People v. Espinosa, 2020 Cal. App. Unpub. LEXIS 2066 (CA Ct. App. 2nd 2020)
Court of Appeal of California, Second Appellate District, Division Five
April 1, 2020, Opinion Filed
2020 Cal. App. Unpub. LEXIS 2066
THE PEOPLE, Plaintiff and Respondent, v. SHERWIN MENDOZA ESPINOSA, Defendant and Appellant.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Michael C. Keller, Acting Supervising Deputy Attorney General, and Stephanie C. Santoro, Deputy Attorney General, for Plaintiff and Respondent.
Judges: BAKER, J.; RUBIN, P. J., KIM, J. concurred.
Opinion by: BAKER, J.
During his trial on a charge of murdering 19-year-old Juan Castillo (Castillo), defendant and appellant Sherwin Espinosa (defendant) admitted he fired the fatal bullet. His defense—mounted notwithstanding contrary testimony of an eyewitness—was that he had done so in self-defense, or in defense of an acquaintance, Natalie Vasquez (Vasquez). We consider whether substantial evidence supports the jury’s implied finding that defendant did not act in perfect or imperfect self-defense or defense of another, and whether the trial court prejudicially erred by declining to instruct the jury on a heat of passion theory of voluntary manslaughter.
The Los Angeles County District Attorney charged defendant with one count of murder in violation of Penal Code section 187, subdivision (a).  The information further alleged defendant used a handgun, personally and intentionally discharged the handgun, and that the discharge of the handgun caused great bodily injury and death to the victim (§ 12022.53, subds. (b)-(d)).
A. The Prosecution’s Case
1. Vasquez’s trial testimony
Defendant’s acquaintance Vasquez was at a bar celebrating the birthday of her friend Ruby Cortez (Cortez) the night of February 25, 2017. Among those at the bar were Cortez’s husband Mark Tarozza (Tarozza) and defendant, who is Tarozza’s cousin.
Vasquez arrived at the bar at around 10:30 p.m. and had about five drinks while there. At some point hours after she first arrived, Vasquez and defendant left the bar to try to find an ATM to withdraw cash. Defendant drove his car to a liquor store about five minutes away from the bar and parked near the front of the store. Vasquez observed another car nearby, and saw “about three guys” around the car.
Vasquez and defendant got out of their car and walked toward the liquor store. One of the men from the other car walked toward the door as well, made derogatory comments about Vasquez, and said this was his neighborhood. Another man was on the sidewalk near the other car. Vasquez entered the liquor store, which did not have an ATM, and went to purchase something to get cash back.
The man who had made the derogatory comment waited in the doorway of the liquor store, watching Vasquez and defendant. While Vasquez attempted to purchase gum, defendant stepped outside. Vasquez was at the front counter when she heard a gunshot. Defendant was not in the store when she heard the sound. Defendant came back into the liquor store and said “Let’s go.” He seemed a little scared. When they left the store, the other car was gone. Defendant then drove them back to the bar. They did not speak during the ride back.
After returning to the bar, Vasquez had a couple more drinks. She did not talk to anyone about what had happened, and did not really pay attention to defendant. Vasquez left the bar again, this time with Cortez, in another attempt to obtain cash. They went to a nearby 7-Eleven, then returned to the bar. Approximately 30 minutes later, Cortez, Vasquez, Tarozza, and some of the others at the bar went to defendant’s house to have a few more drinks. Vasquez did not remember what defendant’s demeanor was at the house.
2. Vasquez’s prior statements to police
The prosecution played for the jury a recording of statements made by Vasquez during an earlier police interview. Vasquez told the police she recalled being at a bar with some friends the night of the murder, but initially denied recalling who those friends were. After the police informed her they knew who else was at the bar, she admitted she was at the bar with Cortez, Tarozza, and some of their friends. Vasquez initially denied knowing who defendant was, and denied he was with her group of friends. She later admitted she knew him, but she stated that night was the first time she had met defendant.
During her interview with the police, Vasquez stated the man who had made the derogatory comments outside the liquor store said, “[t]his is Santa Monica” in addition to referring to her as a “bitch.” Vasquez’s accounting of her time in the store was largely the same as her trial testimony, but she told the police she left the store and encountered defendant outside after hearing what sounded like a gunshot.
Vasquez initially told the police she had not talked with Cortez about what happened at the liquor store. Later during the interview, however, she admitted she had told Cortez “something happened” while she and defendant were out trying to obtain cash and mentioned gunshots were involved.
Vasquez also initially denied that Tarozza had said anything to her about what happened. She later admitted, however, she had spoken to Tarozza on the phone the day after the shooting and he had told her not to say anything and not to speak with anyone.
3. Gracida’s testimony
After midnight on February 26, Gustavo Gracida (Gracida) was driving home from a party at which he had been drinking. As he was driving, he saw victim Castillo walking down the street wearing a boot on his right foot and using crutches. Castillo had been at the same party Gracida had attended, and Gracida knew Castillo because they had grown up in the same community. Neither Gracida nor Castillo were gang members.
Gracida stopped the car, and Castillo got in and reclined the passenger seat all the way back.  Castillo appeared intoxicated. He asked Gracida to take him to the liquor store where they planned to buy “munchies.” Gracida parked near a liquor store, and the two sat in the car pooling their money. They collected seven dollars and eventually exited the car to go into the liquor store. Castillo left his crutches in the car.
Gracida did not make it to the entrance of the liquor store. As he was walking towards it, he observed Castillo exchanging words with someone inside the store. By the time Gracida reached the sidewalk, the other person, a man, had gone back to his car. This unsettled Gracida. Gracida told Castillo they should leave because the other man going back to his car could not “mean anything good.” Gracida got back into the driver’s seat of his car. Gracida observed the other man walk toward his car through the passenger side mirror. The man had a gun in his hand. Castillo got in the car and closed the door. Gracida started pulling out of the parking lot, and he heard a gunshot and the car window shattering.
As he pulled away from the liquor store, Gracida asked Castillo, “Are you all right?” repeatedly, but he received no answer. Gracida saw Castillo was slumped over. Gracida drove to the home of another friend, David Najera (Najera), and parked in front of it. He checked Castillo’s pulse and did not feel anything. There was blood coming down the right side of Castillo’s face. He tried to talk to Castillo but received no response. Najera did not come out of his house after Gracida signaled him, so Gracida left.
Gracida then drove back to his apartment. He smoked a cigarette and asked a man who “hangs around” his building for help, but upon seeing Castillo the man started crying and was unable to speak. Gracida took a “hit” off of the man’s crack pipe. Gracida then drove to Inglewood with Castillo still in the passenger seat. He stopped at a gas station, retrieved the seven dollars he and Castillo had collected for snacks from Castillo’s pocket, and bought gas.
Next, Gracida drove back to Santa Monica and dropped Castillo’s body near UCLA hospital. Gracida thought the time between the shooting and when he dropped off Castillo’s body was 30 minutes. After dumping the body, Gracida went back to his apartment. On his way, he tossed Castillo’s crutches by the freeway. At around 11 a.m. he went back to the car, vacuumed the glass, and cleaned up the blood.
Gracida then went to see his friend Najera and told him about the shooting. Najera noticed Castillo’s cell phone was still in the car and picked it up. Gracida then went home.
According to Gracida, Castillo did not have a knife and Gracida denied ever seeing Castillo with a knife in his pocket. Gracida also denied having a gun, and denied that there was a gun in the car. Confronted with evidence the police had found a corkscrew with an attached knife edge in the car, Gracida stated it belonged to him, but he had forgotten about it. Gracida also admitted he had told the police he snapped out of being “blacked out” when he was driving away from the liquor store. To Gracida, “blacked out” meant he was in a state of intoxication in which he sometimes forgot some of the things he had done. Gracida had been in and out of consciousness during their time at the liquor store. He remembered a lot of the night but did not really remember the altercation. Gracida denied discarding any weapons, and denied that there was a knife in the car.
4. Other evidence and the aftermath of the shooting
Surveillance video footage obtained by the police established Gracida’s car arrived at the liquor store first. Defendant and Vasquez arrived around 12:40 a.m. The shooting was not captured by any video cameras. Gracida’s car drove away with its headlights off approximately 13 seconds later. Defendant and Vasquez got back into defendant’s car 15 to 20 seconds later, and arrived back at the bar a few minutes later.
When Castillo’s body was discovered a block away from the UCLA hospital in Santa Monica, a Santa Monica police officer who responded to the scene identified a hole in Castillo’s right cheek and believed the body had been there “for a while.” Later that week, a different Santa Monica police department officer found Castillo’s crutches in a tree along the freeway.
A forensic investigator later examined the car Gracida was driving the night of the murder. The rear passenger side window was not intact. There was blood in the car, as well as a bullet fragment.
A deputy medical examiner with the Department of Medical Examiner-Coroner testified Castillo had been killed by a single gunshot to the head that produced death within minutes of being shot. The gunshot wound was consistent with Castillo looking over his right shoulder. The examiner had also conducted a toxicology screen, which revealed alcohol in Castillo’s system.
In May 2017, a Santa Monica police department officer assisting with serving a search warrant observed defendant get in a car carrying a black and red bag. Another officer searched the car pursuant to the search warrant and recovered the bag. Inside were a loaded, unregistered Uzi assault pistol; an additional magazine; gloves; and black electrical tape. The Uzi was not registered to defendant.
A firearms examiner at the Los Angeles County Sheriff’s Department examined the Uzi and the bullet recovered from Castillo’s body. He concluded the bullet had been fired from that Uzi.
B. The Defense Case
Defendant, who was 43 years old at the time of trial, testified on his own behalf. He had previously been convicted of being a felon in possession of a firearm and knew he was not supposed to possess a gun. He had also served in the Army National Guard from 1996 to 2000 and had been honorably discharged.
According to defendant, on the night in question he went to a bar in Santa Monica at around 10 p.m. He was there with a group that included Vasquez, Cortez, Tarozza, and three others. Defendant described Vasquez as an acquaintance and stated he had met her four or five times prior to that night. The others in their group were relatively close to him.
Defendant described the pertinent events as follows. The group had not decided what they were going to do after leaving the bar, and defendant and Vasquez needed cash. They decided to leave to look for an ATM. They got into defendant’s car, and he drove until they found an open liquor store. Defendant parked near the front of the liquor store, and he and Vasquez exited the car.
Defendant entered the liquor store, then noticed Vasquez was still outside. He thought he heard her say, “Do you know me?” Defendant put his head outside the door and saw Castillo staring at Vasquez. Castillo nodded at defendant and said, “this is my neighborhood,” and “this is Santa Monica, bitch.” Defendant said “Let’s go inside” to Vasquez. Defendant, who denied ever being in a gang, interpreted Castillo’s statements as being gang-related.
Defendant and Vasquez went into the liquor store. Around five seconds later, defendant saw Castillo standing at the door, halfway into the store. Castillo stared at defendant and Vasquez in a way that made defendant uncomfortable and fearful. After they had stared at each other for a few seconds, Castillo walked toward a car. Defendant worried that something was going to happen. He exited the liquor store to see if Castillo was gone, leaving Vasquez at the counter. Defendant did not feel safe, did not know if there were more people outside, and was afraid for himself and Vasquez. He felt responsible for Vasquez because she was “riding” with him.
When defendant went outside, Castillo was leaning on the back of a car. Defendant then saw Gracida exit the driver’s side of the vehicle. Gracida went around the back of the car, then stopped near the license plate, between his car and another parked behind it, facing defendant. Defendant thought he saw something in Gracida’s hand, and noticed something shiny in Castillo’s hand as Castillo pushed himself up off of the car. Defendant identified the item in Castillo’s hand as a knife. He believed he was about to be severely injured or killed.
Castillo started walking toward defendant and told defendant to give Castillo his money. Defendant was in shock, trying to think of something to do. He knew he had to stop Castillo from walking towards him. Defendant held up his arms, said “Okay. Okay. Okay,” and then turned and ran to his car to grab his gun. He was afraid Castillo and Gracida were going to chase him. He also thought that if he made it to his car, he might have a chance of not being injured, and of the two running after him instead of going into the store.
Defendant reached his car, knelt on the passenger seat, reached behind the driver’s seat, unzipped the bag in which he kept his Uzi pistol, and pulled it out.  The gun had a full magazine of 24 or 25 bullets in it, and defendant charged it while walking back toward Gracida’s car so a round would be in the chamber. He wanted the gun to be able to be fired immediately. Defendant also turned off the safety after he charged the gun.
Defendant testified he opted for armed confrontation rather than getting in his car and leaving the scene because Vasquez was still in the store and he thought she was in danger. Defendant went back toward Castillo intending to brandish his weapon, which he hoped would prompt Castillo and Gracida to get in their car and drive away. When asked how he felt he needed to act based on the circumstances he observed, defendant stated he felt he “needed to deter the threat” and was afraid “great bodily injury or death” would result if he did not.
Defendant walked toward Castillo and Gracida’s car quickly, and though the brake lights came on, the car did not leave. Defendant testified he was afraid Vasquez would exit the store, and put himself between the door and the car. He still felt threatened, though he did not see any weapons at that point. Someone yelled at defendant through the car window. Defendant was holding the gun against his body, and bent over to look down. He placed his face close to the window. Defendant’s gun was visible to Castillo and Gracida. Defendant wanted them to see it because he wanted them to leave. Defendant said words to the effect of “You better fuckin’ leave.” Castillo said, “Come on. Let’s go. Let’s go.” Gracida yelled profanities at defendant and said, “I’m going to get you, motherfucker,” and raised his hand.
Defendant testified he saw a gun in Gracida’s hand, flinched, and squeezed the trigger on his Uzi. He flinched because he did not want to get shot in the face. As he flinched and squeezed, defendant turned, striking the rear passenger window. When asked whether he intended to squeeze the trigger, defendant said, “I don’t know if it was a purposeful reaction, but I flinched, and I squeezed, and as I squeezed, I turned, striking the rear window.” When asked if he meant to shoot anyone, defendant stated, “No, I did not. I did not intend to shoot anyone or even fire the weapon.” Defendant elaborated: “The one shot was mostly accidental. It was—it was a reaction due to my flinch. When I saw the gun, I felt like he was going to shoot.” Defendant also stated he “didn’t fire on purpose.” Defendant testified that because of the type of weapon he used, he “could have swiss cheesed that car pretty badly” if he had wanted to do so.
After Gracida’s car pulled away, defendant put the weapon in his waistband, covered it with his shirt, went into the liquor store, and told Vasquez, “Let’s go.” He and Vasquez got into his car and went back to the bar. Defendant went back to the bar because his friends were there, and he did not think anyone had been hit. Defendant did not talk to Vasquez about what happened, and she did not ask. He did not tell anyone at the bar what had happened because no one needed to know. He went back to life as normal, and drank with his friends. Defendant did not call the police, despite believing he had been threatened, because he was afraid he would be arrested in light of having sustained a prior felon in possession of a firearm conviction. 
Defendant claimed he believed he was in harm’s way the whole time. Defendant believed the threat posed by Castillo and Gracida started when Castillo went to the liquor store and continued even after they got into their car. He felt threatened by Gracida and Castillo when he returned to their car with his gun because they were still sitting there and Gracida was yelling profanities at him. Defendant believed the threat was continuous as long as they were there because there were two of them, Castillo had a knife, and defendant was fearful.
C. Jury Instructions, Verdict, and Sentencing
Defendant asked the trial court to instruct the jury on the lesser offense of heat of passion manslaughter. The trial court declined to give that instruction, finding no substantial evidence supported it. The trial court did, however, instruct the jury on a number of other defense theories: self-defense or defense of another, transferred self-defense, imperfect self-defense or imperfect defense of another, involuntary manslaughter, and the effect of provocation on the degree of murder (including that provocation may reduce murder to manslaughter).
The jury convicted defendant of second degree murder in violation of section 187, subdivision (a), a lesser offense to the charged count of first degree murder. The jury also found true the allegations that defendant personally and intentionally discharged a firearm in the commission of the offense causing Castillo’s death and personally used an assault weapon in the commission of the crime.
The trial court sentenced defendant to 15 years to life in prison for second degree murder and a consecutive 25 to life term for the associate discharge causing death firearm enhancement.
As we go on to explain at greater length, substantial evidence supports the jury’s finding that defendant did not act in perfect or imperfect defense of himself or Vasquez when he killed Castillo. The jurors were entitled to credit Gracida’s account of the altercation and shooting over defendant’s. Based on Gracida’s testimony, a reasonable jury could conclude any subjective belief that defendant was in imminent danger of great bodily harm or death was unreasonable, since Gracida and Castillo were unarmed, in their car, and beginning to drive away when defendant fired at them. A reasonable jury could also have concluded defendant did not have an actual, subjective fear of injury or death because even defendant acknowledged when testifying that (a) Gracida and Castillo were already in their car with the brake lights on when he returned with his gun, and (b) defendant fired the shot accidentally rather than in an effort to defend himself. Further, the trial court did not err by declining to instruct the jury on manslaughter under heat of passion because no substantial evidence supported the theory; defendant’s own account of what happened revealed his actions were not prompted by any overwhelming emotion.
A. Substantial Evidence Supports the Jury’s Rejection of Perfect or Imperfect Self-Defense or Defense of Others
In a murder trial, the prosecution bears the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense, imperfect self-defense, or defense of others. (People v. Rios (2000) 23 Cal.4th 450, 462; People v. Lloyd (2015) 236 Cal.App.4th 49, 63; People v. Rodarte (2014) 223 Cal.App.4th 1158, 1168 (Rodarte).) By finding defendant guilty of second degree murder, the jury impliedly found the prosecution had carried this burden. Defendant challenges the sufficiency of the evidence underlying this finding.
“When the sufficiency of the evidence to support a conviction is challenged on appeal, we review the entire record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value from which a trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] Our review must presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] …. [T]he relevant inquiry on appeal is whether, in light of all the evidence, ‘any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Zaragoza (2016) 1 Cal.5th 21, 44 (Zaragoza).)
“The doctrine of self-defense embraces two types: perfect and imperfect.” (Rodarte, supra, 223 Cal.App.4th at 1168.) For a killing to be justified as self-defense or defense of another, the defendant must actually and reasonably believe that he, she, or someone else is in imminent danger of being killed or suffering great bodily harm. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082 (Humphrey); CALCRIM 505.) The defendant must also reasonably believe the immediate use of deadly force is necessary to defend against that danger, and must use no more force than reasonably necessary. (People v. Clark (1982) 130 Cal.App.3d 371, 380, disapproved on another ground by People v. Blakeley (2000) 23 Cal.4th 82, 92.) Imperfect self-defense or imperfect defense of another applies when the defendant subjectively believes he, she, or another is facing imminent death or great bodily injury, and subjectively believes the immediate use of deadly force is necessary, but one or both of these beliefs is objectively unreasonable. (Humphrey, supra, at 1082; People v. Trujeque (2015) 61 Cal.4th 227, 270-271; CALCRIM No. 571.) One who kills in imperfect self-defense or defense of another is guilty of manslaughter, not murder. (Humphrey, supra, at 1082.)
There is substantial evidence defendant did not commit the murder in perfect self-defense or defense of Vasquez. According to Gracida’s testimony, he and Castillo had returned to his car after Castillo’s initial interaction with defendant. Neither he nor Castillo had a weapon. Defendant fired the gun, shooting through the back passenger side window, as Gracida was starting to pull away from the curb. Based on this testimony, reasonable jurors could have concluded any subjective belief in the need to defend in that moment was unreasonable. Further, even if reasonable jurors agreed there was some need to defend, they could have concluded defendant used more force than reasonably necessary by shooting at Castillo and Gracida when they were already in their car, preparing to drive away.
Defendant’s account of the shooting, of course, differed from Gracida’s in significant ways. And the jury was presented with evidence that could have led it to question the accuracy of Gracida’s testimony. The jury, faced with these two diverging accounts, was entitled to believe whichever account it found more credible. Defendant, however, argues Gracida’s testimony was insufficient to support the guilty verdict because it is inherently improbable and demonstrably false. Rejection of a witness’s testimony for this reason “requires ‘”‘either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions.'”‘ [Citation.]” (People v. Thompson (2010) 49 Cal.4th 79, 124.)
Defendant’s contention that Gracida’s testimony was inherently improbable depends on asserted inconsistencies between Gracida’s testimony and other evidence presented at trial. He emphasizes, for instance, that Gracida testified Castillo did not have a knife, but the police found a corkscrew with a knife edge in the car; that there are possible discrepancies between the time Gracida believed certain events occurred and the time indicated by other evidence in the record; and that Gracida cannot be correct in asserting he had begun driving when defendant fired the gun because, based on the surveillance video and the police’s estimates as to the exact time of the shooting, Gracida pulled away from the curb 13 seconds after the shot was fired.
While Gracida’s testimony may not have exactly matched the facts as demonstrated by other evidence in the record, his testimony did not describe physically impossible or inherently improbable facts.  Defendant’s self-defense argument thus constitutes an attempt to reargue the evidence on appeal in the light most favorable to him, which we reject. (Zaragoza, supra, 1 Cal.5th at 44; People v. Elliott (2012) 53 Cal.4th 535, 585 [“Unless it describes facts or events that are physically impossible or inherently improbable, the testimony of a single witness is sufficient to support a conviction”].)
Furthermore, as to imperfect self-defense, a reasonable jury could have concluded beyond a reasonable doubt that defendant did not actually believe Castillo posed a threat of death or great bodily injury to defendant. Again, Gracida testified he and Castillo were in the car, without weapons, and had begun to pull away from the parking spot when defendant fired his gun. Defendant’s own testimony that he was afraid of great bodily injury or death during the confrontation is not dispositive. (In re Christian S. (1994) 7 Cal.4th 768, 783 [“[W]hether the defendant actually held the required belief is to be determined by the trier of fact based on all the relevant facts. It is not required to accept the defendant’s bare assertion of such a fear”].) The jury could also have discredited defendant’s expression of fear given his testimony indicating Gracida and Castillo were in their car and had started the engine when he walked back toward their car with his gun. Viewing the record in the light most favorable to the verdict, substantial evidence also supported the jury’s implicit finding that defendant was not acting in imperfect self-defense when he shot Castillo.
B. The Trial Court Did Not Err by Declining to Instruct on Manslaughter Under Heat of Passion
“In criminal cases, even absent a request, the trial court must instruct on general principles of law relevant to the issues raised by the evidence.” (People v. Koontz (2002) 27 Cal.4th 1041, 1085.) However, “‘[a]n instruction on a lesser included offense must be given only if there is substantial evidence from which a jury could reasonably conclude that the defendant committed the lesser, uncharged offense, but not the greater, charged offense.’ [Citation.] The ‘substantial evidence requirement is not satisfied by “‘any evidence . . . no matter how weak,'” but rather by evidence from which a jury could conclude “that the lesser offense, but not the greater, was committed.”‘ [Citation.] ‘On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense.’ [Citation.]” (People v. Nelson (2016) 1 Cal.5th 513, 538.) We evaluate the evidence in the light most favorable to the defendant. (People v. Lucas (1997) 55 Cal.App.4th 721, 739.)
“A heat of passion theory of manslaughter has both an objective and a subjective component.” (People v. Moye (2009) 47 Cal.4th 537, 549 (Moye).) “Objectively, the victim’s conduct must have been sufficiently provocative to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.” (People v. Enraca (2012) 53 Cal.4th 735, 759.) Subjectively, “the accused must be shown to have killed while under ‘the actual influence of a strong passion’ induced by such provocation.” (Moye, supra, at 550.)
“Heat of passion, then, is a state of mind caused by legally sufficient provocation that causes a person to act, not out of rational thought but out of unconsidered reaction to the provocation.” (People v. Beltran (2013) 56 Cal.4th 935, 942.) “[T]he anger or other passion must be so strong that the defendant’s reaction bypassed his thought process to such an extent that judgment could not and did not intervene.” (Id. at 949.) “[T]he passion aroused need not be anger or rage, but can be any ‘”‘[v]iolent, intense, high-wrought or enthusiastic emotion'”‘ [citation].” (People v. Breverman (1998) 19 Cal.4th 142, 163.) A heat of passion instruction is not required every time that “a defendant is attacked and consequently fears for his life.” (Moye, supra, 47 Cal.4th at 555.)
Defendant’s trial testimony, the primary evidence of his state of mind, is not substantial evidence that would allow a jury to conclude his reason was actually overcome by any intense emotion when he shot Castillo. The thrust of defendant’s trial testimony (when not undermined by certain of his own admissions) was self-defense. He claimed he had been afraid of Castillo and Gracida. When asked how he felt he needed to act based on the circumstances he observed, defendant stated he felt he “needed to deter the threat” and thought “great bodily injury or death” would result if he did not. Though defendant testified he was afraid, he did not testify he was so afraid as to have been overwhelmed and acting pursuant to any violent or intense emotion.
To the contrary, many aspects of defendant’s testimony reveal he was making what seemed to him rational calculations in the moments leading to Castillo’s murder. He ran to his car to obtain his gun with the thought that this would potentially draw Castillo and Gracida away from the liquor store. When he arrived at his car, he reached behind the driver’s seat, unzipped the bag containing his gun, and pulled it out. As he walked back to Gracida’s car, he chambered a round and turned off the safety. And once he reached the car, he positioned himself between the car and the liquor store door, such that they could see his weapon. According to defendant, the shooting was “unintentional” and caused by a “flinch” rather than any overwhelming emotion. And after the shooting, defendant returned to the bar he had previously been at with his friends, and continued drinking and socializing.
Under these circumstances, the trial court had no duty to give a lesser included offense instruction on heat of passion manslaughter. “[N]o principle of law require[s a] trial judge . . . to disregard the evidence in order to find that the jury should consider whether defendant subjectively killed in the heat of passion, when no substantial evidence supported that theory of manslaughter, and the evidence actually introduced on the point—the defendant’s own testimony—was to the contrary.”  (Moye, supra, 47 Cal.4th at 553-554 [trial court that gave instructions on imperfect self-defense voluntary manslaughter did not err in declining to also instruct on heat of passion voluntary manslaughter because even though the defendant testified at one point he was “not in a ‘right state of mind'” when attacking the victim, the “thrust” of the defendant’s testimony was self-defense, not a heat of passion killing].)
The judgment is affirmed.
RUBIN, P. J.
- Undesignated statutory references that follow are to the Penal Code.
- Gracida testified that with the seat fully reclined, a person sitting in the passenger seat would be toward the center of the back passenger window.
- Defendant testified he owned the Uzi for about four years and carried it for protection even though he knew he was not supposed to carry a gun. Defendant had not shot that particular gun prior to the night of the murder.
- Defendant did not learn he had killed Castillo until he was arrested for the shooting.
- The cases cited by defendant in reply to argue Gracida’s statements should be rejected are all inapposite. Two of the cases involve situations where facts were, unlike here, inherently improbable or exhibited falsity. (People v. Lang (1974) 11 Cal.3d 134, 137 [appellate counsel ineffective for failing to raise inherent improbability of testimony where two children testified they had been molested at a party where not one of seven adult witnesses corroborated their testimony and the crime was alleged to have occurred at a party amid dozens of people]; People v. Casillas (1943) 60 Cal.App.2d 785, 794 [evidence relied on by the prosecution was so improbable or false as to be incredible where witness provided three separate, distinct, and contradictory versions as to who committed the crime at issue and the circumstances surrounding the commission of the offenses].) In the third case cited by defendant, the trial court concluded the evidence in the record was insufficient to constitute proof beyond a reasonable doubt of defendant’s guilt, but did not conclude any testimony was improbable or false. (People v. Blakeslee (1969) 2 Cal.App.3d 831, 837-840.)
- Our conclusion that there was no substantial evidence requiring the trial court to instruct the jury on the heat of passion theory of manslaughter likewise disposes of defendant’s contention that reversal is required because the prosecution did not disprove he acted in the heat of passion upon legally sufficient provocation.