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Covian v. Muniz

United States District Court, N.D. California

April 5, 2017

JOSE ARNULFO COVIAN, Petitioner,
v.
WILLIAM MUNIZ, Warden, Respondent.

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY; DIRECTIONS TO CLERK

          EDWARD J. DA VILA United States District Judge

         Petitioner has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his state conviction. Respondent filed an answer on the merits, (Docket No. 16), and Petitioner filed a traverse, (Docket No. 20). For the reasons set forth below, the Petition for a Writ of Habeas Corpus is DENIED.

         I. BACKGROUND

         On October 28, 2011, Petitioner was found guilty by a jury in San Benito County Superior Court of one count of first degree murder. (Clerk's Transcript (“CT”) at 474-75, Ans. Ex. A.[1]) On February 17, 2012, the trial court sentenced Petitioner to 25 years to life in state prison. (Id. at 669.)

         Petitioner appealed the conviction with five claims, which included multiple sub-claims of ineffective assistance of counsel. (Ex. C.) While his direct appeal was pending, Petitioner also filed a petition for writ of habeas corpus in the state appellate court which presented the same claims as in his direct appeal, but adding an additional ineffective assistance of counsel claim.[2] (Ex. F.) He also added extra-record material in support of the ineffectiveness claims. (Id.) The California Court of Appeal affirmed the judgment on direct appeal in a written opinion on September 8, 2014. (Ex. I.) The state appellate court summarily denied the state habeas petition in a separate order. (Ex. J.) On December 10, 2014, the California Supreme Court summarily denied review of both a petition for review of the state appellate court's rejection of Petitioner's direct appeal and the state habeas petition. (Exs. M & N.)

         Petitioner filed the instant habeas petition on July 21, 2015, raising the claims from his direct review and the state habeas petition.[3]

         II. STATEMENT OF FACTS

         The following facts are taken from the opinion of the California Court of Appeal on direct appeal[4]:

A. The Prosecution Case
At about 10:00 p.m. on December 3, 2007, Carlos Argueta and his friend Alejandro Hurtado were walking to Hurtado's house on Homestead Avenue in Hollister. Defendant, who was standing nearby, called out to Hurtado and offered him a beer, but Hurtado responded, “No, you're already drunk.” Argueta also declined defendant's offer. After defendant said that he would be by later, Hurtado told him that everyone was sleeping at his house and he was going to go to bed.
When Argueta and Hurtado arrived at Hurtado's house, they went into the garage. The garage door was closed. The garage also had a side door which could be accessed from the street through a gate. The latch to the gate was on the inside of the gate and away from the street. One could reach the latch from the street side of the gate by reaching over the top of the gate.
Hurtado called his friend Joann Martinez from the garage. Argueta testified that Hurtado asked her to give Argueta a ride home. Martinez testified that Hurtado asked her to come over[] because he wanted her to find some methamphetamine for Argueta. When Martinez arrived at the house, she called Hurtado on her cell phone and asked if Argueta was ready. She also told him that she saw something suspicious. Argueta went outside, opened the gate, and waited for her to get out of her car. According to Martinez, she had seen three men, including defendant, “hanging out” on the corner near the Hurtado house.
Argueta testified that he opened the side garage door for Martinez. According to Argueta, it was approximately 10:15 p.m. or 10:30 p.m. However, Martinez testified that she arrived at the Hurtado house at 9:00 p.m. and she had been unable to find any methamphetamine for Argueta.
Martinez testified that sometime between 10:30 p.m. and 11:00 p.m., she heard banging on the closed garage door. Hurtado asked them what they wanted and told them that if they had a beef, he would meet them around the corner. They left. Argueta testified, however, that sometime after Martinez arrived, defendant opened the side garage door. Argueta prevented defendant from entering the garage. Hurtado told defendant, “Don't do that because you're lacking respect, I've never gone to your house.” It had been about 10 minutes since defendant had offered them a beer. Defendant appeared angry and left. As defendant left, he said, “Later, we'll see each other.” Approximately 10 minutes later, defendant returned to the garage and knocked or hit loudly on the side door. Defendant was angry and yelled, “Come outside, I want to fight with you, and I have my soldiers.” Argueta told Hurtado to wait and that he would go outside. When Argueta went outside, defendant said, “Where is Alex, I want to fight with him.” Argueta asked him why he wanted to fight. Defendant responded that Hurtado was very conceited and thought a lot of himself. Hurtado told defendant to leave. Hurtado also told Argueta to come inside because defendant was drunk. After defendant tried “to go on top of” Hurtado, Argueta grabbed him and told him to calm down. Defendant left with his three companions. Hurtado and Argueta then put some bent nails in the gate latch so that the gate could not be opened.
About 10 to 15 minutes later, Hurtado and Argueta heard the voices and someone pulling on the side gate. It was about 11:35 p.m. or 11:40 p.m. Defendant had returned with the same three companions, and defendant again challenged Hurtado to fight. Hurtado said, “Now this guy is making me very tired, I'm getting very tired.” Hurtado was also angry because defendant kept coming back and his parents were sleeping.
Hurtado told Argueta and Martinez to stay in the garage, grabbed a small steel bar from a weight-lifting set, and went outside. Hurtado was right-handed and was holding the bar in his right hand. Argueta testified that he followed Hurtado, but Martinez testified that Argueta remained in the garage with her. Argueta saw defendant trying to reach over the top of the gate to remove the nails. Hurtado hit defendant's forearm with the bar, though he “didn't hit him very well. It just brushed passed his hand.” At that point, the gate opened, defendant “threw himself to the ground” and asked Hurtado, “What's wrong?” and “Why are you hitting me?” Hurtado replied that defendant had worn him out and he asked defendant what he wanted. Defendant was kneeling on one leg in a crouched position with his forearm raised around the level of his eyes or forehead. Defendant's right hand was inside his sweater sleeve. When defendant asked Hurtado why he was hitting him, Hurtado responded, “I'm not hitting you, I just said, What is the problem you have with me?” Defendant did not answer.
Argueta then heard voices say, “Leave us in p[ea]ce.” Before Argueta turned toward defendant's companions, defendant and Hurtado were approximately three feet apart. Argueta looked towards defendant's companions. When Argueta said that no one was hitting defendant and they should take him home because he was drunk, they responded that they wanted to fight. Argueta took about four steps towards them as he pushed the sleeves of his sweater up. Before Argueta began fighting with defendant's companions, he saw Hurtado, who was holding the bar “down, like in the middle” and not raised up, turn towards him. At that point, Argueta turned and saw defendant jump from a crouching position and grab Hurtado with both hands. [FN2] Defendant then said, “I got him, I got him” and began running away. Hurtado took five or six steps, and started swaying. Argueta told Martinez to call an ambulance, but Hurtado died before it arrived.
FN2. Martinez heard wrestling sounds and went outside with Argueta. She never saw Hurtado try to hit anyone with the bar after the gate was opened. She saw defendant and Hurtado entwined as they were fighting, but she did not see a knife or see Hurtado get stabbed. Martinez called 911.
As the police were arriving, Argueta left. Argueta was on probation following a conviction for being under the influence of methamphetamine. He had a warrant for his arrest[] because he had violated the terms of his probation. Argueta hid in a shed behind the Hurtado garage until about 4:30 a.m. or 5:00 a.m.
Alejandro Covian, defendant's nephew, testified that he lived with his grandparents and defendant on Homestead Avenue in Hollister in December 2007. Sometime after 10:00 p.m. on December 3, 2007, Alejandro lent defendant $20 to buy “crystal” from Hurtado. According to Alejandro, defendant frequently bought methamphetamine from Hurtado, and Hurtado was the only person from whom defendant bought drugs.
Alejandro accompanied defendant on his first visit to the Hurtado house, but he remained in the truck while defendant approached the house. Alejandro did not see what transpired between defendant and Hurtado. However, Alejandro heard Hurtado say something like, “Come in a couple of minutes” to defendant. About five minutes later, defendant returned to the truck and said that Hurtado did not have any drugs for sale.
Defendant and Alejandro returned home where they were joined by their neighbors Alfredo and Urbano. They sat in the truck and drank beer for about 15 minutes. Defendant then walked to Hurtado's house. Five minutes later, Alejandro walked towards Hurtado's house and met defendant as he was walking home. When they returned to the truck, defendant showed him the drugs that he had just bought from Hurtado. Defendant became upset because Hurtado had not given him the amount that he had paid for.
Defendant returned to Hurtado's house, and Alejandro, Urbano, and Alfredo followed him. When they arrived, Alejandro saw Hurtado swinging at defendant with a bar and hit his shoulder “a couple of times… more than two.” Defendant asked Argueta, “Why is he hitting me?” Defendant was also “trying to block him” and “trying to cover himself.” Alejandro heard defendant say “I got him” once or twice, and then run past him back to the truck parked in front of his own house. Alejandro, Urbano, and Alfredo followed defendant to the truck where they continued to drink beer. Defendant told them that he had stabbed Hurtado and he was scared. Alejandro stated that he did not think that defendant had stabbed Hurtado[] because Hurtado acted “like nothing happened.” Defendant responded that “he felt it” and he was scared. Defendant then produced a knife and stabbed the seat of the truck. Shortly thereafter, they heard the police and ambulance sirens. Alfredo and Urbano left, and defendant and Alejandro entered their house. They were all scared.
The police contacted Alejandro in the early morning hours of December 4, 2007. Alejandro was “scared” and “traumatized” and did not tell the police that Hurtado hit defendant. In February 2009, Alejandro told the officer that Hurtado hit defendant on the arm.
Dr. John Hain testified as an expert in forensic as well as anatomic and clinical pathology. After he conducted an autopsy of Hurtado on December 5, 2007, he concluded that Hurtado bled to death as a result of a single stab to the area between his fifth and sixth ribs. In Dr. Hain's opinion, the knife which inflicted the injury had a blade of around six inches. The wound was consistent with having been caused by a knife which was found at defendant's house.
Dr. Hain also examined Hurtado's clothing and concluded that Hurtado's arms were not raised above the level of the wound. He explained that if Hurtado's arms had been raised above the level of the wound when he was stabbed, there would have been a greater discrepancy between the position of the wound and the position of the corresponding tear on his sweatshirt.
Officer Rose Pacheco was dispatched to the scene and took a brief statement from Martinez. After Officer Pacheco heard Martinez's description of the perpetrator, she thought of defendant as a possible suspect. When she took Martinez for the showup, defendant had his hair pulled up in a ponytail. Martinez asked for him to remove his pony tail, which he did. Martinez then positively identified him as the perpetrator.
Sergeant Don Pershall testified regarding the procedure that he had followed to obtain an eyewitness identification of defendant from Martinez. He went to the county jail to obtain a photographic lineup. However, he had some difficulty because he did not have photographs with defendant's current hair style. When Sergeant Pershall used a photograph with defendant's hair slicked back, Martinez was unable to make an identification.
Captain Carlos Reynoso spoke to defendant at his house in the early morning hours of December 4, 2007, and asked him if there was anything that he wanted to tell him prior to going outside for a field lineup. Captain Reynoso told him that the police were there “to investigate an incident that had happened down the street earlier than night” and indicated that there was “some kind of fight or disturbance.” Defendant stated that he did not know anything about what was going on, and he denied any knowledge of any incident that had occurred. He also stated that he had been drinking and indicated that he was intoxicated. When Captain Reynoso asked if he had any injuries, defendant replied that he had no injuries. Captain Reynoso also asked him if he had been hit by a pipe, and defendant said no.
While waiting for the witness to arrive for the field lineup, defendant asked “[W]hat happened with the man from down the street[?]” Defendant also asked how Hurtado “was doing, and he asked if they had killed him.” Captain Reynoso did not know whether any of the other officers had mentioned a killing to the defendant. Captain Reynoso talked to defendant about finding a metal bar at the crime scene and “not knowing whether this was possibly a self-defense type of incident….” However, defendant never admitted that he was present at the Hurtado house. After Martinez identified defendant as having been involved in the Hurtado homicide, defendant was arrested. As defendant was placed in the patrol car, he said to Captain Reynoso, “You're wrong.” At approximately 4:00 a.m., Captain Reynoso advised defendant of his Miranda [FN3] rights, which he waived. Defendant stated that he had been drinking beer outside his house when he saw some individuals running towards his house and then jumping nearby fences. Defendant continued drinking until police cars began to arrive. He then ran into his house because he was concerned that he “might get in trouble for drinking outside….” FN3. Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Defendant admitted to Captain Reynoso that he knew Hurtado and stated that they had not gotten into an argument. He referred to their relationships as “cool.” Defendant then asked Captain Reynoso “if [Hurtado] was the one that was stabbed.” He replied that he “had never mentioned anyone being stabbed.” When Captain Reynoso told defendant that he was under arrest for murder, defendant asked him “not to advise his mother what he was being arrested for.” At about 2:30 p.m. that same day, defendant was again advised of his Miranda rights, which he waived. Captain Reynoso asked defendant to tell his side of the story. Defendant said that he had been drinking outside his home and also smoked some marijuana. When defendant was told that this was inconsistent with his nephew's statement, defendant said “that that was his side of the story….” Defendant said his nephew was “a young guy and he's not very smart, he doesn't know what he's talking about.” He claimed that he had last seen Hurtado two months earlier. Defendant denied that he offered Hurtado a beer or whistled to him that night. Defendant told Captain Reynoso that he had the wrong guy.
In February 2008, Sergeant Pershall collected various items, including a bed sheet, a writing tablet, and a beanie, from defendant's jail cell. The bed sheet had “187 Case Prison” written on it in several places as well as “1985.” “187” is the Penal Code section for murder and 1985 is the year that defendant was born. The writing table[t] had “187 Case” and “Pepe” written on it. Pepe is defendant's nickname. The beanie had “187” written on it. Defendant did not have any cellmates. In Sergeant Pershall's opinion, the items indicated that defendant was “bragging” but was “not necessarily” confessing to the crime.
Lorena Hurtado Scalmanini, Hurtado's sister, testified about Hurtado's good character and relationship with his family.
B. The Defense Case
Dr. David Posey, an expert in forensic pathology, testified that Hurtado bled to death from a stab wound. He opined that the absence of a hilt mark on Hurtado's body indicated that it could have been an accidental stabbing or a defensive stabbing. Based on the absence of other injuries to Hurtado, Dr. Posey testified: “I don't get the feeling that the aggressor's intentions were meant to stab him.” He also testified that based on the position and path of the knife wound, Hurtado was leaning forward and “had to have his hand up extended” when he was stabbed.
Dr. Posey discussed Hurtado's post-mortem toxicology report, which showed that Hurtado's methamphetamine level was 0.71 milligrams per liter. The “potentially toxic” range for methamphetamine begins at 0.2 milligrams per liter and extends to 5.0 milligrams per liter. According to Dr. Posey, only a chronic user could tolerate the high dosage that Hurtado had in his body and Hurtado was under the influence of methamphetamine when he died. Dr. Posey testified that chronic users of methamphetamine will have delusions as well as visual and audio hallucinations. They will also be paranoid and aggressive. Dr. Posey noted that the weight-lifting bar which Hurtado was swinging at defendant was 14 inches long and potentially a lethal weapon, because it could fracture a skull with the application of only minimal force. In his opinion, Hurtado was the aggressor because he was under the influence of methamphetamine and armed with a club. However, Dr. Posey formed this opinion without knowing that there was evidence that defendant had challenged Hurtado to fight. Dr. Posey was also not aware that defendant had stated that he had “soldiers” with him.
Dr. Taylor Fithian testified as an expert witness in the area of the effects of methamphetamine on human behavior. According to Dr. Fithian, chronic users of methamphetamine have “a great deal of emotional ups and downs, ” are violent, and experience “alterations in [their] perceptions of the world….” Methamphetamine can also cause a user to experience “delusions where you think that people are trying to kill you or people are out to hurt you” as well as auditory and visual hallucinations. Chronic methamphetamine users “become very delusional and very psychotic. They can look like someone who's very, very crazy; like someone who we call schizophrenic.” In his opinion, Hurtado was “clearly under the influence of methamphetamine and would have had signs and symptoms of methamphetamine intoxication and possibly psychosis.” James Huggins, a defense investigator, testified that he interviewed Argueta at an immigration detention facility. They discussed the status of his “deportation status appeal, ” and Argueta told him that he “lost his appeal and a person name[d] Candy was helping with him the appeal letter.” Higgins determined that “Candy” referred to the prosecutor, District Attorney Candice Hooper. Argueta also stated that Candy wrote a letter on his behalf to help him obtain a U-VISA, which was “like getting asylum.” Huggins understood Argueta's definition of asylum to mean that Argueta would remain in the United States until he testified at defendant's trial. Argueta also believed that he would be “getting out to go see his dying mother.” Huggins confirmed that “paperwork” was required from the district attorney's office in San Benito County to ensure that an individual, who had been scheduled for deportation and was a material witness in a murder case, remained in the United States in order to be available to testify at the trial.
Argueta testified that he told Huggins that his appeal was currently in the Ninth Circuit Court of Appeals. He did not tell Huggins that anyone was helping him with his deportation issues. Argueta told Huggins that his attorney “sent a letter to Candace because [he] was already deported. But they can't deport anyone if they have a court appearance coming up so the person has to go to court first, then get deported.” Gregory LaForge was defendant's attorney in September 2008 and was present at defendant's preliminary hearing. At that time, LaForge witnessed a demonstration by Deputy District Attorney Patrick Palacios and Argueta of the relative positions of Hurtado and defendant prior to the stabbing. Argueta, who portrayed defendant, was down on his right knee and his left knee was up while Palacios, who portrayed Hurtado, had raised his hand holding the simulated steel bar “straight up.”

People v. Covian, No. H037986, slip op. at 1-10 (Cal.Ct.App. Sept. 8, 2014) (Ans. Ex. I (hereinafter “Op.”).

         III. DISCUSSION

         A. Standard of Review

         This Court may entertain a petition for a writ of habeas corpus “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). The writ may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

         “Under the ‘contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Williams, 529 U.S. at 412; Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004). While circuit law may be “persuasive authority” for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be “reasonably” applied. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003).

         “Under the ‘unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 413. “Under § 2254(d)(1)'s ‘unreasonable application' clause, . . . a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 411. A federal habeas court making the “unreasonable application” inquiry should ask whether the state court's application of clearly established federal law was “objectively unreasonable.” Id. at 409. The federal habeas court must presume correct any determination of a factual issue made by a state court unless the petitioner rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

         Here, as noted above, the California Supreme Court summarily denied Petitioner's petitions for review. See supra at 2; (Exs. M, N). The California Court of Appeal, in its opinion on direct review, addressed all the claims in the instant petition except for one. (Ex. I.) The Court of Appeal thus was the highest court to have reviewed those claims in a reasoned decision, and, as to those claims, it is the Court of Appeal's decision that this Court reviews herein. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005).

         With respect to the one claim which was summarily dismissed, see supra at 2, the standard of review under AEDPA is somewhat different where the state court gives no reasoned explanation of its decision on a petitioner's federal claim and there is no reasoned lower court decision on the claim. In such a case, a review of the record is the only means of deciding whether the state court's decision was objectively reasonable. See Plascencia v. Alameida, 467 F.3d 1190, 1197-98 (9th Cir. 2006). When confronted with such a decision, a federal court should conduct “an independent review of the record” to determine whether the state court's decision was an objectively unreasonable application of clearly established federal law. Plascencia, 467 F.3d at 1198. This independent review is not de novo review; the ultimate question is still whether the state court applied federal law in an objectively reasonable manner. Kyzar v. Ryan, 780 F.3d 940, 949 (9th Cir. 2015). Section 2254(d)(1) does apply to decisions that are unexplained as well as to reasoned decisions. See Harrington v. Richter, 131 S.Ct. 770, 784-85 (2011).

         The Supreme Court has vigorously and repeatedly affirmed that under AEDPA, there is a heightened level of deference a federal habeas court must give to state court decisions. See Hardy v. Cross, 132 S.Ct. 490, 491 (2011) (per curiam); Harrington, 131 S.Ct. at 783-85; Felkner v. Jackson, 131 S.Ct. 1305 (2011) (per curiam). As the Court explained: “[o]n federal habeas review, AEDPA ‘imposes a highly deferential standard for evaluating state-court rulings' and ‘demands that state-court decisions be given the benefit of the doubt.'” Id. at 1307 (citation omitted). With these principles in mind regarding the standard and limited scope of review in which this Court may engage in federal habeas proceedings, the Court addresses Petitioner's claims.

         B. Claims and Analysis

         Petitioner asserts the following grounds for relief: (1) there was insufficient evidence to support the murder conviction; (2) the trial court erred by omitting a specific part of the instruction regarding the credibility of a witness; (3) the trial court erred with respect to two jury instructions; (4) multiple claims of ineffective assistance of trial counsel, (Pet. Attach. A & B); and (5) cumulative prejudice.

         1. Insufficient Evidence

         Petitioner first claims that there was insufficient evidence that the stabbing was “deliberate and premeditated” to support the murder conviction and that the prosecution failed to prove that he did not act in justifiable self-defense, imperfect self-defense, or in the heat of passion. (Pet. at 6; id., Attach. at 4, 8-9.)

         The state appellate court rejected all aspects of this claim on direct appeal:

         A. Sufficiency of the Evidence

         Defendant contends that the evidence was insufficient to prove the elements of first degree murder.

1. Standard of Review
“The law we apply in assessing a claim of sufficiency of the evidence is well established: ‘“‘“[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”'”' [Citation.] The standard is the same under the state and federal due process clauses. [Citation.] ‘We presume “‘in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.] This standard applies whether direct or circumstantial evidence is involved.” [Citations.]' [Citation.]” (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 294 (Gonzales).)
2. Deliberation and Premeditation
“All murder which is… willful, deliberate, and premeditated killing… is murder of the first degree.” (Pen. Code, § 189.) “A verdict of deliberate and premediated first degree murder requires more than a showing of intent to kill. [Citation.] ‘Deliberation' refers to careful weighing of considerations in forming a course of action; ‘premeditation' means thought over in advance. [Citations.] ‘The process of premeditation and deliberation does not require any extended period of time. “The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly….” [Citations.]'” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
Here, defendant was “not happy” when Hurtado declined his offer of a beer. Defendant then said that he would be by later, but Hurtado told him not to come to his house because everyone was sleeping. Nevertheless, defendant arrived at the Hurtado home, entered the property through a gate, and opened the side garage door. After Argueta stood in front of defendant and Hurtado told him not to enter the garage, defendant became angry and left, saying “Later, we'll see each other.” About 10 minutes later, defendant returned to Hurtado's garage and knocked or hit loudly on the side door. Defendant was angry, challenged Hurtado to a fight, and announced that his “soldiers” were with him. When Argueta went outside, defendant asked where Hurtado was and stated that he wanted to fight him. Argueta asked defendant why he wanted to fight him, and defendant responded that Hurtado was conceited and thought a lot of himself. Hurtado told defendant to leave. After defendant tried to reach Hurtado, Argueta grabbed him and told him to calm down. Defendant and his three companions then left, and Hurtado and Argueta tried to lock the gate with some nails.
About 10 to 15 minutes later, defendant returned to the Hurtado property for a third time. Hurtado grabbed a steel bar from a weight-lifting set and went outside. Defendant, who was accompanied by the same three people, was trying to remove the nails in order to enter through the gate. Hurtado swung the bar at defendant's arm and delivered a glancing blow to his forearm. At that point, the gate opened and defendant threw himself to the ground where he knelt down in a crouching position with his forearm raised around his eyes and forehead and asking Hurtado, “What's wrong?” and “Why are you hitting me?” Defendant's right hand was hidden inside his sweater sleeve. Defendant and Hurtado were about three feet apart.
When Argueta told defendant's companion to take defendant home, they challenged him to a fight. Before Argueta began fighting with them, he saw Hurtado, who was holding the bar “down, ” turn towards him. At that point, Argueta turned around and saw defendant jump from the crouching position and grab Hurtado with both hands. Defendant then said, “I got him, I got him.” As defendant ran away, he told his companions, “Let's go, Let's go. I got him.” The jury could reasonably infer from this evidence that defendant was eager to fight Hurtado, wanted to confront him outside, and had concealed his knife in his sweater sleeve. Defendant's repeated visits to the Hurtado property, his stated intention to fight Hurtado, his concealed knife, his jump toward Hurtado as Hurtado's attention was diverted, and his statements of “I got him, I got him” after he stabbed Hurtado reasonably supported the jury's conclusion that defendant had thought the killing over in advance and had carefully weighed the considerations in forming this course of action. Thus, there was substantial evidence that the killing of Hurtado was deliberate and premediated.
Relying on People v. Anderson (1968) 70 Cal.2d 15 (Anderson), defendant argues that the evidence was insufficient to support a finding of deliberation and premeditation. Anderson stated: “The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing - what may be characterized as ‘planning' activity; (2) facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive' to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of ‘a preexisting reflection' and ‘careful thought and weighing of considerations' rather than ‘mere unconsidered or rash impulse hastily executed' [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was particular and exacting that the defendant must have intentionally killed according to a ‘preconceived design' to take his victim's life in a particular way for a ‘reason' which the jury can reasonably infer from facts of type (1) or (2). [¶] Analysis of the cases will show that this court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3).” (Id. at pp. 26-27.)
The California Supreme Court has subsequently clarified the application of the Anderson factors. It noted that “[t]he Anderson guidelines are descriptive, not normative…. [¶] … The Anderson factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive.” (People v. Perez (1992) 2 Cal.4th 1117, 1125.) The court has also stated that “[u]nreflective reliance on Anderson for a definition of premeditation is inappropriate. The Anderson analysis was intended as a framework to assist reviewing courts in assessing whether the evidence supports an inference that the killing resulted from pre-existing reflection and weighing of considerations. It did not refashion the elements of first degree murder or alter the substantive law of murder in any way.” (People v. Thomas (1992) 2 Cal.4th 489, 517.)
Defendant first focuses on the lack of planning activity. He argues that “[w]hile it is undoubtedly true that [he] took a knife to Hurtado's house and that a knife is a deadly weapon, … [i]f [he] had the knife with him the entire evening - and nothing in the record suggests that he did not - then the fact that he happened to have it at the moment when he concluded that he needed to defend himself against Hurtado's attack does not show that prior to the killing ‘the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing.'” First, as discussed infra, the jury could have reasonably concluded that defendant did not need to defense himself against Hurtado. Second, even assuming that defendant routinely carried a knife, the jury could have also reasonably concluded that defendant' removal of the nails from the gate latch, his concealment of the knife in his sweater sleeve as he entered through the gate as well as his repeated visits to the Hurtado property to confront Hurtado established planning activity.
Defendant argues, however, that his repeated visits “do[] not suggest a preconceived design to kill Hurtado.” Relying on Alejandro's testimony that Hurtado sold defendant a baggie of methamphetamine on his second visit to the house, he claims that there was no evidence that he made multiple visits to gain an opportunity to attack Hurtado. However, it was the jury's role to determine the credibility of the witnesses. (People v. Lee (2011) 51 Cal.4th 620, 632 (Lee).) Drawing all inferences in favor of the judgment, we presume the jury concluded that defendant went repeatedly to the Hurtado property to confront Hurtado. (Gonzales, supra, 52 Cal.4th at p. 294.)
Defendant next contends that his “shouting ‘I got him' was just as likely to have been his expression of surprise, shock, or horror at what he had just done, ” as it was a declaration that he had carried out a plan to kill. Here, defendant concealed his knife and then declared “I got him” after stabbing Hurtado as he fled. Based on this evidence, the jury could have reasonably concluded that defendant's declaration meant “I got him, as I intended to do.” The jury was not required to interpret the statement as defendant has. (Gonzales, supra, 52 Cal.4th at p. 294.)
3. Justifiable Self-defense
Defendant argues that the evidence was insufficient to prove that he did not act in justifiable self-defense.
“For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. [Citation.] … To constitute ‘perfect self-defense, i.e., to exonerate the person completely, the belief must also be objectively reasonable. [Citations.]” (People v. Humphrey (1996) 13 Cal.4th 1073, 1082, fn. omitted (Humphrey).) “[T]he right of self-defense is based upon the appearance of imminent peril to the person attacked.” (People v. Perez (1970) 12 Cal.App.3d 232, 236.) The prosecution has the burden of proving beyond a reasonable doubt that the killing was not justified by defendant's need to defend himself. (Humphrey, at p. 1103; People v. Lee (2005) 131 Cal.App.4th 1413, 1429.)
Here, Argueta testified that he saw Hurtado swing the bar at defendant's arm and deliver a glancing blow as defendant as reaching over the top of the gate in order to enter the property. After the gate opened, defendant threw himself to the ground and knelt on one knee. Argueta then saw defendant jump from a crouching position toward Hurtado, embrace him, and say “I got him, I got him.” Prior to the stabbing, Argueta observed that Hurtado did not hold the bar in a threatening position. This observation was corroborated by Dr. Hain's testimony that Hurtado's arms could not have been raised above the level of the wound when he was stabbed. Thus, there was substantial evidence to support the jury's conclusion, beyond a reasonable doubt, that defendant did not kill Hurtado in self-defense because he could not have reasonably believed that he was in imminent danger of being killed or suffering great bodily injury.
Defendant relies on Alejandro's testimony that Hurtado repeatedly hit defendant with the steel bar and Dr. Posey's testimony that a blow from the bar could have easily been fatal. However, defendant fails to acknowledge that “‘it is the exclusive province of the… jury to determine the credibility of a witness….'” (Lee, supra, 51 Cal.4th at p. 632.) Here, the jury was entitled to determine that Argueta was more credible than Alejandro.
Defendant next asserts that Argueta's testimony was “particularly contradictory on the point of whether he saw the stabbing itself, ” and could not testify regarding what occurred between him and Hurtado immediately before the stabbing. Thus, he contends that “Argueta's testimony did not satisfy the prosecution's burden of proving that [he] did not stab Hurtado in response to an actual, credible, imminent threat of being seriously injured or killed by the steel bar that Hurtado was holding.” In response to the prosecutor's question of whether he could “still see what was going on around” him when he looked towards defendant's companions, Argueta testified that he could. He further testified: “I was on the side in front of the garage. So when I went in front, I started raising my sleeves. That's when I said, What do you want, What's wrong? That's when I turned around and saw that [defendant] jumped and grabbed him. And he said, I got him, I got him.” The following colloquy then occurred: “Q. I'm asking you to focus on just the moments before that. You had stated that you saw [Hurtado] turn towards you, and as [Hurtado] was turning towards you is when [defendant] was coming out of that crouching position; does that accurately say what had been said earlier? [¶] A. That's correct. [¶] Q. Okay. That's the time frame I'd like to focus on. [¶] All right. So [Hurtado] turns toward you; is that correct? [¶] A. Yes. [¶] Q. Where is the bar? [¶] A. In his hand, of [Hurtado]. [¶] Q. In what position? [¶] A. Down, like in the middle. [¶] Q. So not raised up, but not down on the ground? [¶] Was he holding - or take that back. Strike that. [¶] Did you see it as threatening, the way he was holding it, at that particular time? Did it look threatening to you? [¶] A. He wasn't threatening. If he had been threatening, he would have been hitting. [¶] Q.
So as [Hurtado] turns toward you, is this the time that the Defendant comes out of his crouching position? [¶] A. It's true, yes.” Defendant relies on a different portion of Argueta's testimony: “Q. So describe this to us, this jump. [¶] A. When he jumped, when [defendant] jumped, at that moment he knew where to hit [Hurtado]. [¶] Q. Had anyone advanced towards the other? [¶] A. Everything is the same as I told you just a minute ago. He was crouching, and at the moment when he saw that I was arguing with the others, [Hurtado] just turned to see where the others were; and that's when he had the opportunity to jump up, and I think that's when he got him.” (Italics added.) Defendant argues that this testimony and particularly the reference to “I think” make it clear that what [Argueta] was demonstrating was merely their positions prior to the moment when he turned away to confront [defendant's] three friends, ” and thus Argueta “did not see what happened between [defendant] and Hurtado between the moment when he turned away and the moment that he turned back.” However “‘[t]o warrant rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inference or deductions.'” (People v. Barnes (1986) 42 Cal.3d 284, 306.) Here, no such circumstances exist, and thus this court cannot reject Argueta's testimony that he saw that Hurtado did not threaten defendant with the steel bar immediately before he was stabbed.
Defendant also argues that nothing in the record “suggests that it was unreasonable for [defendant] to believe that Hurtado would continue swinging the bar until he succeeded in breaking [defendant's] arm, or worse, if [defendant] did not stop him.” The jury was entitled to consider other aspects of the confrontation, which defendant has chosen to ignore. “A person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use force.” (CALCRIM No. 3472; see Fraguglia v. Sala (1936) 17 Cal.App.2d 738, 743-744.) Here, defendant had been told repeatedly not to come to the Hurtado property, and he was on the other side of the gate and attempting to remove the nails in the gate latch when Hurtado “brushed his forearm” with the bar. Under these circumstances, the jury could have reasonably concluded that defendant provoked a fight with Hurtado so that he could use his knife.
Defendant next contends that “it is just as likely that [defendant's] crouching posture indicated a submission and a desire to stop fighting, and it is just as likely that his embrace of Hurtado was an attempt to immobilize Hurtado's arms and stop the attack with the steel bar, as it is that either of those facts indicated [defendant's] intention to commit an unprovoked attack.” However, the jury could have reasonably concluded that it was the latter. (Gonzales, supra, 52 Cal.4th at p. 294.)
Defendant also focuses on Dr. Hain's testimony that Hurtado's “hands [were] not over his head” when he was stabbed. He argues that “[b]ecause Hain never addressed the question of whether Hurtado could have had one hand raised consistently with the damage to his sweatshirt, his testimony does not constitute proof that Hurtado was not preparing to bring the bar down on [defendant's] skull when [defendant] stabbed him.” Defendant, however, is speculating as to whether Dr. Hain's testimony would have been different if he had addressed this question.
4. Imperfect Self-defense
Defendant contends that the evidence was insufficient to prove that he did not act in imperfect self-defense.
“Imperfect self-defense is the actual, but unreasonable, belief in the need to resort to self-defense to protect oneself from imminent peril. [Citations.] When imperfect self-defense applies, it reduces a homicide from murder to voluntary manslaughter because the killing lacks malice aforethought. [Citations.]” (People v. Vasquez (2006) 136 Cal.App.4th 1176, 1178.) “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 one's own death or serious injury at the victim's hand. [Citations.]” (People v. Rios (2000) 23 Cal.4th 450, 461.) It is the prosecution's burden to prove beyond a reasonable doubt that a defendant did not act in imperfect self-defense. (Id. at p. 462.)
Here, there was substantial evidence from which the jury could have reasonably concluded that defendant did not have an actual belief that the stabbing was necessary to avoid his own death or serious injury. Defendant fled the scene and thus demonstrated a consciousness of guilt when considered with other evidence. (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) Shortly thereafter, defendant told police that he knew Hurtado and their relationship was “cool.” Though the officer told him that a metal bar had been found and he did not know whether this was “a self-defense type of incident, ” defendant never indicated that he had acted in self-defense. Defendant also denied being hit by a pipe. Thus, there was substantial evidence to support the jury's finding.
Defendant argues, however, that he was unsophisticated about the law and he feared that if he did not leave the scene, Argueta would attack him. He also lied to the police based on his fear that “if he told the truth, he would be arrested, tried, and convicted of first-degree murder, self-defense or no self-defense….” However, the jury could have reasonably rejected these arguments to explain his conduct and concluded that his flight and statements to the police established that he did not have an actual belief in the necessity of stabbing Hurtado. (Gonzales, supra, 52 Cal.4th at p. 294.)
5. Heat of Passion
Defendant argues that the evidence was insufficient to prove that he did not act in the heat of passion.
“The mens rea element required for murder is a state of mind constituting either express or implied malice. A person who kills without malice does not commit murder. Heat of passion is a mental state that precludes the formation of malice and reduces an unlawful killing from murder to manslaughter. Heat of passion arises if, ‘“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.”' [Citation.] 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. While some measure of thought is required to form either an intent to kill or a conscious disregard for human life, a person who acts without reflection in response to adequate provocation does not act with malice.” (People v. Beltran (2013) 56 Cal.4th 935, 942 ...

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