Opinion
D074458
03-07-2019
THE PEOPLE, Plaintiff and Respondent, v. BRAYAN GUICHO AVILA, Defendant and Appellant.
Suzanne G. Wrubel, 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, Steve Oetting and Daniel J. Hilton, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1312280) APPEAL from a judgment of the Superior Court of Riverside County, Bernard J. Schwarz, Judge. Affirmed. Suzanne G. Wrubel, 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, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
Brayan Guicho Avila stabbed Fidel Solano in the neck and torso during a fist fight, causing his death. A jury found Avila guilty of first degree murder and found true an allegation that Avila used a deadly and dangerous weapon in the commission of the murder. The superior court sentenced him to a term of 25 years to life in prison.
Avila appeals and asserts there was insufficient evidence to support the first degree murder conviction, the superior court erred by failing to give an instruction on voluntary manslaughter and by allowing the jury to view a graphic video of the victim taken at the scene by a responding officer's body camera, and his counsel was ineffective for failing to object when the prosecutor committed prejudicial misconduct by relying on the video and pandering to the emotions of the jury. We conclude the first degree murder conviction is supported by substantial evidence, the court did not err in its instruction to the jury or by allowing the jury to view the video, and Avila's defense counsel did not provide ineffective assistance of counsel. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution's Case
Avila's sister, Leslie, started dating Carlos P. in 2009 when she was 15 years old. About a year into their relationship, Carlos became physically abusive. The abuse escalated over time and included pushing, shoving, kicking, punching, hair pulling and, eventually, choking. Carlos was also controlling and regularly took and reset Leslie's phone so that she would not have any saved numbers or information. If she refused to give him her phone, he would become physically violent.
We refer to certain witnesses in this case by their first names to protect their privacy in accordance with California Rules of Court, rule 8.90(b). Our use of first names is not intended as a sign of disrespect.
Leslie's family witnessed the abuse on at least a couple of occasions. Once, Carlos and Leslie got into an argument in front of Avila, another brother, and a neighbor concerning Leslie's father's car keys. When Carlos refused to turn over the keys and got physical with Leslie, Avila intervened, and an argument ensued between Carlos and Avila. Another time, in 2013, Carlos punched Leslie in the face. Leslie's father saw the injuries and convinced her to report it to the police. An officer took photographs of her injuries.
Leslie left Carlos several times because of the abuse but, in October 2013, Carlos convinced Leslie he had changed, and she went to stay with him once again. Leslie and Carlos were using alcohol, marijuana, and methamphetamine at the time and, before long, the abuse started again and, this time, it escalated quickly.
October 27, 2013
On October 27, at approximately 5:00 p.m., Joana G. and Solano went to hang out with Carlos and Leslie at the house they had been staying. Another friend, Heracio C., was already there when Joana and Solano arrived.
At some point in the evening, Carlos and Leslie began fighting. According to Joana, Carlos wanted some of the methamphetamine that Leslie had but Leslie would not give him any. According to Leslie, she wanted to go home but Carlos had taken her phone and would not give it back, so she could not call her family to come pick her up. According to Carlos, he had taken Leslie's phone and reset it after seeing texts to another guy, but they may have also fought about the drugs.
Joana, Solano, and Heracio decided to leave for a while, after seeing Carlos hit Leslie in the chest with his arm, and walked to a nearby gas station. Carlos hit Leslie, pulled her hair, and choked her, but Leslie eventually got her phone and asked her mom for a ride home.
When Joana and the others returned to the house, they heard Leslie yelling. Solano and Heracio ran back to the house, Leslie came out upset and crying, and Joana stayed with her outside. Two police officers arrived a short time later, at approximately 11:30 p.m. Leslie and Joana told the officers Carlos had seen something on Leslie's phone that made him upset but indicated there had been no physical violence. One of the officers took Leslie's phone while speaking with her and handed it back to her before leaving.
After the police left, Leslie called Avila, who had talked to Leslie's mom and said he would come get her, to see where he was and when he would be there. She did not tell him that she was in danger or that Carlos had hit her but did say she would be waiting for him outside. Before Avila got there, Carlos came outside and started talking to Leslie, trying to convince her to stay.
Awhile later, Avila, Walter and their friends, Juan and Junior, arrived in two cars and parked across the street from the house. Leslie immediately walked up to the car Walter was in and Walter opened the door, got out of the vehicle and let Leslie into the backseat. Walter asked Leslie if she was okay. She told him everything was fine and that she just wanted to go home, but he turned on the car light and saw that she was not fine.
As Leslie was getting into the car, Carlos started yelling at her and Walter. Walter walked toward Carlos, who was standing partway between the road and the house, and the two exchanged words, both suggesting they wanted to fight. Walter threw a glass bottle toward Carlos and it shattered on the driveway. At some point, Avila came out of the car. Leslie tried to hold both Avila and Walter back, but they got away.
As Walter and Avila moved up the driveway toward the house, Carlos started walking backward toward the house and yelled for someone else to come out. Solano came out of the house and two separate, but simultaneous fights ensued—Carlos and Walter in one fight and Avila and Solano in the other. Neither Leslie nor Carlos saw the fight between Avila and Solano.
At one point, Carlos was on top of Walter and Leslie tried to push him off. She fell to the ground and when she got up, she saw Solano walking toward her, holding his neck, and saying, "I've been stabbed." Walter and Carlos stopped fighting and when Carlos looked around, he saw Solano lying on the ground, holding his neck and bleeding. Avila and Leslie had already run back toward the cars, but Carlos watched Walter kick Solano on his way back.
Having seen the injuries to Solano, Carlos ran toward the cars and yelled out to Leslie to call for help but, instead, Walter, Avila, and the two other individuals who had come with them started hitting and kicking him. At one point, he heard someone yell, "Don't poke him," and he was eventually able to get away.
Avila, Walter, and the others drove to Walter's apartment. On the way there, Avila said he felt sick and wanted to throw up.
A neighbor, Antonio G., was awoken by the sound of a girl screaming sometime between midnight and 1:00 a.m. Antonio looked out the window and saw several individuals kicking one individual who was on the ground in the yard by the street. He called the police.
Deputy Peterson was the first to arrive on the scene, at approximately 1:09 a.m. on October 28, 2013. He was wearing a body camera and captured video of Solano's condition. Solano was lying on the ground, unable to move or speak coherently. He died from his wounds shortly thereafter.
Investigation
The police contacted Avila, Walter, and Leslie that same morning and they each agreed to be interviewed. Avila admitted he got into an altercation with someone at the house, but claimed the other individual was beating him up and he thought he was going to be knocked unconscious, so he grabbed a piece of metal from the ground and hit the guy until he was able to get away. The detective noticed Avila's socks were covered in red speckles and collected them at the end of the interview.
After the individual interviews, the three siblings were placed in an interrogation room together while the police discussed the case. They were not aware, but they were being recorded while in the room. Walter told Leslie and Avila the police had told him he was going to be arrested and Avila said they should all stay quiet. Leslie admitted she did talk to the police but told the others she did not say anything bad.
The police searched Walter's residence on October 28, 2013. Among other items, they collected a white T-shirt with blood stains on the bottom from a bedroom and a folding knife from below the sink in the bathroom. They tested blood found on the handle of the knife for DNA and determined the blood had the same DNA profile as Solano, and that only one in 950,000 Hispanic individuals were likely to have that profile.
A pathologist conducted an autopsy on Solano's body. Solano was approximately five feet seven inches and 142 pounds when he died. He had a two-inch long cut to his mouth where a knife entered through his cheek and knocked out a tooth, a slicing wound to one tricep, a deeper stab wound to his armpit area, several knife wounds to the back, a deep wound to the chest area that punctured his left lung, and another deep wound to his neck that punctured his jugular vein. Some of the wounds were cutting, or sharp force injury, wounds, while others, including the wound to the chest and neck, were much deeper stab wounds. The stab wounds were consistent with a serrated blade, like the one on the knife found in Walter's bathroom, and were the direct cause of Solano's death.
The People charged Avila with murder.
Defense
The defense presented testimony from Avila, his mother, and a police officer who interviewed Joana at the scene shortly after the incident.
Avila's mother testified that she, Avila, and Walter were all working at the family home on October 27, 2013. She received a text message from Leslie and, at about midnight, asked Avila to pick Leslie up.
Avila testified that he went to pick Leslie up from Carlos's house after his mom asked him to do so. He had been friends with Carlos in the past but found out that he had been abusing Leslie about a year prior and, thereafter, did not like him. He did not previously know Solano or any of the other individuals at the house that day, besides Carlos and Leslie. Avila had a knife that he carried on a regular basis, and sometimes used at work, and he had the knife with him that evening.
Walter, Juan, and Junior had also been working at the family home, and they were all planning to hang out at Walter's house after Avila picked up Leslie, so they all left together, in two cars. When they arrived at Carlos's house, about 20 minutes later, Avila saw Walter get out of one car to let Leslie in, and then he also got out of the other car. He did not see Juan or Junior get out of the cars at any time.
Carlos and Walter started exchanging words and moving toward one another. They met toward the end of the driveway and began to fight. Leslie went toward the fight and Avila began walking in their direction, toward the house. Avila heard Carlos call for someone and, after a couple of minutes, Solano came running out of the house toward Avila.
Solano punched Avila in his face, near his eye and temple. Avila tried to fight back but was unable to land any punches. Solano hit him several times, he started to feel dazed and faint, and eventually fell to his hands and knees, on the ground. He felt as though he was going to blackout. He did not believe he could fight back but remembered he had the knife in his pocket and pulled it out. He started swinging the knife back and forth in an attempt to get Solano off him. He was scared and thought he was going to die. He did not intend to kill Solano but did feel the knife make contact several times.
Eventually, Solano stopped hitting Avila and Avila stopped swinging the knife. He got up and saw Solano running up the driveway toward the garage. He heard Solano say that he had been stabbed but did not think that Solano was going to die.
Avila went back toward the cars to leave. He saw Leslie but did not see Walter. He then saw Carlos running toward the cars, screaming for Leslie. Walter came running up to the cars and got into a second altercation with Carlos. Avila joined the fight and punched Carlos a few times before getting into the car to leave.
Avila was driving when they left the scene but had to pull over because he felt sick. He vomited on the side of the road and then had to get into the other car because he was no longer able to drive. They went to Walter's house and, once there, Avila noticed he had a split lip, two black eyes, and a cut below his eyebrow. He showered, cleaned off the blood, and put on new clothes.
Leslie left and went back to the family home, but Avila stayed at Walter's house. The next morning, Walter got a call from a police officer asking him and Avila to return to the family home. They met the police at the family home and then voluntarily went with them to the station to be interviewed. He did not tell the police about the knife, and instead said that he found a metal object at the scene, that he hit Solano with the object, and that he threw it out. He lied to the police because he was scared.
On cross-examination, Avila testified that he was approximately five feet seven inches tall and had been around 190 pounds on the night in question, slightly larger than Solano. He admitted that he had taken a shower after work that evening and had deliberately put the knife back in his pocket before going to pick up Leslie. He also lied to the police about the extent of his friendship with Juan and Junior and his involvement in the second altercation with Carlos. Although he had said he did not know where the knife made contact with Solano, he admitted he had accurately shown Leslie and Walter several places where he had stabbed Solano on the morning of October 28, while unknowingly being recorded in the interrogation room, and that he had actually known by the time they left the scene that he had stabbed Solano in the neck. Despite this, he appeared in a photo taken at Walter's later that morning, smiling and showing his middle finger to the camera.
The police officer testified Joana told him the only person she heard yelling on the night in question was the individual involved in an altercation with Carlos (presumably Walter).
The prosecutor presented Juan on rebuttal, and he testified that, on the way to Carlos's house, Avila told him something like, "I'm going to handle my shit, scrap, and whatever, and we'll leave," and he understood that to mean there may be a fight. A police officer confirmed Juan had told him the same thing shortly after the incident.
Verdict
The jury found Avila guilty of first degree murder and found the use of a deadly weapon enhancement true. The court sentenced him to 25 years to life in prison, plus an additional one year pursuant to Penal Code section 12022, subdivision (b)(1).
All further statutory references are to the Penal Code.
Avila appeals.
DISCUSSION
I. Sufficiency of the Evidence Regarding Premeditation and Deliberation
After the prosecution rested its case, Avila's counsel made a motion for a judgment of acquittal, pursuant to section 1118.1, and argued the evidence was insufficient to support a conviction because no one witnessed Avila stab Solano. The superior court concluded there was enough circumstantial evidence upon which a jury could reasonably conclude Avila stabbed Solano and went on to find there was sufficient evidence to support the premeditation, deliberation, and malice aforethought element of the first degree murder charge. On appeal, Avila asserts the superior court erred by denying the motion because the stabbing was spontaneous and there was no evidence he preplanned or deliberated the killing. Similarly, he contends the conviction must be reversed because the record as a whole also lacks sufficient evidence of premeditation and deliberation to support the verdict.
A. Applicable Legal Principles
The unjust killing of a human being is presumed to be murder in the second, rather than first, degree. (People v. Anderson (1968) 70 Cal.2d 15, 25 (Anderson).) To support a conviction for first degree murder, the prosecution must present evidence of premeditation and deliberation or, more specifically, evidence sufficient to support a finding that the killing was the result of preexisting thought and reflection, and not the result of a rash or unconsidered impulse. (People v. Burney (2009) 47 Cal.4th 203, 235 (Burney); People v. Salazar (2016) 63 Cal.4th 214, 245.) That said, "[p]remeditation and deliberation can occur in a brief interval." (People v. Memro (1995) 11 Cal.4th 786, 862-863 (Memro).) "The test is not time, but reflection. 'Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.' [Citation.]" (Ibid.) Circumstantial evidence may be sufficiently substantial to support the element of premeditation and deliberation so long as it furnishes "a reasonable foundation for an inference of premeditation and deliberation." (Anderson, at p. 25.)
In Anderson, the California Supreme Court established a framework for considering the sufficiency of evidence establishing premeditation and deliberation, and explained that such evidence generally falls into three basic categories: (1) evidence of planning activities carried out by the defendant prior to the murder itself; (2) evidence indicating the defendant had a motive to kill the victim; and (3) facts regarding the manner of killing that suggest that the defendant must have acted in accordance with a preconceived design. (Anderson, supra, 70 Cal.2d at pp. 26-27; People v. Thomas, (1992) 2 Cal.4th 489, 517.) However, this list is not exhaustive, and the standard does not require any specific combination of the three factors to support a finding of premeditation and deliberation. (Burney, supra, 47 Cal.4th at p. 235.)
B. Standard of Review
A defendant may bring a motion pursuant to section 1118.1 at the close of evidence on either side or before the case is submitted to the jury. If the evidence before the court at the time the motion is made "is insufficient to sustain a conviction of the charged offense or offenses] on appeal," the court must order the entry of a judgment of acquittal. (Ibid.) In reviewing the trial court's ruling on a section 1118.1 motion, the appellate court applies the same standard the trial court used to decide the motion in the first instance. (People v. Cuevas (1995) 12 Cal.4th 252, 261; People v. Trevino (1985) 39 Cal.3d 667, 695 (Trevino), overruled on other grounds in People v. Johnson (1989) 47 Cal.3d 1194, 1221 (Johnson).) In both cases, the court determines whether there is substantial evidence to support each element of the charged offense. (Johnson, at p. 1221.) The appellate court, however, must take care to consider only the evidence before the trial court at the time that court made its initial ruling. (Ibid.)
We also review assertions regarding the sufficiency of the evidence more generally for substantial evidence and, in that context and in the context of a section 1118.1 motion, affirm the judgment if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319; accord, People v. Maury (2003) 30 Cal.4th 342, 403; Cuevas, supra, 12 Cal.4th at pp. 260-261.) Even where there is some evidence the defendant was not guilty, substantial evidence supports the verdict if the record as a whole, at the relevant point in time, contains evidence that is reasonable, credible, and of solid value from which a rational jury could find the defendant guilty beyond a reasonable doubt. (People v. Booker (2011) 51 Cal.4th 141, 172 (Booker).)
C. Sufficiency of the Evidence at the Time of the Section 1118 .1 Motion
We first consider the evidence as it stood at the conclusion of the prosecution's case-in-chief to determine whether the court erred in denying Avila's motion pursuant to section 1118.1.
The evidence put forth by the prosecution established that Carlos had a history of abusing and isolating Leslie, that Avila and Carlos had fought over Carlos's treatment of Leslie in the past, and that Avila knew Leslie was with Carlos and wanted to leave when he left to pick her up. Avila armed himself with a knife before going to Carlos's house and, once there, he and Walter approached Carlos, intending to fight, even though Leslie was already safe in the backseat of Walter's car.
Avila subsequently testified he always carried the knife, and sometimes used it for work, but at the time Avila made his section 1118.1 motion, the defense had offered no explanation for the knife, leaving the jury to infer Avila took it to the house intending to fight.
When Solano came outside to assist Carlos, Avila engaged in a physical altercation with him and—although Solano was unarmed—Avila stabbed him multiple times and with enough force to puncture his lung and jugular vein. Finally, despite knowing Solano had been stabbed in the neck and despite Carlos pleading with Leslie to call for help, Avila and the others continued to beat up Carlos and then fled the scene; they did nothing to help Solano and, instead, Avila hid the murder weapon in a cabinet at Walter's house shortly thereafter.
Considering the factors set forth in Anderson, there was evidence of planning activities insofar as Avila went to the house that evening with the intention to engage in a physical altercation, at least with Carlos, deliberately armed himself with a knife, and purposefully pursued Carlos even after Leslie was safe in the car. (Anderson, supra, 70 Cal.2d at pp. 26-27.) While Avila may not have been planning to kill Solano, specifically, since he did not know he would be there, he still took steps to prepare for a physical altercation, including arming himself with a deadly weapon. Further, the evidence supported at least an inference that Avila was motivated to kill Solano once he arrived at the house and realized Solano was associated with and attempting to assist Carlos. (Ibid.) Finally, Avila killed Solano by stabbing him multiple times, including deep wounds to the neck and chest, suggesting Avila had made the conscious and deliberate decision, even if made quickly and in the moment, to kill him. (Ibid.)
Based on this evidence, we agree with the superior court that the evidence presented prior to the section 1118.1 motion was sufficient to support the premeditation, deliberation, and malice aforethought element of the first degree murder charge, particularly when viewed in the light most favorable to the prosecution. Accordingly, the superior court did not err in denying the motion.
Avila contends this same evidence was not sufficient because it instead suggested the stabbing was a spontaneous reaction to the situation, and not a preplanned or deliberate killing. We disagree.
First, Avila argues he could not have planned to kill Solano because he did not know who Solano was or that he would be at Carlos's house. But Avila fails to acknowledge the broader context of the altercation and that premeditation and deliberation can occur quickly, not necessarily hours before the killing. (See Memro, supra, at pp. 862-863 [recognizing decisions can be made quickly and a defendant may make a calculated judgment after only a brief moment of reflection].) As discussed, the evidence here indicated Avila went to the house that night ready to fight Carlos and that Avila and Walter pursued that fight even after Leslie was safely in the car. Although Avila was primarily concerned with Carlos when he first arrived, it was reasonable for the jury to infer that Avila associated Solano with Carlos, that he was upset with Solano's attempts to defend Carlos and, accordingly, that he quickly formulated a motive and made a conscious deliberate decision to kill Solano during the resulting altercation. (See People v. Koontz (2002) 27 Cal.4th 1041, 1081-1082 [evidence supported a finding of premeditation and deliberation, and not a spontaneous shooting resulting from an argument, where defendant armed himself and continued to pursue the victim]; People v. San Nicolas (2004) 34 Cal.4th 614, 668 [evidence of prior quarrels properly admitted to show motive]; People v. Pride (1992) 3 Cal.4th 195, 247 [multiple stab wounds consistent with a finding of premeditation].)
Similarly, Avila asserts he was not intending to kill Solano when he armed himself with the knife earlier in the evening, but that he spontaneously pulled it out of his pocket during the fight. Again, though, even if Avila had not taken the knife with the express intention of stabbing Solano, there remained sufficient evidence from which a jury could infer that he deliberately took the knife with him, knowing there was a good chance there would be a fight. Regardless, the jury only had to conclude that Avila made a calculated judgment after a brief moment of reflection to convict, and there was sufficient evidence to suggest Avila made a conscious decision to take out the knife and stab the unarmed Solano. (See Memro, supra, 11 Cal.4th at pp. 862-863.)
Further, Avila contends the wounds themselves suggested the killing was rash and not carefully planned out. Although there were also a few slashing wounds—which likely resulted from Avila simply waving the knife around—many of the wounds were deep, plunging stab wounds, and at least two were in critical regions—Solano's chest and neck, suggesting Avila was not just trying to get Solano off him, but intended to kill him.
Finally, Avila attempts to distinguish this case from two other cases in which the courts determined the evidence was sufficient to support a finding of premeditation and deliberation. (See People v. Nazeri (2010) 187 Cal.App.4th 1101, 1116-1117 (Nazeri); People v. Perez (1992) 2 Cal.4th 1117, 1164 (Perez).) In Nazeri, the court noted the manner of killing, multiple stab wounds to the face, neck, and lungs, was not particularly suggestive of premeditation or deliberation because vicious or brutal attacks tend to be less thought out than more methodical forms of murder, such as poisoning. (Nazeri, at p. 1118.) However, in both cases, the courts found there was sufficient evidence of premeditation because the evidence also suggested the defendants had a motive to kill and, in the case of Perez, the defendant continued to pursue the victim after an interruption. (Id. at pp. 1116-1117; Perez, at pp. 1126-1127.) Here, although the manner of killing was multiple stab wounds, the nature of the wounds suggests they were made intentionally and not in a frenzy and, as in Nazeri and Perez, the remaining evidence suggests premeditation and deliberation. Avila planned to fight Carlos and had a motive to kill Solano when Solano came to Carlos's aid. Thus, if anything, the analysis in Nazeri and Perez support the superior court's denial of Avila's section 1118.1 motion.
D. Sufficiency of the Evidence Supporting the Verdict
Avila also contends the evidence as a whole at the end of the trial was not sufficient to support the conviction. Again, we disagree.
The primary evidence offered during the defense case was Avila's own testimony. Avila asserts his testimony further established the killing was the result of a rash and spontaneous act, in response to the sudden physical altercation that occurred. To the extent Avila's testimony contradicted the evidence discussed ante, though, the existence of such contradictory evidence or testimony is not enough to negate the sufficiency of the evidence tending to prove premeditation and deliberation. (Booker, supra, 51 Cal.4th at p. 172.) The relevant standard requires only that there was sufficient evidence from which the jury could make a finding of premeditation and deliberation. (Ibid.) In any event, the jury was entitled to consider the credibility of each witness when weighing any conflicting evidence and, here, Avila admittedly lied to the police immediately following the murder and the prosecutor caught him in additional lies on the stand at trial. Accordingly, the defense case here did little, if anything, to negate the sufficiency of the evidence presented by the People with respect to premeditation and deliberation.
Moreover, at least certain aspects of his testimony lend further support to the prosecution's case. For example, Avila testified that he showered and changed clothes at the family home before he went to pick up Leslie and, although his only plans thereafter were to hang out at Walter's house, he put the knife back into his pants pocket before leaving. This suggests a conscious decision to take the knife to the house that evening. In addition, during his cross-examination of Avila, the prosecutor introduced a portion of the video from the interrogation room in which Avila clearly indicated he knew where Solano had been stabbed, including on the side, the neck, and the back. Avila argues the recording helps him because all three of the siblings then went on to state that they thought Solano was okay when they left, but those statements came only after the siblings discussed Avila's defense and could just as easily be read as an implicit agreement between them to tell the same story to the police. Finally, Avila's lies to the police and on the stand suggested a consciousness of guilt and his lack of remorse, as demonstrated by the smiling photo taken later that morning suggested the killing was more deliberate than spontaneous. (See People v. Williams (2000) 79 Cal.App.4th 1157, 1167-1168 [deliberate false statements to police "have long been considered cogent evidence of a consciousness of guilt"]; People v. Michaels (2002) 28 Cal.4th 486, 528 ["Absence of remorse . . . may be relevant, because it sheds light on the defendant's mental state, in determining the degree of the homicide . . . ."].)
Based on the foregoing, we conclude there was sufficient evidence of premeditation and deliberation to support the conviction on first degree murder.
II. The Evidence Did Not Support an Instruction Based on Sudden Quarrel
In an attempt to reduce the charges against him, Avila asked the court to instruct the jury on voluntary manslaughter, a lesser included offense of murder, based on sudden quarrel or heat of passion, using CALCRIM No. 570. The court initially stated the instruction was not appropriate because there was no evidence Avila was angry or enraged at Solano when he stabbed him, but Avila responded that the instruction was nevertheless applicable based on sudden quarrel. After further consideration, the court concluded the instruction also would not be appropriate based on a sudden quarrel or mutual combat theory because Solano was unarmed and Avila used a deadly weapon, giving him an undue advantage. Accordingly, the court refused to give the instruction. Avila contends the trial court's refusal was prejudicial error.
CALCRIM No. 570 states, in part:
The defendant killed someone because of a sudden quarrel or in the heat of passion if:
1. The defendant was provoked;
2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured (his/her) reasoning or judgment;
AND
3. 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.
Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection.
. . .
It is not enough that the defendant simply was provoked. The defendant is not allowed to set up (his/her) own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.
In a murder case, the trial court has an obligation to instruct the jury on voluntary manslaughter based on sudden quarrel or heat of passion, or any other lesser included offenses, if the associated defense theory is supported by substantial evidence. (People v. Breverman (1998) 19 Cal.4th 142, 160 (Breverman); People v. Rogers (2006) 39 Cal.4th 826, 866; People v. Young (2005) 34 Cal.4th 1149, 1200 (Young).) Evidence is substantial so long as a reasonable jury could find it persuasive. (Young, at p. 1200.) The trial court determines whether there is substantial evidence to support a given instruction without reference to the credibility of the evidence but is not obligated to give an instruction based solely on conjecture or speculation. (Ibid.) On appeal, we review assertions the trial court should have given a particular jury instruction de novo and view the evidence in the light most favorable to the defendant. (People v. Waidla (2000) 22 Cal.4th 690, 733; People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.)
A reduction of a charge from murder to voluntary manslaughter based on sudden quarrel or heat of passion requires both subjective and objective findings; the jury must conclude the defendant actually acted with obscured judgment due to a provocation by the victim and the provocation was sufficient to cause a person of average disposition to act rashly and without due deliberation. (Breverman, supra, 19 Cal.4th at p. 163; see also People v. Steele (2002) 27 Cal.4th 1230, 1252-1253 [defendant must prove adequate provocation and actual heat of passion].) Put another way, "[t]he provocation must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment." (People v. Lee (1999) 20 Cal.4th 47, 60.) Further, a voluntary manslaughter defense is not available to a defendant based on passions aroused by a "sudden quarrel" or "mutual combat" if the defendant took undue advantage or used a dangerous weapon. (People v. Sanchez (1864) 24 Cal. 17, 26-27.)
Here, Avila testified he took the knife from his pocket and killed Solano because Solano was punching him, he was unable to fight back effectively with his fists, and he thought he was going to lose consciousness or die. He never claimed he was angry at Solano or that his thought process was obscured by a sudden rage based on the physical altercation. (See People v. Moye (2009) 47 Cal.4th 537 [instruction based on sudden quarrel or heat of passion not required where defendant's own testimony suggested at most self-defense and did not demonstrate he was subjectively under the influence of a strong passion].) Nor would such a theory make sense under the circumstances. As discussed, it was Avila and Walter who initiated the confrontation with Carlos, even after Leslie was safely in the car, and Solano came out of the house only after Carlos called for assistance. It would not be reasonable for the jury to conclude that a person of average disposition would be provoked to the point of stabbing someone in the neck simply because they came to the aid of another individual the person had pursued in a physical altercation. Moreover, Avila, along with Walter, maintained an undue advantage throughout the entire scenario. (See Sanchez, supra, 24 Cal. at pp. 26-27.) They first approached Carlos two to one, and then when Solano came outside to assist Carlos, Avila pulled out a knife.
The superior court relied primarily on People v. Whitfield (1968) 259 Cal.App.2d 605 in determining that Avila's undue advantage negated the need for the instruction, and Avila contends Whitfield is not instructive here because there was evidence that it was not a case of mutual combat because Solano unilaterally attacked him. However, in making this assertion, Avila fails to acknowledge that, even according to his own testimony, he and Walter first approached Carlos, and Solano only came out of the house after Carlos called for assistance. While Avila and Walter may not have been looking to fight Solano, specifically, they certainly entered willingly into, and even pursued, the altercation with Carlos.
Avila similarly argues he did not seek an undue advantage by using his knife because he only took the knife out in response to Solano beating him up, but the facts remain that Avila sought out a fight in the first instance, and that Solano was unarmed when Avila decided to take the knife out and stab him. Further, Avila did not claim, nor was there any other evidence to suggest, that he had any reason to believe Solano was armed. Accordingly, we agree with the superior court that Whitfield is applicable, and Avila was not entitled to an instruction on voluntary manslaughter.
In any case, even if the court did err in failing to provide the instruction, any such error was harmless. In determining whether an instructional error is prejudicial, we apply the state law standard set forth in People v. Watson (1956) 46 Cal. 2d 818, 836, and consider whether there is a reasonable probability that the jury would have reached a verdict more favorable to the defendant absent the error. (People v. Falsetta (1999) 21 Cal.4th 903, 925; see also People v. Jandres (2014) 226 Cal.App.4th 340, 359 [Watson standard applies to erroneous propensity instruction as propensity is not an element of the charged offense and conviction cannot be based on propensity evidence alone.].) We consider a disputed instruction in light of the entire charge to the jury and determine whether there is a reasonable likelihood the jury misunderstood and misapplied the instruction with the understanding that the jurors are intelligent and capable of understanding all of the given instructions. (People v. Moore (2011) 51 Cal.4th 1104, 1140; People v. Lopez (2011) 198 Cal.App.4th 698, 708; Estelle v. McGuire (1991) 502 U.S. 62, 72.)
Although the court refused to give the voluntary manslaughter instruction, it did instruct the jury more generally on the effect of provocation using CALCRIM No. 522, and stated, "[i]f you conclude the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second-degree murder." Further, the court also instructed the jury on perfect self-defense and voluntary manslaughter based on imperfect self-defense, which fit more squarely with Avila's defense theory. Despite these instructions, though, the jury returned a verdict of guilty on the first degree murder charge. Thus, the jury presumably understood that it had to consider both provocation and Avila's self-defense claims, and still determined that Avila had acted with premeditation and malice aforethought when he killed Solano. Under these circumstances, there is no reasonable probability that the jury would have reached a verdict more favorable to the defendant even if they had been instructed on voluntary manslaughter based on heat of passion or sudden quarrel.
III. The Video Was Not Overly Prejudicial
At trial, and over defense counsel's objection, the superior court allowed the prosecution to play an approximately two minute long portion of the video from the body camera of the first police officer to arrive on the scene following the altercation. Avila asserts the court abused its discretion in admitting the portion of the video because the video was more prejudicial than probative, and that the error was prejudicial.
Evidence is relevant if it has a "tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) However, the trial court may exclude relevant evidence if the risk of undue prejudice, undue consumption of time, confusion of the issues, or misleading the jury substantially outweighs its probative value. (Evid. Code, § 352; People v. Cudjo (1993) 6 Cal.4th 585, 609.) In this context, " 'prejudicial' is not synonymous with 'damaging,' but refers instead to evidence that ' " 'uniquely tends to evoke an emotional bias against defendant' " ' without regard to its relevance on material issues" or where there is a substantial likelihood the jury will use it for an illegitimate purpose. (People v. Kipp (2001) 26 Cal.4th 1100, 1121 (Kipp) [concluding probative value of redacted version of spontaneous written confession outweighed any potential prejudice]; Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1009.)
We review the superior court's determinations regarding the admissibility of evidence, including whether such evidence is overly prejudicial pursuant to Evidence Code section 352, for an abuse of discretion. (Kipp, supra, 26 Cal.4th at p. 1121; People v. Harris (2005) 37 Cal.4th 310, 337.) Accordingly, we do not disturb the ruling of the trial court unless it is arbitrary, capricious, or patently absurd. (People v. Jones (2013) 57 Cal.4th 899, 924.)
The video at issue here is gruesome and there can be little doubt that it is likely to evoke an emotional response by any viewer. The video depicts Solano lying on the ground at the end of the driveway, struggling to breathe, his clothing and the wall behind him covered in blood. Meanwhile, the officer recording the video alternates between asking Solano, "what happened?" and "who did this?," receiving no audible response from Solano other than moaning, and saying, "keep breathing for me." Essentially, the video depicts Solano dying. However, the prejudicial nature is tempered to some degree by the poor quality and shortened length of the video and the fact that neither any of the stab wounds nor Solano's face are shown in the portion that was played.
Despite the gruesome nature of the video, though, we agree with the superior court that it was probative of materially significant issues in the case—Solano's location and inability to move or walk back toward the house after being stabbed. Avila and his siblings asserted, at the police station following the altercation and at trial, that Avila had been able to walk back toward the house before they left the scene, suggesting that Avila did not know how gravely he had injured Solano. But the video tells a different story. There is a significant amount of blood on Solano's clothing and in the area where Solano is lying, Solano appears unable to speak or move, let alone stand up and, although the video does not clearly show the rest of the yard, there is nothing to suggest Solano had walked to the house and then back to the location where he was ultimately found at the end of the driveway. In addition, the video offers a more direct and detailed view of Solano's condition than still images or testimony from the officers would have. (People v. Pride (1992) 3 Cal.4th 195, 243-244 [prosecution not obliged to use testimony or accept stipulations in lieu of probative but gruesome photographic or video evidence].)
Avila argues courts have recognized the unnecessary admission of gory and disturbing videos or images is particularly problematic, but the cases he relies upon are not instructive here. In People v. Marsh (1985) 175 Cal.App.3d 987, the appellate court concluded the trial court erred by allowing gruesome autopsy photos into evidence because they had no probative value insofar as there was extensive testimony about the autopsy and the cause of death was not disputed. (Id. at p. 998.) To the contrary, here, the relevant issue was not the nature of Solano's wounds. Instead, there was a materially significant dispute regarding the physical state Solano was in immediately after the altercation, when Avila and the others left the scene. Although some time did pass before the police arrived and began recording, the video was nevertheless highly probative of Solano's condition and the truthfulness of the claim that Solano had walked back toward the house after the stabbing.
In People v. Moon (2005) 37 Cal.4th 1, 34-35, the appellate court upheld a ruling by the trial limiting the use of such photos to the penalty phase but there, unlike here, the purpose of the photos was to show the degree of callousness, violence, and cruelty of the murder. (Id. at pp. 34-35.) In its analysis, the court noted the concerns regarding the visceral response to such images were diminished given the purpose of the penalty phase but did not go so far as to conclude that such photos could never be admissible in the guilt phase. (Ibid.)
Finally, in People v. Sims (1993) 5 Cal.4th 405, the court acknowledged that video should sometimes be excluded where it is far more graphic and prejudicial than static photos, but nevertheless determined the trial court did not abuse its discretion by admitting a video depicting the removal of a murder victim's body from the scene where the video had significant probative value. (Id. at p. 452.) Here, as in Sims, the video was not significantly more prejudicial than photos would have been and, more importantly, had significant probative value beyond what photos could have depicted.
Accordingly, we cannot conclude that the superior court abused its discretion by allowing the jury to view the shortened, two minute long video.
Avila also asserts the video violated his Fourteenth Amendment right to a fair trial. As an initial matter, he forfeited any independent argument for excluding the video based on constitutional grounds by failing to raise the argument in the superior court. (People v. Partida (2005) 37 Cal.4th 428, 435.) Regardless, for the same reasons we have concluded the superior court did not err by admitting the video pursuant to Evidence Code section 352, we would also conclude that the admission of the video did not render the trial fundamentally unfair and thus, did not violate Avila's rights under the Fourteenth Amendment.
IV. The Prosecutor's Statements During Closing Arguments Were Not Misconduct and Defense Counsel Did Not Provide Ineffective Assistance by Failing to Object
At the conclusion of the evidence, and after playing the video discussed ante for the jury, the prosecutor began his closing argument by recalling his own personal experiences with death. He stated:
"Now, I remember how old I was -- I was five -- when I first realized it. It was the first person I lost. But I knew. I knew then about it. And as my life progressed, like all of ours, I was reminded of the time someone in my family or one of my friends lost their life.
But, see, for me, like many of you, the time that I really, truly realized it, it wasn't from walking scenes, homicides, over and over again. It wasn't going to autopsies. It wasn't looking at pictures that are just that, pictures. For me, recently, when I joined many of you and became a parent, it hit me like a ton of bricks."
Defense counsel objected, and the prosecutor said he would move on. The prosecutor then continued:
"That is that life, life is so damn precious. And the thing that we all kind of share in common—it spans continents, ages, gender—that is that our biggest fear, or one of our biggest fears, is death.
And on that night in October of 2013, as [Solano] got slashed the first time in his face, that fear sunk in. And as he was stabbed over and over and over again, [Solano] laid there realizing he was going to die. And while [Solano] laid on someone's driveway in the dirt, in the middle of the night, with none of his loved ones around, bleeding out, this man was at home taking a selfie, letting the world know that he didn't give a shit."
Later, when discussing Avila's claims of self-defense and the severity of Solano's wounds, the prosecutor said:
"You see, I don't get to put on [Solano]'s mother. I don't get to put on [Solano] to testify. Unfortunately, it doesn't work that way. That doesn't mean [Solano] is any less of a person or his mother is any less."
Avila contends the prosecutor committed prejudicial misconduct by making these statements, and that his counsel provided ineffective assistance by failing to object.
A. The Statements Were Not Misconduct
Prosecutors have wide latitude to argue their case vigorously during closing arguments but may not use deceptive or reprehensible methods to persuade the jury. (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill); People v. Tully (2012) 54 Cal.4th 952, 1009-1010 (Tully).) A prosecutor's conduct violates the federal constitution and requires reversal when it infects the trial with such unfairness to deny the defendant due process. (People v. Powell (2018) 6 Cal.5th 136, 172 ) Further, even if the conduct does not meet the federal standard, it may still require reversal under California state law if it employs deceptive or reprehensible methods to attempt to persuade the jury. (Ibid.)
Of relevance here, a prosecutor may commit misconduct by improperly appealing to the sympathy or passions of the jury to the extent that the prosecutor's comments suggest emotion should prevail over reason or otherwise "divert[] the jury's attention from its proper role." (People v. Redd (2010) 48 Cal.4th 691, 742; People v. Fields (1983) 35 Cal.3d 329, 362.) However, " '[t]o prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.' " (People v. Dykes (2009) 46 Cal.4th 731, 772.) When reviewing the prosecutor's statements on appeal, we do not infer that the jury drew the most damaging meaning possible but consider how a reasonable juror would, or could, have understood the allegedly improper comments in the context of the entire argument. (Ibid.; People v. Benson (1990) 52 Cal.3d 754, 793.)
To preserve a claim of prosecutorial misconduct for appeal, defense counsel must make a timely objection and request an admonition to cure any harm in order. (People v. Riggs (2008) 44 Cal.4th 248, 298.) Here, it is undisputed that Avila's counsel did not seek an admonition after his original objection and did not object further thereafter. Thus, Avila has forfeited his arguments regarding prosecutorial misconduct on appeal. However, because Avila asserts his counsel provided ineffective assistance of counsel by failing to object, we will briefly address the merits of his prosecutorial misconduct claim in the context of determining whether his counsel erred by failing to object. (See People v. Crittenden (1994) 9 Cal.4th 83, 146 [court may exercise discretion to consider forfeited claims to forestall ineffective assistance of counsel arguments].)
The comments at issue here do not rise to the level of prejudicial misconduct. First, Avila contends the prosecutor committed misconduct by linking the universal fear of death with Solano's dying moments and asking the jury to view the crime through Solano's eyes. Unlike the cases Avila relies upon, though, the prosecutor in this case did not actually ask the jury to put themselves in Solano's place on the night of the murder. (See People v. Vance (2010) 188 Cal.App.4th 1182 [prosecutor committed misconduct by telling the jury, "In order for you as jurors to do your job, you have to walk in Dipak Prasad's shoes. You have to literally relive in your mind's eye and in your feelings what Dipak experienced the night he was murdered."]; People v. Fields (1983) 35 Cal.3d 329, 361-363 [prosecutor told the jury to "think of yourself as [the victim]" and continued to narrate the full circumstances of the crime using "you" in place of the victim's name].)
Of all the cases Avila relies on, the comments at issue here are, instead, most akin to those at issue in People v. Kipp (2001) 26 Cal.4th 1100. There, the prosecutor asked the jury to consider what it meant to be killed and that the victim, "[a] living, breathing human being had all of that taken away." (Id. at p. 1129.) The court concluded the prosecutor's statement was an improper appeal to the jury's sympathies, but that it was brief, mild, and not repeated, and therefore did not rise to the level of reversible misconduct under either the state or federal standard. (Id. at p. 1130.) Similarly, here, although the prosecutor's reference to Solano's fear or the fact that he died alone can reasonably be viewed as an improper appeal to the jury's sympathies, it did not constitute reversible misconduct in the context of the prosecutor's entire argument as it was relatively brief, mild, and not repeated.
Next, the defendant contends the prosecutor committed misconduct by asking the jury to consider the crime's impact on the victim's family. (See Vance, supra, 188 Cal.App.4th at p. 1193.) We disagree. The prosecutor simply pointed out that Avila and his mother testified but Solano and his mother were not able to. If anything, the prosecutor was encouraging the jury not to allow their sympathies for Avila and his family members—whom they had the opportunity to see in person on the stand—affect their analysis of the case. He never suggested the jurors should consider the impact the case had on Avila's mother, or any other family members.
Accordingly, we cannot conclude the prosecutor's comments during closing arguments amounted to misconduct.
B. Relevant Legal Principles Regarding Ineffective Assistance of Counsel
Further, even if we were to view the prosecutor's statements as misconduct, Avila has not proven his counsel provided ineffective assistance of counsel by failing to object. To do so, Avila must show his attorney performed well below the standard of reasonableness under prevailing professional norms and that the result would have been more favorable to him but for that substandard performance. (Strickland v. Washington (1984) 466 U.S. 668, 686-688 (Strickland); People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.) On appeal, we give deference to trial counsel's tactical choices and presume counsel's decisions were proper. (Strickland, at pp. 691-694; People v. Hinton (2006) 37 Cal.4th 839, 876.) We do not second guess those decisions, but instead consider the reasonableness of counsel's choices in the context in which they were made. (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212.)
Where the record is void of information concerning the attorney's strategy, we must reject an ineffective assistance of counsel claim, "unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation." (People v. Scott (1997) 15 Cal.4th 1188, 1212 (Scott).) Given these standards and the frequent dearth of such information in the appellate record, "[i]neffective assistance of counsel claims are rarely cognizable on appeal," and are usually better suited for habeas proceedings. (People v. Silvey (1997) 58 Cal.App.4th 1320, 1329; People v. Wilson (1992) 3 Cal.4th 926, 936 (Wilson).)
Here, as discussed, we do not believe the prosecutor's statements were misconduct and, therefore, further objections from Avila's counsel would have had no meaningful impact on the outcome of the case. Further, when Avila's attorney objected the first time, the prosecutor immediately said he would move on, indicating he understood defense counsel's concerns. It is therefore reasonable to infer that the prosecutor was cognizant of the issue and constrained his remarks accordingly thereafter. Indeed, the subsequent comments Avila now complains of were relatively brief and mild. In this context, any further objections could have drawn more attention to the problematic remarks or, even more problematic, if the court were to overrule an objection, that ruling could have emboldened the prosecutor to take his remarks further. Accordingly, it would have been reasonable for defense counsel to make a tactical decision not to object.
Affording counsel the appropriate level of deference, we cannot conclude there was no satisfactory explanation for his decision not to object and therefore reject Avila's ineffective assistance of counsel claims. (See Scott, supra, 15 Cal.4th at p. 1212.)
V. The Cumulative Effect of any Errors was Not Prejudicial
Finally, Avila contends the cumulative effect of the errors discussed here was prejudicial. Because we have found no error in the first instance, we conclude the cumulative effect was not prejudicial. (See People v. Martinez (2003) 31 Cal.4th 673, 704 [cumulative error doctrine inapplicable where "no serious errors occurred that, whether viewed individually or in combination, could possibly have affected the jury's verdict"].)
DISPOSITION
The judgment is affirmed.
NARES, J. WE CONCUR: BENKE, Acting P. J. O'ROURKE, J.