on the heat-of-passion theory of voluntary manslaughter as there was substantial evidence to support the instruction; (2) the jury was improperly instructed with CALJIC No. 5.17, which was overbroad and allowed the jury to improperly find that he forfeited his imperfect self-defense claim; (3) the prosecutor committed misconduct by misstating the law on voluntary manslaughter; and (4) the trial court abused its discretion in excluding evidence about Clark's violent disposition. For the reasons set forth below, we find no prejudicial error. A. Heat-of-Passion Theory of Voluntary Murder
"'The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request.' [Citations.]" (People v. Rogers (2006) 39 Cal.4th 826, 866.) However, the court does not have to give an instruction on the heat-of-passion theory of voluntary manslaughter where there is a lack of "substantial evidence that defendant acted while under 'the actual influence of a strong passion' [citation] in response to legally sufficient provocation, such as caused him to '"act rashly or without due deliberation and reflection, and from this passion rather than from judgment"' [citation]." (People v. Moye (2009) 47 Cal.4th 537, 553.) Appellant contends there was such substantial evidence in this case because: (1) "Clark and his group viciously beat and kicked [appellant's] fellow Unity members, whom he considered his family"; (2) "[t]here was also a history of provocation between the two groups, beginning with a fight at a concert at the same venue three months earlier, and including what could fairly be construed as mad dogging by both groups"; and (3) Clark taunted the Unity members by yelling out triumphant boasts such as "Come and get some" and "We pretty much beat you up." We disagree.
The record shows a lack of legally sufficient provocation. The fight had already died down when appellant stabbed Clark. Clark was no longer fighting with anyone. He did not brandish or use a deadly weapon. In addition, Clark's taunts would not cause a reasonable person to act rashly and without due deliberation and reflection. Indeed, worse taunts have been held not to be legally sufficient provocation. (See, e.g., People v. Manriquez (2005) 37 Cal.4th 547, 585-586 [calling defendant a "mother fucker" and daring him to use his gun not sufficient provocation]; People v. Najera (2006) 138 Cal.App.4th 212, 226 [victim calling defendant a "faggot" not sufficient provocation].) In short, there is no evidence that Clark said or did anything so provocative that his conduct would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. (People v. Breverman (1998) 19 Cal.4th 142, 163.) Accordingly, the trial court did not err in failing to instruct the jury on the heat-of-passion theory of voluntary manslaughter, as there was insufficient evidence to support the giving of that instruction. B. CALJIC No. 5.17
Appellant next contends the jury was improperly instructed with CALJIC No. 5.17, which provides that a defendant forfeits his right to claim imperfect self-defense "if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversary's use of force." (Italics added.) Appellant contends the instruction is overbroad, as he could have acted lawfully but in a wrongful manner without forfeiting his imperfect self-defense claim. We examine de novo the validity and impact of a jury instruction. (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 831.) After reviewing the record, we conclude there was no prejudicial error.
First, in People v. Hardin (2000) 85 Cal.App.4th 625, this instruction was held to be "legally correct." (Id. at p. 634.) Appellant cites no case or authority holding to the contrary. Second, any error is harmless as the facts of the case do not support a claim of imperfect self-defense. "For [a] killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. [Citation.] If the belief subjectively exists but is objectively unreasonable, there is 'imperfect self-defense,' i.e., 'the defendant is deemed to have acted without malice and cannot be convicted of murder,' but can be convicted of manslaughter. [Citation.] . . . Moreover, for either perfect or imperfect self-defense, the fear must be of imminent harm." (People v. Humphrey (1996) 13 Cal.4th 1073, 1082, fn. omitted.) Here, there was no evidence that appellant or any Unity member was in imminent danger from Clark because when the stabbing occurred, Clark was no longer fighting and was not threatening anyone. Thus, any error in an instruction on the forfeiture of an imperfect self-defense claim was harmless. C. Prosecutorial Misconduct
Appellant also contends his conviction should be reversed because the prosecutor misstated the law in her rebuttal argument. The prosecutor stated, "[t]here is no way that they can show that he didn't have the intent to kill and that would reduce it to manslaughter." Appellant contends that voluntary manslaughter remained available as a defense even if he harbored the intent to kill. We conclude there was no prejudicial error.
"'A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such '"unfairness as to make the resulting conviction a denial of due process."' [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial.' [Citation.] 'In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review.' [Citation.] When a claim of misconduct is based on the prosecutor's comments before the jury, '"the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion."' [Citation.]" (People v. Friend (2009) 47 Cal.4th 1, 29.)
Here, appellant forfeited his claim of prosecutorial misconduct by failing to make a timely objection and request an admonition. (People v. Koontz (2002) 27 Cal.4th 1041, 1082 [defendant forfeited claim that prosecutor committed misconduct by misstating the law by failing to object or to seek a curative admonition below].) In any event, there is no reasonable likelihood the jury applied the complained-of remarks in an objectionable fashion. The jury was properly instructed on voluntary manslaughter. The judge also admonished the jury that "[i]f anything concerning the law said by the attorneys in their arguments . . . conflicts with my instructions on the law, you must follow my instructions." Finally, as noted above, any error could not have prejudiced appellant because the evidence at trial did not support a claim of imperfect self-defense. D. Character Evidence about the Victim
The trial court granted the prosecutor's motions under Evidence Code section 352 to exclude evidence that Clark had gotten into other fights and that he had misdemeanor convictions for battery and stalking. Appellant contends the trial court abused its discretion in excluding this evidence because the evidence corroborated his testimony that it appeared to him that Clark was about to attack his friends even after the fighting had died down. We disagree.
First, there is no evidence that appellant was aware of Clark's prior fighting incidents or convictions. Thus, the excluded evidence would not support appellant's alleged subjective belief about Clark. (See Evid. Code, § 1103, subd. (a) ["In a criminal action, evidence of the character or a trait of character . . . of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character."]; People v. Mathis (1965) 63 Cal.2d 416, 430 ["A defendant claiming self-defense may testify about prior violent acts of his victim not only directed toward the defendant but also toward others in order to show the defendant's state of mind in relation to the victim."].) Second, Clark did not initiate the fight. Thus, the evidence could not be used to show that Clark was the aggressor. (See People v. Shoemaker (1982) 135 Cal.App.3d 442, 446-448, fn. omitted [under Evidence Code, section 1103, "in a prosecution for a homicide or an assaultive crime where self-defense is raised, evidence of the violent character of the victim is admissible to show that the victim was the aggressor"].) In any event, "the court had discretion to exclude . . . evidence under Evidence Code section 352 even if we assume it had some marginal relevance." (People v. Harris (2005) 37 Cal.4th 310, 341.) We find no abuse of discretion here.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, J. We concur:
EPSTEIN, P. J.
WILLHITE, J.