Filed 2/4/16 P. v. Velasquez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F069497
         Plaintiff and Respondent,
                                                                            (Super. Ct. No. VCF287331A)
                   v.

FERNANDO VELASQUEZ,                                                                    Tulare County

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Tulare County. Darryl B.
Ferguson, Judge.

         Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and
Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and
William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                    INTRODUCTION
       At the conclusion of a jury trial, defendant Fernando Velasquez was found guilty
of attempted murder (Pen. Code, §§ 187, subd. (a), 664; count 1)1 and assault with a
deadly weapon (§ 245, subd. (a)(1); count 2). The jury found true allegations as to each
count that defendant personally used a knife in the commission of his offense (§ 12022,
subd. (b)(1)), personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)),
and committed the offense on behalf of a criminal street gang (§ 186.22, subd. (b)). The
court sentenced defendant to prison on count 1 for a term of life with the possibility of
parole, plus consecutive terms of three years for the great bodily injury enhancement and
one year for the weapon enhancement.2 The trial court stated that, because of the gang
enhancement, defendant would have to serve a minimum term of 15 years before he was
eligible for parole pursuant to section 186.22, subdivision (b)(5). The abstract of
judgment, however, erroneously states that defendant is to serve a 15-year determinate
sentence pursuant to section 186.22, subdivision (b)(5).
       Defendant contends the trial court erred in failing to instruct the jury on the lesser
included offense of attempted voluntary manslaughter and on the justification of self-
defense. We reject these contentions, affirm the judgment, and remand the case for
correction of clerical errors in the abstract of judgment as requested by the parties.
                                          FACTS
       Omar Moran belongs to a Sureño gang and was walking home on August 16,
2013. As a truck passed by Moran, someone in the truck “threw a 4,” holding up four
fingers. The number four is used by Norteño gangs. Moran held up three fingers, a sign
used by Sureño gangs. After a few minutes, a red car approached Moran from the



1      Unless otherwise designated, statutory references are to the Penal Code.
2      Defendant’s sentence on count 2 was stayed pursuant to section 654.


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opposite direction. Moran was not carrying a knife, a gun, or any other weapon. The car
stopped about eight feet from him.
       Moran explained that the car then made a U-turn and “tried to run … over” Moran.
The car missed him by about a foot and a half. Moran did not “throw any signs,” and
never “threw a 3” at the red car. Four occupants of the car exited and “[t]old [him] gang
signs” and “stuff,” like “Norte.” Moran responded, “South side.”
       One person began to stab Moran. Moran tried to defend himself by fighting back
with his hands. Moran was stabbed six times in his stomach, and suffered stab wounds to
“the sides” and hands. Moran tried to go to his house, but fell to the ground. Moran
required surgery and was hospitalized for over a month. While in the hospital, Moran
identified defendant from a photo lineup as the person who stabbed him. Moran was not
sure of his identification and told the jury he did not know if defendant was the person
who stabbed him.
       At 3:21 p.m. on August 16, 2013, Tulare County Sheriff’s Deputy Joel Sanchez
was dispatched to an apartment complex to investigate a reported stabbing. Sanchez was
flagged down by Antonio Rodriguez and directed to apartment number 60. At the
entryway of the apartment, Sanchez saw blood. Sanchez knew defendant, and found him
on the couch, bleeding from his right thigh. Sanchez initially thought defendant had been
the victim of a crime.
       Defendant told Sanchez he was walking home from work, “some Sureño” stabbed
him, and a friend picked him up and brought him to Rodriguez’s apartment. Defendant
said he was stabbed at Road 136 and Avenue 412 in Orosi. Defendant’s right eye was
swollen or cut. Sanchez had prior contact with defendant in 2012. Defendant told
Sanchez then: “I am a BPS Northern. Fuck you cops. I am a home boy and I am going
to kick it with my homies at jail.”
       Hugo Herrera found Moran lying on the ground between 3:30 and 4:00 p.m.
Moran could barely talk and was alone. Herrera called his wife, who called 911, and

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stayed with Moran until an ambulance arrived. Herrera saw no weapons around where
Moran was lying. He did see blood on a water pipe.
       Sanchez received a second dispatch at 3:40 p.m. to investigate a stabbing incident
at Road 136 and Avenue 412. Sanchez found Moran lying semi-conscious in a ditch after
suffering from multiple stab wounds to his torso and both forearms. Moran told Sanchez
he was walking when “a vehicle approached.” A skinny Hispanic male chased Moran
and stabbed him. Although Moran initially indicated he was riding a bicycle, Sanchez
did not find one in the area.
       Moran said he defended himself by grabbing the assailant’s arm and the knife.
Moran never indicated that he took the knife away from the assailant. Moran was alone
when the attack occurred. Three other males also exited the same car as the assailant.
One of the males said, “Fuck him, let’s go.”
       Antonio Rodriguez was associated with the Norteño gang. He pled guilty to being
an accessory to a felony, and to committing the crime for the benefit of, at the direction
of, or in association with a criminal street gang with the intent to facilitate, promote or
assist in criminal conduct by gang members. He agreed to cooperate with law
enforcement’s investigation and to “testify truthfully in any court proceeding[] arising out
of [the] incident.” In exchange, Rodriguez received a suspended prison term of five
years, three years of probation, and a year in jail.
       Rodriguez went to work the day of the incident in his girlfriend’s red Toyota
Corolla. After finishing work about 2:30 p.m., Rodriguez and another friend, Uriel, met
defendant at a market. The three smoked marijuana. Rodriguez and defendant drank
beer. Uriel sat in the front passenger seat and defendant sat in the rear passenger seat.
Rodriguez thought defendant was intoxicated.
       At the intersection of Road 136 and Avenue 412, Rodriguez turned north onto
Road 136 where he saw a bald man, Moran, walking in the middle of the street toward
their car. Rodriguez was driving slowly and had to swerve away to avoid him. Moran

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“was striking” Rodriguez’s car and “throwing gang signs.” According to Rodriguez, the
hand signals were “a Southerner gang sign” and indicated a lack of respect.
       Rodriguez passed Moran. Defendant exited the car while it was still moving.
Uriel also exited the car.
       Rodriguez turned back and watched as defendant went over and began to wrestle
with Moran. Rodriguez saw a knife in someone’s hand, but could not distinguish whose
hand was holding it. The men tried to tackle each other and Uriel threw in two or three
kicks at the back of Moran’s knees. Moran went to the ground on one knee. Right before
Uriel and defendant ran back to Rodriguez’s car, defendant was holding Moran by one
hand and swung three or four times at him.
       Uriel and defendant ran back to the car. Defendant told Rodriguez to take him to
the hospital because he had been stabbed. Defendant was holding his left leg. As they
drove away, Rodriguez saw Moran still standing his ground. Defendant told Rodriguez
not to call the ambulance because defendant believed he had stabbed Moran. Rodriguez
drove defendant to the apartment where Rodriguez was staying with his girlfriend.
       Detective Rodney Klassen questioned Moran at the hospital the day after the
assault. Moran immediately identified defendant as his assailant from a photographic
lineup. Klassen also questioned defendant at the hospital. Defendant told Klassen that he
was walking down the street when a southern gang member came out swinging a knife
and stabbed him in the leg. Defendant denied carrying a knife that day.
       Klassen was present when the car Rodriguez drove was searched. A folding Smith
and Wesson knife was found in a baby seat in the back. Its blade was locked open. A
small fixed-blade knife was found in the front seat. There was a large amount of blood
on the back seat of the car as well as a bloody shirt. The folding knife’s blade had a red
residue smear that looked like blood. The knife was tested for DNA evidence. Two
DNA samples on the knife tested positive for Moran and another tested positive for



                                             5.
Moran and defendant. Rodriguez and Uriel were eliminated as contributors of DNA on
the knife.3
                                      DISCUSSION
        ATTEMPTED VOLUNTARY MANSLAUGHTER INSTRUCTION
       Defendant contends the trial court erred in failing to instruct the jury on attempted
voluntary manslaughter because there was substantial evidence that he acted in the heat
of passion due to Moran’s provocation of defendant by throwing gang signs. Defendant
further argues the instruction is required because there was evidence he acted in
imperfect self-defense. We reject these arguments.
Heat of Passion
       Murder is the unlawful killing of a human being with malice aforethought. A
defendant who commits an intentional and unlawful killing and who lacks malice is
guilty of voluntary manslaughter. Generally, the intent to kill constitutes malice; malice
is lacking, however, when a defendant acts in a sudden quarrel or heat of passion, or
when a defendant kills in unreasonable self-defense. (People v. Breverman (1998) 19
Cal.4th 142, 153-154.)
       Because heat of passion and unreasonable self-defense reduce an intentional
unlawful killing from murder to voluntary manslaughter by negating the malice element
of homicide, voluntary manslaughter is considered a lesser necessarily included offense
of intentional murder. (People v. Breverman, supra, 19 Cal.4th at p. 154.) Neither heat
of passion nor imperfect self-defense constitute an element of voluntary manslaughter
that is affirmatively proven; instead, they are theories of partial exculpation. (People v.
Moye (2009) 47 Cal.4th 537, 549.) They must be demonstrated.




3     We do not recount the expert testimony presented at trial concerning the gang
enhancement. No issue pertaining to that evidence has been raised on appeal.


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       The provocation that incites the killer to act in heat of passion must be caused by
the victim or reasonably believed by the accused to have been engaged in by the victim.
The provocation must be enough to cause an ordinary person of average disposition to act
rashly or without due deliberation and reflection. (People v. Gutierrez (2003) 112
Cal.App.4th 704, 708-709.) Where there is no evidence in the record substantial enough
for the jury to consider the lesser included offense of attempted voluntary manslaughter
under a theory of sudden quarrel or heat of passion, the trial court has no duty to so
instruct. (Id. at p. 709.) Substantial evidence is evidence sufficient to warrant
consideration by the jury, it is not “‘“‘any evidence … no matter how weak.’”’” (People
v. Wilson (2005) 36 Cal.4th 309, 331, italics omitted.)
       Heat of passion has objective and subjective components. The victim’s conduct
must have been sufficiently provocative to cause an ordinary person of average
disposition to act rashly or without due deliberation and reflection. (People v. Enraca
(2012) 53 Cal.4th 735, 759 (Enraca); People v. Moye, supra, 47 Cal.4th at pp. 549-550.)
“The standard is not the reaction of a ‘reasonable gang member.’” (Enraca, supra, 53
Cal.4th at p. 759; see People v. Humphrey (1996) 13 Cal.4th 1073, 1087.) Subjectively,
the accused must be shown to have killed while under the influence of a strong passion
induced by such provocation. (Enraca, supra, 53 Cal.4th at p. 759.)
       We agree with the People that there was no evidence the assault and stabbing of
Moran was anything other than a response to a rival gang member flashing a sign which
defendant interpreted as disrespectful to defendant’s gang. As noted above, the objective
standard of heat of passion is not that of a reasonable gang member, it is the response of
an ordinary person of average disposition. Reasonable people do not become
homicidally enraged when perceiving a fleeting challenge to a gang. (People v. Avila
(2009) 46 Cal.4th 680, 706.) Here, the victim’s act of throwing a gang sign was not
sufficiently provocative to warrant an instruction on attempted voluntary manslaughter.



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       Imperfect Self-Defense
       Defendant further argues the instruction was nevertheless necessary because there
was evidence from which it could be implied he acted in imperfect self-defense. The
instruction should be given whenever there is evidence from which the jury could
reasonably conclude the defendant acted in an unreasonable but good faith belief he or
she had to act in self-defense. (People v. Rogers (2006) 39 Cal.4th 826, 882-883.)
Imperfect self-defense mitigates rather than justifies homicide or, in this case, attempted
homicide, by negating the element of malice. (People v. Bryant (2013) 56 Cal.4th 959,
968.) As previously stated, substantial evidence, however, is not any evidence no matter
how weak. It is evidence from which a reasonable jury could conclude the defendant was
guilty only of manslaughter. (People v. Moye, supra, 47 Cal.4th at p. 553.)
       The evidence defendant asserts as supporting his claim of imperfect self-defense is
his own knife wound. Defendant told Sanchez someone attacked him and told Klassen in
the hospital that he was attacked by a southern gang member wielding a knife who
stabbed him in the leg. Defendant said he was walking when attacked, and only got a car
ride after he was assaulted. Defendant, however, failed to clearly identify his attacker.
This evidence is weak, uncorroborated, and inconsistent with the testimony of Rodriguez,
Moran, and the investigators. It is therefore insufficient to warrant an attempted
voluntary manslaughter instruction based on imperfect self-defense.
       The evidence adduced at trial was that after Moran “thr[ew] gang signs,”
defendant became so enraged that he jumped out of the car while it was still moving and
attacked Moran with a knife. Although Rodriguez could not see who was holding the
knife as Moran and defendant wrestled, after Moran was kicked by Uriel and fell to his
knee, defendant slashed at Moran two or three times. A bloody knife was found in
Rodriguez’s car with DNA from Moran and defendant. No knife was found on Moran or
around where he was lying in the road. Although there were two knives found in the car
Rodriguez was driving, only one had blood on it.

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       The evidence further presented that defendant attacked Moran, the two wrestled
briefly, and Moran suffered multiple knife wounds to his torso and his arms. Defendant
suffered a single wound to his leg. Moran undeniably resisted defendant’s attack. There
is no evidence to support a theory that Moran escalated defendant’s knife attack, even
though defendant also suffered a knife wound. Imperfect self-defense does not apply if a
defendant’s conduct creates circumstances where the victim is legally justified in
resorting to self-defense against the defendant. The doctrine cannot be invoked by a
defendant who, through his own wrongful conduct—such as initiating a physical assault
or the commission of a felony—has created circumstances under which his adversary’s
attack or pursuit is legally justified. (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.)
As the initial aggressor, defendant may not rely on imperfect self-defense. (People v.
Seaton (2001) 26 Cal.4th 598, 664; People v. Frandsen (2011) 196 Cal.App.4th 266,
271-272.)
       Given the evidence, no reasonable jury could conclude defendant committed only
attempted voluntary manslaughter based on either heat of passion or imperfect self-
defense.
                            SELF-DEFENSE INSTRUCTION
       Defendant contends the trial court erred in failing to sua sponte instruct the jury on
on self-defense with CALCRIM Nos. 3470 and 3471.4 We disagree.


4   Combined, CALCRIM Nos. 3470 and 3471 are lengthy. In relevant part,
CALCRIM No. 3470 provides:

       “Self-defense is a defense to ________ <insert list of pertinent crimes
       charged>. The defendant is not guilty of (that/those crime[s]) if (he/she)
       used force against the other person in lawful (self-defense/ [or] defense of
       another). The defendant acted in lawful (self-defense/ [or] defense of
       another) if;

              “1.     The defendant reasonably believed that (he/she/ [or] someone
                      else/ [or] ______ <insert name of third party>) was in

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              imminent danger of suffering bodily injury [or was in
              imminent danger of being touched unlawfully];

       “2.    The defendant reasonably believed that the immediate use of
              force was necessary to defend against that danger;

       “AND

       “3.    The defendant used no more force than was reasonably
              necessary to defend against that danger.”

CALCRIM No. 3471 states:

“A person who (engages in mutual combat/ [or who] starts a fight) has a
right to self-defense only if:

       “1.    (He/She) actually and in good faith tried to stop fighting;

       “[AND]

       “2.    (He/She) indicated, by word or by conduct, to (his/her)
              opponent, in a way that a reasonable person would
              understand, that (he/she) wanted to stop fighting and that
              (he/she) had stopped fighting(;/.)

       “<Give element 3 in cases of mutual combat.>

       “[AND

       “3.    (He/She) gave (his/her) opponent a chance to stop fighting.]

“If the defendant meets these requirements, (he/she) then had a right to self-
defense if the opponent continued to fight.

“[However, if the defendant used only non-deadly force, and the opponent
responded with such sudden and deadly force that the defendant could not
withdraw from the fight, then the defendant had the right to defend
(himself/herself) with deadly force and was not required to try to stop
fighting(,/ or) communicate the desire to stop to the opponent[, or give the
opponent a chance to stop fighting].]

“[A fight is mutual combat when it began or continued by mutual consent
or agreement. That agreement may be expressly stated or implied and must
occur before the claim to self-defense arose.]”

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       For a killing to be in self-defense, the defendant must actually and reasonably
believe in the need to defend himself or herself. If the belief subjectively exists but is
objectively unreasonable, there is imperfect self-defense which negates the element of
malice. (People v. Humphrey, supra, 13 Cal.4th at p. 1082.) To constitute perfect self-
defense, the belief must be objectively reasonable. The circumstances must be sufficient
to excite the fears of a reasonable person. Fear of future harm—no matter how great the
fear and likelihood—does not suffice. The defendant’s fear must be of imminent danger
to life or great bodily injury. (People v. Humphrey, supra, 13 Cal.4th at p. 1082; People
v. Romero (1999) 69 Cal.App.4th 846, 853; see §§ 197 & 198.) In determining whether
the defendant acted as a reasonable person would act, the jury must consider all the facts
and circumstances. (People v. Humphrey, supra, 13 Cal.4th. at p. 1083.)
       During the discussion between the court and counsel concerning jury instructions,
the prosecutor asked that no self-defense instruction be given. Defense counsel agreed
that, even if Moran had come into possession of the knife during the attack, there was no
evidence of self-defense. Defendant’s trial counsel accurately summarized the state of
the evidence and properly declined a self-defense instruction. There was no evidence
presented that Moran escalated the violence. The overwhelming evidence presented at
trial was that defendant initiated and continued the attack.
       Finally, even if there was evidence of perfect or imperfect self-defense, the failure
to give instructions on either theory was harmless beyond a reasonable doubt under
Chapman v. California (1967) 386 U.S. 18. The only evidence supporting defendant’s
perfect and imperfect self-defense theories was his own knife wound and his statement to
investigators that a southern gang member attacked him. Again, he not only failed to
identify Moran as his attacker, he did not testify to this point at trial. The testimony of
Moran, Rodriguez, and the investigators all pointed to defendant as the initiator and sole
attacker of Moran. There was no evidence Moran was armed. Blood on the knife found
in the car Rodriguez was driving had the DNA of Moran and defendant. Given the

                                             11.
overwhelming evidence adduced at trial, we find beyond a reasonable doubt that no jury
could reasonably find defendant was initially attacked by the victim or that the victim
escalated whatever violence defendant initiated. (Ibid.)
                                  CLERICAL ERROR
       In addition to his indeterminate sentence, the trial court sentenced defendant to a
determinate term of three years for the great bodily injury enhancement plus a
consecutive term of one year for personally using a knife. The trial court stated that
because of the gang enhancement, defendant would have to serve a minimum term of 15
years before he was eligible for parole pursuant to section 186.22, subdivision (b)(5).
The court stated defendant’s total prison term was life plus four years with 15 years prior
to being eligible for parole. The abstract of judgment, however, states defendant’s total
determinate sentence is 19 years based on the four years described above plus an
additional 15 years pursuant to section 186.22, subdivision (b)(5). Defendant contends,
and the People concede, the abstract of judgment erroneously states the trial court’s
sentence and must be remanded for amendment. We agree.
       Clerical error can be corrected at any time, including on appeal. (People v.
Mitchell (2001) 26 Cal.4th 181, 185; In re Candelario (1970) 3 Cal.3d 702, 705.) The
error in the abstract of judgment does not follow the trial court’s judgment announced
during the sentencing hearing or the minute order of the proceedings. It therefore
constitutes clerical error and the case is remanded for preparation of an amended abstract
of judgment.
                                     DISPOSITION
       The case is remanded for the trial court to amend the abstract of judgment to
reflect that, pursuant to Penal Code section 186.22, subdivision (b)(5), defendant is not
eligible for parole until a minimum of 15 calendar years have been served, and
defendant’s total determinate sentence is four years. The trial court shall forward the
amended abstract to the appropriate authorities.

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    The judgment is affirmed.



                                      _____________________
                                                 DETJEN, J.
WE CONCUR:


_____________________
GOMES, Acting P.J.


_____________________
POOCHIGIAN, J.




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