P. v. Aquino

Filed 4/24/07 P. v. Aquino CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Sam Ohta, Judge. Affirmed.

Judith Kahn, 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, Paul M. Roadarmel, Jr., and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

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Efrain Ruben Aquino killed a stranger, Louis Silva, following an argument in the parking lot of a bar. The prosecutor sought a verdict of first degree murder. The defense argued for voluntary manslaughter, based on heat of passion and provocation. The jury returned a verdict of second degree murder and personal use of a knife. Appellant was sentenced to prison for 16 years to life.

Appellant contends: (1) The trial court should have instructed sua sponte on the theory of an unreasonable belief in the need for self-defense. (2) His trial counsel rendered constitutionally ineffective assistance, by failing to request instructions on the effect of voluntary intoxication on actual formation of the requisite mental states for murder. (3) The trial court abused its discretion by refusing to find that this was an unusual case that warranted a grant of probation.

We find no error, and affirm.

FACTS

Prosecution Testimony

Around 1:00 a.m. on February 15, 2005, Alberto Gomez, the parking attendant at the bar, observed that appellant was sitting in a car in the parking lot. A woman and another man were also in the car. Appellant got out of the car and argued with a man who was standing next to it. That man was later identified as Louis Silva.

Gomez had never seen appellant or Silva before. He stepped between them, hoping to resolve the problem. Appellant said to Gomez, Move, otherwise Ill cut you, too. Gomez then noticed that appellant was holding an open pocketknife. He stepped away from his position. Silva ran through an alley. Appellant pursued him. Gomez followed.

Outside of the alley, appellant grabbed Silva by the front of the neck. He then dug his knife into Silvas stomach. Silva fell to the ground. Gomez asked appellant, What did you do? Why did you do that? Appellant swung the blade twice at Gomezs stomach, but missed. Appellant ran, pursued by Gomez. He stopped twice to swing his knife at Gomez, but did not connect.

Bystanders flagged down a patrol car. Silva died before an ambulance arrived. Somebody pointed out appellant as the person who did it. He ran, holding the knife in one hand, and swinging a belt in the other. An officer in another patrol car told appellant to drop the knife. He threw it at the patrol car. He was arrested, and the knife was retrieved. He gave off a strong odor of alcohol, and displayed the objective symptoms of intoxication.

Photographs of appellant were taken at the police station, between 6:00 and 7:00 a.m. that morning. There was dried blood on his left cheek, and a small bruise on his lower left lip. He still smelled of alcohol.

According to the autopsy, Silva sustained two major stab wounds, the first of which was lethal. The lethal wound entered Silvas chest in an upward motion, penetrating five inches into the heart. The second, nonlethal wound penetrated the soft tissue beneath the skin of the abdomen, but did not enter the abdominal cavity. There also were a defensive wound on the back of the left forearm, a shallow wound on the left eyebrow, and superficial incisions on the front of the left arm and at the site of the chest wound.

Defense Testimony

Appellants sister, Mirna Guardado Aquino, was the sole defense witness. We refer to her as Mirna, to avoid confusion. She testified that she, her husband and appellant arrived at the bar around 11:30 p.m., in appellants new car. When they entered the bar, appellant and her husband were searched for weapons. While at the bar, she drank only soda. Appellant drank four to five beers. They left the bar around 12:40 a.m., returned to appellants car, and entered it. Appellant was in the drivers seat. Mirna and her husband were in the back seat.

Three men were standing, smoking cigarettes, at the car that was parked next to appellants car. Mirna had never seen them before. When appellant put his car into reverse, the three men came up to his car. One of the men kicked appellants car on the drivers side, twice. Appellant rolled down his window and asked why his car had been kicked. The man responded that appellant needed to pay attention to how he was driving because, otherwise, [the man] was going to cut his dick off [sic]. The man hit appellant in the jaw. One of the mans companions struck appellant in the same spot. Appellant got out of the car. The three men left. Mirna did not see what else happened, because the doors to the back seat were locked, and she and her husband had trouble getting out of the car.

On cross-examination, Mirna was sure that appellants jaw was struck twice, but was not sure if the blows came from one man or two. She told the detective the car was hit once, but now thought it was hit twice.

Prosecution Rebuttal Testimony

When Mirna was interviewed by the police, she said that appellants car was hit once, and appellant was struck twice, by one person.

DISCUSSION

1. Imperfect Self-defense

A jury may find voluntary manslaughter if malice is negated through (1) a sudden quarrel or heat of passion, or (2) an actual but unreasonable belief in the need for self-defense (imperfect self-defense). (People v. Barton (1995) 12 Cal.4th 186, 199; In re Christian S. (1994) 7 Cal.4th 768, 771; People v. Randle (2005) 35 Cal.4th 987, 994.) The jury here was fully instructed on the first theory, but not the second. Defense counsel requested that the jury not be instructed on imperfect self-defense, as the evidence for that theory was weak, and the defense was relying on provocation and heat of passion. The trial court found that there was no substantial evidence to support that theory.

Appellant contends before this court that the trial court committed prejudicial error in failing to instruct sua sponte on imperfect self defense. Respondent argues that any error was invited. (People v. Catlin (2001) 26 Cal.4th 81, 150.) We do not address that issue, as we agree with the trial court that there was insufficient evidence to justify instructing on imperfect self-defense.

The applicable law is well-settled. A trial court should instruct the jury on any lesser included offense supported by the evidence, regardless of the defendants opposition. (People v.Barton, supra, 12 Cal.4th atp. 190.) However, the duty to instruct sua sponte on imperfect self-defense arises only when there is substantial evidence that the defendant killed in unreasonable self-defense, not when the evidence is minimal and insubstantial.  (Id. at p. 201, fn. omitted, quoting People v. Flannel (1979) 25 Cal.3d 668, 684.)

Appellant relies on People v. Vasquez (2006) 136 Cal.App.4th 1176, in which this court found prejudicial error in a trial courts refusal to instruct on imperfect self-defense. The defendant there pulled out a gun and shot the victim, after the victim lunged at him and began to choke him. Here, in contrast, appellant displayed a knife, chased a fleeing unarmed victim, caught him, and stabbed him in the heart. Those facts make this case entirely different from Vasquez and the other self-defense cases cited in appellants briefing.

We recognize that before appellant got out of his car, the car had been kicked, there had been a threat to cut off his penis, and he had been punched twice in the face. Even so, there is no indication that Silva ever displayed a weapon, or that his companions were still nearby when appellant left his car. Appellant already had his knife out when Gomez attempted to end the argument. He told Gomez, Move, otherwise Ill cut you, too. He then chased Silva through the alley, grabbed him, and killed him. We conclude that the trial court committed no error in ruling that the facts did not justify instructing on imperfect self-defense.

2. Ineffective Assistance of Counsel

Appellant contends that he received constitutionally ineffective assistance of counsel because his defense counsel did not request pinpoint instructions on the effect of voluntary intoxication on the ability to form premeditation and deliberation, malice, and the specific intent to kill.

Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsels performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsels deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, but for counsels failings, defendant would have obtained a more favorable result. (People v. Dennis (1998) 17 Cal.4th 468, 540, citing Strickland v. Washington (1984) 466 U.S. 668, 687, 694, and In re Wilson (1992) 3 Cal.4th 945, 950.) Appellant has not met that standard here.

A. The Record

Appellant was represented below by private counsel. In his opening statement, counsel told the jury that identity would not be contested, but the facts would show a partial justification for the homicide. He also said that the killing was probably in all likelihood a preventable loss of life but for the effects of alcohol . . . .

During cross-examination, Officer Craig testified that when he arrived at the scene and saw appellant running, he formed the opinion that appellant might be intoxicated. That suspicion was confirmed when he came into contact with appellant, as appellant emitted a strong odor of alcohol, and displayed the objective symptoms of intoxication.

Officer Romero testified that when he photographed appellant at the station, five hours after the stabbing, appellant still smelled like hed been drinking, and Romero could tell [appellant] had been drinking that night.

At the conclusion of the Peoples case, when defense counsel argued for an acquittal pursuant to Penal Code section 1118.1, part of his argument was that the evidence of intoxication showed that appellant was unable to reflect and to deliberate and to make a conscience decision. The trial court refused to use evidence of intoxication for the purpose of the section 1118.1 motion. It said the defense might be entitled to a pinpoint instruction on intoxication, but it questioned whether substantial evidence on intoxication had been shown at that point. The court further indicated that defense counsel had not requested an instruction on intoxication when the court had asked him about it. However, the court would postpone its decision until it heard the defense case.

Appellant did not testify. His sisters testimony added the fact that appellant consumed four to five beers during the hour and ten minutes that they were at the bar, prior to the stabbing. There was no further discussion about an intoxication instruction, although other instructions were discussed on the record.

In closing argument, defense counsel argued that the facts showed a classic case of a sudden quarrel followed by a heat of passion killing . . . I ask you to return a verdict of voluntary manslaughter. He also stated, we know that there is alcohol involved. We know that, although this isnt a defense to the charge, that peoples judgment get clouded when they drink. They do crazy things.

B. Analysis

Evidence of voluntary intoxication is inadmissible to negate the capacity to form the requisite mental states for crimes. Such evidence is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought. (Pen. Code, 22; see also 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, 28, p. 358.)

In an appropriate case, a defendant may request a pinpoint instruction which relates the evidence of his intoxication to an element of a crime, such as premeditation and deliberation. (People v. Saille (1991) 54 Cal.3d 1103, 1120.)

The record shows that defense counsel made a conscious decision not to request an instruction on voluntary intoxication, because his research showed that the evidence was not substantial on that point. Instead, he brought out the available evidence of intoxication, in the context of arguing that the incident arose from a sudden quarrel and heat of passion.

Defense counsels decision not to request an instruction on intoxication did not constitute ineffective assistance of counsel, because it was based on an informed tactical choice within the range of reasonable competence (People v. Pope (1979) 23 Cal.3d 412, 425), due to the lack of evidence of the effect of alcohol consumption on appellants state of mind. The evidence showed that appellant had drank four to five beers, and appeared to be intoxicated. The effect of intoxication on his mental state was never specified. As in People v. Marshall (1996) 13 Cal.4th 799, 848, there was no evidence from which a reasonable jury could conclude defendants mental capacity was so reduced or impaired as to negate the required criminal intent. Moreover, in addition to the lack of evidence of the effect of the alcohol, the facts of the crime contradicted the possibility that alcohol negated the requisite mental state, based on appellants statement to Gomez, Move, otherwise Ill cut you, too. We therefore hold that trial counsel was not ineffective for failing to request instructions on intoxication.

3. Refusal to Grant Probation

Appellant was ineligible for probation unless the trial court found that this was an unusual case[] where the interests of justice would best be served if the person is granted probation . . . . (Pen. Code, 1203, subd. (e); see also rule 4.413(c), Cal. Rules of Court.) The trial court engaged in a detailed summary of the pertinent facts before it concluded that this was not an unusual case for which probation should be granted. Its determination of that issue will not be set aside on appeal, unless it was arbitrary, capricious, or exceeded the bounds of reason. (People v.Superior Court (Du) (1992) 5 Cal.App.4th 822, 825.) There was no abuse of discretion here, based on the combination of the highly violent nature of the crime, the probation officers recommendation that probation be denied, and appellants prior misdemeanor convictions for drunk driving and driving with a suspended license.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

COOPER, P. J. RUBIN, J.

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