Filed 10/18/13 P. v Beltran CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E055972

v.                                                                       (Super.Ct.No. BLF1100112)

EDGAR NUNEZ BELTRAN,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge.

Affirmed.

         Gregory Marshall, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Charles C.

Ragland, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       A jury found Edgar Nunez Beltran, defendant and appellant (defendant), guilty of

involuntary manslaughter (Pen. Code, § 192, subd. (b)),1 as a lesser included offense of

the charged crime of murder, and further found true the special allegation defendant used

a firearm in committing the crime (12022.5, subd. (a)). In this appeal from the judgment

entered after the trial court sentenced him to serve a total of 14 years in state prison,

defendant contends, first, the evidence does not support the jury‟s guilty verdict; next, the

trial court erred by failing to instruct the jury on the defense of necessity; and, finally,

that the trial court incorrectly instructed the jury on the legal principles pertinent to the

defense based on defending others from imminent injury. We conclude, as we explain

below, defendant‟s claims are meritless. Therefore, we will affirm the judgment.

                                           FACTS

       The facts are not disputed. Defendant was at a bar in Blythe when his girlfriend

(Kiralina Pena) was assaulted by her former roommate (Erica Urias), and the two got into

a fight. The former roommate‟s boyfriend (Pookie) was bent over, apparently trying to

break up the fight (although initially he prevented anyone else from doing so), when

defendant whacked him on the back with a loaded gun,2 the gun fired, and the bullet hit



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

       2  According to witnesses, defendant said, “Bro, hand me the burner” to someone
standing near him, possibly one of his brothers. Defendant then extended his hand back
behind him to get the gun. Then he swung his arm up and over his head so that the hand
with the gun came down on Pookie‟s back. Witnesses described defendant holding the
gun as if he intended to “pistol whip,” Pookie, i.e., defendant held the gun as though he
were going to fire the weapon, with his finger on the trigger.


                                               2
and killed Yanika Daniels, who was trying to break up the fight because Daniels was

celebrating her birthday and did not want any fighting during her party. Additional facts

will be recounted below as pertinent to our resolution of the issues defendant raises in

this appeal.

                                      DISCUSSION

       Despite his sufficiency of the evidence claim, defendant‟s contentions on appeal

actually turn on the trial court‟s instructions to the jury. Therefore, we address those

claims first, even though defendant‟s challenge to the sufficiency of the evidence would

be dispositive, if correct.

                                             1.

                                 JURY INSTRUCTIONS

                                  A. Defense of Others

       Defendant contends the trial court incorrectly instructed the jury according to

CALCRIM No. 505, which applies when a person uses lethal force to defend another




                                              3
person.3 Defendant asserts the evidence shows he did not intentionally use lethal force to

defend Kiralina; he used the gun as a bludgeon, and it fired accidentally. Therefore,

defendant claims the trial court either should have made appropriate changes to

CALCRIM No. 505, or should have given the generic version of the defense of another

instruction set out in CALCRIM No. 3470.

       Defendant‟s argument has initial appeal. The evidence does suggest defendant did

not fire the gun before he used it to hit Pookie, and therefore the trial court should have

instructed the jury according to CALCRIM No. 3470, which would have instructed the

jury, among other things, that defendant acted in lawful defense of Kiralina if he

reasonably believed (1) Kiralina was in imminent danger of suffering bodily injury;

       3  The trial court instructed the jury according to CALCRIM No. 505, “The
defendant is not guilty of murder or manslaughter if he was justified in killing someone
in defense of another. The defendant acted in lawful defense of another if, [¶] Number
one, he reasonably believed that Kiralina Pena was in imminent danger of being killed or
suffering great bodily injury; and [¶] He reasonably believed that the immediate use of
deadly force was necessary to defend against that danger; and [¶] The defendant used no
more force than was reasonably necessary to defend against that danger. [¶] Belief in
future harm is not sufficient no matter how great or how likely the harm is believed to be.
[¶] The defendant must have believed that there was imminent danger of a great bodily
injury to someone else. [¶] Defendant‟s belief must have been reasonable and he must
have acted only because of that belief. The defendant is only entitled to use that amount
of force that a reasonable person would believe is necessary in the same situation. [¶] If
the defendant used more force than was reasonable, the killing is not justified. In
deciding whether the defendant‟s beliefs were reasonable, consider all the circumstances
as they were known to and appeared to the defendant and consider what a reasonable
person in a similar situation with similar knowledge would have believed. [¶] If the
defendant‟s beliefs were reasonable, the danger does not need to have actually existed.
[¶] Great bodily injury [means some significant or substantial physical injury. It‟s an
injury that is greater than minor or moderate harm]. [¶] The People have the burden of
proving . . . beyond a reasonable doubt that the killing was not justified. If the People
have not met this burden, you must find the defendant not guilty of murder or
manslaughter.”


                                              4
(2) the immediate use of force was necessary to defend against that danger; and (3) he did

not use more force than was reasonably necessary to defend Kiralina from the danger of

suffering bodily injury. (See CALCRIM No. 3470 (2013), p. 959.)

       The problem with his argument is that defendant did not ask the trial court to

modify CALCRIM No. 505, or request the trial court give the generic defense of others

instruction. It is well settled that “„defendant is not entitled to remain mute at trial and

scream foul on appeal for the court‟s failure to expand, modify, and refine standardized

jury instructions.‟” (People v. Valentine (2001) 93 Cal.App.4th 1241, 1246-1247.) By

failing to request modification of CALCRIM No. 505, or asking the trial court to give

CALCRIM No. 3470, defendant has forfeited his right to assert the jury instruction

challenge on appeal. (People v. Dennis (1998) 17 Cal.4th 468, 514.)

       Moreover, the evidence supports a reasonable inference defendant intended to fire

the gun after he first used it to hit Pookie. Although that became irrelevant once the gun

discharged and killed Yanika Daniels, the evidence nevertheless supports giving

CALCRIM No. 505 in this case. Therefore, we must reject this claim of error.

                                   B. Necessity Defense

       Defendant also contends the evidence supports the defense of necessity, and

therefore the trial court erred by refusing his request to give a necessity instruction.

Again, we disagree.

       “To justify an instruction on the defense of necessity, a defendant must present

evidence sufficient to establish that []he violated the law (1) to prevent a significant and

imminent evil, (2) with no reasonable legal alternative, (3) without creating a greater


                                               5
danger than the one avoided, (4) with a good faith belief that the criminal act was

necessary to prevent the greater harm, (5) with such belief being objectively reasonable,

and (6) under circumstances in which []he did not substantially contribute to the

emergency.” (People v. Kearns (1997) 55 Cal.App.4th 1128, 1135.)

       Defendant did not present evidence to establish any of the requisite elements of a

necessity defense. Most glaring in our view is defendant‟s failure to show evidence of

the lack of a reasonable legal alternative. Various reasonable legal alternatives occur to

us, beginning with defendant enlisting the aid of his brothers and other family members,

who apparently were with defendant at the bar, to physically pull the women apart and

break up the fight. Or, if all else failed, defendant could have called the police. Because

defendant did not present such evidence at trial, the trial court correctly found the

evidence did not support giving a necessity instruction.

                                             2.

                         SUFFICIENCY OF THE EVIDENCE

       Defendant contends the evidence is insufficient to support the jury‟s verdict

finding him guilty of involuntary manslaughter because the evidence did not show he

committed an unlawful act or that he did not act in defense of Kiralina. We disagree.

                                  A. Standard of Review

       “In addressing a challenge to the sufficiency of the evidence supporting a

conviction, the reviewing court must examine the whole record in the light most

favorable to the judgment to determine whether it discloses substantial evidence—

evidence that is reasonable, credible and of solid value—such that a reasonable trier of


                                              6
fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate

court presumes in support of the judgment the existence of every fact the trier could

reasonably deduce from the evidence. [Citations.]” (People v. Kraft (2000) 23 Cal.4th

978, 1053.)

                                       B. Analysis

       Involuntary manslaughter is the unlawful killing of a human being without malice

“in the commission of an unlawful act, not amounting to [a] felony; or in the commission

of a lawful act which might produce death, in an unlawful manner, or without due caution

[and] circumspection.” (§ 192, subd. (b).) The prosecutor in this case elected to proceed

only on the theory that defendant committed a lawful act in an unlawful manner or

without due caution or circumspection. Accordingly, the trial court instructed the jury

that in order to find defendant guilty of involuntary manslaughter, the People had to

prove (1) defendant committed a lawful act but in an unlawful manner; (2) defendant

committed an act with criminal negligence; and (3) his act unlawfully caused the death of

another person. The People alleged defendant committed the lawful act of defense of

another person with criminal negligence. The trial court also instructed the jury that a

person acts with criminal negligence when he acts in a reckless way that creates a high

risk of death or great bodily injury, and that a reasonable person would have known

acting in that way would create such a risk.




                                               7
       According to the evidence presented at trial, defendant used a loaded firearm to hit

Pookie on the back in order to break up the fight between Kiralina and Erica and defend

Kiralina from physical harm. As previously described, defendant held the gun as if he

were going to shoot it, with his finger on the trigger, the barrel pointed toward Pookie.

The jury could reasonably find from that evidence that defendant acted in a reckless

manner that created a high risk of harm or great bodily injury and that a reasonable

person would have known that using a loaded firearm in that way created such a risk.

       Defendant also contends the evidence is insufficient to prove he did not act in the

lawful defense of another. As with self-defense, in a homicide case the prosecution bears

the burden of proof on this issue, as the trial court instructed the jury. Defendant‟s

argument depends in large part on his previously discussed claim that the trial court

incorrectly instructed the jury according to CALCRIM No. 505, which applies when the

defendant commits a homicide in the course of defending another person. We do not

share defendant‟s view the trial court‟s instruction was incorrect, as previously discussed.

       However, even if we apply principles that govern defense of others in

circumstances that do not result in a homicide, as defendant urges, his claim lacks merit.

As discussed above, in order to prove defendant did not act in defense of Kiralina, the

prosecution had to present evidence to show, among other things, defendant used more

force than was reasonably necessary to defend Kiralina against the imminent danger of

suffering bodily injury. According to the evidence presented at trial, Kiralina was in a

fistfight with another woman. The jury could reasonably find that defendant‟s use of a

loaded firearm to bludgeon Pookie, a noncombatant, exceeded the force warranted by the


                                              8
situation. In arguing otherwise, defendant claims Kiralina was “being beaten up by two

women, and [Pookie,] a man considerably larger than [defendant,] was preventing people

from intervening [to break up] the fight, at a minimum, and apparently also engaged in

beating up the helpless woman.” In defendant‟s view, “[i]t strains credulity to suggest

that hitting that man with the handiest solid object was an excessive use of force under

the circumstances.” In other words, defendant contends the evidence establishes, as a

matter of law, that he used reasonable force and acted to defend Kiralina from injury. We

simply do not agree.

       The initial defect is that defendant‟s argument depends on his view of the

evidence. The jury, however, could have found Pookie was breaking up the fight, and

pulling the women off each other, as witnesses testified at trial. Moreover, the evidence

was that only Erica was hitting Kiralina, although the altercation began after a friend of

Erica‟s apparently threw a beer on Kiralina when she walked away after declining to

fight. As previously discussed, the jury could reasonably find defendant intended to use

the firearm to shoot someone after he first used the weapon to hit Pookie. The jury also

could find defendant‟s use of a loaded firearm to protect Kiralina from the hands, feet,

and possibly even teeth, of Erica was excessive and therefore the prosecution met its

burden to prove defendant did not act in the lawful defense of another person.

       For each of these reasons, we must reject defendant‟s challenge to the sufficiency

of the evidence to support his conviction for involuntary manslaughter.




                                             9
                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                               McKINSTER
                                                           Acting P. J.

We concur:



RICHLI
                       J.



CODRINGTON
                       J.




                                     10
