P. v. Paul

Filed 7/20/07 P. v. Paul CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Mark C. Kim, Judge. Affirmed.

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Kim Malcheski, 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, Herbert S. Tetef and Shawn McGahey Webb, Deputy Attorneys General, for Plaintiff and Respondent.

_________

A jury convicted Patrick Paul of the second-degree murder of Dwhight Gary Davidson. (Pen. Code, 187, subd. (a), 189; all further undesignated section references are to the Penal Code). The jury rejected a special allegation that Paul killed Davidson to benefit and promote a criminal street gang. ( 186.22, subd. (b)(1)(A).) Paul admitted having served two prior prison terms. ( 667.5, subd. (b).) The trial court sentenced him to a total term of 16 years to life.

Paul appeals, contending there is no substantial evidence of malice to support his murder conviction, the trial court erred in failing to instruct the jury on imperfect defense of another, and his trial counsel gave him inadequate assistance by not requesting such an instruction. We find no error and affirm.

BACKGROUND

Early in the morning on March 18, 2004, Joey Bufkin was walking to his job at the Conservation Corps of Long Beach (CCLB). He passed Paul, and they said Good morning to each other. Then Bufkin came upon a burgundy Pontiac Grand Am parked beside the road that appeared to be empty but was emitting loud music from its open windows. Bufkin looked inside the car and saw a pregnant teenager lying on the back seat who told him angrily, Dont even think about it. Offended, Bufkin walked on without responding.

Later, Bufkin and four to six fellow CCLB employees, including Dwhight Davidson, were in the alley behind the CCLB building, waiting for it to open. The Grand Am drove past the mouth of the alley, then stopped and reversed. The cars occupants, including Paul, the pregnant teenager, and Pauls girlfriend Tracy Gonzalez, the pregnant teenagers aunt, pointed toward the group of waiting CCLB workers, then drove down the alley and stopped close to the group.

Paul and Gonzalez got out of the car and approached the group. Gonzalez, angry and waving a heavy flashlight in a threatening manner, screamed at Bufkin about somebody trying to rob her niece. Bufkin, who is 64 tall, told her that nobody had tried to rob her niece, asked to talk with the niece, and took two or three steps toward the car. Gonzalez stepped away from Bufkin and Paul stepped toward him. Bufkin removed his jacket, thinking he might have to defend himself. At that moment, Davidson, 19 years old, 58 tall, and weighing 131 pounds, who had been standing just behind and to the left of Bufkin, stepped forward, said, Calm down, placed himself between Bufkin and Paul, and extended his arms at shoulder height to separate them, placing one hand on Bufkins chest, the other toward Paul, a big, tall 35-year-old man.

Paul suddenly moved something from his right hand to his left hand, stepped back, and swung his left arm toward Davidsons chest, striking him. Davidson said, He stabbed me. . . . Call the paramedics. Paul and Gonzalez quickly reentered the car and drove away. Bufkin called 911 on his cell phone. Another CCLB worker memorized the Grand Ams license plate number. Davidson collapsed, bleeding heavily. An ambulance took him to the hospital, where he later died. The attack was recorded on the CCLB buildings surveillance camera.

Using the license number and the surveillance camera information, the police tracked the Grand Am to Pauls home, where Paul was arrested as he ran out the back door. Gonzalez was also there and was arrested. A police search of Pauls car found a twelve-inch flashlight and a six-inch hunting knife with no fingerprints or blood residue on it. Bufkin and a CCLB coworker identified Paul and Gonzalez in police photographic lineups and also later at trial.

On January 23, 2006, the Los Angeles District Attorney filed a criminal information alleging that Paul and Gonzalez murdered Davidson deliberately to benefit and promote a street gang. ( 187, subd. (a), 186.22, subd. (b)(1)(A).) The information further alleged that Paul had two prior convictions and two prior prison sentences and had not remained free of prison custody for five years before his recent crime, and that Gonzalez had three prior felony convictions. Paul pleaded not guilty and denied the special allegations.

At trial, the coroner testified that Davidson died from a stab wound to the heart inflicted by a knife blade two inches long or longer. A police gang expert testified that Pauls attack, as a sophisticated surprise attack using the left hand, was characteristic of the Nazi Lowriders (NLR) gang, and that Paul had NLR tattooed on his chest and referred to himself as Sinbad from NLR when he was arrested. Paul did not testify, but a defense expert on gangs testified that Paul was an inactive member of NLR in March 2004 and that the mode of attack was not unique to NLR. In rebuttal, the arresting officer testified that when Paul was arrested at noon, roughly five hours after the attack, he had two syringes and a glass narcotics pipe in his possession and appeared to be under the influence of some drug.

Based on Bufkins testimony that he thought he might have to defend himself from Paul, the trial court instructed the jury with CALCRIM 571 on imperfect self-defense, but deleted the language in it regarding imperfect defense of another. Defense counsel did not request the reinsertion of this language.

The jury convicted Paul of second-degree murder but found not to be true the special allegation that he killed Davidson to benefit a criminal street gang. Paul admitted his prior convictions and sentences. The court sentenced him to 15 years to life for murder plus a one-year sentence enhancement pursuant to section 667.5, subdivision (b), granted him 848 days of presentence custody credit, and required him to pay $10,200 in fines and fees ( 1202.4, subd. (b), 1202.45, 1465.8, subd. (a)(1)). Paul timely appealed.

DISCUSSION

A

Paul contends that there is insufficient evidence of malice to support his conviction of second-degree murder. We disagree.

Under the substantial evidence standard of review, an appellate court determines not whether a criminal defendant is guilty beyond a reasonable doubt, but whether substantial evidence supports the jurys findings, or in other words, whether a reasonable jury could have found the elements of the crime to have been proven beyond a reasonable doubt. (See People v. Cuevas (1995) 12 Cal.4th 252, 274; see also People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) We must view the record in the light most favorable to the verdict and uphold the verdict if it is supported by evidence that is reasonable, credible, and of solid value. (People v. Marshall (1997) 15 Cal.4th 1, 31.) We also presume in support of the judgment all facts that the trier of fact reasonably could have deduced from the evidence. (See People v. Campbell (1976) 63 Cal.App.3d 599, 608.)

Evidence of a defendants state of mind is almost inevitably circumstantial[.] (People v. Bloom (1989) 48 Cal.3d 1194, 1208.) A jury thus may infer a defendants specific intent from the circumstances surrounding the defendants act, and if such circumstantial evidence supports a reasonable inference that the defendant possessed the required intent, the jurys finding of that intent will not be disturbed on appeal. (See People v. Ferrell (1990) 218 Cal.App.3d 828, 834.) Paul, a big 35-year-old man, stabbed a slight, slender 19-year-old would-be peacemaker in the heart with no provocation. That is sufficient circumstantial evidence to support a reasonable inference of malice. Although Paul maintains that the particular facts in this case negate malice, we may not reweigh the evidence or substitute our judgment for that of the jury. (See People v. Perez (1992) 2 Cal.4th 1117, 1124, 1127; People v. Bohana (2000) 84 Cal.App.4th 360, 369.)

B

Paul also contends that the trial courts failure to instruct on imperfect defense of another denied him his fundamental constitutional trial rights, and that his trial counsels failure to request such an instruction denied him his constitutional right to effective assistance of counsel. Again, we disagree.

Imperfect self-defense is the actual, but unreasonable, belief in the need to resort to self-defense to protect oneself from imminent peril. (People v. Vasquez (2006) 136 Cal.App.4th 1176, 1178.) Similarly, one who kills in imperfect defense of othersin the actual but unreasonable belief he must defend another from imminent danger of death or great bodily injuryis guilty only of manslaughter. (People v. Randle (2005) 35 Cal.4th 987, 997.) Our Supreme Court has indicated that where appropriate, a trial court has a sua sponte duty to instruct on imperfect defense of others. (Id. at p. 996.) An instruction on a lesser included offense is required, however, solely if there is substantial evidence showing that the defendant is only guilty of the lesser offense. (People v. Breverman (1998) 19 Cal.4th 142, 162.) On appeal, a reviewing court considers whether the instruction on the lesser included offense was supported by evidence that would allow a reasonable trier of fact to find the elements of the lesser offense beyond a reasonable doubt. (See People v. Dennis (1998) 17 Cal.4th 468, 508.) The threat defended against must be imminent, creating danger of harm at that very instant. (See In re Christian S. (1994) 7 Cal.4th 768, 783.)

No substantial evidence supports the contentions that Paul either subjectively believed that he had to defend Gonzalez or that any imminent peril to Gonzalez existed. Paul himself offered no evidence of such a subjective belief, and the prosecutions evidence does not reveal any basis for such a belief. Likewise, the evidence does not show that Davidson posed a threat to Gonzalez or Paul, let alone imminent danger of death or great bodily injury that would justify the use of lethal force. Although Paul points out that he and Gonzalez were outnumbered by Bufkin, Davidson, and the other CCLB workers, this fact does not show an imminent, immediate threat to Gonzalez, particularly where the CCLB workers were all unarmed. To posit that Paul had an actual but unreasonable belief in the need to defend Gonzalez with lethal force would be pure speculation. [S]peculation is an insufficient basis upon which to require the giving of an instruction on a lesser included offense. (People v. Valdez (2004) 32 Cal.4th 73, 116.)

We similarly reject Pauls arguments regarding ineffective assistance of counsel. An appellant claiming ineffective assistance of counsel must show both (1) deficient performance by counsel and (2) demonstrable prejudice from this deficient performance, or in other words, a reasonable probability that the appellant would have had a better outcome but for counsels deficient performance. (People v. Montoya (2007) 149 Cal.App.4th 1139, 1146-1147; see also People v. Williams (1988) 44 Cal.3d 883, 937.) Given that there was no substantial evidence to support an instruction on imperfect defense of another, as we have discussed, there is no sound basis for counsel to have sought such an instruction, and no reasonable probability that Paul would have enjoyed a better outcome had the court given the instruction. (See People v. Ochoa (1998) 19 Cal.4th 353, 434 [Counsel cannot have been ineffective for failing to seek an instruction for which there was no supporting evidence[.]].) As such, Paul is unable to show either deficient performance or prejudice and cannot overcome the strong presumption on appeal that counsels conduct falls within the wide range of adequate professional assistance. (People v. Stanley (2006) 39 Cal.4th 913, 954.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

VOGEL, Acting P.J.

JACKSON, J.^*

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^* (Judge of the L. A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.)