P. v. Willis

Filed 10/10/07 P. v. Willis CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Defendant Marsell Rayshan Willis timely appeals from a November 29, 2005 judgment sentencing him to seven years in prison. On October 17, 2005, a jury found defendant guilty of voluntary manslaughter and found true an allegation he had personally used a knife during the killing. (Pen. Code, 192, subd. (a) [voluntary manslaughter], 12022, subd. (b)(1) [personal use of deadly weapon].)

Defendant makes the following arguments on appeal: (1) the trial court erred when it allowed questioning regarding defendants prior arrests for petty theft and robbery; (2) the trial court improperly excluded testimony which it ruled was inadmissible double hearsay; (3) the trial court erred by failing to instruct sua sponte on involuntary manslaughter; and (4) defense counsel provided ineffective assistance at trial by withdrawing a request for such an instruction.[1] We conclude these arguments lack merit, and we affirm. 

FACTUAL BACKGROUND

The victim, Fred Henderson, was 52 years old at the time of his death and lived in an Oakland apartment complex. Defendants mother, Denise Willis, was Hendersons ex-girlfriend. Defendant and his mother had lived with Henderson in the past, but Henderson had evicted them because Henderson wanted defendant out of his apartment, as he and defendant did not get along. Henderson had disrespected defendants mother, which included physically abusing her. Defendant also did not approve of Henderson because he had used drugs with defendants mother. Nonetheless, the mother testified she left Hendersons apartment on a friendly note and kept in contact with Henderson.

In 2004, defendants mother started a relationship with Marty Harris and moved in with him. On April 5, 2005, defendant, 25 years old at the time, had been staying with his mother at Harriss apartment. Harris asked defendant to leave after defendant had asked Harris to stop being aggressive with defendants mother. Harris had been aggressive with her in the same way Henderson had been. Defendants mother decided to leave also.

Around the time of Hendersons death, defendant usually lived with his grandmother, who also provided defendant with money whenever he needed it. The grandmother testified that defendant and his mother (the grandmothers daughter) could have stayed with the grandmother that night. However, sometime before 11 p.m., defendants mother contacted Henderson to ask for a place to stay. Henderson invited defendant and his mother to stay the night at his apartment and bought them food.

For as long as defendants mother had known Henderson (since 2003), he had owned a gun. In 2004, Henderson pulled a gun on defendant. On the night he was killed, Henderson placed his handgun on the nightstand near his bed.

In the early morning hours of April 6, 2005, Henderson took defendant with him to sell crack cocaine and to meet up with a prostitute. LaRhonda Omar, a prostitute, loaned Henderson $200 in $20 bills so he could buy drugs. Earlier that night, a neighbor had also loaned Henderson $100.

Before defendants mother went to sleep that night, Henderson warned defendant that he wasnt going to go for . . . the B.S. that they went through before because he would pop him. In the morning, defendants mother woke up and saw defendant asleep on Hendersons floor. She woke up Henderson and told him she was leaving. Henderson went outside to warm up his car. When Henderson returned, defendants mother went into the bathroom to get dressed. Henderson handed her a piece of crack cocaine. He told her he was going to have a man-to-man talk with defendant while she was getting dressed. She asked Henderson and defendant what was going on about that, and Henderson told her he had loaned defendant some money. Henderson accused defendant of lying about the money and told defendants mother that his money was missing. During an interview with police, defendants mother said Henderson was upset that money for his cell phone was missing. According to defendants mother, Henderson said to defendant, Why did you lie about the money? That was for my cell phone. She also said she never took any of Hendersons property and stated that if anything was missing, defendant took it.

When defendants mother entered the bathroom that morning, defendant was sitting in the kitchen. She closed the bathroom door. After hearing a rumbling noise, she opened the door to discover defendant and Henderson wrestling with each other, saw a lot of blood, and saw her son and Henderson struggling over a gun. She heard defendant say that Henderson had tried to kill him and had tried to put the gun to his head. Defendants mother told police that Henderson had asked her at that point to get defendant off of him. Henderson told her he was not trying to kill defendant, and that defendant stuck me in my neck. She also told police that defendant had told her he had gotten a knife that he used to stab Henderson from the kitchen. However, defendants mother denied ever seeing defendant holding the knife. The mother told police that the two men had continued to fight, together falling through a window in the apartment. At another point during her police interview, defendants mother said defendant had flung Henderson over his shoulder and into the window.

When interviewed after the incident by police, defendant said that about 60 to 90 seconds into the fight, Henderson had reached for his gun from the nightstand. Henderson got ahold of the gun, but then defendant grabbed it also and they both began wrestling with it. While near the nightstand, he stabbed Henderson once in the neck with a knife that had fallen to the floor from the nightstand. He said he had stabbed Henderson with one hand while using his other hand to keep Henderson from firing the gun. After the stabbing, defendant saw blood coming from Hendersons neck. The stab wound was in the center of Hendersons neck, near his Adams apple. At some point after the stabbing, there was a lull in the fighting and Henderson sat on the corner of the bed. He and defendant then resumed tussling. After Henderson tried to grab the gun a second time, defendant said Henderson crashed into the window.

Defendant told police that Henderson said, call an ambulance. Henderson told defendants mother he had not been trying to kill defendant and that defendant had stabbed him in the neck. Defendants mother told defendant to run away instead of calling an ambulance. After defendant ran away, Henderson managed to leave his apartment and defendants mother ran out the door.

Hendersons cousin, Debra Gail Jackson, lived next door to him. At approximately 9:20 a.m., Jacksons son awoke her and told her that Henderson was at the front door and appeared to be hurt. Jackson went to her door and saw Henderson collapse there. Defendants mother then came out from Hendersons apartment crying and hysterical, and told Jackson, Marsell stabbed him. Marsell stabbed him, and asked Jackson, why did he do this? Defendants mother left soon after because she had an outstanding warrant.

Jackson placed a towel over Hendersons neck and called 911. At the time, Henderson had $113 on his person, but no $20 bills. After the police arrived, Henderson did not respond when asked who had stabbed him. At the hospital, Henderson was pronounced dead at 11:39 a.m. Around 2 p.m. that day, Jean Crockett, who lived a couple of blocks away from Henderson, found a dark jacket and two shirts in her garbage bin, and a gun inside the jackets pocket. The police confirmed the gun was loaded. They also found defendants identification card inside the jacket pocket. The jacket and one of the shirts had blood stains. A cellular phone bill indicated Hendersons cellular phone was used at 4:51 p.m. that day.

Between 8 p.m. and 9 p.m., defendant went to his grandmothers home. He told his grandmother he was very tired, he was dirty, he needed some clothes. He was not wearing shoes. Crying, defendant told his grandmother, Im going to miss you all.

The police recovered from Hendersons apartment his empty wallet, a bent knife (from the floor), two crack pipes, and crumbs of crack cocaine. Hendersons cellular phone was never recovered.

On April 7, 2005, Dr. Thomas Rogers performed an autopsy on Hendersons body. Rogers found on the body multiple incised wounds (on the neck, forearm, wrist, and hand) and one combination incised and stab wound (on the right front side of the neck). An incised wound is caused by something sharp and cutting, but is more superficial than a stab wound. The incised and stab wound to Hendersons neck was approximately one and three-quarter inches deep. It affected branches of the jugular vein and penetrated a vertebrae bone. Rogers concluded Henderson died of multiple stab and incised wounds, the neck wound being the fatal blow. He also concluded the knife recovered by the police could have caused all of the incised and stab wounds on Hendersons body. While it was possible broken glass from hitting the window could have caused Hendersons superficial injuries, it was more likely the knife caused the mortal wound.

Rogers also opined Henderson may not have been immediately incapacitated by the ultimately fatal wound to his neck. Because that injury was to a vein and not to an artery, Henderson may have been able to continue fighting. Also, cocaine in his system may have made Henderson agitated and more physically active at the time.

DISCUSSION

I.       Questioning Regarding Defendants Prior Arrests.

a.      Procedural Background.

On August 30, 2005, the People brought a motion in limine seeking to introduce evidence of defendants prior arrests for theft crimes for impeachment purposes. The trial court ruled these prior arrests were admissible for impeachment purposes only, but were otherwise inadmissible pursuant to Evidence Code section 1101.

During cross-examination of defendants mother, who was a Peoples witness, defense counsel asked her whether defendant appeared intent on stealing from Henderson, as follows:

Q. Now, before [defendant] runs out [of Hendersons apartment after the stabbing], he doesnt search the place, does he?

A. No.

Q. You dont see him looking for money, do you?

A. No. My son was devastated. He didnt

Q. You dont see [defendant] looking through Mr. Hendersons wallet, do you?

A. I neverno, I never, uh-uh. My son, my son is not that type.

Q. You dont see your son going through Mr. Hendersons nightstand looking for something to take, do you?

A. My son never did. He never would do nothing like that. Hes not that type. Thats not his motive.

Before redirect examination of defendants mother, the prosecutor informed the trial court he wanted to use defendants prior arrests for impeachment purposes. He explained, at this point that door about his priors has been opened because [the mother] tried to throw out there that [defendants] not the type of person to take anything from anyone. The prosecutor sought to test the mothers knowledge of defendants character for not stealing, but said he did not seek to introduce the evidence under Evidence Code section 1101 (character to prove conduct). Defense counsel objected based on Evidence Code sections 352 and 1101. The trial court ruled: [I]f [defendants mother] makes those kinds of statements, [the prosecutor] can certainly test her credibility by saying had you heard that your son was[] . . . [] [Defendants mother] certainly said her son was not the type that would takehe would never take anything from anyone. She went on about that like he had been raised better than that, he knew better than that. [] Well, she opened the door, so you can test her, you can ask her that, but it has to be in very general terms.

During redirect examination, the prosecutor asked defendants mother about the prior arrests, as follows:

Q. You said that your son doesnt take things; he wasnt raised like that.

A. No.

Q. He doesnt take things?

A. He wasnt raised at all like that, to my knowledge. I never heard no one said [sic] he took things from him.

Q. I know you gave that opinion. But would your opinion change if you knew that on March 5th, 2005, he was arrested for petty theft?

A. I dont know nothing about that.

Q. Would your opinion about that change if you knew that on May 26th, 1998, he was arrested for attempted strong arm robbery?

A. I dont know nothing about that.

Q. Would your opinion change if you knew that on July 31, 1998, he was arrested for three counts of robbery?

A. Um, Im not going to say my opinion will change, but it will make me wonder. But I know that whatever he done, he done it without me knowing. He made sure that I didnt know.

Q. So he could have taken [Hendersons] money without you knowing it?

A. I dont think so.

Immediately after this testimony, the trial court instructed the jury as follows: Ladies and gentleman, you just heard some evidence about some prior offenses, prior arrests, and that evidence is admitted only to test the credibility of this witness. . . . Youre not to consider it for any purpose other than to test the credibility of this witness.

b.      Analysis.

Defendant argues the trial court erred in allowing the prosecutor to ask defendants mother about defendants prior arrests. We review the trial courts ruling for abuse of discretion. (People v. Barnett (1998) 17 Cal.4th 1044, 1118 [When a trial court overrules a defendants objection[] that evidence . . . is inadmissible character evidence, we review the ruling[] for abuse of discretion]; People v. Cox (2003) 30 Cal.4th 916, 955 [An appellate court applies the abuse of discretion standard to review any ruling by a trial court on the admissibility of the evidence].) Under this standard of review,  as long as there exists a reasonable or even fairly debatable justification, under the law, for the action taken, such action will not be here set aside.  (People v. Clark (1992) 3 Cal.4th 41, 111.) We conclude the trial court did not abuse its discretion.

Defendant bases his argument on Evidence Code section 1102. That statute provides: In a criminal action, evidence of the defendants character or a trait of his character in the form of an opinion or evidence of his reputation is not made inadmissible by Section 1101[2] if such evidence is: [] (a) Offered by the defendant to prove his conduct in conformity with such character or trait of character. [] (b) Offered by the prosecution to rebut evidence adduced by the defendant under subdivision (a). (Evid. Code, 1102.)

Defendant asserts his mothers testimony regarding his character for not stealing was not offered by the defendant within the meaning of Evidence Code section 1102 and thus the prosecution could not introduce character evidence in rebuttal under subdivision (b) of that statute. Defendant argues his mothers testimony derived from a prosecution witness whose statements were not responses to defense counsels questions. We are not persuaded.

Evidence Code section 1102, subdivision (b) permits the prosecution to rebut evidence adduced by the defendant under subdivision (a). (Evid. Code,  1102, subd. (b).) To adduce is defined as to bring forward (as an example, reason, or proof). (Websters Third New International Dictionary (2002) p. 25.) The defense was indisputably responsible for bringing forward the mothers testimony regarding defendants character. Although defendants mother responded with more information than was necessary to answer defense counsels questions, her testimony was in response to those questions. The statute does not limit itself to defense witnesses or to testimony which was strictly responsive to defense counsels questioning. Moreover, defense counsel did not move to strike any of her testimony.

Defendant also argues the prosecutors questioning produced highly prejudicial character evidence. First, technically speaking, the prosecution did not introduce any character evidence. Defendants mother testified she did not know about these arrests; she never confirmed these arrests took place. No evidence was admitted to establish defendant was in fact arrested for these theft crimes. His mother was only asked if her opinion about her son would change if she knew of such arrests. (CALJIC No. 1.02 (Fall 2006 ed.) [A question is not evidence].)

Second, even had the mother testified she knew about her sons arrests, the prosecutions questions were still proper to impeach the mother as a witness. (See Evid. Code, 1101, subd. (c) [Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness]; People v. Kennedy (2005) 36 Cal.4th 595, 620 (Kennedy) [restrictions on the use of evidence of specific instances of prior misconduct . . . do not apply to evidence offered to support or attack the credibility of a witness].) The rationale for permitting the prosecution to ask a witness whether or not [she] has heard rumors or reports of defendants arrest or conviction of other offenses inconsistent with the character trait testified to, is that such cross‑examination tests and exposes weaknesses in the witnesss knowledge of the reputation. (People v. Hurd (1970) 5 Cal.App.3d 865, 879.)

The fact that defendants mother was a Peoples witness does not affect the analysis. (Evid. Code,  785 [The credibility of a witness may be attacked or supported by any party, including the party calling him].) For example, in Kennedy, supra, 36 Cal.4th 595, the testimony of a Peoples witness opened the door for impeachment just like the mothers testimony in this case. There, the witness testified during cross‑examination by defense counsel that he had never seen the defendant carry a gun. (Id. at pp. 619-620.) On redirect, the prosecution elicited testimony that the witness and defendant had been arrested together and that in a car search incident to that arrest the police seized two pistols. (Id. at p. 620.) Our Supreme Court rejected defendants contention that the prosecutors questioning was designed to elicit inadmissible evidence of a propensity by defendant to have guns. . . . [T]he questioning was proper to impeach [the witness] because [the witnesss] admission that he and defendant were arrested in a car in which guns were found raised doubts as to the veracity of [the witnesss] statement on cross-examination that he had never seen defendant carry a gun. (Ibid.)

II.    Double Hearsay.

a.      Procedural Background.

As noted above, in the early morning hours before Hendersons death, Henderson borrowed money from a prostitute named LaRhonda Omar so that he could buy more drugs to sell. During the investigation of Hendersons death, Sergeant Mark Dunakin learned Omar had called Henderson on his cellular phone some hours before he died. Dunakin conducted a taped interview of Omar before trial. And according to defense counsels notes on this interview, Omar told Dunakin during the interview that Henderson had told her that night that some assholes were staying at his place and he was going to kick them out.

Because Omar could not be located to testify at trial, the defense tried to admit Hendersons comment to Omar through Dunakins trial testimony. During Dunakins cross-examination, defense counsel asked him about his taped interview with Omar. The officer stated Omar had confirmed she had met defendant and Henderson that night and that she had lent Henderson $200. Omar confirmed Henderson used and sold crack cocaine and said she had seen him with a gun before. When asked if Omar had told him that Henderson had said some assholes were staying at his place and he was going to kick them out, Dunakin testified he did not remember that statement. Dunakin did recall Henderson had told Omar that an ex-girlfriend was staying at his house. Dunakin agreed to review his transcript of the taped interview to determine whether Omar had said Henderson mentioned anything about assholes staying at his apartment. There was no objection to this line of questioning.

On the following day, the prosecutor objected on double hearsay grounds to defense counsel furtherquestioning Dunakin regarding Hendersons statement to Omar. Defense counsel argued the statement was not hearsay: It is not being offered for the truth of the matter. Its not being offered for the fact that Mr. Henderson was, in fact, going to kick them out. Its being offered to show Mr. Hendersons intent, and his intent was to throw them out. And this is in contradiction to the entire theory of the prosecutor in this case, which is basically this fight was not about Mr. Henderson throwing [defendant] out of his place. Its the entire theory of the prosecutor that the fight was about [defendant] trying to rob him. So that is why its being offered.

The trial court first noted that up to this point a lot of hearsay evidence had come in because no one objected. The court then rejected defense counsels argument, concluding the defense sought to offer the statement for the truth of the matter asserted . . . to show that it happened. Basically you are offering it for the truth of the matter. You say youre not but you are, because what you want it for is to show that [Henderson] was going to go to his apartment and kick them out, which is the truth of the matter asserted. The court ruled the evidence inadmissible, concluding that state of mind evidence as to the victim was not at issue and the statement was double hearsay.

b.      Analysis.

As the Attorney General correctly asserts, defendant must show, under a valid evidentiary rule or exception, how Sergeant Dunakin could testify about a dead victims statement to an unavailable witness. Defendant first argues the evidence was admissible under Evidence Code section 1250 as an exception to the hearsay rule for the declarants, i.e., Hendersons, state of mind. Even assuming Hendersons statement to Omar was admissible under the state of mind exception, defendants argument fails to address the facts that there were two declarants who made two statements and thus there were two layers of hearsay: (1) Hendersons statement to Omar and (2) Omars statement to Dunakin. It is well established that where a statement involves multiple levels of hearsay, each level must satisfy a hearsay exception in order for the entire statement to be admissible. (Cruey v. Gannett Co. (1998) 64 Cal.App.4th 356, 366; cf. Evid. Code,  1201 [A statement within the scope of an exception to the hearsay rule is not inadmissible on the ground that the evidence of such statement is hearsay evidence if such hearsay evidence consists of one or more statements each of which meets the requirements of an exception to the hearsay rule].) Defendant does not explain which hearsay exception would apply to make Omars statement to Dunakin admissible, nor can we discern one.

Defendant next argues that neither statement was hearsay because neither [was] offered to prove the truth of the matter stated. (See Evid. Code, 1200, subd. (a) [hearsay evidence is offered to prove the truth of the matter stated].) Defendant contends defense counsel sought to elicit the statement[s] for a non-hearsay purpose, i.e., to show Hendersons antipathy to defendant and his mother. However, this argument only applies to Hendersons statement to Omar. (See People v. Garcia (1986) 178 Cal.App.3d 814, 822 [statements by a victim regarding the victims state of mind typically are not admitted to show the truth of the matter asserted].) In contrast, Omars statement to Dunakin was undoubtedly offered for its truth, i.e., that Henderson had in fact told Omar about some assholes staying at his apartment some hours before he was killed. The defense sought to introduce Omars statement to Dunakin not to show Hendersons antipathy toward defendant and his mother, as defendant argues, but to establish that Henderson actually made this statement to Omar at that time. Consequently, we conclude the trial court correctly ruled this evidence was inadmissible hearsay.

III. Failure to Instruct on Involuntary Manslaughter.

a.      Procedural Background.

Before the close of evidence, the parties discussed proposed jury instructions with the trial court. Initially, defense counsel requested an involuntary manslaughter instruction, but the trial court did not rule on the request at that time.

Three weeks later, defense counsel withdrew his request for the instruction. He explained he did not believe the involuntary manslaughter instruction [was] appropriate because involuntary manslaughter instructions . . . are only appropriate where there is an unintentional killing. And that would be the case should [defendant] have made a statement to the police that he did not intend to stab the deceased, that was unintentional, and therefore that is why I do not believe that involuntary manslaughter is an appropriate instruction to give to the jury. The trial court went on to instruct the jury on first and second degree murder, felony murder, and voluntary manslaughter, but not on involuntary manslaughter.

b.      Analysis.

Defendant argues the trial court had a sua sponte duty to instruct the jury on involuntary manslaughter. We conclude the trial court had no such duty because there was no substantial evidence to support such an instruction in this case. We further conclude that even had there been such a duty, it is not reasonably probable defendant would have received a more favorable verdict.

A trial court must give an unrequested instruction only if it pertains to   general principles of law relevant to the issues raised by the evidence.   (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) The term general principles means   those principles closely and openly connected with the facts before the court, and which are necessary for the jurys understanding of the case.   (Ibid.) A trial court must instruct on a lesser included offense if there is substantial evidence the defendant is guilty only of the lesser offense. (Id. at p. 162.) On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support. (Ibid.)  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. (Ibid.)

Manslaughter is the unlawful killing of a human being without malice. It is of three kinds: [] (a) Voluntaryupon a sudden quarrel or heat of passion. [] (b) Involuntaryin the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. [] (c) Vehicular . . . . (Pen. Code, 192.) A defendant lacks malice and is guilty of voluntary manslaughter in limited, explicitly defined circumstances: either when the defendant acts in a sudden quarrel or heat of passion ([Pen. Code,] 192, subd. (a)), or when the defendant kills in unreasonable self-defensethe unreasonable but good faith belief in having to act in self-defense [citations].  (People v. Blakeley (2000) 23 Cal.4th 82, 87-88.) When a defendant, with the intent to kill or with conscious disregard for life (id. at p. 91), kills in unreasonable self-defense, the killing is voluntary, not involuntary, manslaughter. (Id. at pp. 88-89.) A killing in  conscious disregard for life  occurs  when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.  (Id. at p. 87.)

Defendant correctly asserts that if there is substantial evidence defendant killed with neither the intent to kill nor a conscious disregard for human life, then an involuntary manslaughter instruction was warranted. (See CALJIC No. 8.45 (Fall 2006 ed.) [involuntary manslaughter is an unlawful killing without an intent to kill, and without conscious disregard for human life].) He argues his statements to police that he  stuck Henderson in the neck in the heat of their wrestling and struggling over the gun provide the necessary support for the instruction. We conclude this evidence was insufficient for a   jury composed of reasonable [persons to] . . . conclude[]  that [involuntary manslaughter] . . . was committed. (Breverman, supra, 19 Cal.4th at p. 162.)

It was undisputed that defendant stabbed Henderson in the neck; he admitted doing so to the police. It was also undisputed that the place where defendant stabbed Henderson was a vulnerable part of the body and that defendant stabbed with enough force to penetrate bone, causing death. And defendant in effect told police the stabbing was intentionalhe told them he stabbed Henderson because he believed Henderson was about to shoot him.

Defendant emphasizes he did not specifically admit intentionally stabbing [Henderson] in a portion of his body which would inflict life-threatening wounds. However, there was no evidence defendant accidentally stabbed Henderson in the neck or that defendant did not intend to stab Henderson in a vulnerable location. The fact that there was no direct evidence of his specific intent to stab Henderson in the neck does not support a lesser included offense instruction. Rather, in such situation, the defense must posit some scenario based on the evidence at trial showing the jury could reasonably find the defendant guilty of the lesser included offense. (People v. Evers (1992) 10 Cal.App.4th 588, 597, fn. 3 (Evers).) [T]he pivotal question here was whether there was sufficient evidence for a reasonable juror to find [defendant] acted without consciously realizing the risk to [Hendersons] life. (Id. at p. 596.) A reasonable juror could only infer from the evidence that defendant, believing his life was in imminent danger, acted either with the intent to either kill or with the intent to seriously injure Henderson by stabbing him with enough force to penetrate the vertebrae. (See People v. Hendricks (1988) 44 Cal.3d 635, 643 [even though there was evidence defendant told police he did not intend to kill the victims, where the physical evidence established defendant shot the victims at point-blank range, no substantial evidence supported an involuntary manslaughter instruction]; Evers, supra, 10 Cal.App.4th at p. 597 [no instruction on voluntary manslaughter was required where the severity of the child victims injuries made clear that whoever abused [the victim] had to know such abuse would likely cause serious injury or death]; see also People v. Moore (2002) 96 Cal.App.4th 1105, 1114 [although defendant testified he intended to stab but not to kill the victim, where he stabbed her not in the arm or leg, but in the abdomen, an extremely vulnerable area of the body and did so with great force, there was substantial evidence of an intent to kill].)

Even assuming the trial court had a duty to instruct on involuntary manslaughter, given the strength of the evidence in this case, reversal is not required. [I]n a noncapital case, error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under [People v.] Watson [(1956) 46 Cal.2d 818, 836]. A conviction of the charged offense may be reversed in consequence of this form of error only if, after an examination of the entire cause, including the evidence (Cal. Const., art. VI,  13), it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred [citation]. (Breverman, supra, 19 Cal.4th at p. 178.)

In addition to the undisputed physical evidence about the nature and severity of Hendersons stab wound and defendants admission of responsibility, the other evidence at trial further supported the conclusion that defendant intended to kill Henderson or at the very least acted in conscious disregard for his life. There was evidence defendant harbored ill will toward Henderson because he had physically abused defendants mother and used drugs with her. There was evidence defendant at some point went to the kitchen to get the knife he used to stab Henderson, instead of fortuitously finding it on the floor near the nightstand while defendant struggled with Henderson there for the gun. There was also evidence of a lull in the fighting when Henderson sat on the corner of the bed. Instead of fleeing at that point, defendant started tussling with Henderson again. There was evidence defendant then flung Henderson into the window. Henderson denied to defendants mother that he had tried to shoot defendant. Defendants mother asked Hendersons cousin immediately after the stabbing why did [defendant] do this? Defendant and his mother both fled the crime scene without calling an ambulance, and defendant discarded evidence of the crime.

IV. IAC Claim.

In the alternative, in a supplemental brief, defendant argues that if the trial court did not have a sua sponte duty to instruct on involuntary manslaughter, then his trial counsel provided ineffective assistance by withdrawing his request for such an instruction. We conclude defendant has not established his IAC claim. To establish IAC, defendant must prove that counsels performance fell below an objective standard of reasonableness under prevailing professional norms, and there is a  reasonable probability  that he would have obtained a more favorable result had counsel acted competently. (People v. Dennis (1998) 17 Cal.4th 468, 540.)

A claim on appeal of ineffective assistance of counsel must be rejected  [i]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.   (People v. Hinds (2003) 108 Cal.App.4th 897, 900-901, quoting People v. Wilson (1992) 2 Cal.4th 926, 936.) Defendant cannot establish that a reasonable attorney would have requested an involuntary manslaughter instruction for the same reason the trial court did not have a sua sponte duty to give the instruction: there was no substantial evidence to support an involuntary manslaughter instruction in this case. Moreover, he cannot establish the requisite prejudice because of the strength of the evidence against him, as we discuss above.

DISPOSITION

The judgment is affirmed.

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Haerle, J.

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[1] Despite being represented by counsel, defendant himself submitted a handwritten, supplemental brief on February 15, 2006, making claims of both ineffective assistance of counsel (IAC) and trial error. We address the claims defendant raises regarding withdrawal of the involuntary manslaughter instruction below. We decline to review defendants first, third through fifth, and seventh through ninth IAC claims as there is no evidence in the appellate record to substantiate these claims. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267 [an appellate court should not find IAC unless all facts relevant to that claim have been developed in the record].) Regarding defendants sixth IAC claimfailure to object on double hearsay grounds to a statement made by Rhonda Omar (view transcript)we cannot discern from defendants brief which statement is at issue. Similarly, we decline to review any of the remaining claims of error in defendants supplemental brief as they are not supported by citations to the record or by argument or citations to legal authorities. (Cal. Rules of Court, rule 8.204, (a)(1)(B) & (C) [contents of appellate briefs].)

[2] Evidence Code section 1101 provides that evidence of a persons character is generally inadmissible to prove his or her conduct on a specified occasion. (Evid. Code,  1101, subd. (a).)