P. v. Barnes




Filed 3/8/11 P. v. Barnes CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. JACOB MICHAEL BARNES, Defendant and Appellant.

G042407 (Super. Ct. No. 07WF1453) O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed.
Paul R. Ward, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Angela Borzachillo and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Jacob Michael Barnes stands convicted of attempted murder. He contends the trial court misinstructed the jury on the elements of that offense and its relationship to the lesser included offense of attempted voluntary manslaughter. We disagree and affirm the judgment.
FACTS
On the night of May 6, 2006, Blake Archuleta went to a party in Huntington Beach. Soon after he arrived, party host James Kenney asked everyone to leave because the gathering was getting too big. Archuleta did not have a problem with that, but as he and his friend Alyssa Munoz were walking out the front door, Kenney grabbed some beer from Munoz. Archuleta told Kenney to give it back to her, but Kenney refused and asked Archuleta what he was going to do about it. Archuleta answered by head butting Kenney. A brawl ensued.
A group of Kenney's friends, including defendant, spirited Archuleta into the front yard and began hitting and kicking him. Archuleta fought back, punching defendant in the face. He then broke free from the pack and began to run away. But defendant was not done. He and some of his cohorts chased Archuleta down the street.
During the pursuit, Archuleta called a friend for help on his cell phone. He also called 911 and sought assistance from two men who were in the area. But eventually, alone and out of breath, he stopped and turned to face defendant and the others. He took a fighter's stance and may still have been holding onto his cell phone. But, he was no match for defendant, who had a knife. Defendant moved forward and stabbed Archuleta in the back as he turned to get away. He then stabbed Archuleta two more times as Archuleta struggled to escape. After that, defendant and his companions ran away, leaving Archuleta alone in the street with a perforated liver.
About three weeks later, defendant surrendered to the police. He was charged with attempting to murder Archuleta with premeditation and deliberation. At trial, he testified he was angry when Archuleta hit him during the fight outside the party. He said when he finally caught up to Archuleta in the street, he thought he saw a weapon in his hand, so he drew his knife and used it to protect himself.
Based on defendant's testimony, the trial court instructed on self-defense, as well as the lesser included offense of attempted voluntary manslaughter on the theories of heat of passion and imperfect self-defense. However, the jury convicted defendant of attempted murder (albeit without premeditation and deliberation) and found true allegations he personally used a deadly weapon and inflicted great bodily injury. The court sentenced him to 10 years in prison.
I
Defendant mounts a lengthy attack on the jury instructions pertaining to attempted murder and attempted voluntary manslaughter. He claims first that the instructions lowered the prosecution's burden of proof by allowing the jury to convict him of attempted murder without reaching unanimous agreement on the issue of malice. The claim is not well taken.^[1]
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