Filed 3/3/15 P. v. Beuchel CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B251481

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA399361)
         v.

NOAH OTTO BEUCHEL,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Monica
Bachner, Judge. Affirmed with modifications.


         Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant
and Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Eric E.
Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.


                                                       ******
       Defendant Noah Otto Beuchel challenges his conviction for second degree
murder. He argues that jurors should have been instructed on the lesser included offense
of manslaughter. We disagree and affirm. We modify his sentence to add one day of
custody credit.


                               FACTS AND PROCEDURE
       Defendant was a member of the Pinoy Real gang. On January 12, 2012, late at
night, he walked with his friend Benjamin Tan from his grandmother’s home to a nearby
store. En route, defendant shot and killed rival Temple Street gang member Cesar
Gonzalez. Gonzalez died of multiple gunshot wounds. An autopsy showed that
Gonzalez’s blood alcohol level was between 0.16 and 0.2 percent (depending on the
location of the test), and he tested positive for a byproduct of methamphetamine.
       Two eyewitnesses, Maria Fernandez—Gonzalez’s girlfriend—and defendant’s
friend and codefendant Tan testified at trial.
1. Maria Fernandez
       Fernandez testified that on January 12, 2012, as they waited for a bus, Gonzalez
removed his hat, revealing tattoos of horns on his head. Fernandez asked him to cover
his head to hide the tattoos. Fernandez’s testimony was inconsistent as to whether
Gonzalez complied with her request.
       As Gonzalez and Fernandez waited for the bus, Gonzalez asked an unidentified
man “where are you from,” which is jargon for asking him whether he belonged to a
criminal street gang. Gonzalez told the man that he was from Temple Street (referring to
the name of his criminal street gang) and that “this is Temple Street.” Fernandez told
Gonzalez to leave the man alone. The man appeared frightened and left the bus stop.
       When defendant and Tan passed Gonzalez, defendant asked Gonzalez “where are
you from,” again referring to his gang membership.1 Gonzalez responded that he was


1      Although Fernandez identified defendant as the person who asked Gonzalez about
his gang membership, she also identified Tan.


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from Westside Temple and his moniker was Little Devil. Tan pushed Fernandez.
Defendant shot Gonzalez. Defendant and Tan then fled.
       Fernandez testified that Gonzalez was physically imposing and had tattoos of tear
drops near his eye.
2. Tan
       Tan testified that he was a former member of the Pinoy Real gang and had gang
tattoos. After his daughter’s birth, he tried to separate from the gang and began having
his tattoos removed.
       On January 12, 2012, Tan decided to accompany defendant to the store. As they
neared the bus stop where Gonzalez and Fernandez were standing, Tan had a “bad
feeling.” Tan was concerned that Gonzalez would ask him “where [he’s] from” and “try
to fight [him] after.” Although Tan thought Gonzalez would ask where he was from,
Gonzalez did not.
       Gonzalez followed defendant and Tan and said “Temple.” Tan said “all right. All
right. It’s cool.” Gonzalez, who was wearing gang attire, responded that this is
“Westside Temple Street.” Tan said “don’t trip,” by which he meant “no problem.”
Appearing upset, Gonzalez repeated “Temple” and displayed a gang sign. Tan thought
Gonzalez was going to punch his face.
       When Tan thought it was safe to continue to the store, he began crossing the street,
and then he heard a gunshot. Tan turned around and saw defendant shoot Gonzalez. Tan
testified Gonzalez never hit him or defendant. Gonzalez never displayed any weapon.
Tan did not see Gonzalez threaten defendant. According to Tan, violence may easily
ensue from a challenge by a gang member. Tan also testified that a gang member
supports his gang by fighting a rival gang member and killing a rival gang member.
3. Other Evidence
       A gang expert testified that gangs by their very nature are violent. Shooting
someone who disrespected a gang is “putting in work for the gang.” The most common
way to “put in work for a gang is to commit violent crimes.” A “hit-up” is when one
gang member asks another gang member about his gang membership. Typically, a gang


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member asks “where are you from.” “A stabbing or shooting will usually occur
subsequent to the hit-up.”
       Gonzalez had numerous tattoos. As noted, he had devil horns on his head. The
teardrop under his right eye might signify that he killed someone or that he lost a friend.
Gonzalez had a spider web tattoo and a star in a circle. A spider web tattoo can mean a
person spent time in prison and assaulted or killed someone. Gonzalez’s taking off his
hat to show his horns may have been a means to claim the area he was in as territory for
his gang.
4. Conviction and Sentence
       Defendant was convicted of second degree murder. Firearm enhancements under
Penal Code section 12022.53, subdivisions (b), (c) and (d) were found true. The gang
enhancement was found not true. Tan was found not guilty. The court sentenced
defendant to an aggregate term of 40 years to life in prison. The court awarded defendant
426 days of actual custody credits. This appeal followed.


                                      DISCUSSION
       Defendant argues the court should have instructed on manslaughter based on two
theories—imperfect self-defense and heat of passion. Both theories would reduce murder
to voluntary manslaughter. (People v. Blacksher (2011) 52 Cal.4th 769, 832.)
       Jurors must be instructed on lesser included offenses supported by substantial
evidence. (People v. Duff (2014) 58 Cal.4th 527, 562.) Substantial evidence is
“‘“evidence from which a jury composed of reasonable persons could conclude that the
facts underlying the particular instruction exist.”’” (People v. Enraca (2012) 53 Cal.4th
735, 758.)
       “A killing with express malice formed willfully, deliberately, and with
premeditation constitutes first degree murder. [Citation.] ‘Second degree murder is the
unlawful killing of a human being with malice aforethought but without the additional
elements, such as willfulness, premeditation, and deliberation, that would support a
conviction of first degree murder.’” (People v. Beltran (2013) 56 Cal.4th 935, 942.)


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“Manslaughter is a lesser included offense of murder. [Citations.] 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.” (Ibid.)
       We now turn to whether the trial court was required to instruct on imperfect self-
defense or heat of passion. There may be substantial evidence to support such an
instruction even if a defendant does not testify. (People v. De Leon (1992) 10
Cal.App.4th 815, 824.)
1. Imperfect Self-defense
       “Unreasonable self-defense, also called 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.’”
(People v. Beltran, supra, 56 Cal.4th at p. 951.) “The killing is . . . mitigated because of
the defendant’s misguided but good faith belief.” (Ibid.)
       Defendant requested the court instruct jurors pursuant to CALCRIM No. 571
which provides: “A killing that would otherwise be murder is reduced to voluntary
manslaughter if the defendant killed a person because (he/she) acted in (imperfect self-
defense/ [or] imperfect defense of another). [¶] If you conclude the defendant acted in
complete (self-defense/ [or] defense of another), (his/her) action was lawful and you must
find (him/her) not guilty of any crime. The difference between complete (self-defense/
[or] defense of another) and (imperfect self-defense/ [or] imperfect defense of another)
depends on whether the defendant’s belief in the need to use deadly force was reasonable.
[¶] The defendant acted in (imperfect self-defense/ [or] imperfect defense of another) if:
[¶] 1. The defendant actually believed that (he/she/ [or] someone else/ ____________)
was in imminent danger of being killed or suffering great bodily injury; AND [¶] 2. The
defendant actually believed that the immediate use of deadly force was necessary to
defend against the danger; BUT [¶] 3. At least one of those beliefs was unreasonable.”
The court rejected defendant’s request, finding no substantial evidence supported the
claimed imperfect self-defense.



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       On appeal, defendant argues his conviction must be reversed because the court
erroneously refused to instruct jurors on imperfect self-defense. He argues that his actual
belief that he and Tan were in imminent danger of being killed was readily inferable from
the circumstances. He emphasizes that Gonzalez was a heavy-set man, identified as a
gang member from his multiple tattoos including a spider web and tear drops. He further
highlights evidence that Gonzalez had an elevated blood alcohol level and his blood
showed that he had used methamphetamine. According to defendant, Gonzalez
threatened someone else at the bus stop by asking the man “where are you from.” The
man, who appeared afraid of Gonzalez, eventually left the bus stop.
       Defendant persuasively shows that he could have believed he was in danger.
Gonzalez was recognizable as a gang member, announced that he was from Temple
Street thereby claiming his gang, and showed a gang sign. He was physically imposing.
The man at the bus stop left after Gonzalez asked where he was from, suggesting that he
may have feared Gonzalez. Tan’s testimony showed that Tan had a “bad feeling” when
he saw Gonzalez. Tan believed Gonzalez would punch him in the face or “hit him up.”
       However, defendant fails to identify any evidence supporting his claim that he
actually believed he or Tan was in imminent danger of being killed or suffering from
great bodily injury. Imperfect self-defense requires that the defendant “have had an
actual belief in the need for self-defense.” (In re Christian S. (1994) 7 Cal.4th 768, 783.)
Defendant did not testify and no witness testified as to his state of mind. Tan did not see
Gonzalez do anything to defendant. Even if jurors could have inferred that defendant and
Tan shared the same emotions when they encountered Gonzalez, Tan’s testimony does
not show he feared that he would be killed or would suffer great bodily injury. Tan
testified he was afraid defendant would punch him in the face or ask him about his gang
membership. Tan believed he was able to diffuse the situation by telling Gonzalez,
“don’t trip.” Nor was there evidence that Tan or defendant believed deadly force was
necessary to defend against Gonzalez. For all these reasons, the trial court properly
concluded the instruction on imperfect self-defense was not warranted.



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2. Heat of Passion
       “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.” (Beltran, supra, 56 Cal.4th at p. 942.)
“[P]rovocation is sufficient not because it affects the quality of one’s thought processes,
but because it eclipses reflection. A person in this state simply reacts from emotion due
to the provocation, without deliberation or judgment. If an ordinary person of average
disposition, under the same circumstances, would also react in this manner, the
provocation is adequate . . . .”2 (Id. at p. 950.)
       Defendant argues the evidence that Gonzalez threatened his life and Tan’s life
indicates the court should have instructed jurors that he acted in the heat of passion.
Defendant argues jurors could have inferred that he acted rashly because he panicked
without due deliberation and reflection. According to defendant, “the nature of the
provocation was an implicit, immediate threat” to his and Tan’s life.
       The difficulty for defendant was that there was no evidence Gonzalez threatened
his life or Tan’s life. While defendant could have panicked, for purposes of voluntary
manslaughter he must show evidence that he was provoked by acts that would “render an
ordinary person of average disposition ‘liable to act rashly or without due deliberation
and reflection.’” (Beltran, supra, 56 Cal.4th at p. 957.) Gang-related challenges are



2      Defendant did not request an instruction on heat of passion but the court is
required to instruct sua sponte if the evidence is substantial. (People v. Enraca, supra, 53
Cal.4th at p. 758.)


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insufficient provocation to require an instruction on voluntary manslaughter. (People v.
Enraca, supra, 53 Cal.4th at p. 759.) The standard of an ordinary person “is not the
reaction of a ‘reasonable gang member.’” (Ibid.) The evidence that Gonzalez had an
elevated blood alcohol level and tested positive for methamphetamine were not probative
of whether defendant acted out of passion because there was no evidence that defendant
was aware of Gonzalez’s drug and alcohol use. Nor was there evidence that Gonzalez’s
level of intoxication caused him to provoke defendant. Defendant failed to show the
court should have instructed jurors on the heat of passion theory for manslaughter.
3. Custody Credit
      The parties agree that defendant is entitled to one additional day of conduct credit.
Appellant was arrested June 28, 2012, and sentenced on August 28, 2013. He was given
426 days of custody credits but should have been given 427 days to reflect the number of
days between his arrest and his sentencing.


                                     DISPOSITION
      The sentence is modified to reflect 427 days of custody credit. In all other
respects the judgment is affirmed.


                                                  FLIER, J.
WE CONCUR:




      BIGELOW, P. J.




      GRIMES, J.




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