Filed 3/25/14 P. v. Matheu CA2/5
                       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B248237

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA028351)
         v.

BYRON MATHEU,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County, Kathleen
Blanchard, Judge. Affirmed.
         Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and John Yang
Deputy Attorneys General for Plaintiff and Respondent.
       Appellant Byron Matheu was convicted of the first degree murder of Arthur
Morua in violation of Penal Code1 section 187, subdivision (a). The jury found true the
allegations that appellant used a firearm in the commission of the murder within the
meaning of section 12022.53, subdivisions (b) through (i) and committed the offense for
the benefit of a criminal street gang within the meaning of section 186.22, subdivision
(b)(1). The trial court found true the allegations that appellant had suffered a prior
serious felony conviction within the meaning of section 667, subdivision (a)(1) and
sections 667, subdivisions (b) through (i) and 1170.12 (the “three strikes” law). The trial
court sentenced appellant to a total term of 80 years to life in state prison.
       Appellant appeals, contending the trial court erred prejudicially in failing to
instruct the jury, sua sponte, on perfect defense of another and voluntary manslaughter
based on imperfect defense of another. In the alternative, he contends his counsel’s
failure to request those instructions constituted ineffective assistance of counsel. We
affirm the judgment of conviction.


                                            Facts
       In 2004, Arthur Morua lived with his girlfriend Julie Corkum and her daughter
Vanessa Barahona in the front unit of a house on Elm Avenue. Helen lived in a back unit
on the property. Helen was dating appellant, who was a member of the Varrio Nueva
Estrada gang (“VNE”). Kathleen Carreon, Jodi Easton and Helena Kono also lived on
the property.
       On the morning of February 17, 2004, Morua called appellant out of Helen’s
house. Morua was angry that appellant was selling drugs to Corkum. Appellant said that
he thought Morua was aware of the transactions.
       Appellant returned to Helen’s home and called Richard Garcia, a fellow member
of VNE. Appellant’s statements during the call were overheard by Carreon, Easton and
Kono, who gave slightly differing accounts of those statements. According to Carreon,

1
       All further statutory references are to the Penal Code unless otherwise specified.

                                               2
appellant told Garcia to bring a strap, that is a gun, to the house. According to Easton,
appellant told Garcia to bring a gun because he was going to kill Morua. Appellant said
that Morua had threatened to knock his teeth down his throat, but “We’ll see whose teeth
get knocked down their throat. Bring the gun.” According to Kono, appellant told
Garcia to “bring a strap.”
       Appellant left the house for about half an hour. When he returned, he passed by
Kono and told her, “I’m here. Tell [Morua] that I’m waiting for him.”
       Appellant and Morua met up in the backyard. Barahona was present when the
fight broke out. According to her, Morua threw the first punch. After Morua’s first or
second punch, appellant fell to the ground. Morua continued punching appellant. Garcia
rushed in and knocked Morua off appellant, and Morua then began fighting with Garcia.
Appellant backed off and stood up. Morua was “bent backwards over” a chair and
exchanging blows with Garcia when appellant pulled out a gun and shot Morua in the
head. Morua was not trying to get at appellant when appellant fired his gun.
       Carreon saw the fight through a window. She saw Morua approach appellant in
the yard, then punch appellant. A fight ensued between Morua, who was about six feet,
four inches tall and weighed 209 pounds, and appellant, who was about five feet two
inches tall and weighed about 145 pounds. Carreon said appellant was crouched down
and being punched by Morua when he pulled out a gun and shot Morua. Appellant then
fled. Carreon estimated the two men fought for about two minutes before the shooting.
Garcia was not involved in the fight.
       Easton was inside when the fight started. She heard yelling, then as she went
outside she heard a shot fired. She saw Morua bleeding from his head, and appellant
walking away. Garcia told Easton he was not the one who shot Morua.
       Morua died from the gunshot wound to his head. The bullet entered the top of the
head at a downward angle. Morua also received a gunshot wound to his forearm. The
forearm and head wounds could have come from a single bullet or two separate bullets.
A small amount of marijuana and a moderate amount of oxycodone were found in
Morua’s system.

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       Three days after the shooting, Garcia voluntarily turned himself into police. He
was interviewed on February 20, 2004. A tape-recording of the interview was played for
the jury. Garcia also testified at trial. The accounts were similar, but not identical.
       According to Garcia, he and Rafael Espinoza, who was a fellow VNE gang
member, went to appellant’s house to pick him up, possibly because Helen was throwing
him out of the house. In his statement to police, Garcia said that appellant asked him to
bring a gun, but Garcia did not have one. At trial, Garcia testified that appellant did not
ask him to bring a gun. Both in his statement to police and at trial, Garcia said that
appellant always had a gun.
       While Garcia was waiting for appellant, he heard appellant screaming and yelling.
Garcia ran to see what was wrong and saw Morua bent over appellant, who was on his
back on the ground. According to Garcia, Morua was an older gang member who no
longer “banged.” Morua was “socking” appellant in the face and beating him up.
Appellant was screaming and there was a lot of blood coming from his head. Garcia
knocked Morua off appellant, and Morua began fighting with Garcia. Garcia was able to
hold his own. At one point, Morua slipped and was on one or both knees, but had an arm
around Garcia, preventing Garcia from getting away. Garcia heard a shot, and Morua fell
to the ground.
       Garcia, Espinoza and appellant fled. Garcia and appellant drove to Arizona,
stopping along the way to pick up a gun. Appellant was bleeding and had lumps on his
head and a cut on his forehead. Appellant admitted that he shot Morua in the head. He
told Garcia: “Ain’t nobody ever going to hit him and get away with it.”
       Garcia left appellant in Arizona, returned to California and turned himself into
police. He did not want to be a fugitive and did not believe that he did anything wrong.
Garcia eventually pled guilty to being an accessory after the fact and was sentenced to
eight years in prison.
       Los Angeles County Sheriff’s Sergeant Richard Cartmill testified at trial as a gang
expert. The Varrio Nueva Estrada gang, known for the initials VNE, boasted 400 to 500
members during 2004. Their primary activities were burglary, robbery, weapons

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possession, sale of narcotics, assault with deadly weapon, and murder. Sergeant Cartmill
opined that appellant was a member of the VNE based on in-field identification cards
reflecting individuals identifying appellant as a VNE member and photographs showing
appellant’s VNE tattoos. Richard Garcia was also a self-admitted VNE member. Rafael
Espinoza was also a VNE member.
       Based on a hypothetical reflecting the facts of this case, Sergeant Cartmill opined
that the shooting was committed for the benefit of the VNE gang. This opinion was
based on the fact that appellant invoked the typical support that could be counted on from
his fellow gang members in this conflict by telling them to come to the fight and to also
bring a weapon. Fellow gang members present at a scene where one gang member is
engaged in a confrontation were obliged to jump into the fray and assist their fellow gang
member. Also, the disrespect shown by Morua’s verbal confrontation of appellant
typically warranted gang retaliation to maintain the status of the gang.
       Appellant did not present any defense witnesses, but relied on testimony from
prosecution witnesses to make his legal arguments


                                         Discussion
       1. Defense of another
       Appellant contends the trial court erred in failing to instruct the jury, sua sponte,
on perfect defense of another. We see no error.
       A trial court has a sua sponte duty to instruct on a defense “‘only if it appears that
the defendant is relying on such a defense, or if there is substantial evidence supportive of
such a defense and the defense is not inconsistent with defendant’s theory of the case.’
[Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 157.) If the trial court
“believes ‘there is substantial evidence that would support a defense inconsistent with
that advanced by a defendant, the court should ascertain from the defendant whether he
wishes instructions on the alternative theory.” (Ibid.)
       Substantial evidence to support such an instruction “is defined as evidence which
is sufficient to deserve consideration by the jury, i.e., evidence from which a jury

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composed of reasonable men could have concluded that the particular facts underlying
the instruction did exist.” (People v. Burnham (1986) 176 Cal.App.3d 1134, 1139
[internal quotation marks omitted].)
         We independently review a claim that a trial court erred in failing to give an
instruction. (People v. Booker (2011) 51 Cal.4th 141, 181.)
         A homicide is justified when committed in the lawful defense of another. (§ 197,
subds. (1) & (3).) A person acts in perfect defense of another when he actually and
reasonably believes the other person is in imminent danger of great bodily injury and the
immediate use of force is necessary to defend against the threat, and when the defender
uses only the force reasonably necessary to defend against the threat. (See People v.
Hernandez (2011) 51 Cal.4th 733, 747 [elements of perfect self-defense]; People v.
Randle (2005) 35 Cal.4th 987, 994, 998, 1000 [elements of perfect and imperfect defense
of another], overruled on another ground by People v. Chun (2009) 45 Cal.4th 1172,
1201.)
         No such substantial evidence exists here. Appellant contends that Morua’s
“felonious purpose to commit assault by means of force likely to produce great bodily
injury continued and posed an immediate danger to Garcia and to defendant. Under these
circumstances, and knowing Morua’s gang background, it would be reasonable for
defendant to conclude that Morua did not magically transform from a felon gang member
committing felony assault to a person who was now committing only simple assault
because he was now fighting defendant’s defender instead of defendant himself. If
anything, a rescuer would be viewed by Morua as two against one and his need to deal
with Garcia like he had dealt with defendant – committing assault by means of force
likely to produce great bodily injury – became even more important to Morua.”
Appellant describes Morua’s gang background as “a gang member who had only recently
been released from prison . . . and was on parole . . . and was possibly a killer based on
his tear-drop tattoo. . . .”
         The evidence shows Morua was much larger than appellant and only needed one
or two punches to knock appellant to the ground. Morua was then able to keep appellant

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down and continue to punch him. In contrast, Garcia and Morua were about the same
size and were evenly matched, with Garcia doing slightly better in the fight than Morua.
Thus, contrary to appellant’s claim, the evidence showed that the nature of the assault by
Morua did change. Even if Morua wanted to assault Garcia as forcefully as he had
appellant, he was not able to do so. To the extent that appellant contends Morua’s status
as a “felon gang member” made Morua appear to be a serious threat to Garcia, we note
Garcia was also a “felon gang member.” Thus, Morua and Garcia were evenly matched
in this way as well.
       Nothing about the circumstances of the fight between Morua and Garcia gave rise
to an objective need to defend Garcia with deadly force against imminent danger of death
or great bodily injury. (See People v. Enriquez (1977) 19 Cal.3d 221, 228 [there is a
“limitation on the amount of retaliatory force which may be used against an assault with
fists. Such an assault does not justify the use of a deadly weapon in self-defense”],
overruled on another ground in People v. Cromer (2001) 24 Cal.4th 889, 898.) The trial
court did not err in failing to instruct the jury sua sponte on perfect defense of another.


       2. Imperfect defense of another
       Appellant contends the trial court erred in failing to instruct the jury, sua sponte,
on the lesser included offense of voluntary manslaughter based on imperfect defense of
another. We see no error.
       A trial court must instruct, sua sponte, “on all theories of a lesser included offense
which find substantial support in the evidence.” (People v. Breverman, supra, 19 Cal.4th
at p. 162.)
       A person who kills in the actual but unreasonable belief in the need to protect
another person from the imminent danger of death or great bodily injury is guilty of
voluntary manslaughter. (People v. Randle, supra, 35 Cal.4th at pp. 990, 996.) This
crime is a lesser included offense of murder. (Id. at p. 994.)
       Appellant relies on the argument he made in support of perfect defense of another
to support his claim that the evidence also warranted an instruction in imperfect defense

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of another. As we discuss, supra, the circumstances of the fight do not show an objective
need to defend Garcia with deadly force against imminent danger of death or great bodily
injury. There is no evidence that appellant actually but unreasonably believed he needed
to defend Garcia from an imminent threat of great bodily injury or death. Appellant did
not make any statements, at the time of the fight or later, which would indicate he held
such a belief. Although appellant suggests on appeal that he believed Morua was an
especially dangerous gang member who wanted to seriously injure Garcia, appellant’s
belief about Morua’s character is of limited relevance. In order for imperfect self-defense
of another to apply, appellant must have subjectively believed not merely that Morua
wanted to inflict death or great bodily injury on Garcia, but that Morua was about to do
so. There is nothing to show that appellant actually had such a belief.
       Since there was no evidence from which a reasonable jury could have inferred that
appellant subjectively believed he needed to defend Garcia from great bodily injury or
death, the trial court did not err in failing to instruct sua sponte on voluntary
manslaughter based on imperfect defense of another.


       3. Ineffective assistance of counsel
       Appellant contends that assuming the trial court did not have a sua sponte duty to
instruct on the defense of another, his counsel was ineffective in failing to request
instructions on perfect defense of another and voluntary manslaughter based on imperfect
self-defense.
       Appellant has the burden of proving ineffective assistance of counsel. (People v.
Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, appellant must show
that his counsel’s performance fell below an objective standard of reasonableness, and
that, but for counsel’s error, a different result would have been reasonably probable.
(Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Ledesma (1987)
43 Cal.3d 171, 216-218.) “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. at
p. 694.)

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       “When a claim of ineffective assistance is made on direct appeal, and the record
does not show the reason for the counsel’s challenged actions or omissions, the
conviction must be affirmed unless there could be no satisfactory explanation.” (People
v. Anderson (2001) 25 Cal.4th 543, 569.)
       “[W]e accord great deference to counsel’s tactical decisions’ [citation], and we
have explained that “courts should not second-guess reasonable, if difficult, tactical
decisions in the harsh light of hindsight” [citation].” (People v. Stanley (2006) 39 Cal.4th
913, 954.)
       Here, trial counsel might reasonably have believed that appellant’s claim of self-
defense was more convincing than a claim of defense of another would be, given the
disparity in size between appellant and Morua, and may further have believed that adding
a claim of defense of Garcia, who was evenly matched with Morua, would weaken
appellant’s self-defense claim. Such a decision is a matter of trial tactics, and is
particularly within the province of trial counsel. Alternatively, trial counsel might have
been in possession of facts which precluded arguing defense of another. Thus there could
easily be a satisfactory explanation for counsel’s failure to request instructions on defense
of another. Appellant’s claim fails.
       Further, we see no reasonable probability of a more favorable result if counsel had
requested and received instructions on defense of another. Appellant shot Morua while
Morua and Garcia were fighting. Since appellant was in no immediate physical danger
while Garcia and Morua were fighting, appellant could only have acted in self-defense if
he believed, reasonably or not, that Morua was about to overpower Garcia and resume his
attack on appellant. The jury rejected appellant’s self-defense claims and thus implicitly
rejected the idea that appellant believed Morua was about to overpower Garcia. Thus, if
the jury had been instructed on defense of another, there is no reasonable probability the
jury would have found appellant believed he needed to defend Garcia.




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       4. Cumulative error
       Appellant contends that even if the omission of each instruction was not
prejudicial when considered separately, they were cumulatively prejudicial. We do not
agree. The trial court did not err in failing to give the instructions, and so there was no
cumulative error.


                                            Disposition
              The judgment is affirmed.
                     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                             MINK, J.*


We concur:




       TURNER, P. J.




       KRIEGLER, J.




*
      Retired 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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