P. v. Torre

Filed 6/25/07 P. v. Torre CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. Barry L. Plotkin, Judge. Affirmed as modified.

Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela A. Ratner Sobeck, Supervising Deputy Attorney General, and Jeffrey J. Koch, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Rafiel Miguel Torre killed Bryan Richards for the $1 million life insurance policy that would allow defendant and his lover, Bryans wife, to be set up . . . very nicely. A jury found defendant guilty of first degree murder and found true the special circumstance alleged that the murder was carried out for financial gain. (Pen. Code,^[1] 187, subd. (a) & 190.2, subd. (a)(1)).

On appeal, defendant argues that (1) the trial court should have instructed on manslaughter and self-defense, (2) the trial court should not have instructed on consciousness of guilt, and (3) the trial court erroneously imposed a parole revocation fee when defendant has been sentenced to life without the possibility of parole. We conclude there was insufficient evidence to give manslaughter and self-defense instructions. Even if we were to assume there was substantial evidence to give self defense and lesser-included offense instructions, the result would have been the same under any standard of review because the jury found the murder was committed for financial gain. We also conclude that the trial court correctly gave CALJIC No. 2.03 (consciousness of guilt) instructions. However, we find that the jury should not have been given CALJIC No. 2.04 (efforts by defendant to fabricate evidence), as there was no evidence supporting that instruction. Erroneously giving CALJIC No. 2.04 was harmless under any standard as the jury would not have been confused by it. Finally, we determine that the trial court incorrectly imposed a parole revocation fine when defendant was sentenced to life without the possibility of parole. We will strike that fine, modify the judgment accordingly, and affirm the judgment as modified.

FACTUAL AND PROCEDURAL HISTORY

Angel Richards was unhappily married to Bryan. Bryan, along with his brother Keith, was co-owner of a successful medical equipment company. Several times a week, Angel visited a local club and eventually entered into an affair with defendant, a bouncer at the club and a martial arts expert; Bryan was unaware that her trysts were with defendant.

Four days before Christmas 2001, Bryan did not return home. Angel called Keith in search of Bryan, but Keith did not know where Bryan was. The next day, Angel called Keith to report Bryan had not yet returned home.

Concerned about his absence, Bryans family drove to Angels and Bryans home. Keith and his brother Matthew found Angel there with her girlfriend, Veronica. They were drinking wine and were surrounded by lit candles. Bryans parents also arrived. Bryans mother, Helen, surreptitiously saw defendant and Angel kiss and embrace for approximately one and one-half minutes.

Keith noticed a binder on the kitchen table containing Bryans $1 million life insurance policy naming Angel as his beneficiary. When Keith asked Angel if she had found Bryans insurance policy, Angel said she did not know if Bryan had one. Later on that same afternoon, Keith saw the binder containing the life insurance policy underneath some clothing and towels near the washer and dryer.

Some time later, defendant also arrived at Angels and Bryans house. Keith testified he spoke with defendant who said that he thought his brother [Bryan] was a great guy and he had helped him out. He was always helping him out and was a great friend and couldnt believe this was happening. Keith said his reaction to defendants statements was that it . . . kind of worr[ied] [him]. It seem[ed] like they were talking about [Bryan] in the past tense, which . . . made [him] uncomfortable.

In order to locate Bryan, Keith and Matthew repeatedly asked Angel what Bryan was doing the day before, so they could retrace his steps. Eventually, Angel replied that he went to get firewood or groceries. Keith and Matthew headed home, stopping at area grocery stores along the way to look for Bryan. At their second stop, the brothers saw Bryans truck in the back of the parking lot. They discovered Bryans mangled body in the back. The autopsy revealed that Bryan died of strangulation and that his hyoid bone was broken.

Sometime in October 2001, defendant and Gerald Strebendt, his former martial arts student, were traveling together in a truck to go to martial arts training facilities in Los Angeles and Orange counties. Strebendt was a former member of an elite sniper force with the Marines.

Defendant complained to Strebendt that Bryan verbally and physically abused Angel, and that both Angel and he were afraid for her safety. Angel had relayed to defendant that she was so fed up with Bryans mistreatment of her that she wished she was rid of Bryan. Defendant said to Strebendt, Shes willing to pay somebody [$]10,000 to do it . . . [t]hats when I told her you were a sniper in the [M]arines. Strebendt replied, Rafiel, you dont want to be any part of that. We are not professional killers, you know. Were professional fighters. Were martial artists. Thats not our deal. You dont want to be in any scope with doing away with her husband. . . . Personally, I wont have anything . . . to do with it. Defendant answered, Thats fine.

Strebendt continued, This guy [Bryan] . . . is nothing but a nice guy. This guy pays our bar tab. This guy has never yelled or said anything or pulled his wife aside or been mean and rude. What is happening here, she obviously has something to gain by this guy. Defendant responded, The reason she is scared, she is afraid for her life, theres a million dollar life insurance policy. . . . If Bryan is killed, you know, shes the recipient of a million dollars. . . . [A] million dollars would set us up, you know, very nicely.

After discussing it for some time, Strebendt thought he had disabused defendant of the idea of soliciting Bryans killer. Defendant told Strebendt, Youre right. That was a silly idea, and agreed with Strebendt that he should not have anything to do with the conspiracy.

In January 2002, Strebendt received a phone call from defendant requesting a meeting. Defendant told Strebendt that Bryan came to his martial arts studio, confronted him about his affair with Angel, and displayed a handgun. Defendant knocked the gun from Bryans hand. When Bryan jumped onto the mat to retrieve the gun, defendant jumped upon Bryan and applied a chokehold so hard that it caused something in Bryans neck to crack and he died.

Defendant stated that he panicked after accidentally killing Bryan. He put the body into Bryans truck, drove it to a grocery parking lot and walked a mile to return to his studio.

Defendant gave Strebendt a gun to hold for safekeeping. He instructed Strebendt that if he should get arrested, Strebendt should come forward with the gun that he said Bryan displayed, to prove defendant acted in self-defense.

Eventually, defendant was charged with the murder of Bryan (187, subd. (a)), with a special circumstance allegation that the murder was carried out for financial gain. ( 190.2, subd. (a)(1).)

The defense theory at trial was an alibi defense. Defendant testified he could not have killed Bryan because he was not with him at the time of the murder. Defendant did not go with Bryan to Orange County to pick up Christmas presents. Instead, he was taking a shower at a Rancho Cucamonga gym and then drove to his home in Yucca Valley to have dinner with his wife. He also testified that he could not perform a chokehold on Bryan because he had previously injured his hand in a bar brawl.

Defendant admitted that he did make statements to Strebendt saying that he killed Bryan by applying a chokehold that broke Bryans neck. He testified he told Strebendt that Bryan came to his studio, pulled out a gun and threatened to kill him because of defendants relationship with Angel, his wife. Defendant narrated that raised his hand and walked towards Bryan, begging him not to kill him. When Bryan went for the gun, defendant knocked it out of his hand. As Bryan attempted to retrieve the gun, defendant jumped on him, applied a chokehold around Bryans throat and broke his neck.

Defendant testified these statements to Strebendt were lies that Angel directed him to tell. Approximately a week after Bryans murder, Angel told defendant she had hired and paid someone to kill her husband because she was tired of Bryan abusing her and she knew she would never get out from under the marriage. Angel told defendant to tell Strebendt the chokehold story because it would protect her. If she was arrested, defendant should come forward and claim self-defense. In that way, Angel would be released because she did not kill Bryan, and defendant would be freed on self-defense grounds.

Defendant stated his chokehold story to Strebendt was untrue. Bryan never came to defendants studio, did not confront him with a gun, and he did not choke Bryan. He also mentioned he was unaware whether Bryan had life insurance.

The jury found defendant guilty of first degree murder and found true the special circumstance of murder for financial gain. Defendant was sentenced to life without the possibility of parole.

DISCUSSION

A. There Was Insufficient Evidence to Give Manslaughter and Self-Defense Instructions.

Defendant contends that the trial court erred when it denied defense counsels requests for a jury instruction on voluntary manslaughter, involuntary manslaughter, and self-defense.

A trial court must instruct on the general principles of law relevant to the issues raised by the evidence that are necessary for a jury to understand the case. (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman); see also People v. Manriquez (2005) 37 Cal.4th 547, 583.) The basis for this instructional rule is to prevent an all-or-nothing verdict so that the jurys truth-ascertainment function is preserved and allows a verdict that is no harsher or more lenient than the evidence merits. (Breverman, at p. 155.)

A trial court must instruct sua sponte on defenses as well as offenses. (Breverman, supra, 19 Cal.4th at p. 157.) There is a sharp distinction between the two as to when the trial courts duty arises. (Ibid.)

For defenses, a trial court must instruct (1) only if it appears the defendant is relying upon the defense, or (2) if there is both (a) substantial evidence supportive of such a defense and (b) the defense is not inconsistent with the defendants theory of the case. (Breverman, supra, 19 Cal.4th at p. 157.)

For charged offenses that encompass lesser offenses, if there is evidence from which a jury could conclude that the lesser offense had been committed, the court must instruct on the alternate theory even if it is inconsistent with the defense elected by the defendant . . . . [Citation.] (Breverman, supra, 19 Cal.4th at p. 157.)

Murder is the unlawful killing of a human being with malice aforethought. [Citation.] A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of . . . voluntary manslaughter. [Citation.] (Breverman, supra, 19 Cal.4th at p. 153.) There are two forms of voluntary manslaughter where the element of malice is negated: a defendant lacks malice if he either (1) kills in the heat of passion or (2) kills in unreasonable self-defensethat is, an unreasonable but good faith belief of having to act in self-defense. (Id.at pp. 153-154.)

At trial, the defense was alibi. Defendant claimed that Angel had hired someone else to kill Bryan. He said he could not have killed Bryan because he was on his way to Yucca Valley at the time of the murder. He also stated that he did not have the ability to strangle Bryan because his hand was injured. Defendant specifically testified that the self-defense story he told Strebendt was not true; it was a falsehood devised by Angel to deflect suspicion away from her.

Although defendant denied criminal liability for the crime, defense counsel requested instructions on voluntary manslaughter, involuntary manslaughter, and self-defense, because there was a possibility that the jury could disbelieve defendants testimony, yet believe the story defendant told Strebendt was true.

Voluntary manslaughter and involuntary manslaughter are lesser-included offenses for the charge of murder. (Breverman, supra, 19 Cal.4th at p. 159.) Self-defense is a true defense. (Ibid.) As the requirements for giving sua sponte instructions for offenses differs from those for defenses, we analyze them separately.

1. Voluntary Manslaughter

Defendant asserts that the trial court should have instructed on voluntary manslaughter, even though he testified that he did not kill Bryan and the self-defense store he told Strebendt was untrue. He claims his original story to Strebendt was substantial evidence to instruct on voluntary manslaughter on the theory that he killed in unreasonable self-defense, i.e., an honest but unreasonable belief that he had to act in self-defense. He maintains that the jury could have either (1) believed that defendants fear of imminent danger when confronted by an angry Bryan with a gun was unreasonable because he was a martial arts expert or (2) that defendant used unreasonable force in subduing Bryan.

To repeat, for offenses, a trial court must instruct sua sponte if there is substantial evidence from which a jury could conclude that the lesser offense on an alternate theory had been committed, even if it is inconsistent with the defensegiven at trial. (Breverman, supra, 19 Cal.4th at pp. 157, 162-163, fn. 10.) If there is substantial evidence of a defense inconsistent with the defense advanced by the defendant, the trial court should ascertain whether defendant wants instructions on the alternate theory.^[2] (People v. Elize (1999) 71 Cal.App.4th 605, 615.)

While it is true that defense counsel had requested voluntary manslaughter instructions on an alternate theory, we find there was no substantial evidence to support the instructions.

[T]he existence of any evidence, no matter how weak will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is substantial enough to merit consideration by the jury. [Citations.] Substantial evidence in this context is evidence from which a jury composed of reasonable [persons] could . . . conclude[] that the lesser offense, but not the greater, was committed. (Breverman, supra, 19 Cal.4th at p. 162.)

Defendant specifically testified that he did not kill Bryan. He also testified that the story he told Strebendt about the chokehold attack was a concocted lie Angel directed him to tell in order to protect Angel and allow him to take the blame and then claim self-defense. Lies, by their very nature, are not reasonable, credible, or of solid value. The trial court need not give instructions based solely on conjecture and speculation. (People v. Young (2005) 34 Cal.4th 1149, 1200.) Therefore, defendants claim on appeal that his admission supported giving a voluntary manslaughter instruction is meritless. Without any substantial evidence having been admitted, the trial court did not have a sua sponte obligation to instruct on voluntary manslaughter.

2. Involuntary Manslaughter

Defendant argues that the jury could have found him guilty of involuntary manslaughter if they believed his statement to Strebendtthat he accidentally killed Bryan, without malice and intent, when he applied a chokehold, or that he killed him without due caution and circumspection.

An involuntary manslaughter is committed either by an unlawful act, not amounting to felony or by committing a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. [Citation.] (People v. Cook (2006) 39 Cal.4th 566, 596.)

There was no evidence from which a jury could conclude that the lesser offense of involuntary manslaughter had been committed, even if it is inconsistent with the defensegiven at trial. Defendant testified that someone else killed Bryan while he was miles away from the scene. He also stated that the tale told to Strebendt about an accidental chokehold was an invented ploy used to deflect suspicion from Angel and allow him to invoke a self-defense claim. Defendant never testified that he accidentally killed Bryan with a chokehold.

3. Even Assuming There was Substantial Evidence to Give Lesser-Included Instructions, Under Any Standard the Result Would Have Been the Same

A jury instruction that omits or erroneously defines an element of the offense is subject to the harmless error standard of review under Chapman v. California (1967) 386 U.S. 18, 23-24; People v. Flood (1998) 18 Cal.4th 470, 491; CJER Mandatory Criminal Jury Instructions 1.15 at p. 8.) Failure to give an instruction for a lesser-included offense instruction is subject to the Watson^[3]standard of review. (Breverman, supra, 19 Cal.4th at p. 157.) Voluntary manslaughter and involuntary manslaughter are lesser-included offenses for the charge of murder. (Id. at p. 159.)

Even if we were to assume that the jury should have been instructed with voluntary and involuntary manslaughter instructions, the result would have been the same under any standard of review.

The jury found true the special circumstance that the murder was carried out for financial gain. Because the jury found that defendant killed Bryan with the intent to acquire the insurance money, it necessarily rejected out of hand the defense theories that defendant accidentally killed Bryan, used unreasonable force on Bryan, or unreasonably feared Bryan. Therefore, even if the voluntary and involuntary manslaughter instructions had been given, defendant would still have been convicted of first degree murder. Nor was it reasonably probable that there would have been a different outcome if the jury had received an involuntary instruction. The jury must have rejected defendants current claim of acting without due caution and circumspection when he applied the chokehold, as it found defendant committed the murder for financial gain. This obviates a finding of lack of malice.

4. Self-Defense

As discussed, supra, for defenses, a trial court must instruct (1) only if it appears the defendant is relying upon the defense, or (2) if there is both (a) substantial evidence supportive of such a defense and (b) the defense is not inconsistent with the defendants theory of the case. (Breverman, supra, 14 Cal.4th at p. 157.) Self-defense is a true defense. (Id. at p. 159.)

The defense theory at trial was alibi rather than self-defense. Defendant testified a hired killer murdered Bryan while defendant was somewhere else at the time of the killing. He also claimed that his chokehold confession to Strebendt was a lie. We conclude that giving a self-defense instruction would have been inconsistent with the defendants theory of the case. Therefore the trial court correctly denied defendants request for a self-defense instruction.

B. The Trial Court Properly Gave Consciousness of Guilt Instructions, But Furnishing Instructions that Defendant Made Efforts to Fabricate Evidence Was Harmless Error.

At trial, defense counsel objected to the trial courts giving CALJIC No. 2.04. On appeal, defendant now contends that giving CALJIC Nos. 2.03^[4][consciousness of guiltfalsehood] and 2.04^[5][efforts by defendant to fabricate evidence] unfairly encouraged the

jury to disregard defendants testimony, thus lowering the prosecutions burden of proof. He claims that those instructions unjustly weighed the balance in the prosecutions favor because on the one hand they improperly vouch for the credibility of the prosecutions witnesses but do not at the same time pinpoint evidence of defendants innocence. Defendant maintains his conversation with Strebendt was not made in anticipation of trial but was made shortly after Bryans death, thus is more consistent with innocence rather than guilt.

With respect to CALJIC No. 2.03, defendants failure to object to that instruction waives the issue on appeal. (People v. Jackson (1996) 13 Cal.4th 1164, 1223.) Even if the issue had been preserved, we find that there was sufficient evidence to warrant giving CALJIC No. 2.03. Defendants statements to the detective and to Strebendt were sufficient evidence to give the consciousness of guilt instruction. Defendant admitted telling several lies. Among them he said he lied when he told an investigating officer that Angel did not cheat on her husband, that he would watch Angel for Bryan, and that Angel did not have anything to do with Bryans death. He also specifically testified that he lied when he told Strebendt when he said Bryan displayed a gun and he choked Bryan. These admitted lies were sufficient evidence for the trial court to give CALJIC No. 2.03.

With respect to CALJIC No. 2.04, we conclude there was insufficient evidence to give that instruction. However, the instruction is clear and the jury would not be confused. Because it was superfluous, the jury would just ignore it.

Finally, defendants claim that the instructions unfairly encouraged the jury to disregard defendants testimony and lowered the prosecutions burden of proof has been rejected. The California Supreme Court has expressly approved the use of CALJIC Nos. 2.03 and 2.04. (People v. Holloway (2004) 33 Cal.4th 96, 142.) It found CALJIC Nos. 2.03 and 2.04 to be common sense instructions, whose cautionary nature . . . benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory. (Ibid.) We are duty bound to follow that precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)  

C. The Restitution Parole Revocation Fine Should be Stricken

Defendant contends that the trial court erred in imposing a restitution parole fine pursuant to section 1202.45 because he was sentenced to life without the possibility of parole. We agree and order the fine be stricken from the abstract of judgment.

A restitution parole fine does not apply in cases where a defendant is sentenced to life without the possibility of parole. (People v. Petznick (2003) 114 Cal.App.4th 663, 687.)

DISPOSITION

The trial court is directed to strike the restitution parole fine from the abstract of judgment. The trial court is further directed to prepare an amended abstract of judgment and to forward it to the appropriate prison authorities. As so modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ McKINSTER

Acting P. J.

/s/ RICHLI

J.

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^[1] All further statutory references will be to the Penal Code unless indicated.

^[2] There is some authority that a defendants confession, in isolation, might constitute substantial evidence to argue an alternate defense theory rebutting a first degree murder charge, even though it was inconsistent with the defense theory expounded at trial. (People v. Waidla (2000) 22 Cal.4th 690, 740, fn. 17.)

^[3]People v. Watson (1956) 46 Cal.2d 818, 836-837.

^[4] CALJIC No. 2.03, as given to the jury, provides: If you find that before this trial [a] [the] defendant made a willfully false or deliberately misleading statement concerning the crime[s] for which [he] [she] is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.

^[5] CALJIC No. 2.04, as given to the jury, provides: If you find that a defendant [attempted to] [or] [did] persuade a witness to testify falsely or [attempted to [or] [did]] fabricate evidence to be produced at the trial, that conduct may be considered by you as a circumstance tending to show a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt and its weight and significance, if any, are for you to decide.