Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF151967 Ronald Johnson, Judge. (Retired judge of the San Diego Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting, and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ramirez P.J.
Following a jury trial, defendant Miguel Angel Torres, Jr., was convicted of attempted murder (Pen. Code, §§ 664/187), assault with a deadly weapon (§ 245, subd. (a)(1) [knife]), and active participation in a criminal street gang (§ 186.22, subd. (a)), along with enhancements for inflicting great bodily injury (§§ 12022.7, subd. (a), using a knife, 12022, subd. (b)(1)), and committing the offense for the benefit of a street gang. (§ 186.22, subd. (b).) The offenses arose from a violent encounter between members of rival gangs. Defendant was sentenced to an aggregate term of 19 years in prison, and appealed.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant argues that reversal is required because (a) the trial court erred in failing to instruct the jury on the elements of the lesser included offense of attempted voluntary manslaughter, and (b) rejecting defendant’s offer to plead guilty to the offense of active participation in a street gang and admit the gang allegation. We affirm.
BACKGROUND
On July 23, 2009, Martin Maldonado (Maldonado) walked along a Moreno Valley street with his friend, Jesus Dominguez (Dominguez). Maldonado is a member of a Moreno Valley street gang known as Southside Maniacos (Maniacos), although his friend Dominguez does not belong to a gang. While Maldonado and Dominguez were walking, they saw other people across the street. Defendant, a member of a rival gang, the Edgemont Locos (Edgemont or EML), and Luis Aguilar (Aguilar), were identified as being in the group across the street. The people on the opposite side of the street claimed Edgemont, and yelled “Fuck Maniacos!” Eventually, Aguilar, one of the Edgemont group, told Maldonado to “stop being a little bitch and come over here.” Maldonado crossed the street and began fighting hand-to-hand with Aguilar.
While Maldonado was fighting Aguilar, defendant approached with a knife and stabbed Maldonado in the back while Aguilar restrained Maldonado by hugging him. As Maldonado fell to the ground, defendant stabbed Maldonado a few more times; both defendant and Aguilar kicked Maldonado, as well. When Dominguez approached to aid Maldonado, defendant pointed his knife at Dominguez. Dominguez told defendant he was not a gang member and was not with Maniacos. Defendant and Aguilar then left, heading towards Edgemont.
Dominguez helped Maldonado to a nearby welfare office where a call was made for emergency assistance. Gang detectives interviewed Maldonado twice and showed him photographs of possible suspects. Unknown to Maldonado, the interviews were secretly videotaped. Maldonado was reluctant to speak with the detectives or to name his attacker, so during the second interview, the detectives told Maldonado that the stabbing had been recorded by security cameras and that other witnesses had named defendant and Aguilar.
Defendant was arrested and charged by information with attempted premeditated murder (§§ 664, 187, count 1), assault with a deadly weapon (§ 245, subd. (a)(1), count 2), and active participation in a criminal street gang. (§ 186.22, subd. (a).) As to counts 1 and 2, it was also alleged that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)), and that the crimes were committed in association with or for the benefit of a criminal street gang. (§ 186.22, subd. (b).) As to count 1, it was further alleged that defendant personally used a deadly weapon, a knife. (§ 12022, subd. (b)(1).)
Following a jury trial, defendant was convicted of counts 1, 2, and 3, but the jury found the attempted murder was not premeditated or deliberate. The jury also returned true findings as to the enhancements relating to great bodily injury, knife use, and the fact the crimes were committed for the benefit of or in association with a criminal street gang. He was subsequently sentenced to state prison for an aggregate term of 19 years, and appealed.
DISCUSSION
A. The Trial Court Properly Denied Defendant’s Request for Instructions on Attempted Voluntary Manslaughter.
Defendant argues that the trial court erred by refusing to instruct the jury on the elements of attempted voluntary manslaughter, as a lesser included offense of attempted murder. In making this argument, defendant asserts that the state of the evidence of intent to kill was equivocal, and that the jury should have been given the option of finding that defendant either impulsively reacted to the heated physical fight or acted in defense of his friend Aquilar. We disagree.
A defendant has a constitutional right to have the jury determine every material issue presented by the evidence. (People v. Cole (2004) 33 Cal.4th 1158, 1215.) Thus, a trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request. (People v. Avila (2009) 46 Cal.4th 680, 704-705.)
However, the court has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction. (People v. Cunningham (2001) 25 Cal.4th 926, 1008.) Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. (People v. Lewis (2001) 25 Cal.4th 610, 645.) Additionally, when a defendant completely denies complicity in the charged crime, there is no error in failing to instruct on a lesser offense. (People v. Gutierrez (2003) 112 Cal.App.4th 704, 709.) On appeal, we review the court’s refusal to instruct independently. (People v. Avila, supra, 46 Cal.4th at p. 705, citing People v. Cole, supra, 33 Cal.4th at p. 1215.)
Defendant argues that any error is reversible per se. We disagree. The Supreme Courts of both California and the United States have only extended a “reversal per se” standard to situations in which a trial court denies requests for lesser included offenses in capital cases. (People v. Breverman (1998) 19 Cal.4th 142, 166-167, citing Beck v. Alabama (1980) 447 U.S. 625, 637 [100 S.Ct. 2382, 65 L.Ed.2d 392].) As the California Supreme Court noted in Breverman, “The Beck rule has never since been extended beyond the capital context.” (Breverman, at p. 167.) The court then went on to expressly decline to extend the instructional rule to noncapital cases. (Id. at p. 169.) The cases relied upon by defendant as supporting the application of Beck to noncapital cases predate Breverman, and are therefore inapplicable.
Attempted murder is the attempt to commit an unlawful killing of a human being, or a fetus, with malice aforethought. (§§ 664, 187; People v. Williams (1988) 199 Cal.App.3d 469, 475.) Voluntary manslaughter is a lesser included offense to a charge of murder when the requisite mental element of malice is negated by a sudden quarrel or heat of passion, or by an unreasonable but good faith belief in the necessity of self-defense. (People v. Breverman, supra, 19 Cal.4th at pp. 153-154; see also People v. Barton (1995) 12 Cal.4th 186, 199.)
Attempted voluntary manslaughter is a lesser included offense within attempted murder. (People v. Van Ronk (1985) 171 Cal.App.3d 818, 825; People v. Tucciarone (1982) 137 Cal.App.4th 701, 704-706.) When relying on heat of passion as a partial defense to the crime of attempted murder, both provocation and heat of passion must be demonstrated. (People v. Gutierrez (2003) 112 Cal.App.4th 704, 709.) The defendant has the burden of producing sufficient evidence of heat of passion to raise a reasonable doubt of his guilt of attempted murder unless the prosecution’s own evidence suggests one of these mitigating theories. (People v. Rios (2000) 23 Cal.4th 450, 461-462.) Where defendant relies on provocation to demonstrate heat of passion, the provocation must come from the victim. (People v. Verdugo (2010) 50 Cal.4th 263, 294.)
Here, the only theories argued by the defense was that defendant was misidentified as the person who stabbed Maldonado, and alibi. Further, there was no evidence that Maldonado provoked the attack. To the contrary, the evidence shows that defendant and Aguilar provoked the fight with gang challenges and directed Maldonado to cross the street to fight. Finally, the manner in which the stabbing occurred negates any theory of heat of passion. The evidence showed that Maldonado was engaged in a fistfight with Aguilar when defendant approached with a knife drawn. Aguilar held Maldonado in a hug-like restraint while defendant stabbed Maldonado in the back.
These facts do not support a theory that the stabbing was committed in the heat of passion or upon provocation by Maldonado. Under these circumstances, the trial court properly denied the defendant’s request for instructions on attempted voluntary manslaughter as a lesser offense within attempted murder.
B. The Trial Court Properly Rejected Defendant’s Offer to Plead Guilty to Count 3 and Admit the Gang Enhancement to Counts 1 and 2.
Defendant argues that the trial court prejudicially erred in denying his motion to stipulate or plead to the gang enhancement and the count charging him with active participation in a gang. Defendant’s argument refers to the trial court’s discretion to bifurcate or sever offenses or counts, and he argues at length that the gang evidence was unduly inflammatory and irrelevant to the issue of the identity of the perpetrator. However, defendant did not move to bifurcate or sever the gang allegations and gang count from the rest of the trial, so the analogy is unhelpful.
Because the thrust of the issue relates to the relevance of gang expert testimony in light of defendant’s offer to stipulate to his gang member status and the elements of the gang enhancements, we review for abuse of discretion. (Evid. Code, § 352.)
Under Evidence Code section 350, no evidence is admissible except relevant evidence, and relevant evidence is defined as that which has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) If a fact is not genuinely disputed, evidence offered to prove the fact is irrelevant and inadmissible under Evidence Code sections 210 and 350. (People v. Hall (1980) 28 Cal.3d 143, 152, superseded by statute on another point; see People v. Sapp (2003) 31 Cal.4th 240, 261.) Thus, if a defendant offers to admit the existence of an element of a charged offense, the prosecutor must accept that offer and refrain from introducing evidence of other crimes to prove that element to the jury. (Ibid.)
However, there is an exception to this rule of exclusion: If the facts to which the defendant has offered to stipulate retain some probative value, then evidence of those facts may be introduced. (People v. Hall, supra, 28 Cal.3d at p. 152; see also, People v. Poon (1981) 125 Cal.App.3d 55, 79.) Additionally, a prosecutor is not required to stipulate to the existence of any elements of the crime he is attempting to prove where the stipulation will impair the effectiveness of the prosecutor’s case and foreclose his options to obtain a conviction under differing theories. (People v. Robles (1970) 2 Cal.3d 205, 213; People v. Goss (1980) 105 Cal.App.3d 542, 550.) In this respect, defendant’s focus on rules pertaining to severance and bifurcation are unavailing, since those situations would only delay the presentation of the People’s gang evidence, whereas defendant’s offer to stipulate was intended to exclude it altogether.
In People v. Kelley (1984) 158 Cal.App.3d 1085, the defendants were convicted of selling cocaine to an undercover police officer after an informant introduced the officer to the defendants. The defense theory of entrapment was that the informant was the entrapping agent. Prior to trial, the defense sought to exclude admission of audiotapes of conversations between the defendants and the undercover officer by stipulating that the crimes had been committed. They appealed the trial court’s order overruling the objection to the tapes on the ground that the prosecution was required to accept the stipulation. (Id. at p. 1099.) The reviewing court affirmed because even if the offer to stipulate had been accepted, the prosecution would have been entitled to introduce the tape because the evidence was relevant to the jurors’ determination of whether the defendant had been entrapped. (Ibid.)
More recently, in People v. Cajina (2005) 127 Cal.App.4th 929, the defendant offered to stipulate that he had suffered a conviction that subjected him to sex offender registration requirements in a prosecution for his failure to complete his annual registration. He argued that the stipulation would render his status as a sex offender irrelevant. The court denied his motion and he appealed, relying on People v. Valentine (1986) 42 Cal.3d 170, which had held that disclosure of the nature of the prior offense was irrelevant in a prosecution for possession of concealable firearm by an ex-felon. The Supreme Court in Valentine reasoned that because the ex-felon status of the defendant did not depend on the nature of the prior felony, evidence of the nature of the prior conviction should be withheld from the jury. (Valentine, at p. 173.)
However, in Cajina, the defendant was not charged with an offense in which an element was simply the “ex-felon” status of the defendant. Instead, a critical element of section 290 is a conviction of an enumerated offense. Thus, the reviewing court in Cajina concluded that permitting the defendant to stipulate would deprive the prosecution’s case of its persuasiveness and strength. (People v. Cajina, supra, 127 Cal.App.4th at p. 933.)
In the present case, prosecution’s theory was that the motive of the crime was gang related and it opposed the stipulation because the gang expert’s testimony was needed to explain the gang culture, as well as gang terms that would be elicited during the testimony of the eyewitnesses. Thus, the People relied on the gang expert to do more than prove the elements of the gang enhancements or the elements of the crime of active participation in a street gang, as charged in count 3. Under these circumstances, the gang expert’s testimony had probative value beyond proving the gang allegations and gang count, even if the prosecutor had been forced to accept the stipulation. More significantly, exclusion of the gang expert’s testimony would have significantly impaired the effectiveness of the People’s case by precluding the prosecutor from demonstrating the gang motive for the stabbing and explaining the gang terminology and culture relative to that motive.
The trial court did not abuse its discretion in rejecting defendant’s offer to admit the gang allegations and offer to plead guilty to the charge of active participation in a street gang.
DISPOSITION
The judgment is affirmed.
We concur: Richli J., Codrington J.