Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA096176, Roger Ito, Judge.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Mike Angel Oquendo, appeals the judgment entered following his conviction, by jury trial, for first degree murder and premeditated attempted murder, with firearm use, great bodily injury and gang enhancements (Pen. Code, §§ 187, 664/187, 12022.53, 12022.7, 186.22, subd. (b)(1)). Oquendo was sentenced to state prison for a term of 90 years to life.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), we find the evidence established the following.
1. Prosecution evidence.
On May 23, 2006, defendant Oquendo and a group of friends were standing outside his house in Bell Gardens when a car drove past and one of the occupants started shooting. Oquendo ran down the driveway and shot back as the car drove away. Oquendo’s mother picked up one of the expended bullet casings that came from Oquendo’s gun.
On May 31, 2006, Felipe L., Angel Gutierrez, Jose A. and Jose’s younger brother were walking down the street in Bell Gardens. Oquendo and another man approached Jose’s group. Oquendo lifted up his shirt, displayed a handgun in his waistband and asked, “Where are you from?” When Jose’s group said they were not gang members, Oquendo said, “I don’t give a fuck” and yelled “Big bad NTS.”
Jose testified Oquendo took the gun out of his waistband. His companion told him to put it away, but Oquendo hit Gutierrez in the face with it. After telling his brother to run, Jose began struggling with Oquendo, trying to disarm him. Jose testified he did so because he feared for his life and the lives of his companions. Meanwhile, Gutierrez was fighting with Oquendo’s companion. During this melee, Oquendo shot Jose two times, hitting him in the right side of the chest. Oquendo then repeatedly shot at Gutierrez, who was already on the ground. Gutierrez was hit four times: once in the right shoulder and three times in the back. He died from his wounds.
The expended bullet casings recovered from the scene and the casing recovered by Oquendo’s mother a week earlier had been fired from the same gun. The evidence showed Jose’s group did not have any weapons and that they were not members of a gang.
A gang expert testified Oquendo was a member of the “Notorious” or “NTS” gang. One of NTS’s main rivals in Bell Gardens was the Junior Mafia gang. The shooting occurred in Junior Mafia territory, just outside NTS territory.
2. Defense evidence.
Oquendo did not testify.
Jose’s brother told police Oquendo and his companion approached, Oquendo pulled up his shirt, displayed a gun, announced his gang’s name and then rushed Gutierrez. Jose intervened and began fighting with Oquendo, who had not yet taken the gun out of his waistband. Oquendo subsequently pulled out the gun, pointed it at Jose, but then turned and shot Gutierrez.
Felipe told police either Oquendo or his companion hit Gutierrez, knocking him to the ground. Oquendo brandished a gun, but then complied with his companion’s order to put it away. Felipe ran across the street and, when he turned around, he saw Jose fighting with Oquendo and Gutierrez fighting with Oquendo’s companion. Oquendo took out his gun, shot Gutierrez and then shot Jose.
CONTENTIONS
1. The trial court erred by refusing to instruct the jury on imperfect self-defense.
2. The trial court erred by ruling it would strike Oquendo’s testimony if he refused to identify his companion on cross-examination.
DISCUSSION
1. Trial court did not err by refusing to instruct on imperfect self-defense.
Oquendo contends the trial court erred by refusing to instruct the jury on imperfect self-defense. This claim is meritless.
a. Proceedings below.
Defense counsel asked the trial court for an imperfect self-defense instruction, arguing that although Oquendo displayed the gun in his waistband when he initially approached the victims’ group, he did not take it out and use it until after the melee started. Defense counsel also asserted Jose provoked the street fight.
In response, the prosecutor argued the instruction was unwarranted because the evidence showed Oquendo provoked the fight by walking up to the victims, displaying the gun, issuing a gang challenge and brushing off the victims’ attempt to avoid trouble. The prosecutor also argued the evidence showed Jose only joined the fight after Gutierrez was attacked.
Defense counsel retorted the evidence showed “the provocation stopped when [Oquendo] put the gun away.” He argued the instruction should be given because the melee began subsequently, and only after the melee started did Oquendo take out the gun and use it.
The trial court ruled an imperfect self-defense instruction was unwarranted because there was no evidence the victims had provoked the fight: “This is all a continuous... course of conduct. Under no circumstances did I hear that the victims in any way either provoked Mr. Oquendo into shooting or that there was an honest but unreasonable belief [in] the need to defend himself or his unjoined perpetrator.” The trial court pointed out it was Oquendo who approached the victims’ group, displayed the gun, and then subsequently took it out and fired it. On the other hand, there was “no evidence whatsoever that suggests that any of [the victims] were armed in any way or that they acted with any kind of provocation.... ”
b. Discussion.
“Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter.” (In re Christian S. (1994) 7 Cal.4th 768, 771.) “[T]he doctrine is narrow. It requires without exception that the defendant must have had an actual belief in the need for self-defense.... ‘ “[T]he peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with.” ’ [¶] We also emphasize that whether the defendant actually held the required belief is to be determined by the trier of fact based on all the relevant facts. It is not required to accept the defendant’s bare assertion of such a fear.... Finally, we reiterate that, just as with perfect self-defense or any defense, ‘[a] trial court need give a requested instruction concerning a defense only if there is substantial evidence to support the defense.’ [Citation.]” (Id. at p. 783.)
There are two reasons why Oquendo was not entitled to an imperfect self-defense instruction: (1) he provoked the incident; and, (2) there was no evidence he actually believed he was in imminent danger.
(1) Oquendo provoked the incident.
While acknowledging the evidence shows he and his companion “were the initial aggressors,” Oquendo argues “the prosecution witnesses also testified that although appellant brandished a weapon, he put it away. Other facts reflect appellant did not fire the weapon until the physical fight had begun.” We disagree with Oquendo’s argument his initial provocation ceased before the melee started.
“It is well established that the ordinary self-defense doctrine – applicable when a defendant reasonably believes that his safety is endangered – may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary’s attack or pursuit is legally justified. [Citation.] It follows, a fortiori, that the imperfect self-defense doctrine cannot be invoked in such circumstances.” (In re Christian S., supra, 7 Cal.4th 768, 773, fn. 1.)
The evidence showed Oquendo and his companion provoked the melee, with Oquendo himself being the chief instigator. The undisputed evidence showed Oquendo and his companion walked up to the victims’ group, Oquendo showed the victims he had a gun in his waistband, and Oquendo then uttered a gang challenge. When the victims indicated they did not want any trouble, Oquendo said, “I don’t give a fuck,” and shouted out the name of his gang. The melee began immediately thereafter. All of the evidence showed the melee was started by either Oquendo or his companion.
At trial, defense counsel argued the jury could find Oquendo’s initial act of displaying the gun did not constitute an ongoing provocation because there was some evidence he did not draw his weapon until after the melee started. But there was no evidence of any significant time lag between Oquendo’s initial provocation and the start of the melee. Moreover, the evidence showed the melee had been started either by Oquendo or his companion. As the trial court observed, “This is all a continuous... course of conduct.”
There was no evidence Jose started the melee. Rather, the evidence showed Jose jumped in to disarm Oquendo after Gutierrez was attacked. Even if there had been evidence Jose started the melee, the same evidence would have showed his act was justified. (See People v. Seaton (2001) 26 Cal.4th 598, 664 [no evidence supported imperfect self-defense because “defendant’s testimony showed him to be the initial aggressor and the victim’s response legally justified”]; People v. Vasquez (2006) 136 Cal.App.4th 1176, 1179 [imperfect self-defense inapplicable if defendant “creates circumstances where the victim is legally justified in resorting to self-defense”].)
The evidence showed Oquendo was the aggressor who provocatively approached the victims’ group, displayed his handgun, issued a gang challenge and brushed off the victims’ attempt to avoid trouble. In these circumstances, Oquendo was not entitled to an imperfect self-defense instruction. (See, e.g., People v. Franco (1994) 24 Cal.App.4th 1528, 1539-1541 [imperfect self-defense instruction unwarranted because, even if victim made threatening hand movement, it occurred after defendant’s companion pointed rifle at victim and shouted gang challenge]; People v. Williams (1977) 75 Cal.App.3d 731, 740 [if defendant threatens victim with gun and struggle ensues, defendant generally has no right to shoot victim without first desisting and withdrawing].)
(2) There was no evidence Oquendo was afraid.
A separate reason for refusing to instruct the jury on imperfect self-defense would have been the absence of any evidence showing Oquendo “actually, ... believed he was in imminent danger of death or great bodily injury[.]” (In re Christian S., supra, 7 Cal.4th at p. 771; see People v. Minifie (1996) 13 Cal.4th 1055, 1065 [defendant claiming self-defense must “ ‘ “prove his own frame of mind” ’ ”].)
Oquendo correctly notes there can be substantial evidence of a defendant’s state of mind even if the defendant does not testify. But the circumstantial evidence Oquendo points to here merely consists of the fact he got hit during the melee. Oquendo argues “there was no dispute that appellant was being hit and ‘socked’ which reflects actual imminent danger of death or great bodily injury.” But Oquendo’s implicit assertion, that any unarmed street fight necessarily gives rise to an actual belief in the need for deadly force to ward off imminent danger, is unsupported by any pertinent authority or reasoned argument. The failure to properly develop an argument is fatal on appeal. (See Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 [“Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived.”].)
In any event, we do not see how the mere fact Oquendo got punched during the melee, without more, constituted substantial evidence he believed he was in imminent peril. (See, e.g., People v. Clark (1982) 130 Cal.App.3d 371, 380-381, disapproved on another ground in People v. Blakeley (2000) 23 Cal.4th 82, 92 [“evidence did not establish that the victim was so physically overwhelming that defendant had reason to fear great bodily injury”].) Similarly, we do not see how the mere fact someone shot at Oquendo a week earlier provided substantial evidence he believed he was in imminent peril, given there was no evidence connecting his victims to the earlier shooting.
There was no evidence showing Oquendo actually believed he was in imminent danger of death or great bodily injury when he shot the victims.
In sum, we conclude the trial court properly refused to instruct the jury on imperfect self-defense because there was no substantial evidence to support this defense. (See In re Christian S., supra, 7 Cal.4th at p. 783.)
2. Trial court properly ruled Oquendo could not testify without identifying his companion on cross-examination.
Oquendo contends he was deprived of his right to testify in his own defense when the trial court ruled it would strike his testimony if he refused, on cross-examination, to identify his companion. This claim is meritless.
The trial court told Oquendo that if he chose to testify, he would have to answer the prosecutor’s questions regarding the identity of his companion. In light of this ruling, Oquendo chose not to testify. He now contends the trial court impermissibly forced him to choose between defending himself and implicating another person, and that by doing so the trial court was, in effect, acting as a prosecutor.
“It is a commonly known rule that no witness, even a defendant in a criminal case, will be permitted to testify concerning a matter while refusing cross-examination as to the same matter. In such situations the constitutional privilege against self-incrimination as to the subject matter of his direct examination is deemed waived. [Citations.] As said in Brown v. United States [(1958)] 356 U.S. 148, 155-156, [... 78 S.Ct. 622], ‘[One] cannot reasonably claim that the Fifth Amendment gives him not only this choice [of testifying to his own version of the facts] but, if he elects to testify, an immunity from cross-examination on the matters he has himself put in dispute....’ ” (People v. Williams (1973) 30 Cal.App.3d 502, 510.) “When a defendant voluntarily testifies in his own defense the People may ‘fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them.’ ” (People v. Harris (1981) 28 Cal.3d 935, 953.)
“Where a defense witness refuses to answer questions that go to the heart of the direct testimony on a central issue,... the truth-seeking function of the court is impaired. ‘The Sixth Amendment does not confer the right to present testimony free from the legitimate demands of the adversarial system; one cannot invoke the Sixth Amendment as a justification for presenting what might have been a half-truth.’ [Citation.] Where a defense witness’s invocation of Fifth Amendment protection against self-incrimination amounts to a refusal to be cross-examined, the testimony cannot be considered reliable. We therefore join with those circuits that have permitted the exclusion of a defense witness’s testimony when the witness has refused on cross-examination to respond to questions on non-collateral matters. [Citations.]” (Denham v. Deeds (9th Cir. 1992) 954 F.2d 1501, 1504.)
Hence, a witness’s refusal to be cross-examined on a peripheral or collateral matter does not justify excluding the witness’s direct testimony, whereas a refusal to be cross-examined on matters going to the heart of the direct testimony does justify exclusion. (Compare People v. Seminoff (2008) 159 Cal.App.4th 518, 526 [testimony properly stricken where, at suppression hearing, defense witness said packaging of marijuana hidden in hotel closet completely masked its smell, but then refused to say if she had transported the marijuana for sale]; People v. Reynolds (1984) 152 Cal.App.3d 42, 45 [testimony properly excluded where defendant, being prosecuted for attempted jail escape, claimed he broke cell window in order to smuggle drugs into the jail after being threatened by other inmates, but refused to identify those inmates]; Denham v. Deeds, supra, 954 F.2d at p. 1503 [testimony properly excluded where defense witness said thieves gave stolen items to defendant, but witness refused to explain his own relationship to the thieves or how he introduced them to defendant]; with People v. Robinson (1961) 196 Cal.App.2d 384, 388-389 [preliminary hearing testimony improperly excluded where witness said defendant helped burglarize warehouse, but refused to reveal who subsequently purchased stolen items]; U.S. v. Negrete-Gonzales (9th Cir. 1992) 966 F.2d 1277, 1279-1280 [testimony improperly excluded where witness said defendants, charged only with aiding sale of cocaine, had no role in sale but refused to identify her drug source].)
The court of appeal reasoned that, without knowing the witness’s purported connection to the marijuana, it was impossible to judge the credibility of her assertion it did not smell, an assertion which contradicted the officers’ testimony there was a strong odor of marijuana coming from her hotel room: “[W]e cannot imagine how a trier of fact could assess [the witness’s] testimony about the search without understanding her stake in the marijuana.” (People v. Seminoff, supra, 159 Cal.App.4th at p. 526.)
Oquendo argues his companion’s testimony “would not have assisted the prosecution whatsoever.” Not so. Oquendo’s companion would have been a crucial eyewitness on the question of Oquendo’s state of mind. As the Attorney General argues, “Appellant’s cohort was an eyewitness to the events, and testimony suggested that he instructed appellant to put his gun away during the incident. Appellant’s theory... was, in part, that he did not strike Mr. Gutierrez in the head with the weapon, and only fired the weapon after a fight had occurred between appellant and his cohort against Mr. [Jose] and Mr. Gutierrez. Thus, appellant’s cohort would have been able to provide testimony that went to the heart of appellant’s defense claim, as well as to the elements of the charged offenses against appellant. Allowing appellant to testify to events which involved his cohort, while refusing to identify this individual, would have been unfair to the prosecution and to the jury as the trier of fact.”
Oquendo complains “[t]he record does not reflect that the trial court even considered a less ‘drastic solution’ ” than completely striking all his testimony if he refused to name his companion. Ideally, a trial court “should... consider if less severe remedies are available before employing the ‘drastic solution’ of striking the witness’s entire testimony. [Citation.] These include striking part of the testimony or allowing the trier of fact to consider the witness’s failure to answer in evaluating his credibility.” (People v. Seminoff, supra, 159 Cal.App.4th at p. 526.) However, Oquendo does not suggest what less drastic remedy the trial court should have applied. In any event, we cannot see any other feasible remedy. Had Oquendo testified, he would have presumably said the victims’ group started the melee and he fired his gun only because he feared for his safety. The companion’s testimony could have been crucial to either confirming or contradicting this story.
The trial court did not abuse its discretion by ruling it would strike Oquendo’s testimony if he refused to identify his companion. (See People v. Seminoff, supra, 159 Cal.App.4th at p. 528.)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., ALDRICH, J.