Opinion
D060877
11-14-2012
THE PEOPLE, Plaintiff and Respondent, v. URIEL SANCHEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCS242736)
APPEAL from a judgment of the Superior Court of San Diego County, Francis M. Devaney, Judge. Affirmed.
A jury found appellant Uriel Sanchez guilty of the lesser included offense of involuntary manslaughter (Pen. Code, § 192, subd. (b)) after it found him not guilty of first and second degree murder (§§ 187, 189) and voluntary manslaughter (§ 192, subd. (a)) for the killing of victim Joseph Baars. The trial court sentenced Sanchez to the middle term of three years.
All further statutory references are to the Penal Code.
On appeal, Sanchez contends the trial court prejudicially erred by (1) refusing to instruct the jury on the defense of unconsciousness, (2) modifying the standard involuntary manslaughter instruction, and (3) by failing sua sponte to amplify the self-defense instruction by further instructing the jury that Baars may have acted with malice aforethought.
As we explain, we reject Sanchez's contention that the trial court prejudicially erred and thus affirm the judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
We view the evidence in the light most favorable to the judgment of conviction, to the extent there is a conflict in the evidence. (See People v. Osband (1996) 13 Cal.4th 622, 690.) Certain portions of the factual and procedural history related to Sanchez's claims of alleged error are discussed post, in connection with those issues.
A. The People's Evidence
In early October 2010, about 50 people attended a "going away" party at a home located in Chula Vista, California. Baars attended the party. Baars knew Sanchez and was upset at him for allegedly "stealing" his girlfriend about a year earlier. While at the party, Baars drank heavily, smoked marijuana and used cocaine.
Sanchez also attended and consumed alcohol at the party. Around 2:00 a.m. Sanchez decided to leave the party because Baars was trying to pick a fight with him and Sanchez did not want any problems.
Alyssa P. was 17 years old when she testified at Sanchez's trial. Alyssa testified she and some friends went to the party. After they parked, Alyssa stayed in the car and spoke on her cell phone for about 10 minutes while her friends went inside. While on her phone inside the car, Alyssa saw five or six males arguing nearby. Alyssa ended her cell phone conversation and got out of the car. She then saw an individual later identified as Baars running from the party toward the group of males. Alyssa heard one of the males in the group, who she estimated were standing about nine feet away, say "I have your back. I have your back." According to Alyssa, Baars looked angry and appeared unsteady on his feet.
As Baars approached the group of males, Alyssa saw Baars throw and miss with a "sideways" punch. In response, the group of males started punching Baars, who fought back. At one point Baars attempted to hit a thin, bearded male in the group. This man, later identified as Sanchez, had long hair and wore a plaid shirt, dark pants and dark shoes. A few of the males held Baars's arms behind his back and then threw him to the ground, where he landed on his back.
Alyssa testified the males in the group then began aggressively kicking Baars with "hard kicks." Baars initially attempted to get to his feet but was unable to do so because the males continued to kick him. While the kicking continued, Baars stopped trying to get back on his feet and instead turned his head slightly toward Alyssa, who testified the lighting was good and she had an unobstructed view of the entire incident. Alyssa yelled at the males to stop, but they continued kicking Baars while he lay motionless on his back.
Alyssa testified Sanchez continued to kick Baars as he lay on the ground. Alyssa testified these were hard, aggressive kicks that when delivered, caused Baars' head to move from side to side. On a scale of 1 to 10, with 10 being the hardest, Alyssa testified the kicks delivered to Baars's head were a 10. Alyssa estimated Sanchez delivered about 10 such kicks to Baars's head as the other males in the group were also kicking Baars. Sanchez also kicked Baars's head from different angles and stomped on Baars's face and head. The group of males, including Sanchez, then left and ran to a car parked nearby. However, Sanchez ran back to where Baars lay and delivered at least 10 more hard kicks and at least five aggressive stomps, first with one foot and then with the other, to Baars's head.
Alyssa testified the second set of kicks and stomps were delivered with a force of 10 on a scale of 1 to 10, with 10 being the hardest. None of the males in the group attempted to stop the beating. Sanchez continued to strike Baars's face and head even though Baars was bleeding profusely and was not moving. Alyssa testified Sanchez finally stopped kicking and stomping on Baars when one of the males in the group told Sanchez, "That is enough. That is enough. Let's go." Sanchez then ran to the car that was waiting for him, got inside and left.
After the beating, Alyssa approached Baars and asked if he was okay. Baars's eyes were closed. Alyssa saw Baars's stomach moving up and down and heard him choking on what she believed was his own blood. After about a minute, the choking sounds stopped and Baars's stomach was no longer moving. Others from the party came to the scene. Alyssa did not call police or paramedics because she was in "shock" and because even though she was sober, she was out past her curfew and was afraid she would be in trouble.
Bianca Martinez attended the party with Jesus Diaz among others. Martinez knew Sanchez and codefendant Anthony Talavera and saw both men at the party. Martinez testified Sanchez had been a neighbor and that at the time of the killing, Sanchez had a beard.
Talavera was charged in count 2 of assault of Baars by means likely to produce great bodily injury, in violation of section 245, subdivision (a)(1). The jury acquitted Talavera of this charge.
Martinez consumed alcohol at the party. She described her condition that night from the alcohol as being "very buzzed" but not falling down drunk. At some point Martinez and her friends decided to leave the party at the same time Sanchez was leaving. While outside, Martinez saw Baars take what she described as a "drunken swing" at Sanchez, who ducked the punch. Martinez tried to videotape the confrontation with her cell phone, but testified it was too dark and was recording nothing so she gave up, pressed the "end" button on her phone and the six seconds or so of video was erased.
Martinez testified Baars was now on the ground. From about 30 feet away, Martinez saw Talavera kick the legs of Baars's body and saw Sanchez kick and stomp on Baars's face. Martinez described the force of Sanchez's kicks as a 10 on a scale of 1 to 10. As Sanchez delivered the blows to Baars's face, Martinez saw Baars's head moving from side to side and heard Baars gasping for air. Otherwise, Baars was not moving. Martinez estimated Sanchez kicked Baars's head and face 10 times. Martinez also saw Sanchez jump up with both feet in the air, his knees at his waist, and then come down in a stomping motion on Baars's head and face. Martinez testified she saw Sanchez stomp on Baars's head and face "probably three or more" times after she had heard Baars gasping for air.
As Sanchez continued to kick and stomp Baars's head and face, Martinez and her friends decided they had seen enough. As they began to leave the party in their car, Sanchez and another male got inside and Sanchez told the driver, "Go. Go. Go. And don't stop."
Diaz testified he attended the party on the night of the killing. Diaz testified he went to the party with Martinez and Sanchez, among others. Although Baars was aggressive toward Sanchez throughout the evening, around midnight Diaz testified Baars, who appeared to be "heavily drunk," became even more aggressive and stated he wanted to fight Sanchez. Diaz estimated Baars's height about six feet two inches and his weight about 270 pounds. Diaz saw Baars push Sanchez at the party. Diaz did not intervene at that point because others at the party stopped Baars. Diaz also heard Baars verbally threaten Sanchez, saying he wanted to hurt Sanchez.
Because of Baars's behavior toward Sanchez, Diaz testified he and his group (including Sanchez) decided to leave the party about 2:00 a.m. As they walked to their car, Diaz saw Baars throw a punch at Sanchez, who was trailing behind them. Diaz testified the punch landed on the back of Sanchez's head. Diaz next saw Talavera grab Baars in a "bear hug" to stop Baars from hitting Sanchez. Baars started hitting Talavera and then they both fell to the ground. While on the ground, Diaz saw Sanchez give Baars a good "soccer kick." After that kick, Baars fell on the ground on his back and Diaz did not see Baars move again.
Sanchez started kicking the "upper body" of Baars. Diaz, who was standing next to Martinez, also saw Sanchez stomp one time on Baars's head. Diaz described the stomp as "strong" and "too much" and was shocked by it. Diaz and Martinez got into a car driven by their friend and they started to leave the scene. However, a few seconds later, the driver stopped the car and Sanchez and another male got inside.
Witness Bentley Ruff testified at Sanchez's trial. At the time he gave trial testimony, Ruff was in custody after pleading guilty to second degree burglary. Ruff received no benefit for testifying in the instant case.
Ruff testified he attended the party on the night Baars was killed. After arriving around 9:00 p.m., he smoked marijuana. Ruff knew Baars and saw him at the party. About midnight on the night of the killing, Ruff saw a confrontation in the living room between Baars and Sanchez. Ruff testified he was "110 percent" certain that Baars was the aggressor in that confrontation and that Sanchez "wanted absolutely no problems" with Baars. Ruff said Sanchez left the party because Sanchez did not want any problems with Baars.
Ruff testified he left the party and walked to his car with a friend. Ruff saw Baars approach Sanchez. As Baars approached, Ruff saw an individual try to hold back Baars and heard this person tell Baars that it was not worth fighting Sanchez "over a girl." Ruff at the time was about 30 to 45 feet from Baars. Ruff testified Sanchez was trying to get in a car to leave as Baars approached Sanchez.
Ruff testified that as Baars got near him, Baars offered Ruff money to hold Sanchez so that Baars could "beat [Sanchez's] ass. That is what [Baars] wanted." In response, Ruff told Baars, "Hell No. I don't want to be in the middle of this." Baars appeared "beyond drunk" to Ruff, as Baars was stumbling as he walked, his speech was slurred and he was just "overly angry." Ruff testified he saw Baars "smoke heroin and smoke marijuana and drink a lot" at the party.
Ruff next saw Baars walk up to Sanchez and take a swing at Sanchez with all Baars's weight behind the punch. Baars missed. When Talavera attempted to restrain Baars, Baars stumbled, got back to his feet and then immediately came a second time at Sanchez. Baars's punches hit Sanchez in the stomach. According to Ruff, Sanchez still appeared unwilling to fight Baars.
At that point, Talavera grabbed Baars from behind and attempted to stop Baars's attack on Sanchez. Baars, in response, started swinging his elbows to get out of the grasp of Talavera. Ruff saw Talavera and Baars both fall to the ground. Sanchez yelled at Baars, "Why do you got to start a fight? You know, I told you I don't want any trouble," or words to that effect. While Talavera continued to hold Baars, Ruff heard Sanchez yell "something along the lines" of "hit me" to Baars, "Is that what you want to do[?] Just hit me over a girl."
Ruff then panicked, and testified he did so because "[Baars] was intoxicated. [Baars] is coming at a really small guy. Compared to [Baars's] size, you know, less than half his size. [Sanchez] did everything any parent would tell his kid to do in a situation like that. He left the house when there was [a] confrontation. He tried to - tried to get into the car and leave and to the right thing. But [Baars] was persistent on wanting to . . . beat the shit out of him."
Ruff testified he "didn't know what was going to happen" because he saw "someone" kicking Baars "pretty hard" in the face as Baars was on "all fours" and was trying to regain his footing. When asked to describe the impact of that kick, Ruff testified without objection that it "probably broke [Baars's] neck [and] definitely broke his nose." At that point, Ruff saw Baars bleeding from his face. Ruff could not identify the person or persons who kicked Baars, but saw Baars fall to the ground, face down.
Ruff testified Baars was still breathing, "then he somehow - somehow when I was going back and forth, I think probably to help him, someone rolled him over on his back, and that is when he was like convulsing and you could - and then I had - like right there at that time, I had already like dead on sprinted to go get someone. And when I came back, he was convulsing." Ruff testified he could not recall the individual who delivered the blow to Baars "that really did it," which caused Baars "to fall limp," although he admitted he previously testified it was Sanchez who administered that blow. Ruff testified that he also saw Baars being stomped, or kicked, on the "shoulder"; that Baars started choking on his own blood; and that Baars "[d]idn't look so good" as he was convulsing "almost like a seizure[-]type deal." Ruff grabbed a cell phone from an unknown witness and immediately called 911.
Chula Vista Police Officer Sean Desmond interviewed Ruff on the day of the killing and three days later at the police station. During the latter interview, Ruff stated he saw Sanchez kick Baars in the face with a powerful, devastating blow after taunting Baars to "come on" and "hit me."
Oscar Ceballos testified that on the night of the killing, he hosted the party attended by Baars and Sanchez. During the party, Cellabos drank a lot of beer. He also smoked marijuana and ingested cocaine with Baars. As the evening wore on, Cellabos noticed Baars acting aggressive toward Sanchez, even threatening at one point to "fuck [Sanchez] up." Cellabos warned Sanchez about Baars and suggested Sanchez leave the party.
Ceballos testified he finally told Baars to "take it outside" a few hours later because Baars kept repeating that he was "going to fuck [Sanchez] up." At that point, Sanchez was already outside. After Baars left, a partygoer returned to the house a short time later and told Ceballos what had happened. Ceballos went outside and found Baars lying on the ground covered in blood.
Chula Vista Police Officer Brian Carter was on duty on the night of the killing. He received a call from dispatch at 2:18 a.m. that a man was unconscious and bleeding. When he arrived at the crime scene, Officer Carter found a man later identified as Baars lying on his back covered with blood. Baars was not moving. A large pool of blood formed underneath Baars's head. Officer Carter saw bloody footprints near Baars's head. Officer Carter checked Baars and found he had no pulse and was not breathing. Officer Carter unsuccessfully attempted to revive Baars.
Chula Vista Police Officer David Rivers was dispatched to the crime scene about 2:30 a.m. Officer Rivers joined other officers in separating about 30 partygoers to determine what had happened. Officer Rivers talked to Talavera, who admitted knowing Baars from school. Talavera told Officer Rivers that he had not seen any fights or conflicts inside the house or outside. Talavera also did not say anything that night to Officer Rivers about self-defense or defending other people.
A criminalist for the San Diego County Sheriff's crime lab testified that Baars's DNA was found on Sanchez's shoes and his pants.
Baars was found to have died from blunt force trauma to his head. The autopsy revealed broken bones in the mid-face region. When Baars tried to breath, blood in the back of Baars's throat went down his airway and asphyxiated him. Scrapes and bruises along Baars's right cheek revealed recognizable patterns and shapes consistent with those on the bottom of Sanchez's shoes. The same shoe tread pattern appeared on the back of Baars's head behind his left ear.
The autopsy also showed the orbits surrounding Baars's eyes were fractured; his nose and the bridge of his nose were shattered; his cheekbones were fractured and were separated from his upper jaw; and his upper jaw bone was separated from the rest of his face. The left bottom part of Baars's skull was also fractured.
Toxicology results showed that at the time of his death, Baars's blood alcohol content was .15 percent and he had marijuana and cocaine in his system. The medical examiner testified none of these substances contributed to Baars's death.
Chula Vista Police Detective David Beatty interviewed Sanchez at the police department about 11:00 a.m. on the day of the killing. Because Sanchez came to the station voluntarily, Detective Beatty asked him why he was there. In response, Sanchez said, "because apparently I am being accused of murder, which I didn't like at all" and because friends of Baars had gone to Sanchez's mother's house threatening to kill Sanchez.
After Sanchez described Baars's behavior at the party and how Baars had become more aggressive toward Sanchez as the night wore on and ostensibly as Baars became more intoxicated, Sanchez told Detective Beatty he decided to leave the party. Once outside, Sanchez told Detective Beatty that Baars came after him and attempted to punch him, but missed. Sanchez told Detective Beatty that a group of guys jumped Baars and began to kick him, and that Sanchez's friend pushed him into a car and they drove off without Sanchez "even look[ing] back."
The record shows Sanchez's story changed somewhat after Detective Beatty mentioned to Sanchez he already had spoken to other witnesses as part of his investigation. Sanchez eventually told Detective Beatty that he "might have actually kicked" Baars, who he described as being "really drunk." Sanchez told Detective Beatty that he tried to remain calm and reason with Baars at the party, despite the fact Baars had held a "grudge" against Sanchez for over a year (due to a former girlfriend) and had talked "shit" to Sanchez "all night" during the party.
Detective Beatty testified that according to Sanchez, as he was leaving the party with friends Baars came running up to him, said, "What is up fool?" and then took a few swings at Sanchez. Sanchez next pushed Baars and then kicked him, and according to Sanchez everyone started kicking Baars. Sanchez told Detective Beatty he kicked Baars one more time, delivering two total kicks to Baars. At that point, Sanchez said he left with a friend. Sanchez told Detective Beatty his mindset was to avoid being hit by, and to defend himself from, Baars. However, after Baars came at him, Sanchez got mad, told Detective Beatty he "snapped," and even goaded Baars to take a swing at him saying, "Come on hit me."
Sanchez acknowledged during the interview that on a scale of 1 to 10, with 10 being the hardest, his kick to Baars's face was probably a "7." Sanchez told Detective Beatty that he did not have a strong foot, and that he first kicked Baars in the face while Baars was on his hands and knees and then kicked him in the chest. After the first kick, Sanchez did not think Baars was conscious. Sanchez admitted to Detective Beatty that in hindsight, even though Baars came after Sanchez and tried to punch him as Sanchez was leaving the party, he should not have kicked Baars at all but the "rage . . . took control so . . . much that . . . I ended up doing it."
B. Defense and Rebuttal Evidence
Witnesses testified Sanchez was well liked and was not an aggressive or assaultive person. Conversely, witnesses described Baars as aggressive, particularly when intoxicated, and witnesses warned Sanchez about Baars because Baars was angry at Sanchez and said he was going to "fuck him [Sanchez] up."
Ceballos's sister testified that on the night of the party, Sanchez consumed alcoholic beverages but in her opinion Sanchez was not drunk and was able to care for himself. Ceballos's sister testified that she left the party with friends to get something to eat, and that while away Sanchez called her on her cell phone and said he was leaving the party because someone was trying to pick a fight with him.
Victor Castro testified he and Sanchez were at the party together and that at one point during the night he heard Baars yell, "I am going to fucking kill you, [Sanchez]. I fucking hate you." Later that night, Castro grabbed Sanchez and told him they were leaving the party after Baars initiated a second confrontation. As they headed to their car outside the party, Castro testified Baars walked up and took a swing at Sanchez. Castro described the punch as "heavy."
Castro testified that Talavera then grabbed Baars and pushed him away from Sanchez. Baars then started fighting with Talavera. Baars fell to the ground, got back up and then fell again. While on his hands and knees, Baars grabbed Castro's legs. Talavera kicked Baars's legs as Castro backed away. Sanchez then kicked Baars two or three times in the head as Baars was on the ground. Castro testified that on a scale of 1 to 10, with 10 being the hardest, Sanchez's kicks to Baars's head were about a "7 or 8." Next, Castro saw Sanchez stomp two or three times on Baars's head while Baars was on the ground.
Defense expert Clark Smith, M.D., opined that the involuntary reflex, called the fight or flight reflex, is triggered when a person perceives his or her "life is in danger" from a "real threat of death or bodily injury" and as a result, the person has "to either run away as fast as [he or she] can or stand and defend" him or herself. Dr. Smith described the fight or flight reflex as "automatic," like any reflex.
Defense expert Harry Bonnell, M.D., opined that as a result of the toxicology testing done on Baars, he could have died from drug and alcohol intoxication rather than blunt force trauma.
DISCUSSION
A. Unconsciousness Defense Instruction
1. Brief Additional Background
Sanchez requested that the jury be instructed on unconsciousness in accordance with CALCRIM No. 3425. His counsel contended the unconsciousness instruction should have been given based on the testimony of defense expert Smith, who as noted above testified that the "fight or flight" reflex is an involuntary reaction by a person who believes his or her life is in danger and based on the evidence that Baars was much bigger than Sanchez, was the aggressor that night and made it clear he wanted to "beat the shit out of" Sanchez.
CALCRIM No. 3425 states: "The defendant is not guilty of ___ if (he/she) acted while legally unconscious. Someone is legally unconscious when he or she is not conscious of his or her actions. [Someone may be unconscious even though able to move.] [¶] Unconsciousness may be caused by (a blackout,/or an epileptic seizure,/or involuntary intoxication,/[or] sleepwalking,/or ___). [¶] The People must prove beyond a reasonable doubt that the defendant was conscious when (he/she) acted. If there is proof beyond a reasonable doubt that the defendant acted as if (he/she) were conscious, you should conclude that (he/she) was conscious. If, however, based on all the evidence, you have a reasonable doubt that (he/she) was conscious, you must find (him/her) not guilty."
Sanchez does not argue he was "unconscious" based on voluntary intoxication, in light of the evidence he consumed alcoholic beverages at the party.
The record shows the rulings of the trial court regarding the final jury instructions and the argument of the parties regarding those instructions took place off the record. After the jury began deliberations, the trial court and counsel put on the record what had transpired off the record, including all the instructions that were given, refused or modified, whether counsel had objected to the instructions given or modified or otherwise sought an instruction refused by the trial court.
In connection with the defense of unconsciousness, the trial court explained its decision to deny that instruction as follows:
"THE COURT: I am not sure you got to argue it. I think you argued fight or flight was similar to all those things, that your client couldn't recognize what your client was doing that particular time.
"I am looking at [CALCRIM No.] 3525.[] You listed blackout, epileptic sleep walking or the human fight or flight. Those are all issues and I also lumped mistake of fact in there. I took that into account by giving the instruction that I did which we entitled impairment [defense]. But I don't think the facts fit any of those other answers [sic].
The trial court's citation to CALCRIM No. 3525 appears to be a mistake inasmuch as there is no CALCRIM No. 3525 and the unconsciousness defense is found in CALCRIM No. 3425, which was the instruction at issue during this colloquy.
"I struck all of those and gave the impairment defense limited to fight or flight. I didn't find that fight or flight is the same as epileptic seizure, as blackouts, et cetera.
"[Sanchez's Defense Counsel]: That is fine. I did want to note that to the extent I asked for fight or flight, I wanted it to track the testimony where we called fight or flight reflex. So I may have put syndrome or something else in the—your instruction. In the end when we described fight of flight I wanted it to be a reflex.
"THE COURT: I recall that. When you talk, I remember things that you originally said, the human body fight or flight.
"[Sanchez's Defense Counsel]: Response.
"THE COURT: I took the body out and we put in reflex versus syndrome or whatever it may be. [¶] Okay. That is how we got where we did get.
"[Sanchez's Defense Counsel]: I still want the unconsciousness instruction in some fashion. If the court would change its mind and give it and I would ask to reargue this point. I understand the court did not rule in my favor. . . ."
The impairment defense referenced by the trial court and given to the jury provided as follows:
"THE COURT: You have heard evidence from Dr. Clark Smith regarding the human fight or flight reflex. If you find that defendant Sanchez was undergoing that reflexion on the night in question, you may consider that evidence only for the purpose of deciding whether, at the time of the commission of the alleged crime, that defendant Sanchez acted with the intent or mental state required for those crimes. The People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state. If the People have not met this burden, you must find the defendant not guilty of the alleged offense."
2. Governing Law and Analysis
"Unconsciousness, if not induced by voluntary intoxication, is a complete defense to a criminal charge. [Citations.] To constitute a defense, unconsciousness need not rise to the level of coma or inability to walk or perform manual movements; it can exist 'where the subject physically acts but is not, at the time, conscious of acting.' [Citation.] If the defense presents substantial evidence of unconsciousness, the trial court errs in refusing to instruct on its effect as a complete defense. [Citation.]" (People v. Halvorsen (2007) 42 Cal.4th 379, 417.)
Unconsciousness "need not reach the physical dimensions commonly associated with the term (coma, inertia, incapability of locomotion or manual action, and so on); it can exist—and the above-stated rule can apply—where the subject physically acts in fact but is not, at the time, conscious of acting." (People v. Newton (1970) 8 Cal.App.3d 359, 376, fn. omitted.) "[A] defendant's mere statement of forgetfulness, unsupported by any other evidence, is at most very little evidence of unconsciousness at the time of performing a particular act. There must be something more than [the defendant's] mere statement that he does not remember what happened to justify a finding that he was unconscious at the time of that act." (People v. Coston (1947) 82 Cal.App.2d 23, 40.)
On this record, we conclude there was insufficient evidence to support the unconsciousness defense. The record clearly shows Sanchez was not unconscious as he goaded Baars to "come on" and "hit me" after Baars had come at Sanchez while Sanchez was leaving the party.
The record also shows Sanchez was conscious when he delivered blow after blow to the head and face of Baars. With each blow, Baars's head moved from side to side. Significantly, the record shows Sanchez moved around Baars's head as he continued to kick Baars from different angles, ostensibly to achieve the greatest effect from his kicks.
In addition, the record shows that after Sanchez already had aggressively kicked Baars at least 10 times and stomped on Baars, Sanchez went to a car parked nearby, only to return to Baars again and deliver at least 10 more hard kicks and five more hard stomps to Baars's head and face. The record also shows that Sanchez finally quit kicking Baars in the head and face after one of the males in his group told him, "That is enough. That is enough. Let's go." This evidence, coupled with the fact that all of Sanchez's kicks to and stomps on Baars were to Baars's head and face, strongly support the conclusion that Sanchez was conscious during the killing.
What's more, the record shows that when Sanchez got into a vehicle to flee the scene, he told the driver of the vehicle "Go. Go. Go. And don't stop." This evidence again clearly shows Sanchez was conscious at the time, as demonstrated by his intent to flee the scene. (See People v. Smithey (1999) 20 Cal.4th 936, 982 [noting that a flight instruction " 'is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.' [Citations.]" (Italics added.)]; see also CALCRIM No. 372 [flight instruction] given to the jury in this case.)
In addition, during the police interview with Detective Beatty the morning of the killing, Sanchez denied he had kicked Baars and instead told the detective he left the scene after a group of guys jumped Baars and started kicking him. It was only after Detective Beatty told Sanchez he already had spoken to other witnesses as part of his investigation that Sanchez admitted he "might" have kicked Baars, which ultimately led Sanchez to admit to Detective Beatty that he "snapped" and even goaded Baars to take a swing at him. Finally, Sanchez told Detective Beatty during the police interview that after his first kick to Baars, Sanchez did not think Baars was even conscious. This evidence again strongly suggests Sanchez was not unconscious during the killing.
We conclude there is a lack of evidence, much less substantial evidence, in the record to instruct the jury on the unconsciousness defense in this case. (See People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1269-1270 [a trial court's refusal to instruct on self-defense or any defense will be upheld on appeal where the record contains no substantial evidence to support the instructions].) As such, we conclude the trial court did not error in refusing to instruct the jury with CALCRIM No. 3425.
Moreover, even if the trial court erred in not giving CALCRIM No. 3425, we conclude that error was harmless and reversal is unwarranted because as noted ante, the trial court gave the jury an impairment defense instruction based on the "fight or flight" testimony of Sanchez's expert witness, which instruction the jury rejected. We therefore conclude there is no reasonable probability that jurors who rejected the impairment defense instruction would have acquitted Sanchez based on the unconscious defense instruction. (See People v. Breverman (1998) 19 Cal.4th 142, 178; People v. Watson (1956) 46 Cal.2d 818, 836.)
B. Involuntary Manslaughter Instruction
According to Sanchez, the crime of involuntary manslaughter was "something of an afterthought," inasmuch as "[n]one of the parties discussed the instruction, and while defense counsel briefly mentioned the option during his closing argument [citation] the prosecutor emphasized he was not seeking a manslaughter conviction, that manslaughter was a lesser included offense, of murder, 'and I submit to you, members of the jury, those instructions simply don't apply.' "
Sanchez next contends the trial court incorrectly instructed the jury on involuntary manslaughter as a lesser included offense to the charged crime of murder, because: first, the modified instruction failed to acknowledge that the offense could be committed by lawful acts committed with criminal negligence; second, it failed to allege the acts the prosecution was relying on to support the offense; third, the modified instruction did not include the definition of "criminal negligence" included in the standard instruction; and finally, it failed to require the jurors to agree that Sanchez committed at least one of the predicate act or acts and the jury agreed that the same act or acts were proved.
CALCRIM No. 580 sets out the involuntary manslaughter instruction. Although CALCRIM No. 580 was modified in April 2011, before the jury in the instant case was instructed, Sanchez sought an involuntary manslaughter instruction based on the prior version of CALCRIM No. 580. A comparison of the two versions shows Sanchez was not prejudiced by his counsel's reliance on the former version of CALCRIM No. 580. The trial court, with no reason given, modified former CALCRIM No. 580 as follows (the parts of the instruction not given are stricken):
"When a person commits an unlawful killing but does not intend to kill and does not act with conscious disregard for human life, then the crime is involuntary manslaughter. [¶] The difference between other homicide offenses and involuntary manslaughter depends on whether the person was aware of the risk to life that his or her actions created and consciously disregarded that risk. An unlawful killing caused by a willful act done with full knowledge and awareness that the person is endangering the life of another, and done in conscious disregard of that risk, is voluntary manslaughter or murder. An unlawful killing resulting from a willful act committed without intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter.
The defendant committed involuntary manslaughter if: [¶] 1. The defendant committed acts that posed a high risk of death or great bodily injury because of the way in which was committed; [¶] 1. The defendant (committed a crime that posed a high risk of death or great bodily injury because of the way in which it was committed/or committed a lawful act, but acted with criminal negligence); [¶]AND [¶] 2. The defendant's acts unlawfully caused the death of another person.
"The People allege that the defendant committed the following crime[s]: ____ insert misdemeanor[s]/infraction[s])/noninherently dangerous (felony/felonies)). [¶] Instruction[s] ____ tell[s] you what the People must prove in order to prove that the defendant committed ____ (insert misdemeanor[s]/infraction[s])/ noninherently dangerous (felony/felonies)).
"The People [also] allege that the defendant committed the following lawful act[s] with criminal negligence: (___ (insert act[s] alleged).
"Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when: [¶] 1. He or she acts in a reckless way that creates a high risk of death or great bodily injury; [¶] AND [¶] 2. A reasonable person would have known that acting in that way would create such a risk.
"In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.
"An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.
"There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death.
"Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
"[The People allege that the defendant committed the following (crime[s]/ [and] lawful acts with criminal negligence): ___ (insert alleged predicate acts when multiple acts alleged). You may not find the defendant guilty unless all of you agree that the People have proved that the defendant committed at least one of these alleged acts and you all agree that the same act or acts were proved.
"In order to prove murder or voluntary manslaughter, the People have the burden of proving beyond a reasonable doubt that the defendant acted with intent to kill or with conscious disregard for human life. If the People have not met either of these burdens, you must find the defendant not guilty of murder and not guilty of voluntary manslaughter."
1. Governing Law
Involuntary manslaughter is defined as an unlawful killing without intent to kill and without implied malice that occurs (1) during the commission of an unlawful act, other than a felony, or (2) in the course of a lawful act committed with criminal negligence. (§ 192, subd. (b).) "In addition to these statutorily defined means of committing involuntary manslaughter, the California Supreme Court has defined a nonstatutory form of the offense, based on the predicate act of a noninherently dangerous felony committed without due caution and circumspection." (People v. Butler (2010) 187 Cal.App.4th 998, 1007.)
"Over the years, the California Supreme Court has clarified the mens rea applicable to each of these three types of predicate acts that can underlie involuntary manslaughter. In People v. Penny (1955) 44 Cal.2d 861, 869, the court addressed the statutory form of involuntary manslaughter based on the commission of a lawful act without due caution and circumspection, and defined the mens rea to mean criminal negligence. Later, in People v. Burroughs [1984] 35 Cal.3d 824, [835-836], when analyzing the nonstatutory means of committing involuntary manslaughter based on the commission of a noninherently dangerous felony, the court again defined the mens rea as criminal negligence. [Citations.] In more recent cases, the court evaluated the statutory form of committing involuntary manslaughter based on the commission of a nonfelonious unlawful act (i.e., a misdemeanor), and clarified that the misdemeanor did not need to be inherently dangerous, but it did need to comport with the criminal negligence standard generally applicable to involuntary manslaughter. [Citations.]" (People v. Butler, supra, 187 Cal.App.4th at p. 1007.)
"Under this authority, criminal negligence is the governing mens rea standard for all three forms of committing the offense. [Citations.] [¶] Criminal negligence has been defined in a variety of ways. In People v. Penny, supra, 44 Cal.2d at page 879, the court explained: ' "[C]riminal negligence" ' exists when the defendant engages in conduct that is ' "aggravated, culpable, gross, or reckless" '; i.e., conduct that is ' "such a departure from what would be the conduct of an ordinarily prudent or careful man under the same circumstances as to be incompatible with a proper regard for human life, or in other words, a disregard of human life or an indifference to consequences." ' Similarly, in People v. Rodriguez (1960) 186 Cal.App.2d 433, 440, the court stated that criminal negligence exists 'when a man of ordinary prudence would foresee that the act would cause a high degree of risk of death or great bodily harm.'
"The performance of an act with criminal negligence supplies the criminal intent for involuntary manslaughter, regardless whether the conduct underlying the offense is a misdemeanor, a lawful act, or a noninherently dangerous felony. That is, when a defendant commits a misdemeanor in a manner dangerous to life, the defendant's conduct 'qualifies as gross negligence,' and culpability for involuntary manslaughter is warranted because the defendant has performed an act ' "under such circumstances as to supply the intent to do wrong and inflict some bodily injury." ' [Citations.] Similarly, when a defendant commits a lawful act or a noninherently dangerous felony with criminal negligence, the defendant is presumed to have had an awareness of, and conscious indifference to, the risk to life, regardless of the defendant's actual belief. [Citations.]" (People v. Butler, supra, 187 Cal.App.4th at pp. 1007-1008.)
Here, although the trial court's jury instructions on involuntary manslaughter were incomplete, such misdirection of the jury requires reversal of Sanchez's involuntary manslaughter conviction "only if, 'after an examination of the entire cause, including the evidence' (Cal. Const., art. VI, § 13), it appears 'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred [citation]." (See People v. Breverman, supra, 19 Cal.4th at p. 178, fn. omitted.)
"In reviewing a claim that the court's instructions were incorrect or misleading, we inquire whether there is a reasonable likelihood the jury understood the instructions as asserted by the defendant. [Citation.] We consider the instructions as a whole and assume the jurors are intelligent persons capable of understanding and correlating all the instructions. [Citation.]" (People v. Butler, supra, 187 Cal.App.4th at p. 1013.)
2. Analysis
As noted in People v. Butler, all three types of predicate acts underlying involuntary manslaughter "require the same means rea of criminal negligence." (People v. Butler, supra, 187 Cal.App.4th at p. 1012.) Here, clearly the predicate acts on which Sanchez's conviction was based was his aggressive and repetitive kicking and stomping of Baars's face while Baars lay on the ground motionless. We surmise, because the record is silent on the issue, that the trial court omitted the "lawful act" portion of CALCRIM No. 580 (with Sanchez's counsel's apparent acquiescence) because a defendant's kicking and stomping repeatedly on the head and a face of a victim are not lawful acts under any circumstances. Indeed, the record supports our view because Sanchez admitted to Detective Beatty during the police interview conducted within hours after the killing that Baars was likely unconscious after Sanchez delivered the first decisive blow to Baars's head, which was followed by a combination of more than 20 additional kicks and stomps by Sanchez.
Moreover, like the trial court in People v. Butler, the trial court here failed to "reference the objective standard applicable to involuntary manslaughter; i.e., whether a reasonable person would have known that the act created a high risk of death or great bodily injury." (See People v. Butler, supra, 187 Cal.App.4th at p. 1014.) However, like the court there, we too conclude defendant was not prejudiced by this omission. The jury here was instructed that to convict Sanchez of involuntary manslaughter, it must find he "committed acts that posed a high risk of death or great bodily injury" to the victim. However, "the jury was not told that defendant need not be subjectively aware of the high risk as long as a reasonable person would be aware. Absent direction on the standard to apply, the jurors would likely have looked at the circumstances to determine whether in their view there was a high risk. Because the jurors' unanimous conclusion on this point reflects the viewpoint of 12 persons drawn from the community at large, this approach could equate with the objective (reasonable person) standard. In any event, even if the jury improperly applied a subjective standard when evaluating mens rea (i.e., whether the circumstances showed defendant was aware of the risk), this would have inured to defendant's benefit as the jury would have had to agree unanimously on a fact not required for an involuntary manslaughter conviction." (See People v. Butler, supra, 187 Cal.App.4th at p. 1014.)
In addition, "[a]lthough instruction on criminal negligence in the language of CALCRIM No. 580 would have further expanded on the concept of a gross lack of due caution, the additional information on this subject was not necessary for the jury's understanding of the case. The criminal negligence portion of CALCRIM No. 580 sets forth the requirements that the defendant acted with more than 'ordinary carelessness, inattention, or mistake in judgment,' and that the defendant's conduct was 'so different from the way an ordinarily careful person would act' that the conduct 'amounts to disregard for human life or indifference to the consequences of that act.' [Citation.] These concepts were sufficiently conveyed to the jury through the instruction stating that the crime must be committed in a manner that poses a high risk of death or great bodily injury. Reasonable jurors would have understood that commission of a crime in a manner that posed a high risk of death or great bodily injury constitutes conduct that is more than mere carelessness or inattention and reflects a disregard or indifference to life and human safety." (See People v. Butler, supra, 187 Cal.App.4th at pp. 1014-1015, fn. omitted.)
In any event, like in People v. Butler, the jury here "was also instructed that the predicate offenses had to be committed willfully or knowingly, thus ensuring the jury understood that accidental conduct could not support an involuntary manslaughter verdict. Reasonable jurors would have recognized that purposeful or knowing conduct committed in a manner posing a high risk of death or great bodily harm is more than mere carelessness or mistaken judgment." (People v. Butler, supra, 187 Cal.App.4th at p. 1015.)
Regarding the trial court's failure to instruct the jury under former CALCRIM No. 580 that it was required to agree that Sanchez committed at least one of the predicate act or acts and the jury agreed that the same act or acts were proved, we note the trial court gave the jury CALCRIM No. 3501 regarding unanimity on the charged crime of murder, and instructed them in part as follows:
"The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless:
"1. You all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed;
"OR
"2. You all agree that the People have proved that the defendant committed all the acts alleged during this time period."
Although CALCRIM No. 3501 referenced the crime of murder, looking at the instructions as a whole we conclude the jury would have recognized that the unanimity requirement also applied to involuntary manslaughter, inasmuch as the jury was also instructed that involuntary manslaughter was a lesser included offense of murder. (See People v. Archer (1989) 215 Cal.App.3d 197, 204 [a jury is presumed to be comprised of "intelligent persons who are fully able to understand, correlate and follow the instructions given to them."].) Absent evidence to the contrary, and here there is none, we presume the jury understood and correctly applied the unanimity instruction to involuntary manslaughter, as a lesser included offense of murder.
In any event, given the fact the kicks and stomps by Sanchez to Baars appear to have been one "continuous course of conduct, whose acts were so closely connected in time as to form part of one transaction," it is not even clear that a unanimity instruction was even warranted under the facts of this case. (See People v. Maury (2003) 30 Cal.4th 342, 423.) Perhaps that is why the trial court did not give this portion of the instruction in former CALCRIM No. 580.
Finally, regarding the trial court's failure to specify the predicate act or acts on which the involuntary manslaughter conviction was based, we note from the record that the only acts that could have constituted involuntary manslaughter, based on the modified instruction given by the trial court, were Sanchez's repeated and aggressive acts of kicking and stomping Baars's head and face. We thus conclude there was no reasonable probability of a different outcome of Sanchez's trial had the court specified the act or acts "that posed a high risk of death or great bodily injury" to Baars. (See People v. Cole (2004) 33 Cal.4th 1158, 1208 ["Under state law, instructional error that withdraws an element of a crime from the jury's consideration is harmless if there is 'no reasonable probability that the outcome of defendant's trial would have been different had the trial court properly instructed the jury.' [Citations.]"].)
C. Sua Sponte Duty to Amplify Self Defense Instruction
Finally, Sanchez contends the trial court erred when it failed to instruct sua sponte that Baars himself may have acted with malice aforethought based on Baars's conduct and mental state and, as such, Sanchez had the right to respond to deadly force with deadly force pursuant to section 197, subdivision (1). According to Sanchez, the jury needed to be told under the law that Sanchez was facing a "potential murderer" when Sanchez acted. We disagree.
Section 197 provides in part: "Homicide is also justifiable when committed by any person in any of the following cases: [¶] 1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person . . . ."
First, the trial court properly instructed the jury with former CALCRIM No. 505 as follows:
CALCRIM No. 505 was revised in February 2012, after the conclusion of Sanchez's trial.
"Defendant Sanchez is not guilty of murder, manslaughter, or involuntary manslaughter if he was justified in killing Joseph Baars in self-defense. The defendant acted in lawful self-defense if:
"1. The defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily injury;
"2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger;
"AND
"3. The defendant used no more force than was reasonably necessary to defend against that danger.
"Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of death or great bodily injury to himself. Defendant's belief must have been reasonable and he must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the killing was not justified.
"When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed. The defendant's belief that he was threatened may be reasonable even if he relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true.
"If you find that Joseph Baars threatened or harmed the defendant or others in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable.
"Someone who has been threatened or harmed by a person in the past is justified in acting more quickly or taking greater self-defense measures against that person.
"A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of death or great bodily injury has passed. This is so even if safety could have been achieved by retreating.
"Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
"The People have the burden of proving beyond a reasonable doubt that the killing was not justified. If the People have not met this burden, you must find the defendant not guilty of murder or manslaughter."
Former CALCRIM No. 505 as given already directed the jury to consider as part of justifiable self-defense whether a defendant reasonably believed he or she was in "imminent danger of being killed or suffering great bodily injury" (italics added) and if so, whether the defendant reasonably believed that the "immediate use of deadly force was necessary to defend against that danger." In making this determination, CALCRIM No. 505 also instructed the jury to consider "all the circumstances as they were known to and appeared to the defendant" including whether Baars in the past threatened Sanchez and others.
Here, the jury heard substantial evidence about how Baars was the aggressor on the night of the killing, about how Baars threatened Sanchez and wanted to "kick [Sanchez's] ass," about how Baars had threatened Sanchez in the past and about how Baars became more confrontational as the night of the party wore on, ostensibly as Baars became more intoxicated. But the jury also heard Detective Beatty testify that during the police interview, Sanchez believed that Baars was likely unconscious after the first kick, about how Sanchez just "snapped" and his "rage" took over and about how Sanchez goaded Baars to hit him before Sanchez repeatedly and aggressively kicked and stomped on Baars's head and face, which ultimately the jury determined was a substantial cause of Baars's death.
The record thus shows the jury was properly instructed on the law regarding justifiable self-defense and considered, but ultimately rejected, the fact that Sanchez acted in self-defense in connection with the killing of Baars.
Second, we reject Sanchez's contention because a trial court does not have a sua sponte duty to give a "pinpoint instruction" that does not involve a general principle of law. (See People v. Jennings (2010) 50 Cal.4th 616, 674-675.) In the instant case, Sanchez did not request that the jury be told that Sanchez was facing a "potential murder."
Third, Baars's mental state, as opposed to his conduct, was irrelevant to Sanchez's self-defense claim. That claim instead depended on whether Sanchez reasonably believed he was in "imminent danger of being killed or suffering great bodily injury," whether he "reasonably believed that the immediate use of deadly force was necessary" and perhaps most importantly under the facts of this case, whether he "used no more force than was reasonably necessary to defend against that danger." (Compare People v. Cravens (2012) 53 Cal.4th 500 [reinstating the second degree murder conviction of defendant based on a finding of implied malice when the defendant landed a single punch against the victim and when the victim fell to the ground, hit his head and died].)
For these reasons, we conclude the trial court had no sua sponte duty to apply the self-defense instruction to state that Sanchez was facing a possible murderer in Baars.
DISPOSITION
The judgment of conviction is affirmed.
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BENKE, J.
WE CONCUR: ____________
McCONNELL, P. J.
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HUFFMAN, J.