THE PEOPLE v. HUMBERTO MANJARREZ (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

A jury found defendant and appellant Humberto Manjarrez guilty of second degree murder and of being a felon in possession of a firearm.   The jury also found true gang and personal gun-use allegations.   Manjarrez contends on appeal that the trial court should have instructed the jury on a heat of passion theory of voluntary manslaughter and on voluntary intoxication.   We reject these contentions and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual background.

A. Prosecution case.

On January 25, 2008, Angelena Candelaria was at a “kickback” ¹ at her friend Gabby's house.   Also at the party was Angelena's brother, John Candelaria, and Daniel Rodriguez.   John and Rodriguez were members of the El Monte Hicks gang.   Rodriguez asked Chris Arechiga, who was also at the party, if anyone from El Monte Flores, a rival gang, was there.   Rodriguez asked Arechiga to take off his shirt, which had a “F” on it, so Arechiga wore it inside out.

Gabby said that some people from El Monte Flores might be outside.   Mad, Rodriguez went to the intersection of Arden and Marsen, with Angelena.   Out of a white truck came four guys, one of whom, Jimmy Montoya, Angelena knew.   Rodriguez asked where he was from.²  One of Montoya's companions said Flores.   Rodriguez said Hicks.   He pushed Angelena to the ground and then she heard four or five gunshots.   Angelena did not see any anything, including a weapon, in Rodriguez's hands, which were at his side.   The four guys ran to the truck and left.

Rodriguez died of a gunshot wound to the head.   No gun was found on him.   Detectives discovered that the men who were with Montoya that night were Victor Flores, Alfredo Chavez, Ruben Ramirez and Manjarrez.

Manjarrez told detectives that he'd been drinking at a party on Portrero before going to Arden.   Manjarrez had drunk “[a] lot” from a bottle of vodka.   When Rodriguez approached him that night, Rodriguez said, “This is Hicks [.]  [F]uck Flores.”   Manjarrez replied, “[F]uck Hicks.”   Rodriguez reached into his pocket, and, fearing that Rodriguez had a “gun or something,” Manjarrez shot him.

One of Manjarrez's companions that night, Flores, told detectives that he was at a party on Portrero when someone said there was a better party on Arden.³  He, Montoya, Ramirez and an unknown driver went to party.   Angelena talked to them, and then a guy came out and asked where they were from.   They said they weren't from anywhere, but then shots were fired.   Although he didn't see him shoot the gun, the shooter was Manjarrez.   Before he was shot, Rodriguez had one hand under his shirt, near his waistband.   When they got back into the car, Manjarrez said he couldn't believe he did that.

Chavez told detectives that he, Flores, Montoya, Ramirez and “Beto” were at a party when they were told about another party on Arden.   They were outside when a guy came out saying “all this shit.”   Chavez said they should leave, and when he turned to go to his truck, he heard gunshots.   The shooter, Beto, got on his cell phone and said that he'd “blasted this fool from Hicks.”   He bragged about it.   Chavez never saw the gun.

A gang expert, Detective Ralph Batres, testified that there are five gangs in El Monte, the main one being El Monte Flores,⁴ which has 400 members.   The El Monte Hicks is a rival gang with about 20 members, although at the time Rodriguez was shot, there was no feud between the gangs.   Manjarrez is known as Ben Davis, and he admitted to Detective Batres that he was a member of El Monte Flores.   Rodriguez, in an encounter with the detective before his death, said he was El Monte Hicks.   Hicks claimed the area in which the shooting occurred.   Going into a rival gang's territory with a gun is a sign of disrespect that benefits your gang.

B. Defense case.

Manjarrez testified in his defense.   On the evening of January 25, 2008, he drove to a party near the Arden and Marsen with Montoya, Ramirez, Flores, and Chavez.⁵  He had been drinking.   He never went inside the house because Angelena said they couldn't come in.   A man quickly approached saying, “ ‘Fuck you, this is Hicks.’  “ It seemed like the man had something in his pocket.   Manjarrez was scared, but he didn't say anything to him.   Afraid that Rodriguez was going to shoot him, Manjarrez shot him, firing the gun five or six times.   He did not yell “ ‘Fuck Hicks.   This is Flores[,]’ “ before or after shooting Rodriguez.   He lied to detectives when he said that he told Rodriguez, “ ‘Flores.   Fuck Hicks[.]’ “

Manjarrez admitted that he is a gang member and that he carried a gun for protection.   Before this incident, he'd never had a problem with Hicks, although he'd entered Hicks territory to pick up Angelena's boyfriend from her house.

II. Procedural background.

On October 1, 2008, the jury found Manjarrez guilty of count 1, second degree murder ⁶ (Pen.Code, § 187, subd. (a)) ⁷ and found true personal gun use (§ 12022.53, subds.(b), (c) & (d)), and gang (§ 186.22, subd. (b)(1)(C)) allegations.   The jury also found him guilty of count 2, possession of a firearm by a felon (§ 12021, subd. (a)(1)), and the jury found true a gang allegation (§ 186.22, subd. (b)(1)(A)).

On October 30, 2008, Manjarrez was sentenced, on count 1, to 15 years to life plus a consecutive 25 years under section 12022.53, subdivision (d).  The trial court stayed the remaining gun enhancement allegations.   On count 2, the trial court imposed a concurrent midterm sentence.⁸

DISCUSSION

I. The trial court did not err by refusing to instruct the jury on heat of passion and on voluntary intoxication.

Manjarrez contends that the trial court erred when it refused to instruct the jury on (A) a heat of passion theory of voluntary manslaughter and (B) voluntary intoxication.   We disagree.

A trial court must instruct the jury, sua sponte, on the general principles of law that are closely and openly connected to the facts and that are necessary for the jury's understanding of the case.  (People v. Moye (2009) 47 Cal.4th 537, 548;  People v. Abilez (2007) 41 Cal.4th 472, 517;  People v. Breverman (1998) 19 Cal.4th 142, 154.)   Instructions on a lesser included offense must be given when there is substantial evidence from which the jury could conclude the defendant is guilty of the lesser offense, but not the charged offense.  (People v. Manriquez (2005) 37 Cal.4th 547, 584;  People v. Cook (2006) 39 Cal.4th 566, 596.)   Substantial evidence is evidence that a reasonable jury could find persuasive.  (Manriquez, at p. 584.)   In deciding whether there is substantial evidence of a lesser included offense, we do not evaluate the credibility of the witnesses, a task for the jury.  (Id. at p. 585.)   The duty to instruct sua sponte on lesser included offenses is not satisfied by instructing on only one theory of an offense if other theories are supported by the evidence.  (People v. Lee (1999) 20 Cal.4th 47, 61.)   We independently review the question of whether the trial court erred by failing to instruct on a lesser included offense.   (Manriquez, at p. 587;  People v. Oropeza (2007) 151 Cal.App.4th 73, 78.)

A. Voluntary manslaughter, heat of passion.

Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a);  People v. Manriquez, supra, 37 Cal.4th at p. 583.)   Voluntary manslaughter is the intentional but nonmalicious killing of a human being.  (People v. Moye, supra, 47 Cal.4th at p. 549;  § 192, subd. (a).) ⁹  Voluntary manslaughter is a lesser included offense of murder.   (People v. Lee, supra, 20 Cal.4th at p. 59;  People v. Manriquez, supra, at p. 583.)   A killing may thus be reduced from murder to voluntary manslaughter if there is evidence negating malice, for example, where the defendant kills in the unreasonable but good faith belief that deadly force is necessary in self-defense or where the defendant kills upon a sudden quarrel or in the heat of passion on sufficient provocation.  (People v. Manriquez, supra, at p. 583.)   An unlawful killing in a sudden quarrel or heat of passion constitutes voluntary manslaughter whether the defendant acts with an intent to kill or in conscious disregard for human life.  (People v. Lasko (2000) 23 Cal.4th 101,108-110.)

“Heat of passion arises when ‘at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.’  [Citations.]”  (People v. Barton (1995) 12 Cal.4th 186, 201.)   The provocation that incites the defendant to homicidal conduct must be caused by the victim or be conduct reasonably believed by the defendant to have been engaged in by the victim.  (People v. Manriquez, supra, 37 Cal.4th at p. 583.)   It may be physical or verbal, but it must be sufficiently provocative to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.  (Ibid.;  People v. Lee, supra, 20 Cal.4th at p. 59.)   Thus, the heat of passion requirement has both an objective and a subjective component.  “ ‘The defendant must actually, subjectively, kill under the heat of passion.  [Citation.]  But the circumstances giving rise to the heat of passion are also viewed objectively.’  “ (People v. Manriquez, supra, at p. 584.)   A defendant may not set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable person.  (Ibid.) “ ‘ “[S]udden quarrel or heat of passion” ‘ “ as mitigation negating malice aforethought requires that the perpetrator's 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 judgment.  (People v. Lasko, supra, 23 Cal.4th at p. 108.)   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 other than revenge.  (Ibid.)

There was insufficient evidence of heat of passion to warrant giving the instruction.¹⁰  The evidence was that the victim, Rodriguez, was a member of the Hicks gang.   After hearing that members of a rival gang, El Monte Flores, might be outside, Rodriguez angrily approached Manjarrez and his companions and asked where they were from, a common question that can be meant and perceived as a challenge.   Rodriguez had his hand at his waistband, which caused Manjarrez to believe he had a gun.   Rodriguez may have said, “[F]uck Flores.”  “Hicks.”  But even if the jury believed that Rodriguez was visibly angry and demanded to know what gang Manjarrez was from, “[r]easonable people do not become homicidally enraged when hearing” a fleeting gang reference or challenge.  (People v. Avila (2009) 46 Cal.4th 680, 706.)   Thus, the gang challenge was insufficient provocation to arouse Manjarrez to the heat of passion required by law to reduce murder to manslaughter.

Nor was there evidence that Manjarrez was actually provoked to such an extent that he flew into a passion.   In Manriquez, the defendant tried to calm the victim, who called him “ ‘mother fucker’ “ and dared him to use a gun.   (People v. Manriquez, supra, 37 Cal.4th at pp. 585-586.)   The defendant said he wanted no problems, but he shot the victim.  Manriquez concluded that a heat of passion instruction was unwarranted, because there was no showing that the defendant “exhibited anger, fury, or rage;  thus, there was no evidence that defendant ‘actually, subjectively, kill[ed] under the heat of passion.’   [Citation.]”  (Id. at p. 585.)   There was similarly a dearth of evidence that Manjarrez exhibited anger, fury or rage.   There was, for example, no exchange of heated words or blows.   Instead, Manjarrez said he thought that Rodriguez had a gun, and he shot him because he was scared.   The evidence thus merely showed that Manjarrez feared for his life, and therefore shot Rodriguez out of fear.   If anything, the evidence supported instructing the jury on self-defense and imperfect self-defense but not on heat of passion.  (See, e.g., People v. Moye, supra, 47 Cal.4th at pp. 552-554 [the thrust of defendant's testimony that he thought the victim was going to “ ‘ “kill me so I hit him until he stopped moving” ‘ “ was self-defense].)   The jury received instructions on those theories, and no other instruction on voluntary manslaughter was required.

B. Voluntary intoxication instruction.

The defense also argued that there was evidence to support instructing the jury on voluntary intoxication.   The trial court agreed that there was evidence Manjarrez had been drinking, but found that there was no evidence he'd become voluntarily intoxicated.   The court therefore said that the defense could argue intoxication, but there was insufficient evidence to instruct the jury on it.   The trial court did not err by refusing to give the instruction.

As we said above, a trial court has a sua sponte duty to instruct the jury on

general principles of law that are closely and openly connected to the facts and that are necessary for the jury's understanding of the case, including instruction on lesser included offenses.  (People v. Breverman, supra,19 Cal.4th at p. 154.)   But voluntary “[i]ntoxication is now relevant [after diminished capacity was abolished as a defense] only to the extent that it bears on the question of whether the defendant actually had the requisite specific mental state.   Thus it is now more like the ‘pinpoint’ instructions ․ to which a defendant is entitled upon request.   Such instructions relate particular facts to a legal issue in the case or ‘pinpoint’ the crux of a defendant's case, ․ They are required to be given upon request when there is evidence supportive of the theory, but they are not required to be given sua sponte.”  (People v. Saille (1991) 54 Cal.3d 1103, 1119;  see also People v. Williams (1997) 16 Cal.4th 635, 677.) ¹¹

There was insufficient evidence to support the theory that defendant lacked the requisite specific mental state due to voluntary intoxication.   Evidence that Manjarrez was drunk came primarily from his statement to detectives:

“[Detective] Brown:  Okay, you mentioned that, that you were drunk.   Were you drunk?   How much did you drink before this happened?

“Manjarrez:  A lot.

“[Detective] Brown:  Like how much?

“[Detective] Leslie:  What's ‘a lot’ to you?

“Manjarrez:  A whole vodka bottle.

“[Detective] Brown:  A whole vodka bottle?   Was it vodka or beer?

“Manjarrez:  Vodka.

“[Detective] Brown:  You drank a whole bottle of vodka?

“Manjarrez:  Well, not just a whole bottle, but I had a whole bottle I was drinking.   Just like that, straight.

“[Detective] Leslie:  Well, let's back up a little bit if we can, okay?   You were with Jimmy, right?   And the other two guys?

“Manjarrez:  (talking over ).

“[Detective] Leslie:  Before the party?

“Manjarrez:  Before that.

“[Detective] Leslie:  Where were you guys at?

“Manjarrez:  At another party.

“[Detective] Leslie:  And that was the party on?

“[Detective] Brown:  Portrero.

“[Detective] Leslie:  Portrero?

“Manjarrez:  Yeah.

“[Detective] Leslie:  Did you ride over there with Jimmy and them or [sic ]?   Yeah? Were you drinkin' at that party?

“Manjarrez:  Yeah, I was already drinkin'.

“[Detective] Leslie:  So you were drunk before you got to that party?

“Manjarrez:  Um-hum.”

From this, there was evidence that Manjarrez had been drinking at some point during the night before shooting Rodriguez.   What was lacking was evidence of the effect of his alcohol consumption on his state of mind.  (See, e.g., People v. Marshall (1996) 13 Cal.4th 799, 848 [evidence that defendant had an unspecified number of drinks and seemed “ ‘dazed’ “ did not support the conclusion that at the time he committed the offenses he was unable to premeditate or to form an intent to kill].)   Rather, there was evidence suggesting that Manjarrez could form the requisite intent:  Chavez testified that after fleeing the scene, Manjarrez bragged that he'd “blasted this fool from Hicks.”   We therefore agree with the trial court that there was no evidence to support instructing the jury on voluntary intoxication.

III. The 25-years-to-life term was properly imposed under section 12022.53, subdivision (d).

The trial court sentenced Manjarrez on count 1, second degree murder, to 15 years to life plus 25 years under section 12022.53, subdivision (d).  Manjarrez contends that imposing sentence on the gun enhancement is inconsistent with constitutional principles of double jeopardy because the enhancement should be treated as the equivalent of a lesser included offense to murder.   As Manjarrez acknowledges, People v. Izaguirre (2007) 42 Cal.4th 126, 134, rejected that contention:  “To the extent defendant claims enhancements should be considered when applying the multiple conviction rule to charged offenses, our holding in [People v.] Reed [ (2006) ] 38 Cal.4th 1224, controls.   They may not.   Beyond that, Apprendi [v. New Jersey (2000) 530 U.S. 466], ․ requires only that the firearm-related enhancements below had to be found true by a jury beyond a reasonable doubt, which they were.”   We must follow Izaguirre.   (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)   Imposition of an enhancement under section 12022.53, subdivision (d), as to count 1 did not violate the multiple conviction rule or double jeopardy principles.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. A kickback is different from a party, because at a kickback you know everybody, but at a party you don't know everyone..  FN1. A kickback is different from a party, because at a kickback you know everybody, but at a party you don't know everyone.

FN2. It is unclear from Angelena's testimony whether Rodriguez asked Montoya where he was from or his companions..  FN2. It is unclear from Angelena's testimony whether Rodriguez asked Montoya where he was from or his companions.

FN3. At trial, Flores couldn't recall most of what he told detectives..  FN3. At trial, Flores couldn't recall most of what he told detectives.

FN4. The parties stipulated that El Monte Flores is a criminal street gang..  FN4. The parties stipulated that El Monte Flores is a criminal street gang.

FN5. None of Manjarrez's companions were gang members..  FN5. None of Manjarrez's companions were gang members.

FN6. The jury found him not guilty of first degree murder..  FN6. The jury found him not guilty of first degree murder.

FN7. All further undesignated statutory references are to the Penal Code..  FN7. All further undesignated statutory references are to the Penal Code.

FN8. The court also sentenced defendant to a consecutive eight months for a probation violation that was also before the court..  FN8. The court also sentenced defendant to a consecutive eight months for a probation violation that was also before the court.

FN9. Section 192 states:  “Manslaughter is the unlawful killing of a human being without malice.   It is of three kinds:  [¶] (a) Voluntary-upon a sudden quarrel or heat of passion.”.  FN9. Section 192 states:  “Manslaughter is the unlawful killing of a human being without malice.   It is of three kinds:  [¶] (a) Voluntary-upon a sudden quarrel or heat of passion.”

FN10. The trial court instructed the jury on self-defense and on imperfect self-defense (CALCRIM Nos. 505 & 571), but refused to instruct on heat of passion.   When the defense asked that the jury be instructed on a heat of passion theory of voluntary manslaughter, the court said:  “The standard in terms of the heat of passion, gang members can't set themselves up as the example of the objective person.   So the fact that there's evidence in the record based on the statements that the defendant purportedly ‘went crazy’ does not cause me to believe that there's substantial evidence looking at it from the standpoint of provocation such that would inflame the passions of an objectively reasonable person.   I don't think it's appropriate.   I do think Flannel imperfect self-defense.   And I'm not going to be instructing on heat of passion provocation.”  (Italics added.).  FN10. The trial court instructed the jury on self-defense and on imperfect self-defense (CALCRIM Nos. 505 & 571), but refused to instruct on heat of passion.   When the defense asked that the jury be instructed on a heat of passion theory of voluntary manslaughter, the court said:  “The standard in terms of the heat of passion, gang members can't set themselves up as the example of the objective person.   So the fact that there's evidence in the record based on the statements that the defendant purportedly ‘went crazy’ does not cause me to believe that there's substantial evidence looking at it from the standpoint of provocation such that would inflame the passions of an objectively reasonable person.   I don't think it's appropriate.   I do think Flannel imperfect self-defense.   And I'm not going to be instructing on heat of passion provocation.”  (Italics added.)

FN11. CALCRIM No. 625 provides:  “You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way.   You may consider that evidence only in deciding whether the defendant acted with an intent to kill[,][or] [the defendant acted with deliberation and premeditation[,]][[or] the defendant was unconscious when (he/she) acted [,]] [or the defendant _.]  [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect.  [¶] You may not consider evidence of voluntary intoxication for any other purpose.”  (Italics omitted.).  FN11. CALCRIM No. 625 provides:  “You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way.   You may consider that evidence only in deciding whether the defendant acted with an intent to kill[,][or] [the defendant acted with deliberation and premeditation[,]][[or] the defendant was unconscious when (he/she) acted [,]] [or the defendant _.]  [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect.  [¶] You may not consider evidence of voluntary intoxication for any other purpose.”  (Italics omitted.)

KLEIN, P. J. CROSKEY, J.