P. v. Uribe

Filed 3/6/07 P. v. Uribe CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Arthur Jean, Jr., Judge. Affirmed.

Stephen Temko, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Joseph P. Lee and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.

________________

Jose Luz Robles Uribe, also known as Jose Robles, appeals from a judgment entered upon his conviction by jury of second degree murder (Pen. Code, 187, subd. (a)).[1] The jury also found to be true the personal firearm use enhancement within the meaning of section 12022.5. The trial court sentenced appellant to state prison for a term of 15 years to life plus two years. Appellant contends that the trial court erred and deprived him of his rights to a fair trial, a jury trial and due process by denying his request for a jury instruction on voluntary manslaughter based upon heat of passion.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

One Sunday night in February 1981, 23-year-old Lorena Duarte was working as a waitress at the El Intimo bar in Wilmington. She had dated appellant, having been seen leaving El Intimo with him a few nights before and double dated with him a week earlier. Between 8:00 p.m. and 2:00 a.m., appellant was in the bar and had at least three or four beers. Duarte flirted with him and hugged and kissed him, at one point sitting on his lap. She also hugged and kissed other patrons that evening.

At approximately 1:00 or 1:15 a.m., Justo Uribe, who had recently begun to date Duarte, arrived at El Intimo to pick her up. He sat at the bar, greeted Duarte, and she said Hello, amigo. Duarte did not hug or kiss Uribe. She offered him a drink, and he had a 7-Up.

At some point, Uribe got up from the bar and went to the restroom. He noticed that a man followed him into the restroom where they looked at each other. Uribe saw nothing unusual in this. He returned to the bar, and the man returned to his table. After Uribe had been in the bar for 30 to 45 minutes, Duarte asked him to wait for her in the car because the bar was about to close. He did so. Shortly thereafter, Duarte exited the bar and entered the front passenger seat of Uribes car.

As they were about to leave, a car pulled behind Uribes car, preventing him from leaving. The man Uribe had seen in the restroom exited his car and banged twice on Uribes drivers side window with the butt of a rifle, hard enough to leave marks on the glass. Uribe opened the door and tried to grab the rifle. The man then pointed the rifle at Uribe, who was then outside of his car, and said, [T]ell her to come with me if you dont [want] me to kill you. Uribe, not wanting any problems, told Duarte to go with the man. Duarte exited the car and walked up to Uribe, stood next to him and put her arm around his waist.

The man appeared angry and upset and said, You are not going to make an ass of me, you fucking cont [sic]. Do you want me to kill him? Duarte responded, Kill me. The man told Duarte that if she did not come with him, he would. Uribe moved three or four feet to the side of Duarte. The man pointed the rifle at Duarte, prepared to shoot it and shot her in the chest. He then ran, threw the rifle into his car, entered and drove away. Duarte died of a single, through and through, high velocity gunshot wound to the chest.

Araceli Sanchez, the cashier at El Intimo and the person in charge, and Leticia Perez, a waitress there, witnessed the shooting. As they were leaving the bar to go home, they saw Duarte arguing with appellant in the parking lot.[2]Appellant had a rifle in his hand and appeared angry. They saw him point the rifle at the man with Duarte and heard Duarte tell appellant to leave the man alone and to kill her. Appellant then pointed the rifle at Duarte who pushed it away. Appellant then pointed it at her again and shot her. Appellant ran to his car and left.

Uribe was unable to identify appellant as the shooter from photographs before trial or at trial. Perez could not identify him from photographs because he looked different in person, but positively identified him at trial as the gunman who shot Duarte. Sanchez selected appellants photograph from six photographs presented to her. When she saw the photographs, she made the sign of the cross and said, This is him. It looks like him, . . . but the photo is a little bit blurry. At trial, Sanchez also positively identified appellant as the gunman.

In February 1981, Mauro Rodriguez met a man named Jose at the El Intimo bar. He remembered Jose being with one of the waitresses named Lorena. Rodriguez had double dated with appellant and Duarte. Los Angeles Police Detective Larry Kallestad, in charge of the investigation, showed Rodriguez a photograph of appellant which Rodriguez said looked like the person he knew as Jose Robles, but he was uncertain. At trial, he identified appellant as looking like the man, but was only 50 to 70 percent certain.

Marisela Contreras, appellants niece, was only nine years old at the time of the shooting. After the shooting, appellant was in Mexico between 1981 and 2005. On August 10, 2005, when Contreras heard he was back in California and had been arrested, she visited him in jail. After her visit, Detective Brian Gasparian and Detective Ornelas spoke with her. Detective Gasparian testified that Contreras told them that appellant told her during the visit that he had been in a bar in Wilmington many years earlier, and that a fight occurred over a girl he used to date and someone produced a gun and shot her. Contreras told the detective that appellant said he did not kill her but left, fearing he would be accused. At trial, Contreras denied that appellant told her anything about the shooting during her visit and also denied telling the detectives these things.

DISCUSSION

During the jury instruction conference at the close of the evidence, defense counsel requested the series of voluntary manslaughter instructions be given based upon a heat of passion theory. She argued, . . . I think that theres enough that can be inferred by the evidence that was presented to the jury in that Mr. Robles went to the bar to see Lorena. They were hugging and kissing. She was sitting on his lap throughout the entire evening. He had taken her home two nights before. He had gone on a double date with her approximately one week before. Another gentleman walks into the bar just before closing to pick up Lorena. And there was an argument in the parking lot between Mr. Robles and Lorena, at which point he says no one makes a fool out of me. And I think it is enough that it should go to the jury as a fact for the jury to make the decision of whether or not it is manslaughter. The trial court concluded that there was insufficient evidence of heat of passion and denied the request.

Appellant contends that the trial court committed reversible error in denying his request for voluntary manslaughter instructions, thereby depriving him of his constitutional rights to a fair trial, a jury trial and due process. This contention is meritless.

We independently review whether a jury instruction on the lesser included offense of voluntary manslaughter should have been given. (People v. Manriquez (2005) 37 Cal.4th 547, 584.)

A trial court must instruct on general principles of law relevant to the issues raised by the evidence. (People v. Saddler (1979) 24 Cal.3d 671, 681.) Such general principles are those closely and openly connected with the facts before the court and which are necessary so that the jury will understand the case. (People v. Breverman (1998) 19 Cal.4th 142, 159 (Breverman).) In considering the need for instruction on imperfect self-defense, a basis for reducing murder to voluntary manslaughter, in In re Christian S. (1994) 7 Cal.4th 768, 783, our Supreme Court stated, [J]ust as with perfect self-defense or any defense, [a] trial court need give a requested instruction concerning a defense only if there is substantial evidence to support the defense. (See also People v. Manriquez, supra, 37 Cal.4th at p. 584 [trial court must instruct on a lesser included offense if substantial evidence exists indicating that the defendant is guilty only of the lesser offense[3]].) There was not substantial evidence to support appellants heat of passion claim and hence to require instruction on voluntary manslaughter.

An intentional killing is reduced from murder to manslaughter if the killers reason was actually obscured as the result of a strong passion aroused by a provocation sufficient to cause an ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment. (Breverman, supra, 19 Cal.4th at p. 163.) No specific type of provocation is required, and the passion aroused need not be anger or rage, but can be any violent, intense, high-wrought or enthusiastic emotion. (Ibid.) The provocative conduct by the victim may be physical or verbal . . . . (People v. Manriquez, supra, 37 Cal.4th at p. 583.) A conviction of manslaughter based on heat of passion therefore includes two elements. First, there is an objective element establishing that the provocation was sufficient to cause an ordinary person of average disposition to act rashly from the passion (Breverman, supra, at p. 163), thereby insuring that no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man. (People v. Manriquez, supra, at p. 584.) Second, there is a subjective element that the defendants reason must in fact have been overcome by overwhelming passion. (Id. at pp. 583584.) When it is established that a person is provoked by the heat of passion to kill, that person lacks malice required for proof of murder. (Breverman, supra, at pp. 153154.)

There was insufficient evidence of objective provocation here. In fact, the thrust of appellants defense focused not on provocation, but on the fact that the alleged offense occurred 25 years earlier and that the identifications of appellant as the perpetrator were suspect. The evidence revealed only that appellant and Duarte had had a couple of dates before the night of Duartes murder. There was no evidence that they were having a long-term relationship, that they had been sexually intimate or that their relationship was exclusive.[4]While they flirted, hugged and kissed in the bar, Duarte had done the same with other patrons that evening. Uribe was at the bar to pick her up. She had not hugged or kissed him that night. When appellant approached Uribes car and threatened to kill him unless Duarte went with appellant, appellant felt demeaned because Duarte came to Uribes defense and placed her arm around Uribes waist. While appellant may have been angry, there was no justification that would cause an ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than judgment. (Breverman, supra, 19 Cal.4th at p. 163.) There was no showing that defendant had lost control of his emotions or that there was a violent quarrel. (See People v. Dixon (1961) 192 Cal.App.2d 88, 90.) The witnesses described the confrontation as a discussion or argument. In fact, appellants actions appeared cool and calculating; he followed Uribe into the bathroom, later, went outside to his car and blocked Uribe and Duarte from leaving, approached their vehicle with a rifle and demanded that Duarte go with him. There was no screaming or fisticuffs. These facts reveal only that Duarte may have been dating two men. Appellant did not catch Duarte being sexually unfaithful, nor was there evidence that she even had any moral obligation to be faithful. Provocation of [such] slight and trifling character is not sufficient to reduce murder to manslaughter. (People v. Najera (2006) 138 Cal.App.4th 212, 226.) Ordinary people of average disposition in our society do not prevail over their competition for the favor of the opposite sex by murdering the competition. Consequently, the trial court was not required to instruct on voluntary manslaughter.

Appellant relies on numerous cases finding adequate objective provocation where the defendant acted in response to infidelity of a wife or paramour. (See, i.e., People v. Berry (1976) 18 Cal.3d 509 (Berry).) These cases are inapposite. In Berry, for example, the defendants wife of three days left to go to Israel where she fell in love with an Israeli man. On her return, she told the defendant of this affair and that the man was coming to this country to claim her. For two weeks, she tormented her husband, alternatively with her involvement with the Israeli and at the same time sexually exciting the defendant and telling him of her desire to remain with him. She told defendant she thought she might be pregnant by the Israeli. On one occasion, while sexually arousing defendant, she stopped, and told him she was saving herself for her Israeli. Thus, Berryreflected a cumulative series of provocations (id. at p. 514) over a period of nearly two weeks, by one spouse against another, that caused the defendants uncontrollable rage.

Unlike in Berry, appellant was not married to Duarte. In fact, there is minimal evidence of any significant relationship between them that was violated in any sense by her going with Uribe. Further, the thrust of the defense in Berrywas that the defendants actions were provoked, whereas here, the thrust of appellants defense was that he did not commit the charged conduct. The conduct in Berryconsisted of two weeks of constant emotional and sexual torture in the context of marital infidelity. Here, the claimed provocation occurred at one brief, discreet time, and the level of provocation falls far short of the type in Berry considered sufficient to establish heat of passion.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

___________________, J.

DOI TODD

We concur:

_____________________, P. J.

BOREN

_____________________, J.

ASHMANN-GERST

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] The witnesses also used the term discussion in describing the communication between appellant and Duarte near the vehicle.

[3] Because voluntary manslaughter is a lesser included offense of murder (Breverman, supra, 19 Cal.4th at p. 159), an instruction on that offense must be given sua sponte without a request if there is substantial evidence to support it. (Id.at pp. 154, 159160, 162.)

[4] We do not suggest that if such evidence existed it would necessarily have established a case of objective provocation.