P. v. Earl

Filed 1/23/07  P. v. Earl CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of San Bernardino County.  Donna G. Garza, Judge.  Affirmed.

            ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.  Donna G. Garza, Judge.  Petition denied.

            Jackie Menaster, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Erika Hiramatsu, Deputy Attorney General, for Plaintiff and Respondent.

            A jury convicted defendant of voluntary manslaughter (Pen. Code, § 192, subd. (a)), during which he used a firearm.  (Pen. Code, § 12022.5, subd. (a).)  He was sentenced to prison for 10 years and appeals, claiming self-defense was established as a matter of law, his trial attorney was incompetent, and jury instruction error occurred.  Defendant also filed a petition for writ of habeas corpus reasserting and adding to his incompetency of trial counsel argument.  We have considered the latter with this appeal to determine if an order to show cause should issue.  We reject all of defendant's contentions and therefore affirm the judgment while denying the petition.

Facts^[1]

            On August 8, 2004, the victim went to an apartment complex in San Bernardino looking for his ex brother-in-law, who had been missing.  Defendant, who lived in the complex, was in the company of his friend and his nephew during a wake for a person who had been killed earlier in the day.  The victim approached defendant's group, words were exchanged and the victim came at defendant with a knife in his hand, while defendant, who had a gun, backed up.  Defendant fired five shots - one hit the victim from the front and went straight through his thigh, and the other hit the victim in the back at a downward angle.  The former was not fatal; the latter was.  The first bullet appeared to have been fired, followed by a pause, and then the other four in rapid succession.  The gun was never recovered.  More facts will be disclosed as they are relevant to the issues discussed.

1.  Self-defense as a Matter of Law

            Ignoring statements he made himself, defendant claims the evidence at trial established self-defense as a matter of law, therefore, his conviction for voluntary manslaughter should be reversed.  As the People point out, the evidence must establish that no reasonable trier of fact could have concluded that defendant did not shoot the victim in self-defense.  (See People v. Johnson (1980) 26 Cal.3d 557, 576.)  Specifically, defendant asserts, â€