Filed 5/24/13 P. v. Cabrera CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE



THE PEOPLE,                                                             B233111

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. VA108103)
         v.

ANTHONY JERRY CABRERA,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Michael A. Cowell, Judge. Affirmed.
         William Pitman, 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, Margaret E. Maxwell, Tasha G.
Timbadia and Brendan Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.

                                        _________________________
      Defendant and appellant, Anthony Jerry Cabrera, appeals his conviction for
voluntary manslaughter with an enhancement for use of a deadly or dangerous weapon
(Pen. Code, §§ 192, 12022, subd. (b)(1)).1 He was sentenced to state prison for 11 years.
      The judgment is affirmed.
                                   BACKGROUND
      Viewed in accordance with the usual rule of appellate review (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established the following.
      1. Prosecution evidence.
      On the night of October 18, 2008, Rebecca V. went to a party in Hawaiian
Gardens. She drove her brother Victor‟s car to the party without his permission. Once
there, she met up with Danny Valdez, whom she knew from high school. Rebecca‟s
other brother, Marco, did not approve of Danny and had previously told her to stay away
from him.
      Shortly after arriving at the party, Rebecca and Danny drove to a nearby grocery
store where they met defendant Cabrera and his girlfriend, Ashley. Ashley was over 21
and therefore able to buy alcohol. The four of them went in and bought a bottle of vodka.
As they were leaving the store, Rebecca saw Marco and his friend Jose “Joey” Garcia
approaching from the parking lot. Rebecca told Danny, “Just let me talk to my brother.
Don‟t say anything.” Cabrera was standing right next to Rebecca when she referred to
Marco as her brother.
      Marco was upset and shouting. He said to Rebecca, “[W]hat the fuck are you
doing with him.” Marco was also yelling at Danny and Cabrera, “talking shit” and
saying things like “[Y]ou want to fight me?” and “I‟m not scared of you.” Rebecca was
worried because Marco had a short temper and she didn‟t know what he might do.
Rebecca also heard Marco say, “These are the guys that jumped me.”
      At one point, Rebecca grabbed Marco‟s wrists and he yelled at her to let him go.
Rebecca was four feet 11 inches tall and weighed 120 pounds, while Marco was five feet
six inches tall and weighed 185 pounds. Marco was a “big guy” who was “pretty buff.”
1
      All further references are to the Penal Code unless otherwise specified.


                                            2
Rebecca noticed something was going on between Cabrera and Joey, but she could not
see them clearly because Marco was standing in front of her. Cabrera then came toward
them and swung his fist. Marco pushed Rebecca away and she fell down. While she was
on the ground she saw Joey “passed out on the floor.” When Danny and Ashley helped
Rebecca to her feet, she told them to leave her alone. Cabrera, Ashley and Danny ran off.
       Marco told Rebecca to call the police because Joey was hurt. Right after that,
Marco collapsed on top of Joey. Rebecca could see blood soaking through Marco‟s shirt.
       Rebecca testified she never screamed for help during her argument with Marco
and that she had not been afraid he was going to hurt her. She testified Marco did not
push, hit or choke her during the incident. She did not hear Marco tell Joey to “get that
guy” or “go get him.”
       Marco was pronounced dead at the scene. He had sustained three sharp force
entry wounds, two in the upper chest and one in the chin. One of the chest wounds had
punctured the superior vena cava, “the largest vein draining blood from the head and
neck region.” The pathologist described this wound as “rapidly fatal.”
       Joey Garcia testified he and Marco had gone to a billiards club earlier that evening
where they drank beer. From there they went to Marco‟s house, but then decided to buy
more beer. Before leaving for the grocery store, they talked to Marco‟s brother, Victor,
about whether Rebecca had taken his car without permission or if it had been stolen.
Marco and Joey then drove to the store. According to Joey, Marco was not annoyed or
upset at this point. In the parking lot, they saw Victor‟s car.
       Marco asked Joey to call Victor to say they‟d found his car. While Joey was
making the call on his cell phone, Marco was walking toward the store and Joey was
walking just behind him. Joey testified that after he put his cell phone away he kept his
hands in the pockets of his jacket. When Rebecca came out of the grocery store, Marco
went up to her and yelled, “[W]hat the fuck are you doing with these guys . . . take your
ass home.” Then Marco said, “Hey, Joey these are the guys that jumped me.” Cabrera
responded by saying, “[W]hat the fuck are you going to do about it.” Joey also heard




                                              3
Danny say something like, “[W]ho the fuck do you think you are. You‟re not her father.
You can‟t tell her what to do.”
       Joey started walking toward Cabrera because Cabrera had insulted them. Joey did
this on his own initiative; Marco did not tell Joey to “go get him.” Joey‟s intention was
“to make a statement” because Cabrera and Danny were “trying to intimidate” them.
Joey still had his hands in his jacket because he was cold. Cabrera took something shiny
from his pocket and swung his right arm toward Joey, who raised his left forearm to
“block [Cabrera‟s] strike.” Their forearms collided. Joey heard Marco say, “Hey, Joey
watch out,” and then someone hit Joey from behind. He tried to get up, but he was hit
again and knocked unconscious. A surveillance camera in the grocery store parking lot,
on which much of the incident had been captured, apparently recorded Danny punching
Joey and then kicking him while he was on the ground. When Joey regained
consciousness, Marco was lying on top of him. There was blood coming out of Marco‟s
mouth.
       Joey testified he did not have a weapon that night. He did not see Marco with a
weapon, and he did not know Marco to carry weapons.
       2. Defense evidence.
       Cabrera testified in his own behalf. That night, he picked up his girlfriend Ashley
from work and drove to a restaurant. Cabrera‟s stepbrother Danny Valdez called to say
he was with a girl and they wanted to buy alcohol. Cabrera agreed to meet them at a
grocery store. When Cabrera and Ashley arrived, Danny introduced them to Rebecca.
Inside the store, Danny and Rebecca picked out a bottle of vodka which Ashley
purchased.
       As the group was leaving the store, they were approached by Marco and Joey.
Cabrera had never seen them before; he denied having ever had an altercation with
Marco. Marco was being loud and verbally abusive to Danny and Rebecca, which made
Cabrera uncomfortable and nervous. Marco was “[g]etting out of control,” and
“appeared very angry, like he was looking for trouble.” Cabrera did not realize Marco




                                             4
was Rebecca‟s brother; he thought Marco might be her boyfriend and that he was angry
because she was with Danny. Marco and Rebecca were yelling at each other.
         Cabrera noticed that Joey “had something in his hand and he put it in his pocket”:
         “Q. And how did that make you feel when that happened?
         “A. It scared me.
         “Q. And why was that?
         “A. Because he just . . . put it in his pocket and then he turned around and looked
at me.
         “Q. And you saw an object in his hand?
         “A. Yes.
         “Q. Did you know what the object was?
         “A. No. It was too quick. I didn‟t see it in time.
         “Q. So you couldn‟t tell . . . what it was? It was just some object in his hand?
         “A. Yeah, it was something. I didn‟t know what it was.”
         Marco turned around and told Joey, “Get this guy,” and Joey began walking
toward Cabrera. Joey looked upset and mad:
         “Q. And what were you thinking . . . as this person was walking towards you?
“[¶] . . . [¶]
         “A. . . . I knew he was coming to hurt me. I thought he was coming to do
something to me or to my girlfriend.”
         In his pocket, Cabrera had a small pocket knife with a three- or four-inch blade.
As Joey got closer to Cabrera:
         “A. I just backed up, I backed away from him.
         “Q. What did you do?
         “A. I reached for my knife.
         “Q. Why did you reach for the knife?
         “A. I don‟t . . . know exactly. I mean I don‟t know exactly why I reached for it.
I just did it.
         “Q. Were you scared?


                                               5
       “A. Yes.
       “Q. And why were you scared?
       “A. He was coming at me and I seen something in his hand. And I knew he had
something in his pocket.”
       In the next instant, Cabrera had swung his knife at Joey:
       “A. I just seen [Joey] pull his hands out of his pockets very fast . . . and he made a
quick movement toward me with one of his arms.
       “Q. And what did you do?
       “A. I swung with the hand that had my knife in it.”
       Cabrera testified their forearms collided and he retreated as Joey continued to
come toward him. Then Cabrera noticed Marco “had [Rebecca] by her neck and by her
hair.” Rebecca was grabbing Marco‟s sleeve and trying to push him away. Both Marco
and Rebecca were screaming and cursing. “It looked like [Marco] was hurting her.
Looked like he was beating her up.” Marco‟s hands were “all over her neck and her face
and her hair” and “[i]t looked to me like he was trying to strangle her or choke her.”
Cabrera grabbed Marco‟s shoulder and that‟s when the fatal stabbing occurred:
       “A. [Marco] swung at me with his right hand, with the back of his fist, and he hit
me.
       “Q. And what happened then?
       “A. He just turned around, took a step and lunged at me.
       “Q. What did you do?
       “A. At that point, I pushed my hand on his shoulder and I stabbed him. [¶] . . . [¶]
       “Q And how many times did you stab him?
       “A. I only remember doing it twice.
       “Q. Where did you stab him, what part of the body?
       “A. In his chest.
       “Q. And did you ever stab him in his chin?
       “A. I don‟t remember that happening, but I know it happened.




                                             6
       “Q. And at the time that you stepped in what was your intent? What were you
intending to do when you stepped into that fray?
       “A. All I was trying to do was to get him to stop hurting her.
       “Q So were you trying to separate them or –
       “A. Just get him off her, just to separate them.
       “Q. In your mind was this moving quick, was it moving slow?
       “A. It all happened very fast.
       “Q. And were you intending to kill him when you stabbed him?
       “A. No, sir.
       “Q. Were you intending to injure him?
       “A. No.
       “Q Were you conscientiously [sic] thinking about what you were doing at that
point in time?
       “A. No, I wasn‟t thinking.
       “Q. Would you say you were aware of what you were doing at that point in time?
       “A. No, I wouldn‟t say that.”
       Cabrera also described the stabbing this way: “[Marco] hit me and I just reacted
and I stabbed him.” “[H]is arm is coming this way so, I put my hand up and it only gets
about this far. And then I just stabbed him . . . .”
       “A. [Marco] was cursing at [Rebecca] when I grabbed him. And he turned
around and hit me. . . . And I stabbed him and then after that he kept cursing, but it was
more towards me I think after that.”
       “Q. Did you know that you stabbed him when you stabbed him?
       “A. Did I actually know that it happened?
       “Q. Yeah?
       “A. I wasn‟t really thinking it through, but when I walked away, yes, I knew I
stabbed him.
       “Q. At the moment when you were stabbing him did you know you were stabbing
him?


                                               7
       “A. I didn‟t really think about it.
       “Q. You didn‟t think about it before you stabbed somebody?
       “A. No, I didn‟t think about it. There was not enough time to think about what
was going on.”
       After stabbing Marco, Cabrera fled with Danny and Ashley. He later threw the
knife away because he was scared; he did not feel good about what had happened and he
didn‟t want the knife near him.
       Dr. Scott Fraser, a professor of neuropsychology who teaches at UCLA and USC
medical schools, explained the “flight or fight” syndrome and the effects of stress on
human reactions to frightening situations. People faced with potentially dangerous
situations experience a series of automatic physiological reactions, including an increased
blood flow to the skeletal muscular system along with a compensating decreased blood
flow to the brain‟s frontal cortex. The frontal cortex “is the major area where decision
making occurs, where we monitor our behavior, where we evaluate the consequences of
potential actions.” In such situations, a “survival instinct” is triggered and a person is
more likely to interpret actions and objects as threatening and dangerous. Dr. Fraser
opined these physiological reactions could have been triggered by someone in Cabrera‟s
position the night of the stabbing.
       3. Rebuttal evidence.
       Craig Ditsch of the Los Angeles County Sheriff‟s Department was one of the lead
investigators on the case. The first time he interviewed Rebecca, which was about seven
hours after the stabbing occurred, he did not see a single scratch, red mark, bruise, or
other type of injury on her. She did not have torn clothing or look disheveled. In fact,
Ditsch was struck by “how neat her hair was. Every hair was in place like she just got
home from a date.”




                                              8
                                      CONTENTION
       The trial court erred by refusing to instruct on involuntary manslaughter as a lesser
included offense of murder.
                                       DISCUSSION
       Cabrera contends his conviction must be reversed because the trial court should
have instructed the jury on involuntary manslaughter based on an imperfect self-defense
theory. This claim is meritless.
       1. Background.
       Cabrera and Danny Valdez were jointly charged with murdering Marco and
assaulting Joey Garcia. Danny pled guilty to the assault and only Cabrera went to trial.
Cabrera was acquitted of assaulting Joey, but convicted of voluntary manslaughter for
Marco‟s death.
       At trial, during a discussion about which jury instructions to use, Cabrera asked
for an involuntary manslaughter instruction on the theory he had acted in imperfect self-
defense and, therefore, the killing of Marco had been without malice.
       The trial court rejected the request: “Well, it‟s not just the absence of malice.
But as we discussed at length in chambers and this obviously was not on the record, it
was a discussion with counsel. Everyone seemed to agree and [what] the discussion
focused on, was the phrase „conscious disregard for life.‟ [¶] It‟s your contention . . . the
jury can find there was no conscious disregard for life on the part of your client. And
[the prosecutor‟s] contention and the one that I agree with, is that when you take a knife
and you stab someone in the chest, there is a conscious disregard for life unless you have
evidence, one that he was unconscious or the motion was involuntary or some evidence
to the effect. Just simply saying I wasn‟t thinking about what I was doing I don‟t think
takes it out of the level that you‟re entitled to ask the jury to find there was no conscious
disregard for life. [¶] He testified he intentionally took the knife out, he opened the
blade, he swung the knife, and . . . he admits stabbing the person . . . twice in the chest.
[¶] Now obviously it was three times because there were three puncture wounds, three
separate wounds. But I don’t see how any way under that set of facts that one can argue


                                              9
that there is no conscious disregard for life. And that’s the element that prevents it from
being an involuntary manslaughter. [¶] So your objection is noted for the record, but the
court is going to instruct the jury on second degree murder as requested by the People
and on the lesser included offense of voluntary manslaughter.” (Italics added.)
       2. Legal principles.
       “When there is substantial evidence that an element of the charged offense is
missing, but that the accused is guilty of a lesser included offense, the court must instruct
upon the lesser included offense, and must allow the jury to return the lesser conviction,
even if not requested to do so. [Citations.]” (People v. Webster (1991) 54 Cal.3d 411,
443.) In this context, “substantial evidence” is evidence from which reasonable jurors
could conclude the lesser offense, but not the greater, had been committed. (People v.
Breverman (1998) 19 Cal.4th 142, 162.)
       In People v. Blakeley (2000) 23 Cal.4th 82, our Supreme Court explained the
difference between murder and the lesser included offense of manslaughter: “Murder is
the unlawful killing of a human being with malice aforethought. (Pen. Code, § 187, subd.
(a).) Malice may be either express or implied. It is express when the defendant manifests
„a deliberate intention unlawfully to take away the life of a fellow creature.‟ (§ 188.) It
is implied „when no considerable provocation appears, or when the circumstances
attending the killing show an abandoned and malignant heart.‟ (Ibid.) This statutory
definition of implied malice, we have said, „has never proved of much assistance in
defining the concept in concrete terms‟ [citation], and juries should be instructed that
malice is implied „when the killing results from an intentional act, the natural
consequences of which are dangerous to life, which act was deliberately performed by a
person who knows that his conduct endangers the life of another and who acts with
conscious disregard for life‟ [citation]. . . . [F]or convenience we shall describe this
mental state as „conscious disregard for life.‟ [¶] Manslaughter is „the unlawful killing
of a human being without malice.‟ (§ 192.) A defendant lacks malice and is guilty of
voluntary manslaughter in „limited, explicitly defined circumstances: either when the
defendant acts in a “sudden quarrel or heat of passion” (§ 192, subd. (a)), or when the


                                             10
defendant kills in “unreasonable self-defense” – the unreasonable but good faith belief in
having to act in self-defense [citations].‟ [Citation.]” (People v. Blakeley, supra,
23 Cal.4th at pp. 87-88, fn. omitted.)
       Blakeley then framed the question before it this way: “A person who intentionally
kills in unreasonable self-defense lacks malice and is guilty only of voluntary
manslaughter, not murder. [Citations.] But what offense is committed when a person,
acting with a conscious disregard for life, unintentionally kills a human being, but the
killing occurs in unreasonable self-defense? Is the killer guilty of murder, voluntary
manslaughter, or involuntary manslaughter?” (People v. Blakeley, supra, 23 Cal.4th at
p. 88.) Blakeley‟s answer was: “Here, we hold in a case of first impression that
voluntary manslaughter is also committed when a defendant, acting with conscious
disregard for life and the knowledge that the conduct is life-endangering, unintentionally
but unlawfully kills while having an unreasonable but good faith belief in the need to act
in self-defense.” (Id. at p. 85.)
       3. Discussion.
       Citing Blakeley, Cabrera contends there was substantial evidence to support an
involuntary manslaughter instruction in his case. This claim is meritless, for both legal
and factual reasons.
       Cabrera‟s first error is legal because he has misconstrued what the Supreme Court
said in Blakeley. Cabrera asserts the Blakeley majority held that “ „when a defendant,
acting with a conscious disregard for life, unintentionally kills in unreasonable self-
defense, the killing is voluntary rather than involuntary manslaughter.‟ [Citation.]
Notably, however, the Court acknowledged, while discussing Justice Mosk‟s dissent, that
it had ‘no quarrel’ with the view that a defendant ‘who kills in unreasonable self-defense
may sometimes be guilty of involuntary manslaughter.‟ [Citation.] Justice Mosk
distinguished between persons who with an actual, but unreasonable belief in imminent
danger of death or great bodily harm, act with malice aforethought, either express or
implied, and those who act „without due caution and circumspection.‟ [Citation.] The
latter category, in Justice Mosk‟s view would be guilty of involuntary manslaughter,


                                             11
while the former guilty of voluntary manslaughter. [Citation.] Accordingly, the Blakeley
court concluded that the trial court erred ‘by failing to instruct the jury that an
unintentional killing in unreasonable self-defense is involuntary manslaughter.” (Italics
added.)
       Neither italicized portion of Cabrera‟s assertion is correct.
       What the Blakeley majority actually said, after noting Justice Mosk‟s dissent, was
this: “We have no quarrel with this view. We conclude only that a defendant who, with
the intent to kill or with conscious disregard for life, unlawfully kills in unreasonable
self-defense is guilty of voluntary manslaughter.” (People v. Blakeley, supra, 23 Cal.4th
at p. 91.) Justice Mosk agreed with this statement: “For my part, I have no quarrel with
their view.” (Id. at p. 99, fn. 2 (dis. opn. by Mosk, J.).) Hence, Justice Mosk agreed with
the majority‟s holding that a defendant acting in imperfect self-defense and with a
conscious disregard for life commits voluntary manslaughter, not involuntary
manslaughter.2 The fact the majority had no quarrel with Justice Mosk‟s view – that a
defendant acting in imperfect self-defense but with something less than conscious
disregard for life, e.g., mere negligence, would only be guilty of involuntary
manslaughter – is simply irrelevant to Cabrera‟s case.
       In addition, Cabrera‟s statement, that “accordingly” the Blakeley majority
concluded the trial court had erred by not instructing on involuntary manslaughter,
completely misses the majority‟s holding there was trial court error only because of a
retroactivity problem. That is, Blakeley‟s answer to the first-impression question it faced
would have constituted an “unforeseen judicial enlargement of the crime of voluntary
manslaughter, and thus may not be applied retroactively to defendant.” (People v.




2
       Cabrera‟s reliance on such pre-Blakeley cases as People v. Glenn (1991)
229 Cal.App.3d 1461, and People v. Welch (1982) 137 Cal.App.3d 834, is misplaced
because these cases were specifically disapproved by Blakeley. (See People v. Blakeley,
supra, 23 Cal.4th at p. 91.)


                                             12
Blakeley, supra, 23 Cal.4th at p. 92.)3 Since Cabrera‟s offense was committed well after
the Blakeley decision, the new principle announced there applies to him.
       Cabrera‟s second error is factual because there is no substantial evidence that, in
stabbing Marco, he acted with anything other than a conscious disregard for life. Cabrera
agrees “one view of the evidence might support such a finding,” but argues “other
substantial evidence existed to support a reasonable conclusion that the appellant acted
reflexively while brandishing a [knife] and without an intent to kill or a conscious
disregard for life.” We disagree.
       If by “reflexively” Cabrera means there was evidence he acted either
unconsciously or accidentally, the overwhelming weight of the evidence was to the
contrary. Cabrera‟s own testimony shows he was fully cognizant of what he was doing
when he stabbed Marco, that it had been an intentional and deliberate act, and that the
stabbing had not been accidental. Cabrera was very clear he knowingly stabbed Marco
out of fear and because he believed it was necessary to protect Rebecca and/or himself.
       Although Cabrera occasionally testified that when he stabbed Marco he “didn‟t
really think about it” and he “wasn‟t thinking,” the overwhelming weight of his testimony
demonstrated he had been acting intentionally. Describing his encounter with Joey,
Cabrera testified that when he saw Joey pull his hands from his jacket and make an arm
movement, he “swung with the hand that had my knife in it.” Similarly, when Marco
lunged at Cabrera: “I stabbed him.” “And then I just stabbed him . . . .” “[Marco] turned
around and hit me. . . . And I stabbed him and then after that he kept cursing . . . .”
“I wasn‟t really thinking it through, but when I walked away, yes, I knew I stabbed him.”
       Indeed, defense counsel‟s closing statement tried to argue around this evidence
showing Cabrera had stabbed Marco intentionally. Counsel argued Cabrera “saw and
heard what appeared to be a young woman getting beat up and injured and instinctively
reacted.” “[Cabrera] sees this buff big strong guy and this girl and they are getting


3
       The majority went on to find the error had been harmless. Justice Mosk dissented
because he would have found the error prejudicial. (See People v. Blakeley, supra,
23 Cal.4th at pp. 93-94; id. at pp. 99-100 (dis. opn. by Mosk, J.).)


                                             13
physical and there‟s a physical confrontation going on. And one second passes and he
reacts. He thinks because of what he heard, because of what he saw, because he just got
attacked by this guy Joey, that something crazy‟s going on. That this guy is hurting
[Rebecca]. And he sees that and he acts. He reacts. It‟s not a decision . . . like I think
I‟ll step in there and maybe do something. He reacts because he thinks this girl is going
to suffer great bodily injury. He‟s on auto pilot. It‟s automaticity. He scared for her.”
“He wasn‟t acting in conscious disregard [for life]. . . . [T]here was no conscious
disregard. There was no thought process. The thought process was I see a girl getting
beat up by a big buff guy and I’m acting. That’s what happened.” (Italics added.)
       Cabrera may have been afraid. In the heat of the moment, he may have believed
his violent intervention was necessary to protect Rebecca or himself. There is, however,
no doubt that he knowingly and intentionally stabbed Marco. Cabrera offers absolutely
no authority or reasoned argument to support the proposition that this sort of “reflexive”
or “instinctual” killing is not done with a conscious disregard for life. As the trial court
said: “[W]hen you take a knife and you stab someone in the chest, there is a conscious
disregard for life unless you have evidence, one that he was unconscious or the motion
was involuntary or some evidence to the effect. Just simply saying I wasn‟t thinking
about what I was doing . . . [does not entitle you] to ask the jury to find there was no
conscious disregard for life. [¶] He testified he intentionally took the knife out, he
opened the blade, he swung the knife, and . . . he admits stabbing the person . . . twice in
the chest.”
       Cabrera‟s case is essentially the same as People v. Garcia (2008) 162 Cal.App.4th
18, where Garcia hit the victim, Gonzalez, in the face with the butt of a shotgun, causing
Gonzalez to fall, hit his head on the sidewalk and die. Garcia testified “Gonzalez had
lunged toward him and . . . he thought Gonzalez was going to try to fight him and was
concerned Gonzalez would take the gun,” so Garcia “ „just reacted‟ and . . . [he] jabbed
or swung at Gonzalez to back him up. He did not intend to hit Gonzalez in the face and
„never intended to kill him or for him to die.‟ ” (Id. at p. 25.) The trial court refused to
instruct on involuntary manslaughter as a lesser-included offense, reasoning Gonzalez


                                              14
had died “as the direct result of an inherently dangerous felony such as assault with a
deadly weapon or assault with a firearm.” (Id. at p. 26.) The court of appeal affirmed:
“Absent proof of malice – whether because malice was negated by provocation or the
doctrine of imperfect self-defense or because of an absence of proof that „the
circumstances attending the killing show[ed] an abandoned and malignant heart‟
[citation] – Garcia committed manslaughter, „the unlawful killing of a human being
without malice.‟ [Citations.] Because Gonzalez‟s death did not occur in the commission
of either a dangerous misdemeanor [citation], or a lawful act in an unlawful manner or
without due caution and circumspection, it does not fall within the statutory definition of
involuntary manslaughter [citation]. [¶] . . . [I]n light of the undisputed evidence Garcia
assaulted Gonzalez with a deadly weapon/firearm, knocking him to the sidewalk where
he hit his head and died, there was not sufficient evidence in this case the killing of
Gonzalez was involuntary manslaughter. Accordingly, no involuntary manslaughter
instruction was required.” (Id. at pp. 32-33.)
       In his own testimony, Cabrera acknowledged knowingly and deliberately stabbing
Marco because he believed it was necessary to save himself and/or Rebecca from harm.
The other evidence at trial also showed the stabbing had been intentional, and hence there
was no evidence from which the jury could have concluded Cabrera was acting without a
conscious disregard for life. “[V]oluntary manslaughter, but no lesser offense, is . . .
committed when one kills unlawfully, and with conscious disregard for life, but lacks
malice because of provocation or imperfect self-defense.” (People v. Rios (2000)
23 Cal.4th 450, 461, fn. 7.) Because there was no substantial evidence from which the
jury could have reasonably concluded Cabrera committed involuntary manslaughter,
there was no error in not giving a lesser included offense instruction. (See People v.
Webster, supra, 54 Cal.3d at p. 443.)




                                             15
                                 DISPOSITION
     The judgment is affirmed.


     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                          KLEIN, P. J.

We Concur:




             KITCHING, J.




             ALDRICH, J.




                                     16
