Filed 8/28/15 P. v. Powers CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D068043

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. RIF10001948)

NATHAN LEE POWERS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Riverside County, Gary B.

Tranbarger, Judge. Affirmed.



         David McNeil Morse, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth

M. Carino, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury found Nathan Lee Powers not guilty of first degree murder and guilty of

second degree murder. (Pen. Code, § 187, subd. (a); all further statutory references are to

the Penal Code.) The jury further found that in commission of the offense, Powers

intentionally discharged a firearm within the meaning of section 12022.53, subdivision

(d). Powers admitted to shooting the victim, but asserted self-defense, which the jury

was properly instructed on. On appeal, he contends the trial court erred in failing to

instruct the jury on voluntary manslaughter based on sudden quarrel or heat of passion.

We affirm the judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

       The shooting occurred in March 2010 at a mansion where a rap artist, Platinum,

was filming a music video. The victim, Omar Sutton, was the person releasing the

record. Until the very end of the night, the atmosphere was consistently described as

positive, easygoing, and nice—like a "pool party"—with music, food, and liquor. Fifty to

80 people were present at any given time, including Platinum's family members and close

friends. Female dancers had been hired to perform in the music video as well, and scenes

were being filmed by professional cameramen in different locations on the property.

       Late in the evening, Powers arrived at the party with his brother and cousin. Prior

to arriving, they had discussed whether to bring a gun to the party, but decided against it.

Powers's cousin had been invited to the party by his friend who was already there.

Powers was in his early 30's, had been released from prison a few weeks earlier, and had

a positive outlook on life. For the previous 10 years, he had been mostly in prison based

on four felony convictions, including assault with a deadly weapon (a vehicle) on a police

                                             2
officer, drug sales, another assault on a police officer while in possession of a stolen gun,

and being a convicted felon in possession of a gun.

       After arriving at the party, Powers called and invited his best friend, Kawaski

Morris. In 2001, 2004 and 2010, Morris had been convicted and imprisoned for several

felonies, including assault with a deadly weapon, carrying a loaded and concealed

firearm, drug sales, and being a convicted felon in possession of a firearm. Powers

socialized with various people at the party, met several women, and did some freestyle

rapping. There was one minor "commotion" involving some guys (not Powers, Morris,

or Sutton) that broke up pretty quickly, and Powers did not even know what the

commotion was about. No other disputes occurred except for the one that immediately

preceded Sutton's death.

       A few minutes before he was shot, Sutton was having a friendly conversation with

one of the cameramen and excused himself to "take care of something." Meanwhile,

Powers and Morris were standing in front of the pool house, facing out with their backs

against the wall. They were chatting with some women who were sitting in chairs. The

last music video scene would be filmed in the pool house, and a crowd was gathering in

the area.

       The prosecution's eyewitnesses, including the party organizer, a cameraman, a

music video director, and another party attendee, presented the following account of

events from different vantage points. They observed Sutton aggressively approach

Morris and Powers, Sutton used his hand to punch Morris, and Sutton and Morris began

wrestling on the ground. The tussle was one-on-one, for "position," and not life or death.

                                              3
Sutton was a "little guy"—only about five feet tall. None of the prosecution's witnesses

saw Sutton with a gun that night, pull out any gun, or receive any assistance during the

short ground tussle. Instead, witnesses positioned with unobstructed views observed

Powers next pull out a gun from somewhere near his waist. No one saw Powers struggle

with anyone for the gun.

       Several prosecution witnesses then observed Powers shoot the gun multiple times.

Standing over Sutton, he first fired a "warning" shot in the air, and then fired three or four

more shots down. In between shots, the gun appeared to jam a couple times, and Powers

was seen manipulating the jammed pistol and chambering it. After the shooting ended

and Sutton was dead, Powers assisted Morris off the ground, bent down, removed a chain

Sutton had been wearing around his neck, and ran off.

       Powers and Morris testified at trial to a different account of events. Sutton and his

associate approached them, asked where they were from, and identified themselves as

"East Coast Crip" gang members. Sutton next told Powers and Morris to "slide those

chains," which they interpreted as an attempted robbery of their gold chain necklaces.

Powers testified that Sutton also threatened to "smack" them, i.e., shoot them, for the

chains. Morris's exact response was, "I ain't going to be able to do it. Not going to be

able to do that for you." Sutton presented a gun, demanded the chains and, within

moments, used the gun to punch Morris in the nose. In the process, Morris was knocked

to the ground and his chain was pulled off. Morris and Sutton began struggling with each

other on the ground.



                                              4
       At that point, Powers testified that he knowingly went for the gun held by Sutton

and got it quickly away; Powers wanted to defend himself and Morris, whom he loved

like a brother, and he feared for his own life. Powers could not recall and did not know

how many shots he fired until he fell back to the wall. He grabbed Morris off the ground,

helped him up, and they ran away. Morris retrieved his chain from the ground before

getting up. Powers discarded the gun and it was never found. Throughout several

postarrest interviews with law enforcement, he repeatedly denied being the shooter and

even knowing Morris.

       Prior to closing arguments, Powers requested a jury instruction on voluntary

manslaughter under sudden quarrel or heat of passion, which was denied. The trial court

found there was insufficient evidence that Powers was acting under a strong emotion or

heat of passion, and the jury would be receiving applicable instructions on both self-

defense and imperfect self-defense. Powers's motion for new trial based on the same

grounds was also denied. At the motion hearing, the court acknowledged that "fear"

could drive a defendant to kill in the heat of passion, but found the failure to instruct on

heat of passion was harmless given the jury's verdict.

                                       DISCUSSION

                                              I

                                     Guiding Principles

       We independently review a trial court's decision not to instruct on a lesser

included offense, resolving all doubts on the sufficiency of evidence to warrant an



                                              5
instruction in the defendant's favor. (People v. Avila (2009) 46 Cal.4th 680, 705; People

v. Moye (2009) 47 Cal.4th 537, 562 (Moye).)

       The trial court has a duty to instruct the jury on all lesser included offenses if there

is substantial evidence from which a jury can reasonably conclude the defendant

committed the lesser, uncharged offense, but not the greater. (People v. Breverman

(1998) 19 Cal.4th 142, 154 (Breverman).) "[T]he existence of 'any evidence, no matter

how weak' will not justify instructions on a lesser included offense, but such instructions

are required whenever evidence that the defendant is guilty only of the lesser offense is

'substantial enough to merit consideration' by the jury." (Id. at p. 162.) This instructional

requirement " 'prevents either party, whether by design or inadvertence, from forcing an

all-or-nothing choice between conviction of the stated offense on the one hand, or

complete acquittal on the other.' " (People v. Smith (2013) 57 Cal.4th 232, 239.)

       Murder is the unlawful killing of a human being with malice aforethought. (§ 187,

subd. (a).) A defendant who commits an intentional and unlawful killing but who lacks

malice is guilty of voluntary manslaughter. (§ 192.) Generally, the intent to unlawfully

kill constitutes malice. (§ 188; Moye, supra, 47 Cal.4th at p. 549.) A defendant lacks

malice when he acts in a " ' "sudden quarrel or heat of passion," ' " or kills in

" ' "unreasonable self-defense"—the unreasonable but good faith belief in having to act in

self-defense [citations].' " (Moye, at p. 549.) If substantial evidence supports both forms

of voluntary manslaughter, the trial court must instruct on both. (Breverman, supra, 19

Cal.4th at pp. 160-161.)



                                              6
       An instruction on heat of passion is not required, however, "in every case in which

the only evidence of unreasonable self-defense is the circumstance that a defendant is

attacked and consequently fears for his life." (Moye, supra, 47 Cal.4th at p. 555.) A heat

of passion theory of manslaughter has both an objective and a subjective component. (Id.

at p. 549.) The objective component requires the defendant's homicidal conduct in the

heat of passion be caused by a legally sufficient provocation. (Ibid.) "The provocative

conduct by the victim may be physical or verbal, but the conduct must be sufficiently

provocative that it would cause an ordinary person of average disposition to act rashly or

without due deliberation and reflection." (People v. Lee (1999) 20 Cal.4th 47, 59.)

       To satisfy the subjective component, the accused must be shown to have killed

while under "the actual influence of a strong passion" induced by such provocation.

(People v. Wickersham (1982) 32 Cal.3d 307, 327, disapproved on another ground in

People v. Barton (1995) 12 Cal.4th 186, 201.) "Heat of passion arises when '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.' " (Barton, at p. 201.)

                                            II

                                            A

                                    Jury Instructions

       The jury in this case was instructed both on justifiable homicide based on

reasonable self-defense, which is a complete defense to murder, and on manslaughter

                                            7
based on unreasonable or imperfect self-defense, which reduces murder to voluntary

manslaughter. (Breverman, supra, 19 Cal.4th at pp. 153-154.) At the close of evidence,

the defense also requested an instruction on sudden quarrel/heat of passion voluntary

manslaughter, which was denied. We find there was insubstantial evidence to warrant

instruction on a sudden quarrel/heat of passion theory of voluntary manslaughter.

       As our Supreme Court has discussed, not every violent "attack" may provoke a

person to kill under the influence of an intense emotion that obscures or disturbs his or

her reasoning abilities. (Moye, supra, 47 Cal.4th at pp. 554, 555.) In Moye, the

defendant testified that the victim saw him on the fatal morning, said with a smirk,

" 'Yeah, now I got you,' " and then proceeded to attack him with a baseball bat. (Id. at

p. 552.) After the victim hit him four or five times, defendant was able to grab the bat.

(Ibid.) Defendant then struck the victim again and again, each time in claimed self-

defense, and explained at trial he did not want to " ' "get beat down and possibly be

killed, so I was just worried about getting hit." ' " (Id. at p. 553.) Under these

circumstances, the court held there was not substantial evidence to support a heat of

passion jury instruction. (Ibid.) Rather, "the thrust of defendant's testimony" was self-

defense, both reasonable and unreasonable. (Id. at p. 554.)

       Here, Powers and Morris had no history of animosity with Sutton or anyone else at

the party, and there were throngs of innocent bystanders present, including dancers,

cameramen, and Platinum's older family members. Assuming that five-foot-tall Sutton

was threatening to rob them, there is no evidence to support that Morris was scared or

angry—both he and Powers were strong, adult men, accustomed to potentially violent

                                              8
confrontations. Indeed, in response to Sutton's demand for his chain, Morris either

remained quiet or stated matter-of-factly, "Not going to be able to do that for you."

Powers, who did not actually quarrel with anyone, was silent and collected enough to

observe that Sutton was quite drunk. Accepting that Sutton pulled a gun on them, Powers

instinctively went for the gun, quickly got it away from Sutton and, while in fear, fired to

defend himself and Morris. Like in Moye, the thrust of Powers's testimony was that he

acted to defend himself and Morris from imminent, further attacks.

       To support that he killed under heat of passion and great stress, Powers argues that

he testified he could not even remember how many shots he fired. But Powers apparently

took care not to shoot Morris who was, by all accounts, wrestling with Sutton on the

ground as Sutton was shot. Moreover, where Powers presented no evidence of the

number and manner of shots fired, the People supplied eyewitness testimony, expert

opinions, and physical evidence establishing that Powers's shooting was neither random

nor indiscriminate. Multiple witnesses observed Powers standing over Sutton, fire a

"warning" shot in the air to clear the area, and then point the remaining shots down at

Sutton, taking short breaks in between to manipulate the jammed gun. An investigator

opined that a fresh strike mark on the ground indicated the gun had been fired down at

least once. A forensic pathologist testified that Sutton died of multiple gunshot wounds

delivered to his neck and chest in close proximity, and he was not shot elsewhere on his

body. Based on these facts, we find that no reasonable juror could conclude that Powers

acted " ' "rashly or without due deliberation and reflection, and from . . . passion rather

than from judgment." ' " (Breverman, supra, 19 Cal.4th at p. 163.) The evidence was

                                              9
insufficient to justify an instruction on heat of passion. (Id. at p. 162.)

       Cases relied on by Powers, People v. Millbrook (2014) 222 Cal.App.4th 1122 and

People v. Thomas (2013) 218 Cal.App.4th 630, are distinguishable. In Millbrook, the

victim had acted belligerently throughout the party, engaged in intense arguments with

the defendant's girlfriend, warned defendant to " 'check your bitch' " immediately before

the shooting, was physically intimidating and much bigger in size. (Millbrook, at

p. 1140.) In Thomas, the victim and defendant had a history of disputes over parking and

whether defendant would move his car to not block the victim's and others' cars.

(Thomas, at p. 634.) On the fatal night, the victim and two other people fought with

defendant, and various accounts had defendant "crying, calling out for his father and

being dragged across the apartment parking lot." (Id. at p. 645.) The defendant was

visibly angered by these events, and believed the victim was lunging for his gun when he

fired it. (Ibid.) Millbrook and Thomas are inapposite here based on their readily

distinguishable facts.

       Under the circumstances, if the jury believed Powers's version of events, it could

find he fired in reasonable or unreasonable self-defense, but not that he was acting under

any " '[violent], intense, high-wrought or enthusiastic emotion' " that obscured his

reasoning or judgment. (People v. Berry (1976) 18 Cal.3d 509, 515.) The trial court did

not err in refusing to provide a jury instruction on a sudden quarrel/heat of passion theory

of voluntary manslaughter.

                                               B

                                  Harmless Error Analysis

                                              10
       Assuming arguendo that it was error for the trial court to fail to instruct the jury on

a heat of passion theory of voluntary manslaughter in addition to the instruction that was

given on unreasonable self-defense, the People urge us to find such error harmless under

the Watson test (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)), made applicable

to instructional errors of this sort in California trials by Breverman, supra, 19 Cal.4th at

pages 177-178. We agree that even if it was error to fail to instruct on heat of passion

voluntary manslaughter on this record, any such error was harmless as it is not reasonably

probable Powers would have obtained a more favorable outcome had the jury been so

instructed. (Id. at p. 178.)

       Under Watson, our posttrial review focuses on what a jury is likely to have done in

the absence of the error under consideration. (Breverman, supra, 19 Cal.4th at p. 177.)

"In making that evaluation, an appellate court may consider, among other things, whether

the evidence supporting the existing judgment is so relatively strong, and the evidence

supporting a different outcome is so comparatively weak, that there is no reasonable

probability the error of which the defendant complains affected the result." (Ibid.)

       Here, once the jury rejected Powers's claims of reasonable and imperfect self-

defense, there was little if any independent evidence remaining to support his further

claim that he killed in the heat of passion, and no direct testimonial evidence from

Powers himself to support an inference that he subjectively harbored such strong passion,

or acted rashly or impulsively while under its influence for reasons unrelated to his

perceived need for self-defense. The jury necessarily considered and rejected the notion

that Powers or Morris were in imminent danger or use of deadly force was necessary.

                                             11
(CALJIC No. 571.) Instead, the evidence established beyond a reasonable doubt that

Powers intentionally and methodically discharged the gun several times to shoot and kill

Sutton, after which he permanently disposed of the murder weapon and repeatedly denied

any involvement. Powers's claim that he was agitated to such an extent that he did not

know how many shots he fired or in what manner he fired was ultimately rejected by the

jury when it considered such evidence and found he had killed with malice.

       Furthermore, having rejected the factual basis for the claims of reasonable and

unreasonable self-defense, it is not reasonably probable the jury would have found the

requisite objective component of a heat of passion defense (legally sufficient

provocation) even had it been instructed on that theory of voluntary manslaughter. Upon

examining the entire cause, including the evidence, we conclude it is not "reasonably

probable" Powers would have obtained a more favorable outcome at trial had a heat of

passion instruction been given. (Watson, supra, 46 Cal.2d at p. 836; Moye, supra, 47

Cal.4th at pp. 557-558.)

                                     DISPOSITION

       The judgment is affirmed.




                                            12
                              MCINTYRE, J.

WE CONCUR:



MCDONALD, Acting P. J.



O'ROURKE, J.




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