Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF098561A
BUTZ, J.A jury found defendant Clemente Sanchez Carbajal guilty of second degree murder (Pen. Code, § 187), in the course of which he had personally used a knife (id., § 12022, subd. (b)(1)). It acquitted the codefendant (his brother) of any form of homicide or being an accessory after the fact. The trial court sentenced defendant to 16 years to life in state prison.
On appeal, defendant’s sole contention is that the trial court erred in failing to instruct sua sponte in connection with the lesser offense of voluntary manslaughter on the alternative theory of sudden quarrel or heat of passion. We shall affirm the judgment.
FACTUAL BACKGROUND
In our account of the evidence underlying the verdicts, we ordinarily would resolve conflicts in the facts (and inferences reasonably drawn from them) or questions of credibility in favor of the judgment. (People v. Mack (1992), 11 Cal.App.4th 1466, 1468.) However, in determining whether substantial evidence would have supported an instruction, we must include any facts or inferences that would have favored the instruction without regard for credibility. (People v. Elize (1999), 71 Cal.App.4th 605, 615 (Elize).)
Prosecution evidence
The prosecution’s case involved the testimony of dozens of witnesses and thousands of pages of record (which the parties accurately digest at length in their briefs). By its conclusion, however, there was little to connect the victim and defendant before their fatal encounter.
The occasion was a birthday party in December 2005 for the young daughter of the hostess. Defendant’s brother was a roommate of the hostess. The hostess had also invited defendant and three of his friends. Altogether, there were about 20 to 25 people in attendance. Among the other guests were the victim, Salvador Vasquez, his wife Arabela (a coworker of the hostess), and the brothers of the victim.
The party proceeded without incident until someone in defendant’s group attempted to dance with the victim’s wife. (The young guest testifying about this did not think it was defendant or his brother.) The victim took exception, and defendant’s companion looked angry.
The boyfriend of the hostess, who had been asleep upstairs because he was not feeling well, came downstairs about midnight to join the party. He had worked with defendant’s brother, but knew defendant only by sight. He was talking in the kitchen with defendant and his group. A couple of people (later identified to the boyfriend as the victim’s brothers) walked through the kitchen on two different occasions. The boyfriend heard them mutter an insult in Spanish (“cholitos cagados,” or shitty little cholos). These remarks did not appear to be directed at anyone in particular, and the boyfriend did not notice defendant or anyone else in his group react to the remarks.
The boyfriend testified as a defense witness.
The precipitating event did not directly involve any of defendant’s cohorts. The former boyfriend of the hostess showed up uninvited. The hostess had broken off their relationship shortly before she started dating her current boyfriend two months before. According to her current boyfriend, the ex-boyfriend announced to the party at large that he could beat up anyone there. This prompted the current boyfriend to depart rather than deal with the ex. His desire to leave, in turn, led to a heated exchange between him and the hostess, who wanted him to stay. They took their argument outside. The victim’s wife came outside briefly to chide them for arguing, and threatened to call the police.
In the meantime, the ex-boyfriend was talking with the victim and his wife during this argument. He was a former coworker of the victim, and had given him rides to work. The victim and his wife suggested to the ex-boyfriend that they should all leave, and asked him for a ride home.
As the three walked toward the ex-boyfriend’s truck, defendant, his brother, and his friends began to push the victim around. They backed off from the victim when the niece of the hostess, who was accompanying the three to the truck, said she would call the police on her cellular phone (which was in fact inoperative). The three got into the ex-boyfriend’s truck, the victim sitting closest to the passenger door.
As the truck started to back up, defendant’s group began to beat on the passenger side. At that point, the truck unfortunately backed into a blue car that belonged to defendant. The group with defendant escalated their attack on the truck, defendant pounding the hood with his fists.
The victim either got out or was pulled out of the truck. The victim said he did not want any trouble and just wanted to go home. However, defendant’s group prevented him from getting back in the truck. They began to beat the victim.
The niece attempted to interpose herself between the victim and his attackers. Defendant reached over her and stabbed the victim in the head, penetrating the full length of the knife into the victim’s brain and killing him. The victim dropped to the ground. The victim had not shouted or swung at anyone at any point, and did not display any weapon. Subdural blood retrieved from the victim’s skull indicated a blood-alcohol level of 0.11 percent at the time of the stabbing.
After pulling the knife from the victim’s head, defendant put it in his pocket and went back into the apartment. He looked nervous. Mentioning to someone that he had hit the victim in the head with a bottle, he requested his car keys. When asked, he did not explain why he had hit the victim. Defendant, his brother, and the others drove off in defendant’s car.
An examination of the ex-boyfriend’s truck revealed two punctures in the hood. These had not been there before that night.
On his arrest, defendant had three cuts on the palm of his right hand and red stains on the right collar of his jacket. The pathologist believed the wounds on defendant’s hand were caused by his hand slipping off the handle and down onto the knife blade, since they were jagged like the upper portion of the blade and radiated out from one point. Defensive wounds would have straight edges, be deeper, and have more variable placement. In his opinion, the wounds were more likely to be the result of someone stabbing a hard object like a car’s hood. The knife, which the police had retrieved from a neighbor’s yard, had the blood of both the victim and defendant on it. The knife’s tip was broken off. The autopsy, however, had not revealed any metal fragments in the victim’s skull.
In a jailhouse conversation with one of the friends who had been at the party with him (his brother-in-law), defendant told him to testify that the victim was not drunk and was aggressive. Defendant asked the friend not to be afraid to testify to this effect, and asserted that “It will no longer be... the truth, it will just be about defending me. To blame everything on that one.”
Defense evidence
The defense called a neighbor of the hostess. She heard loud commotion about 1:00 a.m. Looking out through her front door, she saw two people coming up to the passenger side of a red truck, arguing with the occupants in Spanish (in which she was not conversant). Several other people were following the two toward the truck. The neighbor left the doorway at this point to phone the police. She returned to the front door with her phone in hand. A passenger had gotten out of the truck and was arguing with one of the people outside the truck, swinging at him. She left the doorway to call the police again. On her return, the stabbing had already happened. She went outside, where the victim’s widow was apparently arguing with another woman who attempted to slap the widow. The neighbor tried to calm the widow down.
The hostess’s current boyfriend testified that he walked past the deceased victim and his widow as he was leaving after the stabbing. He heard the widow lament that she had told the victim not to fight.
According to defendant (who testified), he did not know any of the people at the party. He had been dancing with various women when the victim jabbed him with his elbow on two occasions. On the first, the victim called him a “cholo” and asked why he had come to cause trouble; on the second, the woman with whom defendant was dancing (who apparently was the wife of the victim) asked the victim to explain himself because defendant was not doing anything. Later, when defendant was sitting in the living room, the victim kicked him in the shins in passing on his way to the bathroom. He did not mention hearing the insults from the victim’s brothers in the kitchen.
Defendant testified that after going outside to urge the current boyfriend to calm down in his argument with the hostess, he was standing near the garage when the victim shoved him in the back. Defendant walked away because the victim was taller and bigger than he. He heard the victim’s wife urge the victim to “Bust that little guy’s ass,” before they walked off in the direction of the driveway.
Defendant was standing and watching the argument between the hostess and her boyfriend when he heard the sound of one car hitting another. Walking over to the driveway, he saw that a red truck had backed into his car.
Accompanied only by his brother-in-law, defendant said that he merely knocked on the window to discuss the damage to his car. No one else was doing anything to the truck. The victim quickly emerged from the truck and knocked defendant to the ground with the door, then began to kick him.
Defendant retreated while the victim was swinging at him. Defendant heard his brother-in-law shout that the victim had something in his hand. Defendant did not see it at first, but felt a cut to his forearm and hands.
As defendant backed up, he felt trapped against the wall of the garage with no way out. He then noticed the victim was holding something that appeared to be shining in the light, and he warned the victim that he also had a knife, but the victim seemed to get only angrier.
Pulling a knife out of his pocket, defendant swung “wildly” at the victim but was aware only that he stabbed the victim somewhere in the face. He was not trying to kill the victim. He saw the victim throw something toward the side of the car, grab his head, and stagger away into the arms of his wife. Defendant gathered up his companions, and had his brother drive them away in defendant’s car.
Defense theories and jury requests
At the outset of trial, defense counsel noted that the focus of her case would primarily be perfect or imperfect self-defense, although she might consider voluntary manslaughter under a theory of sudden quarrel or heat of passion depending on how the testimony developed. Ultimately, the court instructed on provocation as a basis for choosing between first and second degree murder, on an unreasonable belief in the need for deadly force in self-defense as a basis for reducing murder to voluntary manslaughter, on an unintended death in the course of an assault as constituting involuntary manslaughter, and on a reasonable exercise of self-defense as making the homicide justifiable.
The jury deliberated over the course of four days. During its deliberations, it requested the readback of the testimony of the neighbors of defendant who found the murder weapon, the entire testimony of the witnessing neighbor, and the testimony of the birthday celebrant regarding the events at the truck, eventually breaking off the readback of the latter at noon on the fourth day to continue deliberating (announcing at 3:00 p.m. that it had reached its verdict).
Sentencing
In denying probation, the trial court noted that in its view defendant had not been acting under the influence of any great provocation. He had simply been angry at the victim.
DISCUSSION
“[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence.” (People v. Breverman (1998), 19 Cal.4th 142, 162 (Breverman).) Any inconsistency between an instruction on a lesser offense and a defendant’s testimony does not obviate the duty to instruct on a lesser offense that has substantial evidence in support of it. (Id. at pp. 162-163 & fn. 10; Elize, supra, 71 Cal.App.4th at pp. 612, 615.) This duty to instruct exists even if the lesser offense is contrary to the apparent theory of a defendant’s case or defense counsel’s express tactical purposes (Breverman, supra, 19 Cal.4th at p. 162; People v. Barton (1995), 12 Cal.4th 186, 195, 201 (Barton)), although the doctrine of invited error will forfeit the issue on appeal if a court accedes to an express tactical reason to withhold the instruction. (Barton, supra, at p. 198.) We must reverse a conviction if it is reasonably probable that a properly instructed jury would have reached a more favorable outcome for a defendant. (Breverman, supra, 19 Cal.4th at p. 178.) “In making that evaluation, an appellate court may consider... whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.” (Id. at p. 177.)
In order to be entitled to an instruction on sudden quarrel or heat of passion, there must be affirmative evidence (direct or circumstantial) that defendant’s reason was actually clouded “as the result of a strong passion,” the cause of which was provocation that was sufficient to arouse an intense emotion other than revenge in a reasonable person, which overcomes the ability to act on the basis of reason and due deliberation. (Breverman, supra, 19 Cal.4th at p. 163; People v. Steele (2002), 27 Cal.4th 1230, 1253 [defendant’s response as a result of subjective infirmities not a basis for heat of passion]; People v. Lee (1999), 20 Cal.4th 47, 59-60 (Lee); People v. Valentine (1946), 28 Cal.2d 121, 139.) The provocation must have its source in the victim. (Lee, supra, at p. 59.) Mere damage to property is insufficient of itself to warrant an instruction on heat of passion. (People v. Moye (2009), 47 Cal.4th 537, 551-552 (Moye); Breverman, supra, 19 Cal.4th at p. 164, fn. 11.)
Relying on the fact that defendant’s testimony asserted self-defense, the People contend this absolved the trial court of the duty to instruct on voluntary manslaughter based on a theory of heat of passion. This, however, disregards the express teachings of Breverman and Barton.
Defendant never testified to being actually under the influence of any passion. (Moye, supra, 47 Cal.4th at p. 541 [“no substantial evidence” to support heat of passion theory where only evidence introduced on point, “the defendant’s own uncontested testimony, was plainly to the contrary,” i.e., that he did not act under heat of passion]; Lee, supra, 20 Cal.4th at p. 60; People v. Sedeno (1974), 10 Cal.3d 703, 719-720 [defendant must affirmatively demonstrate heat of passion], disapproved on another ground in People v. Flannel (1979), 25 Cal.3d 668, 684-685, fn. 12.) As in Moye, “Defendant took great pains in his testimony to justify each blow he landed on [the victim]... as a direct, defensive response to [the victim’s] successive advances... during his attack on defendant,” and therefore this was insubstantial evidence to establish a killing in the heat of passion. (47 Cal.4th at p. 554.) However, the accounts of the other witnesses provide affirmative evidence that defendant was in fact in a rage at the time of his encounter with the victim, which is substantial enough to support this element of the defense.
On the issue of reasonable provocation, defendant relies on the facts in several other cases. “Reviewing the sufficiency of evidence, however, necessarily calls for analysis of the unique facts and inferences present in each case, and therefore comparisons between cases are of little value.” (People v. Rundle (2008), 43 Cal.4th 76, 137-138, disapproved on a different ground in People v. Doolin (2009), 45 Cal.4th 390, 421, fn. 22.) In any event, these cases involve provocation far more egregious than is present here.
Breverman found substantial evidence of heat of passion where a hostile and armed mob trespassed on the defendant’s property, smashed his vehicle, and challenged him to fight, resulting in panic on the part of the defendant and the other persons in the house. (Breverman, supra, 19 Cal.4th at p. 163.) The court did not reach the question of prejudice because the Court of Appeal had applied too strict a standard for reversible error. (Id. at pp. 178-179.)
Barton involved a victim who had tried to run the defendant’s daughter off the road and spat at her. When they confronted the victim, he called the daughter a bitch and acted berserk, challenging the defendant to a fight before getting into his car and taunting the defendant that he could not detain him. At this point the defendant, screaming and swearing, drew his weapon and ordered the victim out of his car; he claimed he fired the gun accidentally. The trial court instructed on heat of passion over his objection and his theory of an accidental shooting, and the jury convicted him of voluntary manslaughter. Barton affirmed the conviction, finding this to be substantial evidence of heat of passion. (Barton, supra, 12 Cal.4th at pp. 191-193, 201-202.)
In People v. Anderson (2006), 141 Cal.App.4th 430, 437, 447, the court found sufficient objective evidence of provocation where the victim went berserk and cut the face of the defendant’s companion with a crack pipe, which caused the companion to strangle the victim out of rage. On the other hand, a mere ongoing quarrel between the defendant and his cohabitant, during which she asserted that she would perform an orchiectomy on him with a butcher knife if he fell asleep on the couch, was insufficient provocation for burning her alive. (People v. Cole (2004), 33 Cal.4th 1158, 1175-1176, 1216.)
Defendant cannot rely on the fact that two people, unknown to him, voiced an insult in the kitchen in his presence (to which he did not visibly react, nor did he even testify that these had any effect on him), because he cannot ascribe this conduct to the victim. The same is true of the fact that the victim was merely a passenger in a truck that backed into defendant’s car. This leaves defendant’s self-serving claims that the victim jabbed and kicked him on a couple of occasions during the party, challenged his presence at the party and temerity in dancing with the victim’s wife, and shoved him outside with the wife’s encouragement (only the dancing incident being corroborated in any respect) which are insufficient evidence for any rational jury to find provocation that would evoke an intense emotional reaction (other than revenge) in reasonable people sufficient to overcome their deliberative functioning. (People v. Gutierrez (2009), 45 Cal.4th 789, 826-827 [ordinary cursing inadequate for provocation]; People v. Manriquez (2005), 37 Cal.4th 547, 585-586 [calling defendant a “mother f---er” and taunting him to use his weapon inadequate provocation]; 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000), Crimes Against the Person, § 215, p. 827 [simple assault or slight touching rarely constitutes provocation].) However, defendant’s account of the altercation at the truck is arguably sufficient provocation, in that the need to respond to a knife attack might reasonably provoke blind panic in the heat of the moment (even if the victim was not as visibly deranged as in Barton). Thus, we conclude the court erred in failing to instruct on the sudden quarrel or heat of passion theory of voluntary manslaughter.
As noted above, the testimony of the niece and daughter of the hostess, both strangers to defendant, directly contradicted his account, and the neighboring witness at best saw only the victim swing at defendant but did not observe any knife or see any stabbing.
However, the failure to instruct was manifestly harmless. The evidence of heat of passion was extraordinarily weak and would have required the jury to find some basis for rejecting the testimony of all the other witnesses to the contrary for no discernable reason. Furthermore, in convicting defendant of murder, the jury necessarily rejected this evidence. Otherwise it would have found reasonable self-defense and acquitted him, or unreasonable self-defense and convicted him only of voluntary manslaughter. “Assuming arguendo it was error to fail to instruct on heat of passion voluntary manslaughter on this factual record, we find any such error harmless under... []People v. Watson (1956), 46 Cal.2d 818, 836.... Here, the jury considered virtually all of the defense evidence bearing on defendant’s state of mind and the question whether he harbored malice when it entertained his claim of unreasonable or imperfect self-defense. Having rejected that claim, the jury likewise rejected the factual basis for a finding of provocation legally necessary to support a heat of passion/voluntary manslaughter defense.” (Moye, supra, 47 Cal.4th at p. 541; id. at p. 557.) We also do not find any reasonable probability that a jury instructed on heat of passion would return a verdict of the lesser offense of voluntary manslaughter.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., SIMS, J.