Opinion
E066227
06-28-2018
THE PEOPLE, Plaintiff and Respondent, v. ARMANDO HERNANDEZ, Defendant and Appellant.
Law Office of Stanley W. Hodge and Stanley W. Hodge for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Christine L. Bergman, Kristen K. Chenelia, and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI1402200) OPINION APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed. Law Office of Stanley W. Hodge and Stanley W. Hodge for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Christine L. Bergman, Kristen K. Chenelia, and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Following a night of heavy drinking, defendant and appellant, Armando Hernandez, sliced open his friend's throat with a knife. Defendant appeals from the judgment entered following jury convictions for attempted murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)); count 1), and assault with a deadly weapon (§ 245, subd. (a)(1); count 2). The jury also found true allegations that both counts were serious felonies (§ 1192.7, subd. (c)(8)), defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)), and defendant committed attempted murder while personally armed with a deadly weapon, a knife (§ 12022, subd. (b)(1)). The jury rejected the allegation that the attempted murder was premeditated. The court sentenced defendant to 13 years in state prison.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends the trial court erred in failing to instruct the jury on attempted voluntary manslaughter based on unreasonable self-defense and heat of passion. Defendant also argues the trial court abused its discretion in giving the jury CALCRIM No. 361 on the failure to explain or deny adverse testimony. We reject defendant's contentions the trial court erred in not instructing on attempted voluntary manslaughter, but conclude the court erred in giving CALCRIM No. 361. Nevertheless, we conclude the error was harmless, and affirm the judgment.
II.
FACTS
On June 13, 2014, K.W., an off-duty deputy sheriff, and his friends, Edwin and H.H., went out drinking at Gators Sports Bar and Grill (Gators). E.A. and defendant, who worked together and were friends, joined K.W., Edwin, and H.H. at Gators. They all drank, with the exception of Edwin, who was their designated driver. After Gators, the five men went to Bunny's Showgirls Gentlemen's Club (Bunny's). Defendant called L.T. and asked her to meet him at Bunny's, bring him money, and pick him up. L.T. testified that she and defendant were "friends with benefits," which meant they had sex with each other every now and then.
Edwin's last name is not included in the record. Initials are used for the other witnesses in order to protect those individuals' privacy. --------
L.T. arrived at Bunny's around 2:00 a.m. At closing time, K.W., H.H., E.A., and defendant drank vodka in the parking lot at Bunny's and then went to K.W.'s apartment. E.A. testified he was unaware defendant had a relationship with L.T. While the five men and L.T. were in the parking lot, E.A. put his arm around L.T.'s shoulder and grabbed her breast. L.T. told him to stop. E.A. thought defendant looked like he was getting mad but holding back.
After about five or 10 minutes of drinking in the parking lot, the group went to K.W.'s apartment. Edwin drove K.W., E.A., and H.H. to K.W.'s apartment and then left. Defendant rode with L.T. On the way, L.T. told defendant that E.A. made her feel uncomfortable. Defendant told her she was overly worried and it was not a big deal. Defendant, E.A., and H.H. sat at K.W.'s kitchen table drinking while K.W. sat on the living room couch. L.T. also sat at the table but did not drink. They were at K.W.'s apartment for about an hour.
E.A. continued making advances on L.T., including trying to feed her a cherry from a bottle of Moonshine alcohol, grabbing her waist, telling her he wanted to sleep with her, and telling her she had three holes with which to have sex. E.A. also pushed her to the side of the couch and pulled her pants. L.T. felt uncomfortable and twice told defendant she wanted to leave. Defendant agreed to leave. L.T. suggested putting H.H. in her car and driving him home because he was intoxicated and said he wanted to throw up. K.W. assisted L.T. in walking H.H. out to L.T.'s car. Defendant and E.A. remained in K.W.'s apartment sitting at the table. After K.W. and L.T. put H.H. in the car, L.T. and K.W. returned to K.W.'s apartment. L.T. intended to get defendant to leave with her.
K.W. testified that when he returned to his apartment, he saw E.A. sitting in a chair and defendant was behind E.A. Defendant's left arm was across E.A.'s chest and his right arm was against E.A.'s throat, moving back and forth in a sawing motion. Defendant was holding a knife in his hand. K.W. told defendant to give him the knife. Defendant handed K.W. the knife, and L.T. took defendant outside. K.W. called 911. K.W. testified that E.A.'s neck looked like it was "filleted open and he was bleeding everywhere." Although bleeding, E.A. told K.W. he was okay and "[i]t's okay."
E.A. testified he passed out while sitting at the table. The next thing he remembered was feeling his neck being cut. He raised his hands to protect himself. When he opened his eyes, he saw defendant. After K.W. took the knife from defendant, E.A. got up and walked out of the apartment. E.A. asked defendant why he "did it," and defendant said, "I told you I was going to kill you." E.A. suffered sharp force injuries to his chin, neck, chest, and shoulders, and defensive wounds to his hands.
L.T. testified she returned to the apartment before K.W. When she entered, she saw defendant and E.A. standing and fighting each other. E.A. held defendant's shirt and tried to hit him in the face. Defendant tried to pull away from E.A. but E.A. held onto his shirt. L.T. eventually broke up the fight but E.A. followed defendant and L.T. outside. L.T. testified she never saw a knife.
Defendant's brother, H.H., testified he had not observed any problems between defendant and E.A. during the evening in question. Defendant and E.A. were friends. H.H. saw E.A. "hitting on" L.T. at K.W.'s apartment but there was laughing. It was not serious. H.H. testified he saw a knife on the table. It was there because K.W. used it to cut limes for tequila shots.
Defendant testified he and E.A. had been friends. They had never gotten into a physical fight before the charged crimes. At that time, defendant was separated from his wife. Defendant had been friends with L.T. since high school. They had sex every once in a while. Defendant claimed he had no feelings for L.T. but was planning on having sex with her that night. Defendant called L.T. and invited her to Bunny's. Defendant testified that, when E.A. touched L.T. in the parking lot at Bunny's, everyone was laughing and not taking it seriously. Defendant was not upset because she was "not [his] girl." Defendant grabbed K.W.'s hand and put it on L.T.'s breast when K.W. asked if L.T.'s breasts were real.
While L.T. was driving with defendant to K.W.'s apartment, she told him she felt uncomfortable with E.A. and did not want to be "messed on." Defendant told her it was all in her mind and not to worry about it. Defendant testified he did not say anything about it to E.A. upon arriving at K.W.'s apartment because defendant did not believe there was a problem. E.A. continued touching L.T. at K.W.'s apartment and tried to pull her pants down. Everyone was laughing, including L.T. Defendant thought it was a joke and was not bothered by it. Defendant maintained he did not lose his temper because L.T. was not his girl. He saw E.A. feed L.T. cherries and grab her thigh, and heard E.A. ask L.T. to have sex with him and tell her she had three holes. L.T. told defendant she did not want to be around E.A. anymore because he made her uncomfortable.
Defendant testified that while L.T. and K.W. were taking H.H. out to L.T.'s car, defendant told E.A. that L.T. did not like him behaving "like that" and told E.A. to stop bothering L.T. E.A. became upset and pushed defendant. The two men wrestled on the ground. E.A. put defendant in a chokehold. Defendant hit E.A. in the stomach and groin. Defendant panicked when he could not breathe. Defendant grabbed the knife that was on the floor. He swung the knife at E.A. in an attempt to free himself from E.A.'s chokehold. He did not intend to kill E.A. Defendant could not see what he was doing with the knife and was unaware he struck E.A. with the knife. L.T. got in between defendant and E.A. and broke up the fight.
Defendant admitted he had initially lied to detectives when he said that he did not remember what had happened because he had blacked out. He testified he lied because he was scared. Later defendant told the officers what had happened. Defendant told detectives the cuts on his hands were from cutting boxes at work, not struggling over the knife.
III.
JURY INSTRUCTION ON ATTEMPTED VOLUNTARY MANSLAUGHTER
Defendant contends the trial court erred in failing to instruct the jury on the lesser included offense of attempted voluntary manslaughter based upon the theories of unreasonable self-defense and heat of passion.
The court instructed the jury on attempted murder and the right to self-defense (CALCRIM Nos. 600, 601, 3470) but not on attempted voluntary manslaughter. As to self-defense, the court instructed the jury that "[a] defendant is not required to retreat. He is entitled to stand his ground and defend himself and, if reasonably necessary, to pursue an assailant until the danger of death or bodily injury has passed. This is so even if safety could have been achieved by retreating." (CALCRIM No. 3470.) The jury rejected the self-defense theory and found defendant committed attempted murder based on a finding of malice.
A. Applicable Law
"'In criminal cases, even absent a request, the trial court must instruct on general principles of law relevant to the issues raised by the evidence. [Citation.] This obligation includes giving instructions on lesser included offenses when the evidence raises a question whether all the elements of the charged offense were present, but not when there is no evidence the offense was less than that charged. [Citation.] The trial court must so instruct even when, as a matter of trial tactics, a defendant not only fails to request the instruction, but expressly objects to its being given. ([Citation.]; see also People v. Barton (1995) 12 Cal.4th 186, 196, 199-203 [trial court must instruct on heat-of-passion and unreasonable self-defense theories of manslaughter, if supported by evidence, even when defendant objects on the basis that such instructions would conflict with his defense].)'" (People v. Moye (2009) 47 Cal.4th 537, 548-549 (Moye).)
Defendant argues the trial court should have instructed on attempted voluntary manslaughter, which is a lesser included offense of attempted murder. "'"Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of . . . voluntary manslaughter. (§ 192.)" [Citation.] Generally, the intent to unlawfully kill constitutes malice. (§ 188; [citations].) "But a defendant who intentionally and unlawfully kills lacks malice . . . in limited, explicitly defined circumstances: either when the defendant acts in a 'sudden quarrel or heat of passion' (§ 192, subd. (a)), or when the defendant kills in 'unreasonable self-defense'—the unreasonable but good faith belief in having to act in self-defense [citations]."'" (Moye, supra, 47 Cal.4th at p. 549.) The theories of heat of passion and imperfect self-defense "are 'theories of partial exculpation' that reduce murder to manslaughter by negating the element of malice." (Ibid.)
B. Unreasonable Self-defense
Defendant argues there was substantial evidence supporting an instruction on attempted voluntary manslaughter based on unreasonable self-defense. We disagree. Although defendant may have presented evidence that he acted in self-defense when he sliced E.A.'s throat, there is little, if any, evidence supporting the theory of unreasonable self-defense.
The unreasonable self-defense doctrine also known as imperfect self-defense applies when a person kills under an honest or actual but "'unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury.'" (In re Christian S. (1994) 7 Cal.4th 768, 780, quoting People v. Saille (1991) 54 Cal.3d 1103, 1107, fn. 1; see also People v. Flannel (1979) 25 Cal.3d 668, 674-680.) Defendant argues the following testimony by defendant supported a finding of unreasonable self-defense. Defendant testified that E.A. pushed him and defendant pushed back. Defendant and E.A. fell to the ground wrestling. E.A. put defendant in a chokehold. Defendant punched E.A. in the stomach and groin. E.A. tightened the chokehold on defendant causing defendant to panic because he was "losing air and [he] couldn't breathe." Defendant reached for the knife to free himself from E.A. As E.A. tightened the chokehold, defendant swung the knife over his head. Defendant could not see what he was striking. E.A. began to loosen the chokehold a bit and defendant freed himself. Defendant continued wrestling with E.A. because he feared E.A. would grab the knife and use it against him. The fight ended when L.T. intervened. Defendant testified that he was unaware of how seriously he was injuring E.A., and did not intend to kill him.
Defendant argues this testimony supported a finding that defendant unreasonably believed he needed to use force. We disagree. Defendant's testimony, at most, supports a finding of reasonable self-defense based on defendant's claim that E.A. was choking him and defendant could not breathe. According to defendant, he was fighting for his life. Defendant further stated he feared that E.A. would get the knife away from him and use it against defendant. Nothing defendant stated during his testimony, if believed, supported a finding that defendant was unreasonable in defending himself against imminent peril to his life or great bodily injury.
C. Heat of Passion
Defendant also argues there was substantial evidence he acted in the heat of passion when he stabbed E.A. We disagree.
The heat of passion theory of voluntary manslaughter has both an objective and subjective component. (Moye, supra, 47 Cal.4th at p. 549.) The objective component or "'"'reasonable person'"'" element requires that the defendant's heat of passion must be due to "'"'sufficient provocation.'"'" (Ibid.) The factor which distinguishes the heat of passion form of voluntary manslaughter from murder is provocation. (Ibid.) The provocation must be caused by the victim or be conduct reasonably believed by the defendant to have been engaged in by the victim. (Id. at pp. 549-550.) The provocative conduct by the victim "must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (Id. at p. 550.)
To satisfy the subjective element of the heat of passion theory of voluntary manslaughter, the defendant "must be shown to have killed while under 'the actual influence of a strong passion' induced by such provocation. [Citation.] 'Heat of passion arises when "at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment." [Citations.]' [Citation.] '"However, if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter . . . ." [Citation.]'" (Moye, supra, 47 Cal.4th at p. 550.)
Defendant argues the heat of passion theory was supported by evidence defendant and E.A. had been drinking heavily the night of the charged crimes; that E.A. had made several vulgar advances toward L.T. that night; and that defendant and L.T. had an intimate relationship. L.T. testified that she and defendant were "friends with benefits," which she said meant they had sex with each other every now and then. E.A. testified that during the night of the charged crimes, he had "hit on" L.T. E.A. further testified that he did this in front of defendant. Although defendant did not say anything, E.A. thought defendant seemed to be getting mad. Defendant also argued that L.T.'s testimony that E.A. kept trying to follow her and she had to push him away, supported a heat of passion instruction. L.T. also testified that, when she returned to K.W.'s apartment after taking H.H. out to the car, she saw E.A. grabbing defendant by the shirt and trying to hit him in the face. In addition, defendant testified E.A. had him in a chokehold and defendant started to panic because he could not breathe. Defendant also claimed he was scared E.A. would use the knife against him.
This evidence was not sufficient to support the heat of passion instruction, CALCRIM No. 603. The instruction states, in part:
"An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill someone because of a sudden quarrel or in the heat of passion.
"The defendant attempted to kill someone because of a sudden quarrel or in the heat of passion if:
"1. The defendant took at least one direct but ineffective step toward killing a person;
"2. The defendant intended to kill that person;
"3. The defendant attempted the killing because (he/she) was provoked;
"4. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment;
"AND
"5. The attempted killing was a rash act done under the influence of intense emotion that obscured the defendant's reasoning or judgment." (CALCRIM No. 603.)
There was little, if any, evidence satisfying the fourth and fifth elements. "'[T]he existence of "any evidence, no matter how weak" will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is "substantial enough to merit consideration" by the jury.'" (Moye, supra, 47 Cal.4th at p. 553.)
Evidence of the following facts further demonstrates that defendant did not act in the heat of passion. The attack occurred after L.T. and K.W. last saw defendant and E.A. silently sitting at the table. Defendant and E.A. were both drunk. When L.T. and K.W. returned, after helping H.H. out to the car, defendant was holding a knife at E.A.'s throat, which he had sliced open. Upon L.T. and K.W.'s return to the apartment, defendant handed the knife to K.W. and walked outside with L.T.
Although there was evidence E.A. "hit on" L.T. that night, defendant repeatedly testified this did not bother him because L.T. was not his "girl. There was nothing to be mad or upset about. They were just having fun." Defendant testified that E.A. was the one who got mad and provoked the fight when defendant told E.A. that L.T. wanted him to stop bothering her. E.A. testified that, when E.A. asked defendant why he attacked him, defendant replied, "I told you I was going to kill you."
We therefore conclude there was insufficient evidence of heat of passion. The thrust of defendant's testimony was reasonable self-defense. (People v. Steele (2002) 27 Cal.4th 1230, 1252; accord, Moye, supra, 47 Cal.4th at p. 554.) The only testimonial evidence on this point came from defendant himself, who took the stand and testified that he used the knife to thwart E.A.'s attack after defendant told E.A. to leave L.T. alone. (Moye, supra, at p. 554.)
While a trial court has a duty to instruct on general principles of law closely connected to the facts, "no principle of law required the trial judge below to disregard the evidence in order to find that the jury should consider whether defendant subjectively killed in the heat of passion, when no substantial evidence supported that theory of manslaughter, and the evidence actually introduced on the point—the defendant's own testimony—was to the contrary." (Moye, supra, 47 Cal.4th at p. 554.)
IV.
CALCRIM NO. 361
Defendant contends the trial court committed prejudicial error by instructing the jury with CALCRIM No. 361, stating: "If the defendant failed in his testimony to explain or deny evidence against him, and if he could reasonably be expected to have done so based on what he knew, you may consider his failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove the defendant guilty beyond a reasonable doubt. [¶] If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure."
The bench notes to CALCRIM No. 361 state that CALCRIM No. 361 "should only be given when the defendant testifies and the privilege against self-incrimination has not been successfully invoked." (Judicial Council of Cal. Crim. Jury Instns. (Mar. 2017 supp.) Bench Notes to CALCRIM No. 361.) The Bench Notes further state: "Give this instruction only when a testifying defendant completely fails to explain or deny incriminating evidence, or claims to lack knowledge although it appears from the evidence that defendant could reasonably be expected to have that knowledge." (Ibid.; see People v. Cortez, supra, 63 Cal.4th at pp. 117-118; see also People v. Mask (1986) 188 Cal.App.3d 450, 455.)
Defendant contends, and the People concede, giving CALCRIM No. 361 in this case was error because there was no evidence defendant failed to deny or explain the evidence against him. We agree the instruction should not have been given, because defendant testified as to his recollection of the incident and left nothing unexplained. (People v. Cortez (2016) 63 Cal.4th 101, 117-118; People v. Saddler (1979) 24 Cal.3d 671, 681-683 [instructing jury with CALJIC No. 2.62, the predecessor instruction to CALCRIM No. 361, was error where defendant did not fail to explain or deny any adverse evidence].) Defendant explained that, when he wrestled with E.A. and cut him with a knife, defendant was defending himself against E.A., whom defendant claimed attacked him.
Defendant further argues giving CALCRIM No. 361 was prejudicial error because the court instructed the jury to "reverse the burden of proof and not give defendant's testimony any weight. Courts have uniformly applied the harmless error standard adopted in People v. Watson (1956) 46 Cal.2d 818, 836, when reviewing the erroneous use of CALJIC No. 2.62, the predecessor instruction to CALCRIM No. 361. (People v. Roehler (1985) 167 Cal.App.3d 353, 393.) In applying that standard, we must determine whether it is reasonably probable the result would have been more favorable to defendant had the error not occurred. (Watson, supra, at p. 836.)
CALCRIM No. 361 does not direct the jury to draw an adverse inference (People v. Lamer (2003) 110 Cal.App.4th 1463, 1472) and is, in part, favorable to the defense, reminding the jury that any failure to explain or deny adverse evidence is not enough by itself to prove guilt. The People must still prove guilt beyond a reasonable doubt. Courts have routinely found that the improper giving of any instructions such as CALCRIM No. 361 constitutes harmless error. (Lamer, supra, at p. 1472.)
Moreover, here, the trial court told the jury that not all of the instructions were necessarily applicable (CALCRIM No. 200), and advised jurors to follow the instructions that applied to the facts determined by them, thereby mitigating any prejudicial effect from the giving of CALCRIM No. 361. (People v. Lamer, supra, 110 Cal.App.4th at p. 1472.) The court also gave CALCRIM No. 226, which informed the jury it was to decide the credibility of each witness and could believe all, part, or none of any witness's testimony. Based on the instructions as a whole and overwhelming evidence of guilt, we conclude instructing the jury with CALCRIM No. 361 does not constitute prejudicial error. (People v. Yeoman (2003) 31 Cal.4th 93, 139 [jury presumed to understand and follow instructions].)
V.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. FIELDS
J.