Opinion
2d Crim. No. B288897
05-01-2020
THE PEOPLE, Plaintiff and Respondent, v. DEQUAN JAHLIL MATTHEWS, Defendant and Appellant.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Ryan M. Smith, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 1489583)
(Santa Barbara County)
This is an appeal from the judgment in Matthews's second trial. In the first trial, a jury acquitted Matthews of first degree murder, but could not agree on other charges. In the second trial, a jury found Matthews guilty of second degree murder. (Pen. Code, §§ 187, subd. (a), 189.) The jury also found true that he committed the murder for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(4)) and that he personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)). The trial court sentenced Matthews to 16 years to life in state prison. We affirm.
All further statutory references are to the Penal Code. --------
FACTS
The case involves rival gangs in the City of Lompoc. The Westside Varrio Lamparas Primera (VLP) consists of 120 to 150 primarily Hispanic members. The Six Deuce Brims (Brims) consists of 60 to 80 primarily African-American members. Matthews, Edward Carter, and Damian Simpson are members of the Brims.
On June 6, 2015, Carter sent a message from his cell phone to his girlfriend, Shakiesha Geter, stating that he had been assaulted by the "fleas." The Brims refer to VLP members as fleas. Later that day, Carter posted a message on his Facebook page that he was coming for the person who assaulted him.
That evening Carter was at the home of Arnika Cummings. Carter asked Cummings if he could borrow her car to pick up a friend. Cummings agreed. Afterwards, Carter was supposed to return to Cummings's residence to go to a party together. Cummings's car, a Dodge Neon, was distinctive. It had pink rims, eyelashes around the headlights, and cheetah seats.
Carter drove to an apartment building where he picked up Matthews, Simpson, and a 14 year old identified only as Mr. B. Carter drove a winding route through VLP territory. Eventually they saw four or five VLP members. Carter turned the car around and pulled up in front of the men.
One of the men threw a can or bottle at the car as Carter pulled up. Carter, Matthews, and Simpson got out of the car. Mr. B initially remained in the car. When Mr. B got out of the car, he saw that Matthews and Carter were each fighting someone. The person Carter was fighting tried to pick Carter up. Mr. B. ran over and kicked the person. The person fell and Carter ran away.
Mr. B looked at Matthews, but he saw that Matthews did not need help. The person Matthews was fighting was slouched over and Matthews was punching him with an uppercut. Mr. B. looked away for a moment. When he looked back, Matthews was no longer there, and the person he was fighting was rolling around the ground, holding himself and groaning. Other VLP members arrived.
Mr. B. got in the Neon's driver's seat. Matthews and Simpson also got in the car. While Mr. B tried to drive the car, VLP members were banging on it. Mr. B got the car started and drove around the area in an unsuccessful search for Carter. Eventually Mr. B and his companions abandoned the car in a Baskin-Robbins parking lot.
INVESTIGATION
When the police arrived at the scene, they found Jesse Lara on the ground suffering from multiple stab wounds to his torso. He was still alive when the ambulance arrived, but later died.
The police found a knife wrapped in a red bandana in a dumpster. The knife had a nine-inch blade and the tip was broken off. The knife was consistent with the stab wounds Lara sustained. It was from a set of knives in Matthews's mother's kitchen. Lara was the major contributor of the DNA found on the knife. Matthews was the major contributor of the DNA found on the red bandana.
The police found Matthews at Geter's residence. He agreed to go to the police station and speak with officers. Matthews admitted he was gang affiliated. He had no tattoos but said he wanted one of a deuce coupe.
Matthews told the police that he had been at a party, the stain on his pants was barbeque sauce, and that the minor injuries he suffered were from a fall from his bicycle. The police confiscated Matthews's pants. When informed that a presumptive test identified the stain on his pants as blood, Matthews said that he had gotten into a fight at a party and that blood was transferred when his opponent's face touched his pants. Matthews said he had witnesses who could vouch for his presence at the party.
Matthews was arrested for Lara's murder. He denied any involvement. He said he wanted to talk to his mother. The police arranged for a recorded telephone call. During the call, Matthews told his mother that he was sorry, he should have listened, and that he is a horrible person. When his mother asked if he did it, he did not deny it, but sobbed without responding.
The blood on Matthews's pants was determined to be from Lara.
DEFENSE
Background
Matthews testified on his own behalf. He said he was subjected to violence at an early age at the hands of his father. In addition, he was attacked many times at school by Hispanic males whom he presumed to be gang members.
Matthews met Carter when he was 15 years old and Simpson when he was 16 years old. They went to parties where Matthews consumed alcohol, smoked marijuana, and took cocaine. Matthews had problems with the police because the police would harass and profile him. About a week prior to the current incident, Matthews was jumped at a party by someone with whom he had problems in high school. He ended up with three broken teeth.
CURRENT INCIDENT
On the day of the incident, Matthews and Carter discussed going to a party. Carter picked Matthews up in Cummings's Neon. Matthews was carrying a knife for protection because he was afraid of being jumped. They met Simpson and Mr. B at an apartment house and headed back to Cummings's residence.
Matthews was not paying attention to the route Carter was driving. He was playing games and texting on his cell phone. As they were driving, something hit the back of the car. Matthews saw four or five people with their arms raised, as if to say, '"[W]hat's up?'" Carter said he knew they did it. Carter made a U-turn and returned to where the men were standing.
Matthews was not interested in a fight. He let Carter inquire about the object that hit the car. One of the Hispanic men threw a beer can at the front passenger window of the car where Matthews was sitting. Beer splashed onto Matthews through the open window.
Carter got out of the car. Matthews got out of the car when he saw that Carter was fighting two men. Matthews still had no desire to fight, but he felt obliged to help Carter. When someone swung a knife at Carter, he fled. Matthews began fighting someone. After Matthews beat the person down, the person fled.
Matthews was confronted by two Hispanic men, one of whom was Lara. Matthews took out his knife. He thought that waving the knife would cause the men to back away, but the men were not deterred. Matthews was frightened. While moving around, Matthews slipped to one knee. He felt vulnerable and feared he was about to be attacked.
Lara and the other man approached Matthews. In fear of being knocked unconscious, Matthews leapt up, grabbed Lara's collar, and stabbed him in the torso. Matthews believed he had no option; otherwise, he would be hurt. Lara tried to pull away as he was being stabbed. The other man was hitting Matthews on the back of the head. Eventually Lara fell to the ground and Matthews ran away.
DISCUSSION
I.
Exclusion of Expert Testimony
At trial Matthews sought to introduce the testimony of Dr. Carolyn Murphy. Murphy is an expert on brain development. At the time of the offense, Matthews was 18 years old. Matthews claimed that Murphy's testimony was relevant on the issue of his state of mind, particularly the subjective element of manslaughter based on heat of passion.
Manslaughter based on heat of passion has objective and subjective elements. The objective element requires that the circumstances giving rise to a heat of passion that would cause the defendant to act rashly and without deliberation must be such as would arouse such passion in an ordinarily reasonable person. (People v. Manriquez (2005) 37 Cal.4th 547, 584.) The subjective element is that the defendant must actually kill under the heat of passion. (Ibid.)
The trial court held a hearing pursuant to Evidence Code section 403. Murphy said that the brain undergoes "phenomenal growth" between the ages of 16 and 25 "with respect to impulse control, decision making and judgment." Until age 25 a person's ability to make reasonable decisions, inhibit impulses, and anticipate consequences is not fully developed.
The trial court stated: "Every individual is different. There are 18 year olds that are college students that are very mature. There are 18 year olds that have the outlook of a 12 year old and everything in between, and we have all seen examples of both. [¶] There's a wide spectrum in humanity as to people's development. And my problem at this stage is the testimony is basically a generic analysis, and I don't know if you can ask a question regarding every 18 year old and the hundreds and hundreds of evaluations she's done can be tied to relevant testimony in this case."
The trial court excluded Murphy's testimony. Our standard of review is abuse of discretion. (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)
Evidence of a mental disease, defect, or disorder is admissible on the issue whether the defendant harbored malice aforethought. (§ 28, subd. (a).) But having a youthful brain is not a mental disease, defect, or disorder. As we said in In re R.C. (2019) 41 Cal.App.5th 283, 287, "Theorectical [sic] immaturity and 'non-developed brain' does not equate with physical disability. Physical disabilities are objectively verifiable. Immaturity and a 'non-developed brain' are not objectively verifiable."
Murphy did not examine Matthews. She had nothing to say about Matthews's level of maturity. As the trial court pointed out, for any chronological age there is a wide spectrum of maturity levels. Some 16 year olds have a high level of maturity that some 40 year olds never achieve. The court could reasonably conclude that Murphy's testimony about teenage brains in general is too speculative when applied to Matthews's particular state of mind. The trial court did not abuse its discretion.
In any event, any error would be harmless because the evidence does not support the objective element necessary for heat of passion manslaughter. Matthews claims the heat of passion was aroused by the fear he felt during the fight.
In People v. Johnston (2003) 113 Cal.App.4th 1299, the defendant challenged the victim to fight. The victim accepted the challenge and the two engaged in mutual combat during which the defendant stabbed and killed the victim. A jury found the defendant guilty of second degree murder. The trial court reduced the crime to voluntary manslaughter. The People appealed. The Court of Appeal reversed with instructions to reinstate the second degree murder conviction. In reversing, the court stated: "Can a person who provokes a fight be heard to assert provocation by the victim, such that a reasonable person in his position would lose judgment and kill? There is not a great deal of authority on the subject, but what there is gives a negative answer." (Id. at p. 1312.)
Here, no reasonable juror would believe that Matthews and the other Brim gang members were on their way to a party when they happened to drive by a winding route through VLP territory and encountered VLP members. They were obviously out to avenge the assault on Carter by VLP members that occurred earlier that day. When Carter got out of the car to initiate the fight, Matthews, armed with a knife, voluntarily joined in. It was entirely foreseeable that Matthews would use the knife. Matthews cannot voluntarily join in a fight and when the foreseeable occurs, claim he was acting under a heat of passion.
Moreover, Matthews testified that when he fell to one knee with two men approaching him, he was in fear of being overpowered while he was down. He said he felt scared, frustrated, and that he was at a disadvantage. The tenor of his testimony is that he stabbed Lara in self-defense. When the prosecutor asked Matthews what he expected Lara to do to him "at the point in time that you stabbed him," Matthews replied, "I don't know what I expected him to do. I just know I reacted in a way I felt was defending myself at that moment." That is insufficient to justify a finding of manslaughter based on heat of passion. Self-defense requires purposeful acts. It is inconsistent with acting under the heat of passion. (See People v. Moye (2009) 47 Cal.4th 537, 552-554 [defendant's testimony that he struck the victim with a bat in self-defense insufficient to require heat of passion manslaughter instruction].)
II.
Prosecutorial Misconduct
Matthews contends the prosecutor committed misconduct during closing argument.
In arguing there was not sufficient provocation under the objective standard for manslaughter based on heat of passion, the prosecutor said: "But throwing a beer at your car? I don't think so. Does anybody here think that, 'oh, if somebody throws a beer at my car, wait, it's not even my car,' that I'm just going to lose my mind, not even be able to think and kill? No. That's ridiculous. [¶] How about this idea: 'Oh, they're coming at me and taunting me and they are not afraid of my knife.' Does that get you to lose your mind and kill? No. Absolutely not."
Matthews objects to the prosecutor's use of the words "and kill." Matthews points out that our Supreme Court in People v. Beltran (2013) 56 Cal.4th 935, 949, rejected the People's argument that "adequate provocation for voluntary manslaughter requires a finding that an ordinary person of average disposition would kill . . . ." The court stated that the proper focus is on the defendant's state of mind, not on a particular act. (Ibid.)
Matthews concedes his counsel did not object and request an admonishment. Thus, he has waived his claim of prosecutorial misconduct. (People v. Panah (2005) 35 Cal.4th 395, 462.) Instead, he claims the failure to object constitutes ineffective assistance of counsel.
To succeed on a claim of ineffective assistance of counsel, the defendant must demonstrate that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and the deficiency resulted in prejudice to the defendant. (People v. Maury (2003) 30 Cal.4th 342, 389.) Prejudice requires a showing that but for counsel's unprofessional errors, there is a reasonable probability the result would have been more favorable to the defendant. (Ibid.)
Assuming counsel's failure to object to two words in the prosecutor's argument constitutes unprofessional conduct, Matthews cannot demonstrate prejudice.
The jury was properly instructed on voluntary manslaughter, including heat of passion (CALCRIM No. 570) and imperfect self-defense (CALCRIM No. 571). In addition, as we have previously demonstrated, there is no substantial evidence that Matthews committed the killing in the heat of passion.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J. We concur:
YEGAN, J.
PERREN, J.
James K. Voysey, Judge
Superior Court County of Santa Barbara
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.