P. v. Rojas

Filed 3/24/09 P. v. Rojas CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sutter)

----

Defendant Aron Cruz Rojas stabbed his ex-girlfriend, Penelope H., in the chest with a steak knife, puncturing her heart. Penelope survived the attack. Defendant was tried by jury and found guilty of attempted murder, infliction of corporal injury on a cohabitant, and assault with a deadly weapon. The jury also found that defendant intentionally inflicted great bodily injury, that he personally used a deadly or dangerous weapon, that he had previously been convicted of domestic violence, and that he committed the current offenses while released from custody on bail for another felony offense. The trial court sentenced defendant to life in prison for the attempted murder, plus a consecutive term of seven years for the enhancements attached to the attempted murder charge.

On appeal, defendant contends that the trial court prejudicially erred in failing to instruct the jury sua sponte on the doctrine of imperfect self-defense. As will be explained more fully below, assuming that it was error for the court to fail to provide an instruction on the doctrine of imperfect self-defense, any such error was harmless. We affirm the judgment.

Facts and Proceedings

The Peoples Case:

The victim, Penelope H., testified that she moved in with Marisol F. and her family after breaking up with defendant. Two days later, she and Marisol went to work in the fields off of Highway 113 south of Yuba City. As Penelope and the other workers began their morning break, defendant arrived in a white Ford Expedition and told her that he wanted the two of them to drive to Utah to start a new life together. Penelope explained to defendant that their relationship was over and that she needed to go back to work. Defendant responded by grabbing Penelope, forcing her into the back of the Expedition, and pulling onto the highway. Despite repeated protests, defendant drove Penelope to his parents house to pack his belongings for the journey to Utah. When they reached the house, defendant climbed into the back of the Expedition and pulled out a knife. Defendants mother came out to make sure Penelope was all right because her work had called to find out what had happened to her. Holding the knife to Penelopes back to forestall further protests, defendant told his mother that everything was fine. Defendant then packed his belongings, loaded them into the vehicle, and the two set out toward Utah.

Penelope continued her protests as they drove, but was quieted by defendants repeated threat: Im going to kill you. After driving for some time, they stopped at a store to get something to eat. The conversation concerning Penelopes desire to leave defendant resumed as they ate. Eventually, the conversation moved to a wooden table where Penelope asked defendant to pull out his knife so she could carve their names into the wood. Defendant complied, pulling out two pocketknives. Penelope explained that the name-carving idea was a ruse to get defendant to show her the knife he had in his pocket so that she could be prepared in case he should threaten her with it, as he had done in the past.

When Penelope again told defendant that she was not going back to him, they quickly returned to the Expedition and continued toward Utah. As defendant drove, he opened one of the pocketknives and again threatened Penelope: Now youre going to die. Right now youre going to die. . . . This time Im going to do it. Penelope, believing defendant was about to kill her, attempted to calm him by putting her hand on his chest and telling him that she would stay with him as long as he did not harm her. Defendant, crying hysterically, pulled over to the side of the road. Penelope took advantage of defendants hysteria, consoling him with: Calm down. Give me the knives. Ill stay with you. Apparently appeased, defendant handed Penelope the knives. She threw them in some bushes on the side of the road and got into the drivers side of the vehicle. Defendant got into the passenger seat and Penelope started to drive back to Yuba City. After a short distance, she told defendant that she was too nervous to continue driving, and defendant drove them back to his parents house.

At defendants parents house, Penelope pretended that everything was fine and convinced defendant to allow her to return to Marisols house to collect her clothing; defendant agreed that they would go out to eat with his family, and that they would stop at Marisols house on the way. When they got to Marisols house, defendant and his family waited by the Expedition while Penelope went inside, ostensibly to collect her belongings.

After a brief conversation with Marisol and her husband, Penelope returned to the Expedition, again informing defendant that she was not going back to him and that she was staying with Marisols family. A hysterical and desperate defendant tried to force Penelope into the Expedition. Penelope broke free from defendants grasp, walked around the back of the vehicle, and continued walking toward the house. Defendant opened the back of the Expedition and emerged with a steak knife. He chased Penelope with the knife, catching her before she got back to the house. The two struggled. Penelopes resistance was not enough to stop defendant from plunging the knife into her chest. After the initial knife thrust into her chest, Penelope remembered being stabbed again and someone pulling defendant off of her. She then sat on Marisols couch to wait for an ambulance to arrive.

N.H. was at Marisols house when the stabbing occurred. He testified that he was walking through the front room when he heard Marisol screaming outside. N.H. went to the door and saw Penelope running away from the knife-wielding defendant. N.H. ran to Penelope to render assistance, but not before defendant grabbed her with his left hand and started stabbing her. N.H. witnessed defendant stab Penelope once in the chest and at least twice after the initial blow. When N.H. reached them, he grabbed defendants hand and took him to the ground. Marisols husband also helped N.H. hold defendant on the ground while another man, who had come running from across the street, took the knife from defendant. The men held defendant on the ground until police arrived.

Marisol testified that when Penelope arrived at her house with defendant and his family, she told Penelope: If you dont want to go, no one can take you out of my house. Penelope then went out to tell defendant that she was staying. When Marisol saw that defendant and Penelope were struggling, she went outside. Defendant was trying to put Penelope into the Expedition. At this point, he was not armed with a knife. Then, as defendant and Penelope came around the back of the vehicle, which was open, defendant had the knife and grabbed Penelope. Marisol screamed. N.H. came running out of the house and asked: Whats going on? Marisol responded: Hes killing her. N.H. then ran to pull defendant and Penelope apart, but it was too late. Defendant had already stabbed her in the chest. Marisol then took Penelope into the house and called the police. Marisol never saw Penelope stab the defendant.

Daniela F., Marisols sister, was also at the house when the stabbing occurred. Daniela testified that when she arrived at her sisters house, defendant and his family were on the sidewalk in front of the house. Several minutes later, she heard Marisol screaming from outside. She went out to investigate and saw defendant and Penelope struggling. Defendants hand made a stabbing motion four or five times toward Penelopes chest.

Don F. lived with his sister, Michelle S., across the street from Marisol and her family. He testified that immediately before the stabbing, he and some friends were in the front yard getting ready to go to the Peach Festival. He heard a female screaming across the street and ran over to see what was going on. Once within sight of the struggle, Don F. saw defendant and Penelope and two men pulling defendant to the ground. Defendant screamed as he hit the ground; his body was crouched forward and once he was subdued, Don F. noticed blood on his upper thigh. Don F. also noticed blood on Penelope and a bloody steak knife in defendants hand. Don F.s friend, Jeremy B., then disarmed defendant by twisting his arm until he let go of the knife.

Jeremy B. also testified that he and some friends had met at Don F.s house in preparation for the Peach Festival. He heard a womans screams coming from across the street and saw a man holding a woman in a headlock. As he crossed the street to confront the man, he noticed that the man had a steak knife in his hand. As multiple people jumped on the assailant, Jeremy B. grabbed the mans hand and twisted it back in order to disarm him.

Michelle S. testified that she heard a female screaming from across the street and saw a woman being attacked by a man she identified as defendant. As Michelle S. explained: [H]e had her in his arms so I couldnt quite see exactly what he was doing to her but I heard her screaming. [] . . . [] The two men across the street pulled him off of her and the young lady across the street that lives there helped her get away, but she was against the car and she was sliding down and I saw blood all over her chest. According to Michelle S., that was when Jeremy B. grabbed defendants wrist and bent it, causing defendant to drop the knife. Michelle S. then called the police.

Sergeant Lincoln Eden of the Yuba City Police Department was the officer in charge of the investigation. He testified that when he arrived at the scene, a crowd had gathered around the house and in the street. Defendant was lying on the ground. Sergeant Eden took the defendant into custody and directed another officer to secure the steak knife. He then entered the house and found Penelope on the couch. Officer Enrique Jurado was with her, applying pressure to the wound on her chest with a pair of jeans. Penelope was nonresponsive. When paramedics arrived to attend to Penelope, Sergeant Eden was able to see a half-inch puncture wound in the middle of her chest, which he considered to be consistent with being stabbed with a steak knife.

Officer Jurado said that when he arrived at the scene, he ran into the house and found a nonresponsive Penelope on the couch holding a pair of jeans to her chest. He removed the jeans to determine the extent of her injuries and found a half-inch puncture wound in the middle of her chest. He reapplied pressure to the wound and remained with Penelope until paramedics arrived, at which point he saw two additional puncture wounds on the left side of her ribcage.

The parties stipulated to the following facts: Penelope was taken to the emergency room at Rideout Memorial Hospital in Marysville. Kevin J. Mitchell, M.D., was Penelopes treating physician. He ordered Penelope to the operating room immediately, noting three stab wounds, one of which was a stab wound to the heart. Dr. Mitchell immediately called in the heart team to perform surgery to repair the heart laceration. Patrick Griffith, M.D., was the surgeon who successfully operated on Penelopes heart, repairing a laceration to her right ventricle and removing a blood clot from the heart. Both doctors agreed that the injury was life threatening.

The People also presented evidence that, based on a plea of no contest, defendant previously had been convicted of a violation of Penal Code section 273.5 (infliction of corporal injury on a cohabitant) and was released on bail pending sentencing in that matter when he committed the current offenses. (Unspecified section references that follow are to the Penal Code.)

The Defense Case:

Defendant testified that he and Penelope had a good relationship until Penelope began using drugs. The drugs made her smile and laugh all the time. Defendant also used drugs, but wanted to stop for fear of losing his job. The prospect of discontinuing the drug use made Penelope angry.

According to defendant, Penelope left him two days before the incident because she was jealous of his ex-wife, the mother of one of defendants children, and believed that defendant was cheating on her with his ex-wife whenever he visited the child. On the morning of the incident, defendant went to speak to Penelope during her break from work. Penelope got into defendants vehicle, and the two drove to his parents house. Defendant did not force her into the vehicle. Nor did he threaten Penelope with a knife upon their arrival. Both defendant and Penelope packed their belongings, and Penelope suggested that they drive to Utah. Despite having no job prospects in Utah, and not knowing where they would stay once they arrived, the two set out for Utah. At some point during the journey, defendant stopped at a store to get something to eat. After eating, Penelope told defendant that they should turn around because they did not have any prospects for the future in Utah. Defendant agreed. At no point during the return trip did Penelope take two knives from him and throw them away. When they reached defendants parents house that evening, they decided to take the family out to dinner.

Defendant stopped at Marisols house on the way to the restaurant so that Penelope could pick up some clothing. Penelope went inside for roughly 20 minutes and then returned with an odd demeanor: She came out like smiling but also angry. Like laughing but furious. Penelope angrily told defendant: I need to talk to you. I need to talk to you. Defendant and Penelope went to the back of the Expedition to talk. Penelope then called out to her friend [presumably Marisol] and asked her to bring the clothing. As defendant was opening the back of the Expedition, Penelope asked: Why did you cheat on me? Why did you cheat on me? Defendant denied cheating on her, but Penelope insisted that he had cheated on her because he had gone to see his daughter.

At this point, Penelope pulled a steak knife out of a bag containing her underwear and makeup. Penelope repeated: You cheated on me. . . . You cheated on me. Then, apparently aiming for defendants penis, Penelope stabbed defendant in the thigh. Defendant took the knife from Penelope, who threw herself at him. Defendant then stabbed her out of fear. According to defendant, he stabbed Penelope in self-defense with no intent to kill.

Verdict and Sentencing:

The jury convicted defendant of attempted deliberate and premeditated murder ( 664/187), infliction of corporal injury on a cohabitant ( 273.5, subd. (a)), and assault with a deadly weapon ( 245, subd. (a)). The jury also found allegations that defendant intentionally inflicted great bodily injury to be true

( 12022.7, subd. (e)), that he personally used a deadly or dangerous weapon ( 12022, subd. (b)(1)), that he had previously been convicted of domestic violence ( 273.5, subd. (e)(1)), and that he committed the current offenses while released from custody on bail for another felony offense. ( 12022.1.)

The trial court sentenced defendant to life in prison for the attempted murder of Penelope, plus a consecutive term of seven years for the enhancements attached to the attempted murder charge (four years for infliction of great bodily injury, one year for personal use of a deadly or dangerous weapon, and two years for commission of the crime while out on bail). Sentence on the remaining counts and enhancements, 10 years on the infliction of corporal injury on a cohabitant (the upper term of five years, plus five years for the attached enhancements) and eight years on the assault with a deadly weapon (the upper term of four years, plus four years for the attached enhancements) was imposed and then stayed pursuant to section 654.

Discussion

Defendant contends that the trial court erred prejudicially in failing to instruct the jury sua sponte on the doctrine of imperfect self-defense. We find that if that was error, it was harmless.

The trial court instructed the jury on the lesser included offense of attempted voluntary manslaughter pursuant to CALJIC No. 8.41 and instructed the jury on voluntary manslaughter based on a theory of sudden quarrel or heat of passion pursuant to CALJIC Nos. 8.42 and 8.44.

In addition to explaining to the jury that [a]n attempt to kill is lawful if done in lawful self-defense, the trial court also instructed the jury on self-defense pursuant to CALJIC Nos. 5.50, 5.51, 5.52, and 5.53. The trial court did not, however, instruct the jury on the doctrine of imperfect self-defense, which, like the doctrine of sudden quarrel or heat of passion, reduces the crime of murder to voluntary manslaughter.

It is well settled that the trial court is obligated to instruct on necessarily included offenses--even without a request--when the evidence raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense. [Citation.] (People v. Ledesma (2006) 39 Cal.4th 641, 715.) [A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support. (People v. Breverman (1998) 19 Cal.4th 142, 162; see also People v. Barton (1995) 12 Cal.4th 186, 194-195 [[A] trial court must, sua sponte, or on its own initiative, instruct the jury on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged].) Even if it does not inspire confidence, a defendants testimony constitutes substantial evidence. (People v. Mejia-Lenares (2006) 135 Cal.App.4th 1437, 1446; see also People v. Webster (1991) 54 Cal.3d 411, 443; People v. Melton (1988) 44 Cal.3d 713, 746.)

Murder is the unlawful killing of a human being with malice aforethought. ( 187, subd. (a).) A person is guilty of attempted murder where he or she does a direct but ineffectual act toward the killing of a human being while harboring the specific intent to unlawfully kill a human being (i.e., express malice aforethought). ( 21a [An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission]; see also 664.)

Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter. [Citation.] Imperfect self-defense obviates malice because that most culpable of mental states cannot coexist with an actual belief that the lethal act was necessary to avoid ones own death or serious injury at the victims hand. [Citations.] [Citation.] (People v. Randle (2005) 35 Cal.4th 987, 995; see also People v. Rios (2000) 23 Cal.4th 450, 461; In re Christian S. (1994) 7 Cal.4th 768, 773.) Similarly, when the trier of fact finds that a defendant did a direct but ineffectual act toward the killing of a human being because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is likewise deemed to have acted without malice and can be convicted of no crime greater than attempted voluntary manslaughter.

We need not decide whether defendants lone testimony that Penelope attacked him with the knife, prompting him to grab the knife and stab her out of fear, constitutes substantial evidence supporting an instruction on imperfect self-defense because even if the trial court should have instructed on imperfect self-defense in this case, the error was harmless.

Any error in failing to instruct on imperfect self-defense is subject to the harmless error test articulated in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Blakely (2000) 23 Cal.4th 82, 93.) Under this test, [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 (Watson, supra, 46 Cal.2d 818, 836). (People v. Breverman, supra, 19 Cal.4th at p. 178.)

In this case, there is no reasonable probability that defendant would have obtained a more favorable outcome had the jury been instructed on imperfect self-defense because the jury necessarily rejected defendants version of the events which was the only evidence that even arguably would support a finding of imperfect self-defense. That is, the jury resolved the issue adversely to defendant when it determined that he acted with deliberate premeditation. (See People v. Melton, supra, 44 Cal.3d at p. 746.) The jury was instructed that if they found that the attempted murder was preceded and accompanied by clear deliberate intent to kill which was the result of deliberation and premeditation so that it must have been formed upon preexisting reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is attempt to commit willful, deliberate and premeditated murder. (Italics added.) The court continued: [A] mere unconsidered and rash impulse even though it includes an intent to kill, is not deliberation and premeditation. To constitute willful, deliberate and premeditated attempted murder, the would-be slayer must weigh and consider the question of killing and reasons for and against such a choice and having in mind the consequences, decides to kill and makes a direct but ineffectual act to kill another human being. (Italics added.) Based upon these instructions, the jury found that defendant committed the crime of attempted murder with premeditation and deliberation.

Defendants theory of imperfect self-defense was that Penelope attacked him with the knife in a drug-induced rage, that he took the knife away from her only after it had lodged in his thigh, and that he thrusted the knife toward her in self-defense as she threw herself at him. Had the jury believed defendants version of events, the jury could not have concluded that defendant stabbed Penelope upon preexisting reflection and not in the midst of a situation precluding the idea of deliberation. In short, under the facts of this case, the jury could not have believed that defendant stabbed Penelope in the actual, yet unreasonable, belief that his actions were necessary to defend himself while simultaneously finding that he weigh[ed] and consider[ed] the question of killing and [the] reasons for and against such a choice[,] and having in mind the consequences, decide[d] to kill. Such a determination could only have been made if the jury discounted defendants version of events, and instead believed Penelopes account, corroborated by each of the percipient witnesses, that it was defendant who attacked Penelope with the knife.

We find no reasonable probability that defendant would have obtained a more favorable outcome had the jury been instructed on imperfect self-defense.

Disposition

The judgment is affirmed.

HULL , J.

I concur:

BUTZ , J.

With one exception, I concur in the majority opinion.

My colleagues conclude that they need not decide whether defendants lone testimony that [the victim] attacked him with the knife, prompting him to grab the knife and stab her out of fear, constitutes substantial evidence supporting an instruction on imperfect self-defense because even if the trial court should have instructed on imperfect self-defense in this case, the error was harmless, i.e., by finding that the stabbing by defendant was done with premeditation and deliberation, the jury necessarily rejected defendants version of the events which was the only evidence that even arguably would support a finding of imperfect self-defense.

While I agree with my colleagues that the lack of an imperfect self-defense instruction was harmless, I conclude the trial court had no duty to instruct sua sponte on imperfect self-defense because defendants testimony did not support it. Defendant claimed that after accusing him of cheating on her, the victim pulled out a knife, stabbed him in the thigh while aiming for his penis, and then lunged at him when he grabbed the knife away; and that defendant, in fear, stabbed the victim as she threw herself at him. Nothing in this scenario would support a finding that defendant believed in the need for self-defense but that his belief was unreasonable. If, in fact, the victim initiated the use of deadly force by pulling out the knife and stabbing defendant with it, and then continued her attack in an apparent effort to get the knife back to stab him again, it would have been reasonable for him to use deadly force to protect himself. Therefore, this was a case of unlawful attempted murder or lawful self-defense. Imperfect self-defense did not apply to the factual dispute.

Because the trial court had no duty to instruct sua sponte on imperfect self-defense and, in any event, defendant was not harmed by lack of such an instruction, I concur that the judgment must be affirmed.

SCOTLAND , P.J.

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