Filed 6/21/16 P. v. Lavatai CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B264293

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA408344)
         v.

MIKA LAVATAI,

         Defendant and Appellant.




                   APPEAL from a judgment of the Superior Court of Los Angeles County,
Curtis B. Rappe, Judge. Affirmed.


                   Marilee Marshall, 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, Senior Assistant Attorney General, Scott A. Taryle,
Deputy Attorney General, for Plaintiff and Respondent.




                                            _____________________
                                   INTRODUCTION


       Mika Lavatai appeals from the judgment after a jury convicted him of second
degree murder. He argues that the trial court erroneously refused his requested
instruction on involuntary manslaughter, and violated his Fifth Amendment rights under
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) by admitting evidence of
incriminating statements Lavatai made to law enforcement. We conclude that there was
no substantial evidence from which a jury could reasonably find Lavatai committed
involuntary manslaughter but not murder, and that his Fifth Amendment argument is not
preserved for appeal. Therefore, we affirm.


                   FACTUAL AND PROCEDURAL BACKGROUND


       A.       Renteria Goes Dancing with His Girlfriend
       In August 2012 Juan Carlos Renteria (Renteria) had been dating Mariela Orellana
for approximately two months. Prior to that, she had been dating Armando Campos for
two years. When Orellana began dating Renteria, Campos became jealous, told Orellana
that he wanted to resume their relationship, and said that Renteria was a “womanizer”
who was just “playing around” with her.
       On August 8, 2012 Renteria went dancing with Orellana at a restaurant in the
City of Commerce, at approximately 11:00 p.m. At approximately 12:30 a.m. on
August 9, Orellana saw Campos at the restaurant, although Campos left before she and
Renteria did.
       Renteria took Orellana home and left her house shortly before 3:00 a.m. They
made plans to see each other the next day. Orellana later tried to reach Renteria, but her
text messages to him were not returned.




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       B.     Lavatai and His Accomplice Attack Renteria
       In the early morning hours of August 9 Renteria’s brother Armando was lying on
the couch in the Renteria family’s second floor apartment. Earlier in the evening he had
seen a heavy-set man, which investigation later determined was Deontae Dean, wearing a
black sweatshirt with a hoodie covering his head and “sitting at the curb line” for 10 to 15
minutes. When he heard the sound of Renteria’s truck, Armando “got up and looked
through the window.” Armando saw Renteria start to open the door, turn around, and go
to the man sitting down at the curb. Armando then observed a second man, “dressed all
in black,” approach Renteria from behind and hit him on the back of the head. Armando
ran downstairs and out to the street.
       When Armando arrived outside the apartment building, the two men were
attacking his brother in the street, and Renteria was bleeding from his torso and his arms.
Renteria told Armando not to help him or get involved. The two men continued to hit
Renteria, even after he fell to the ground unconscious and unmoving.
       Renteria’s sister Esmeralda had been sleeping, but awoke when she heard
Armando screaming. She looked out the window and saw two individuals fighting with
her brother. She screamed at them to stop, and then ran downstairs. When she arrived
outside, she saw that Renteria “was bleeding a lot,” his shirt was torn, and there was
“blood just all over.” She saw the two men attacking Renteria while Renteria was trying
to “cover and defend himself” by holding his hands up next to his head. She also saw
that one of the attackers had a sharp weapon.
       Renteria’s other brother, Ricardo, had also been sleeping in the apartment when he
awoke to the sound of people screaming. Ricardo ran downstairs, saw the fight and his
brother and sister screaming, and went inside to call the police.
       Eventually, the two men ran away. Armando approached his brother and saw that
he was covered in blood and unconscious, but still breathing. Renteria regained
consciousness and began walking toward the house, but collapsed at the door. He fell
into the arms of Esmeralda, who “was able to see that he had a lot of wounds, and since
he didn’t have his shirt completely [on, she] saw that he had a wound on his heart and he

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had other ones on his arms.” Renteria began convulsing. An ambulance came and took
him to the hospital.
       Renteria died from a stab wound to the heart. He had six separate stab wounds,
including four to the back, one to the arm (a defensive wound), and one to the chest.
Renteria lived for a day after the attack, but lost too much blood to survive.


       C.     Lavatai Explains to Law Enforcement That He Attacked Renteria at the
              Request and Direction of Campos
       Deputy Sheriff Kevin Acebedo and another deputy subsequently spoke with
Lavatai, who admitted in a recorded interview the People played for the jury that he and
Dean stabbed Renteria pursuant to Campos’s request and direction.1 Lavatai told Deputy
Acebedo that he had never previously seen the man he and Dean attacked, who Lavatai
ultimately learned was Renteria, but “he did it to help Campos out because he considered
Campos a friend.”
       Lavatai explained that at approximately 8:00 p.m. Campos asked him to come
with him in his car, and they eventually drove to the restaurant in the City of Commerce.
Lavatai waited outside in the car for an hour or two while Campos was inside. Around
midnight, Campos came out of the restaurant. When Renteria came out of the restaurant,
the two men began following him in Campos’s car. Renteria was driving a pickup truck.
Lavatai sat in the back seat of Campos’s car as they followed Renteria to his house.
Lavatai was wearing black clothes and gloves because he thought Campos wanted him to
“rough [Renteria] up or something.”
       Lavatai explained to the deputies that when he and Campos arrived at Renteria’s
house, Campos parked away from but “within sight of” the apartment building. Lavatai
knew it was the right building because he and Campos has scouted it several days or the
night before, and Campos told Lavatai to “take care of business on him” there. The plan

1       The People also played for the jury a surveillance video obtained from a store near
the attack.


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was that Dean would distract the man by engaging him in a conversation, Lavatai would
come up and attack Renteria from behind, and then Dean would join in the assault.
         When Renteria arrived, Campos was speaking to Lavatai from his phone in the
car, and said, “that’s the guy.” Lavatai went up to Renteria and first hit him in the head
and then “started socking him up.” Lavatai then stabbed Renteria “a couple of times”
with a butterfly knife Campos had given him.2 Dean, also dressed in black, used a long
pole or a pipe.
         Campos stayed in the car during the attack. After the attack, Lavatai and Dean ran
away and Campos picked them up. Lavatai told the detectives, “After . . . what we did,
we just, we just left, we just left. I didn’t look back, I didn’t care if he was on the floor or
what.”
         Lavatai said that Campos had told him to attack Renteria because Renteria had
been “flirting with his girl.” Lavatai explained to the deputies that he attacked Renteria
because Campos wanted him to “take[ ] care of” him and “beat his ass.” When asked
whether Lavatai ever thought that Campos meant kill the victim, Lavatai said, “Yeah,
yeah.”


         D.    The Jury Convicts Lavatai, and the Trial Court Sentences Him
         The People charged Lavatai with the willful, deliberate, and premeditated murder
of Renteria. The People also alleged that Lavatai personally used a deadly and dangerous
weapon in the commission of a felony within the meaning of Penal Code section 12022,
subdivision (b)(1),3 and that Lavatai intentionally killed Renteria by means of lying in




2     A butterfly knife is a knife “with a handle that breaks apart exposing a blade that
comes from the center” (People v. Davis (1988) 202 Cal.App.3d 1009, 1013) and “is
opened rapidly with one hand and is ready for use” (People ex rel. Mautner v. Quattrone
(1989) 211 Cal.App.3d 1389, 1398).

3        Statutory references are to the Penal Code.


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wait, within the meaning of section 190.2, subdivision (a)(15), and for financial gain,
within the meaning of section 190.2, subdivision (a)(1).
       The jury found Lavatai guilty of second degree murder, and found true the
allegation that he personally used a deadly or dangerous weapon. The trial court
sentenced Lavatai to 16 years to life in prison (15 years to life for second degree murder
plus one year for the weapons enhancement), awarded 802 days of actual custody credit,
and imposed various fines and fees. Lavatai timely appealed.


                                          DISCUSSION


       A.     The Trial Court Did Not Err in Refusing To Instruct on Involuntary
              Manslaughter
       Lavatai argues that the trial court erroneously refused to instruct the jury on
involuntary manslaughter as a lesser-included offense of murder “because there was
evidence [he] did not intend to kill Renteria and that he did not consciously disregard the
risk to human life.” Lavatai contends that he was entitled to an instruction on involuntary
manslaughter because there was evidence he made a statement indicating “he never
intended to do anything but rough up Renteria, that he stabbed him during the heat of the
fight and was unaware [Renteria] had died.”
       “Involuntary manslaughter . . . is the unlawful killing of a human being without
malice. (§ 192.) It is statutorily defined as a killing occurring during the commission of
‘an unlawful act, not amounting to a felony; or in the in the commission of a lawful act
which might produce death, [accomplished] in an unlawful manner, or without due
caution and circumspection.’ (§ 192, subd. (b).) Although the statutory language appears
to exclude killings committed in the course of a felony, the Supreme Court has
interpreted section 192 broadly to encompass an unintentional killing in the course of a
noninherently dangerous felony committed without due caution or circumspection.”
(People v. Brothers (2015) 236 Cal.App.4th 24, 31, citing People v. Burroughs (1984)
35 Cal.3d 824, 835 and People v. Bryant (2013) 56 Cal.4th 959, 972.)

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       Involuntary manslaughter is a lesser included offense of murder. (People v.
Beltran (2013) 56 Cal.4th 935, 942; People v. Thomas (2012) 53 Cal.4th 771, 813.) “An
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.” (Thomas, at p. 813.) “If the
evidence presents a material issue of whether a killing was committed without malice,
and if there is substantial evidence defendant committed involuntary manslaughter,
failing to instruct on involuntary manslaughter would violate the defendant’s
constitutional right to have the jury determine every material issue. [Citation.] Malice is
implied, however, when a killing results from an intentional act, the natural consequences
of which are dangerous to human life, and the act is deliberately performed with
knowledge of the danger to, and with conscious disregard for, human life.” (People v.
Cook (2006) 39 Cal.4th 566, 596; see People v. Brothers, supra, 236 Cal.App.4th at p. 35
[“when . . . the defendant indisputably has deliberately engaged in a type of aggravated
assault the natural consequences of which are dangerous to human life, thus satisfying the
objective component of implied malice as a matter of law, and no material issue is
presented as to whether the defendant subjectively appreciated the danger to human life
his or her conduct posed, there is no sua sponte duty to instruct on involuntary
manslaughter”].)
       Even considering Lavatai’s statement to Deputy Acebedo that Campos only
wanted him to “rough up” Renteria, there was no substantial evidence “from which a
reasonable juror could entertain a reasonable doubt” (People v. Brothers, supra,
236 Cal.App.4th at p. 34) that Lavatai had acted in conscious disregard of the risk his
conduct posed to Renteria’s life. After scouting the location a day or two before
committing the crime, Lavatai orchestrated a plan of attack in which Dean would create a
diversion while Lavatai snuck up on Renteria from behind. Lavatai attacked Renteria
with a knife while his accomplice beat Renteria with a pipe. Lavatai stabbed Renteria
repeatedly, including once to the chest that penetrated his heart and killed him, and then
ran away without looking back to see whether he had killed Renteria or, in his words,

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merely roughed him up. Nor did Lavatai distinguish between roughing up Renteria and
killing him. As Lavatai admitted to Deputy Acebedo, he knew that Campos wanted him
to “take care of” Renteria, and that taking care of Renteria included killing him.
       There was no evidence that the killing was accidental or negligent, or that Lavatai
did not understand the risk to Renteria’s life that his planned and coordinated attack
posed. Lavatai did not “commit[ ] a mere misdemeanor battery by administering [a]
beating” or “start a fist fight in which an unlucky blow resulted in the victim’s death.”
(People v. Cook, supra, 39 Cal.4th at pp. 596-597.) To the contrary, Lavatai attacked
from a place of hiding with a deadly weapon, knowing his victim might die, and not
caring if he did. The trial court did not err by refusing Lavatai’s request to instruct the
jury on involuntary manslaughter. (See People v. Guillen (2014) 227 Cal.App.4th
934, 1028 [involuntary manslaughter instruction not appropriate where the defendant
“knew the risk involved” in a violent attack on the victim and there was no reasonable
doubt from the evidence that the defendant acted with the intent to kill or a conscious
disregard for human life]; People v. Evers (1992) 10 Cal.App.4th 588, 596 [“where the
defendant realizes and then acts in total disregard of the danger, the defendant is guilty of
murder based on implied malice,” unless the malice is otherwise negated by heat of
passion or imperfect self-defense].)


       B.     Lavatai Forfeited His Argument That the Detectives Obtained Statements
              from Him in Violation of His Fifth Amendment Rights
       Lavatai argues that the trial court erred by allowing Deputy Acebedo to testify
about the statements Lavatai made to him because the detectives obtained them in
violation of Miranda. Lavatai argues that Deputy Acebedo subjected him to custodial
interrogation during the interview without giving him any Miranda warnings, the judge at
the preliminary hearing erred in denying his motion to suppress, and the court should
have suppressed the statements at trial.
       Lavatai, however, never made a motion at trial to suppress his statements to the
detectives, and the trial court never ruled on the admissibility of the statements. Lavatai

                                              8
did not object to the prosecutor’s questioning of Deputy Acebedo at trial about his
interview with Lavatai, nor did Lavatai object when the prosecutor played the recording
of the interview for the jurors and gave them copies of the transcript of the interview.
The only objection was at the preliminary hearing.
       An objection made at a preliminary hearing is not preserved for appeal unless
renewed at trial. (See People v. Zambrano (2007) 41 Cal.4th 1082, 1139 [“[a]bsent a
ruling or stipulation that an objection” to testimony at the preliminary hearing “would be
deemed renewed at trial, defendant’s failure to renew it means the issue was not
preserved for appeal”], disapproved on another point in People v. Doolin (2009)
45 Cal.4th 390, 421, fn. 22; People v. Armstrong (1991) 232 Cal.App.3d 228, 233, fn. 6
[defendant’s “failure to renew, in the superior court, an objection made to [an exhibit] at
the preliminary hearing on grounds of hearsay or lack of foundation constituted a waiver,
barring consideration of those issues on appeal”]; People v. Remington (1990)
217 Cal.App.3d 423, 429-431 [defendant’s failure to renew at trial a venue objection
made at the preliminary hearing waived the right to object to venue on appeal]; see also
People v. Crittenden (1994) 9 Cal.4th 83, 126 [“a pretrial ruling on a claimed violation of
a defendant’s Fifth Amendment rights is subject to reconsideration by the trial court, and
an objection on Fifth Amendment grounds to the admissibility of the evidence is waived
if not made at trial when the evidence is offered”].) Therefore, Lavatai forfeited his
argument that the trial court should have suppressed his statements to Deputy Acebedo.
       Lavatai relies on People v. Crittenden, supra, 9 Cal.4th 83, to argue that, although
he “could have renewed the objection at trial, it would have been futile to do so, as he
was entitled to no further hearing, and nothing had changed since the court denied his
motion.” Crittenden, however, involved very different procedural circumstances. The
defendant in Crittenden “unsuccessfully moved, during his preliminary hearing . . . to
exclude his statements on the ground they were obtained in violation of Miranda.”
(Id. at p. 125.) So far, so good, for Lavatai’s argument. The defendant in Crittenden,
however, “renewed his motion to exclude the statements on Miranda grounds” at trial,
and the trial court denied the motion. (Ibid.) After the trial court granted the defendant’s

                                             9
motion to change venue and transferred the case to another county, the defendant again
moved to exclude the statements, but this time only under Evidence Code section 352 and
not “expressly on the basis of Miranda.” (Ibid.) The Supreme Court held that, “under
[these] circumstances,” the “defendant did not waive the Miranda issue.” (Id. at p. 126.)
The Supreme Court stated that “if a motion to exclude evidence is made raising a specific
objection, directed to a particular, identifiable body of evidence, at the beginning of or
during trial at a time when the trial judge can determine the evidentiary question in its
appropriate context, the issue is preserved for appeal without the need for a further
objection at the time the evidence is sought to be introduced.” (Id. at p. 127, emphasis
added; see People v. Solomon (2010) 49 Cal.4th 792, 821 [“[a] motion in limine can
preserve an appellate claim, so long as the party objected to the specific evidence on the
specific ground urged on appeal at a time when the court could determine the evidentiary
question in the proper context”].)
       Unlike the defendant in Crittenden, however, Lavatai did not make a Miranda
objection before, at the beginning of, or during the trial, by way of a motion in limine or
otherwise, to the trial judge. Indeed, there is no indication in the record the trial judge
had any knowledge that Lavatai had made a motion at the preliminary hearing to suppress
his statements to Deputy Acebedo, or that or how the judge presiding over the
preliminary hearing had ruled on the motion. The trial court did not erroneously rule on
an objection Lavatai never made at trial, and Lavatai’s objection at the preliminary
hearing did not preserve the issue for appeal.4


4       Lavatai argues for the first time in his reply brief, in two sentences and without
explanation for why he did not make the argument in his opening brief, “[t]o the extent
that this court disagrees that the issue is preserved for appeal,” trial counsel for Lavatai
“was ineffective for failing to renew the motion.” The argument, which could have been
anticipated because there was no objection at trial, is forfeited. (See People v. Bonilla
(2007) 41 Cal.4th 313, 349-350 [waiting until reply brief to make an argument forfeits
the argument]; People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26 [“‘points raised in
the reply brief for the first time will not be considered, unless good reason is shown for
failure to present them before’”].) Lavatai’s argument also fails because Lavatai does not
address the issue of prejudice. (See People v. Benavides (2005) 35 Cal.4th 69, 92-93

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                                     DISPOSITION


      The judgment is affirmed.




             SEGAL, J.




      We concur:




             PERLUSS, P. J.




             BLUMENFELD, J.*




[“[t]o prevail on a claim of ineffective assistance of counsel, a defendant must show both
that counsel’s performance was deficient and that the deficient performance prejudiced
the defense”]; In re Cox (2003) 30 Cal.4th 974, 1019 [“[t]here are two components to an
ineffective assistance of counsel claim: deficient performance of counsel and
prejudice”].)
*
 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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