Filed 2/6/14 P. v. Patterson CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B245169

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA373124)
         v.

RANDOLPH PATTERSON,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Drew E.
Edwards, Judge. Affirmed.


         Lynda A. Romero, 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, Linda C. Johnson and Theresa A.
Patterson, Deputy Attorneys General, for Plaintiff and Respondent.


                                    ______________________________
       Randolph Patterson appeals from a judgment of conviction for the murder of
Frankie Ogburn. Patterson contends the trial court erred when it refused to instruct the
jury on the lesser included offense of voluntary manslaughter. Patterson also contends
the trial court erred in imposing $240 restitution and parole revocation fines. We affirm
the judgment.
                                          FACTS
       Kimberly Rodrigues was in an on-again, off-again relationship with Frankie
Ogburn in the summer of 2010. They had a son together, who was almost two years old
at the time of the incident. Rodrigues also had two daughters, who were 10 and 8, from a
different relationship. On June 30, 2010, Rodrigues and Ogburn were in the car with the
three children when they began to argue. After they arrived at Ogburn’s home, he
transferred the children to Rodrigues’ car and continued the argument with Rodrigues in
his car. Rodrigues had arranged for Ogburn to purchase a prescription for oxycontin so
he could sell the pills to pay for their son’s second birthday party. When they discovered
the prescription was fake, Ogburn became upset and demanded Rodrigues tell him the
location of the person who sold the prescription to him. Rodrigues called her cousin to
ask him about getting Ogburn’s money back. Rodrigues’ cousin refused.
       Ogburn then began to punch Rodrigues. He also tried to keep her in his car.
Rodrigues swung her purse at Ogburn and split his lip in an attempt to get away. Ogburn
followed her out of the car and took her phone. He offered to return her phone if she paid
him the $400 he lost in the scheme. He told her she could retrieve the phone from his
mailbox if she put $400 there in exchange. Rodrigues drove the children to her aunt’s
house in Inglewood and left them there. Rodrigues then called Ogburn’s mother to tell
her what had happened. Ogburn’s mother told Rodrigues she should calm down and that
she should not give him her “rent money.”
       Rodrigues drove back to Ogburn’s home to retrieve her cell phone from the
mailbox. Ogburn arrived soon afterwards to find that she had not put the $400 in the
mailbox. He became incensed. He had a “tussle” with Rodrigues and threw her phone
into the middle of the street, breaking it. When she tried to leave in her car, he jumped in

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front of it and kicked her windshield out. After he finally got off the car, Rodrigues
drove to a nearby police station to report the incident.
       While Rodrigues was at the police station, Natasha Kentish, Rodrigues’ sister,
learned of the incident and became enraged. She told her boyfriend, Patterson, and her
son, Devon, about the incident. They agreed to confront Ogburn. Patterson’s daughter,
Yvette Posey, reluctantly drove them to Ogburn’s home. When they arrived, Patterson
remained in the car while Kentish and Devon knocked on Ogburn’s door. Ogburn was
not there and they returned to the car. As Posey began to pull away, Ogburn turned into
the driveway and drove behind the apartment building. Kentish and Devon got out of the
car to go after Ogburn. Shortly afterwards, Patterson followed them.
       Posey waited outside. After a few minutes, she heard a sound like a firecracker or
gunshot. Kentish and Devon came running up to the car. Kentish shouted that Patterson
had just shot Ogburn. Posey looked back to the apartment building and saw her father
walk down the driveway. He got into the car and Posey drove off. While she drove, she
yelled at him for getting her involved. Kentish asked for the gun and Patterson passed it
to her. Kentish put the gun underneath her. By that time, the police were following
them. The gun was recovered from the floorboard under the front passenger seat, where
Kentish had been sitting.
       Patterson’s statement to the police at the scene was recorded1 and played for the
jury at trial. In the recording, Patterson admitted to killing Ogburn. He explained that he
shot him because “he was jumping on my sister-in-law, and he was holding her
motherfucking hostage.” Patterson stated that he “walked up to him like a motherfucking
man and he started talking to me like I was a bitch and I showed him what a bitch is.”
Patterson denied he intended to shoot Ogburn, only bringing the gun because Ogburn was
a gangbanger, but “he started talking that motherfucking shit to me. And when he started
that motherfucking shit to me, I did what the fuck I had to do . . . And since he wanted to
be a bitch, I’m going to treat him like a bitch.”

1
      Patterson was read his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436
(Miranda), and waived them.

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       Patterson was Mirandized for a second time at a videotaped interview at the police
station. He again admitted to shooting Ogburn. That tape was also played to the jury at
trial. Patterson explained that Devon called him to tell him that Rodrigues was being
held and beaten by Ogburn. He “went over there with the intention on not escalating the
situation but coming to some kind of understanding with this idiot about putting his hands
on my sister-in-law.” He admitted, however, that he intended “to beat his motherfucking
ass.” When they arrived at Ogburn’s home, he stayed in the car because neither
Ogburn’s nor Rodrigues’ car was there. When Ogburn arrived, he got out of the car
because he did not want Natasha to “get beat up” or Devon to get “mixed up in any
bullshit.”
       When Patterson confronted Ogburn about what happened with Rodrigues, Ogburn
replied, “Fuck you.” Patterson told Devon “to sprint off” because he knew the situation
was about to escalate. Ogburn continued to curse at him after Patterson showed him the
gun in his waistband. Ogburn then dared him to “[g]o ahead and blast” him. Patterson
shot him in the chest. Patterson explained, “[h]e asked me to do it and I did it because I
don’t appreciate no man bullying no female. He’s a young-ass gangbanger nothing ass
bully.” At the time Patterson shot him, Ogburn was standing in front of him next to his
car. Patterson noticed Ogburn had something in his hand but he “[didn’t] know what the
fuck he had.” While he was in custody, Patterson told his daughter that he shot Ogburn
in the chest because Ogburn was arguing with him and “gang-banging” him.
       Patterson was charged with the murder of Ogburn. An amended information
alleged one count of murder pursuant to Penal Code section 187, subdivision (a)2 with
additional firearm enhancement allegations pursuant to section 12022.53, subdivisions
(b)-(d). The information further charged Patterson with a second count of possession of a
firearm by a convicted felon in violation of section 12021, subdivision (a)(1) and a third
count of possession of ammunition, in violation of section 12316, subdivision (b)(1).
It was further alleged that Patterson suffered two prior serious felony convictions within

2
       All further section references are to the Penal Code unless otherwise stated.

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the meaning of section 667, subdivision (a)(1), and that he had suffered two prior serious
or violent felony convictions within the meaning of the Three Strikes law. (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d).)
       At trial, Rodrigues and Posey testified to the events described above. Ogburn’s
neighbor, Sean Nunez, confirmed their testimony. He observed Ogburn’s fight with
Rodrigues. He later saw three people, whom he identified as Kentish, Devon and
Patterson, walk to the back of Ogburn’s apartment building. He heard a shot ring out.
He then saw Patterson walk back to a black truck with a gun in his hand. Nunez called
911 and when he walked to the back of the apartment building, he saw Ogburn lying
against his back door. Officers responding to the incident found him on the ground next
to the driver’s side door of a car parked in the driveway. Rock cocaine was found in the
car.
       The jury found Patterson guilty as charged on all three counts and also found true
the firearm enhancement allegations. Patterson waived his right to a trial on the prior
conviction allegations and admitted to a prior burglary conviction, which qualified as a
prior serious felony conviction under section 667, subdivision (a)(1) as well as a strike
under the Three Strikes law. In exchange for his admission of the prior conviction, the
remaining prior conviction allegations were dismissed by the trial court. The trial court
sentenced Patterson to a total of 55 years to life in state prison and ordered him to pay
$7,288.60 in restitution to the Victim Compensation and Government Claims Board as
well as $500 in restitution to Jill Ogburn. The trial court also imposed a $240 restitution
fine and a $240 parole revocation fine that was stayed pending the successful completion
of parole. Other fines and fees were imposed. Patterson appealed.
                                       DISCUSSION
I.     Voluntary Manslaughter Instructions
       At trial, Patterson requested jury instructions on voluntary manslaughter based on
theories of heat of passion and imperfect self-defense. The trial court denied the request,
finding no substantial evidence to support either theory. On appeal, Patterson contends
the trial court’s ruling was in error because evidence of Ogburn’s treatment of his “sister-

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in-law” and Ogburn’s hostile behavior towards Patterson supported an instruction for
voluntary manslaughter based on heat of passion or provocation. He also contends that
Ogburn’s penchant for violence, his gang affiliation and the fact that he held “something”
in his hand supported a theory of imperfect self-defense. We disagree.
       A trial court must instruct on a lesser included offense if substantial evidence
exists indicating that the defendant is guilty only of the lesser offense. (People v.
Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) Substantial evidence is evidence
from which a jury composed of reasonable persons could conclude that the lesser offense,
but not the greater, was committed. (People v. Barton (1995) 12 Cal.4th 186, 194-195
(Barton).) In determining whether substantial evidence exists to support instruction on a
lesser included offense, we do not evaluate the credibility of witnesses. (People v.
Manriquez (2005) 37 Cal. 4th 547, 585 (Manriquez).) We independently review whether
the trial court erred by failing to instruct on a lesser included offense. (Id. at p. 584.)
       Manslaughter is a lesser included offense of intentional murder. (Breverman,
supra, 19 Cal.4th at p. 154.) In order to convict a person of second degree murder, the
prosecution must prove not only that the person committed the fatal act but that he did so
with “malice aforethought.” (People v. Love (1980) 111 Cal.App.3d 98, 105.)
Manslaughter, on the other hand, is defined as “the unlawful killing of a human being
without malice.” (§ 192.) The element of malice is what differentiates murder from
manslaughter. Malice is absent when the defendant acts upon a sudden quarrel or heat of
passion on sufficient provocation (§ 192, subd. (a)), or kills in the unreasonable, but good
faith, belief that deadly force is necessary in self-defense, (In re Christian S. (1994) 7
Cal. 4th 768, 783). These circumstances negate malice when a defendant intends to kill.
(Barton, supra, 12 Cal.4th at p. 199; People v. Lee (1999) 20 Cal.4th 47, 58-59 (Lee).)
       A. Heat of Passion Instruction
       The heat of passion requirement for manslaughter has both an objective and a
subjective component: (1) the defendant must actually and subjectively kill under the
heat of passion and (2) “this heat of passion must be such a passion as would naturally be
aroused in the mind of an ordinarily reasonable person under the given facts and

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circumstances . . . .” (People v. Logan (1917) 175 Cal. 45, 49; People v. Wickersham
(1982) 32 Cal.3d 307, 326–327.) “To satisfy the objective or ‘reasonable person’
element of this form of voluntary manslaughter, the accused’s heat of passion must be
due to ‘sufficient provocation.’ [Citation.]” (People v. Wickersham, supra, 32 Cal.3d at
p. 326.) The provocation which incites the defendant to homicidal conduct in the heat of
passion may be physical or verbal, although verbal provocation “must be such that an
average, sober person would be so inflamed that he or she would lose reason and
judgment.” (Lee, supra, 20 Cal.4th at p. 60.)
       Patterson contends that there was substantial evidence from which the jury could
reasonably infer the killing was committed in the heat of passion. In particular, Patterson
argues he was provoked by Ogburn’s treatment of Rodrigues, whom he considered to be
family. He also asserts he was provoked by Ogburn’s profanity-laced tirade against him.
We find neither circumstance supported a heat of passion instruction to the jury.
       There is no evidence that Ogburn’s treatment of Rodrigues actually incited
Patterson’s passions. Indeed, the record shows that Patterson was calm throughout the
incident. Patterson told the police that he initially stayed in the car because it appeared
the situation had been resolved since neither Rodrigues’ nor Ogburn’s car was at
Ogburn’s house. Posey testified that Patterson did not appear distressed, even after he
shot Ogburn. While Kentish and Devon raced back to the car, Posey noted that Patterson
walked slowly back and adjusted his coat. Patterson admitted to the police he had no
intention of escalating the situation when he agreed to confront Ogburn, but merely
“coming to some kind of understanding with this idiot about putting his hands on my
sister-in-law.” The record shows that the subjective component of the heat of passion
theory clearly was not satisfied.
       Neither are we convinced that Ogburn’s profane tirade against Patterson was
sufficient to provoke a reasonable person under the objective standard. Ogburn told
Patterson, “Nigger, fuck you bitch ass motherfucker” and dared Patterson to “blast” him.
In Manriquez, the victim called the defendant “a mother fucker,” asked him whether he
had a gun, and dared him to use it. (Manriquez, supra, at pp. 585-586.) The high court

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held these actions “plainly were insufficient to cause an average person to become so
inflamed as to lose reason and judgment.” (Id. at p. 586; see also People v. Oropeza
(2007) 151 Cal.App.4th 73, 76, 83 [mutual yelling and offensive hand gestures
exchanged between two cars on highway did not constitute adequate provocation for
passenger of one car to shoot at other car].) Even if we accept that Ogburn’s behavior
towards Patterson incited Patterson to rage or passion, Manriquez tells us that it was
insufficient to cause an average person to become so inflamed as to lose reason and
judgment.
       For this reason, we do not credit Patterson’s reliance on People v. Thomas (2013)
218 Cal.App.4th 630 (Thomas). In Thomas, the appellate court found that the evidence
was sufficient to support a finding that the defendant’s passion was aroused and his
reason obscured when he shot the victim. As a result, the trial court erred when it refused
to instruct the jury on voluntary manslaughter based on a theory of heat of passion.
(Id. at pp. 633, 645.) The defendant in Thomas got into a physical altercation with the
victim’s friends, who overpowered him. The defendant was crying and testified that he
was afraid, nervous, and not thinking clearly. (Id. at p. 645.) The defendant then
retrieved an assault weapon and pulled the trigger when the victim appeared to lunge at
him. (Id. at pp. 645-646.) Unlike Manriquez, the Thomas court did not expressly address
the objective component of a heat of passion instruction, merely the subjective one.
Because the objective component has not been fulfilled in this case, the Thomas case is
not controlling; the trial court was not required to instruct the jury on voluntary
manslaughter based on a theory of heat of passion.
       B. Imperfect Self-Defense
       There are two types of self-defense under California law: “perfect” self-defense
and “imperfect” self-defense. (People v. Randle (2005) 35 Cal.4th 987, 994 (Randle),
overruled on other grounds in People v. Chun (2009) 45 Cal.4th 1172, 1198-1199).)
Both types require that the defendant actually believe he was in “imminent danger of
death or great bodily injury . . . .” (Randle, supra, at p. 994.) If that belief is reasonable
“‘from the point of view of a reasonable person in the [defendant’s] position,’” the

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defendant has acted in perfect self-defense and the homicide is justified and not a crime
at all. (People v. Humphrey (1996) 13 Cal.4th 1073, 1083, quoting People v. McGee
(1947) 31 Cal.2d 229, 238; § 197, subd. (1).) If that belief is subjectively reasonable, but
not objectively reasonable, it still negates the malice element of murder. If the defendant
is guilty, at most it is of the lesser-included offense of voluntary manslaughter. (In re
Christian S. (1994) 7 Cal.4th 768, 773.) “Imperfect” self-defense is accordingly not a
defense, but rather an instruction on a lesser-included offense. (Manriquez, supra, 37
Cal.4th at p. 581.)
       The record does not support a finding that Patterson actually believed he was in
imminent danger of death or great bodily injury. There was no indication Ogburn had a
gun or any weapon. The police did not find Ogburn with a gun or weapon. Ogburn
never brandished a weapon during the incident with Rodrigues. Although Patterson said
Ogburn held “something” in his hand, he acknowledged he did not know what it was and
he never claimed it was a weapon. Despite Patterson’s belief that Ogburn was violent,
Ogburn did not become physically aggressive with Patterson. When Patterson showed
Ogburn his gun in his waistband, Ogburn did not brandish a weapon in response, nor did
he try to attack Patterson. Instead, Ogburn taunted Patterson with profanity and dared
him to shoot him. This evidence precludes any argument that Patterson was actually in
fear of imminent harm or death.
II.    Restitution and Parole Revocation Fines
       At sentencing, the trial court imposed various fines and restitution. Among them,
the trial court ordered Patterson to pay a “restitution fine of $240.” The court also
ordered, “If Mr. Patterson were to be placed on parole and violate, there is an additional
fine of $240.” Patterson contends the trial court erred when it imposed these fines
because the trial court mistakenly believed the minimum restitution fine to be $240 when
it was $200.
       Section 1202.4 provides: “In every case where a person is convicted of a crime,
the court shall impose a separate and additional restitution fine, unless it finds compelling
and extraordinary reasons for not doing so and states those reasons on the record.”

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(§ 1202.4, subd. (b).) “The restitution fine shall be set at the discretion of the court and
commensurate with the seriousness of the offense. If the person is convicted of a felony,
the fine shall not be less than two hundred forty dollars ($240) starting on January 1,
2012 . . . .” (§ 1202.4, subd. (b)(1).) Prior to 2012, the minimum fine under section
1202.4 was $200. (former § 1202.4, amended by Stats. 1996, ch. 629, § 3.) A restitution
fine under section 1202.4 is subject to the ex post facto clause of the Constitution.
(See People v. Souza (2012) 54 Cal.4th 90, 143.) Thus, any restitution fine imposed
under section 1202.4 was subject to the $200 minimum applicable at the time of the
conviction rather than the $240 minimum applicable at the time of sentencing.
       Patterson surmises “the court intended to impose the minimum fine permitted by
law, and that minimum was $200 for each fine.” Accordingly, Patterson urges us to
reduce the restitution and parole revocation fines to $200 each from $240 each. Nowhere
in the record, however, does the trial court indicate it intended to impose the minimum
fine under section 1202.4. The trial court is provided wide latitude under section 1202.4
to impose a fine between $200 to $10,000. Patterson does not argue that the trial court
abused its discretion in imposing the $240 fines. Patterson has presented no supported
reason, beyond conjecture, to reduce these fines. As a result, we decline to do so.
                                      DISPOSITION
       The judgment is affirmed.




                                                          BIGELOW, P. J.
We concur:


              RUBIN, J.




              GRIMES, J.



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