Filed 11/27/13 P. v. Rooney CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A136183
v.
SEAN ROONEY,                                                         (Alameda County
                                                                     Super. Ct. No. 164898)
         Defendant and Appellant.

         In this case we are asked to review defendant’s conviction for first degree murder.
The lone issue on appeal is the alleged failure by the trial court to instruct on imperfect
self-defense. After reviewing the evidence in this case and the trial court’s instructions,
we find no error in the court’s determination not to instruct on imperfect self-defense.
We, therefore, affirm the conviction.
                                       STATEMENT OF THE CASE
         On November, 10, 2010, the Alameda County District Attorney filed an
information charging defendant Sean Rooney with the murder of John Frum, a violation
of Penal Code section 187, subdivision (a). The information alleged that defendant used
a deadly weapon, a knife, during the commission of the crime in violation of Penal Code
section 12022, subdivision (b)(1). The trial of the case began on May 16, 2012. On
June 5, 2012, the jury found defendant guilty of first degree murder. They also found
true the deadly weapon allegation. On June 28, 2012, the trial court sentenced defendant
to state prison for a term of 25 years to life on the murder conviction and an additional
year for the use of a deadly weapon.


                                                             1
        Defendant filed a notice of appeal on August 6, 2012.
                                STATEMENT OF FACTS
        During the weekend after Thanksgiving of 2009, defendant noticed a Craigslist ad
he found insulting and relating to him personally. Defendant also concluded the listing
was posted by his former lover, John Frum. Defendant believed the listing was a
dangerous “omen” and he became very concerned about it. A few days later, on
December 1, 2009, defendant went to Frum’s apartment with a rubber mallet. At the
apartment, defendant went to the parking area and vandalized the car of Frum. He used
the mallet to smash the car’s windows and body. Defendant then climbed to the second
floor of Frum’s apartment. He used the mallet to break the windows along the deck and
entered the unit. Once inside the apartment, defendant attacked Frum. Frum was forced
to flee the unit screaming for his neighbors to help him. Defendant pursued Frum with a
knife. Eventually, defendant caught up with Frum in front of the apartment. He
proceeded to stab Frum 14 times, eventually, leaving the blade of the weapon in the
sternum of the deceased. The blood loss triggered the death by exsanguination.
        One of the witnesses to this offense was Desmond Morris. He lived on the second
floor of 3149 Brookdale Avenue, apartment 5, in Oakland. The Brookdale address had
eight stories, a gate that blocked the front of the property from the street, and a first-floor
laundry room near the carport. Morris was the next-door neighbor of the victim, John
Frum.
        On December 1, at approximately 9:00 a.m., Morris was in the laundry room of
the building. He noticed Frum’s car in the slot assigned to the victim and it was in
normal condition. Morris left the building at 10:00 a.m. for a job interview. He returned
to his home at 10:30 a.m. and called his girlfriend. While talking, he heard a
considerable amount of banging noise. He looked out his kitchen window, but saw
nothing. More banging noise was heard coming from the parking area of the building. It
was the sound of glass breaking and force hitting metal.
        Morris looked out his window and saw Frum walking quickly on the walkway
toward his apartment. Frum then entered his unit and closed the door. Within seconds,


                                               2
Morris heard the sound of broken glass. Shortly after the noise subsided, the neighbor
heard Frum yell, “[P]lease help, call the police.”
       Looking through the front door peephole, Morris saw Frum running toward the
front stairs. Frum was yelling in a loud voice for someone to “call the police. Help, I
need help.” Frum then declared, “Please call the police, he is trying to kill me.” Morris
continued speaking with his girlfriend and indicated he was reluctant to get involved. He
did not call the police, but speculated his girlfriend may have based on what he stated.
       Within a few minutes, Morris heard someone outside the building yell to put the
weapon down and “freeze.” From his balcony vantage point, Morris saw about five
police officers, Frum and defendant. Morris then exited his apartment heading towards
the back stairs. As he passed Frum’s unit, he noticed broken glass all over the place. He
also saw drops of blood alongside Frum’s front door.
       As Morris neared the front of the building, he saw Frum sitting on the stairs. Frum
tried to stand up, but police advised him to remain seated. He was clearly bleeding from
the neck and underarm. The defendant was also with the police. Morris had known
defendant because the suspect had lived with Frum in the building. Morris believed
defendant had moved out of the property approximately eight months before this date.
On this date, defendant was quite aggressive and hostile, calling Frum a “bitch” and
yelling “fuck you.” Defendant also told Frum, “I told you I was going to get you.”
       Morris walked across the street to join other spectators. He saw the ambulance
come for Frum and the police forcibly restrain defendant. Defendant was tased two times
before taken away in an ambulance himself.
       Another witness, Yvette Horn, lived at 3208 Brookdale Avenue, across the street
from the victim’s home. On December 1, at 11:30 a.m., she heard window glass
breaking. She saw a familiar person on the balcony of the second floor. She knew the
person from the area and had last seen him about a year ago. He had been in the
company of a neighbor walking the dog. The two men had lived together. When she saw
the man on the balcony that day, he had a mallet or hammer in his hand.



                                             3
         Horn saw the man with the mallet break the window glass several times and look
inside the apartment. She then saw the man enter. Then she heard someone scream and
call for help. Horn called 911 for help. While she was speaking with the dispatcher,
Horn saw a police car travel down the street and called out, pointing at the apartment
across the street.
         As the police pulled up, Horn saw the victim exit the apartment calling for help.
There was blood on his upper shirt. She also saw the suspect following Frum telling him,
“you better run.” Eventually, the pursued victim stopped in front of the mailboxes of the
building. When defendant reached the street, he ran up to Frum and stabbed him 10-20
times.
         Horn also observed the police admonish defendant to stop what he was doing, but
he did not. An officer eventually grabbed defendant and made him drop the weapon.
The company of officers had to pin defendant down on the ground. He continued to
struggle with the police, appearing to try to get away. The police eventually strapped
defendant onto a gurney. Horn heard defendant yell, “[W]as it worth it?” Before
strapping the suspect, the police tased him.
         Officer Thomas Lopez was a responder to the incident. He observed Frum
running from the second floor of the building towards the front entrance. He was calling
for “help.” Lopez also saw defendant approximately five feet behind Frum. When Lopez
saw defendant he was holding a 10-inch knife. Pursuing the bleeding Frum, defendant
caught up with the victim at the front gate area. In front of Officer Lopez, defendant
stabbed the victim “two to four” times in the upper torso, shoulders and chest area. Frum
tried to cover his head. Lopez did not see Frum fight back in any way. Even as Lopez
drew his weapon and ordered defendant to stop his conduct, the suspect would not cease.
Lopez said to defendant, “Stop or I will shoot you.” Defendant stabbed Frum two more
times and then dropped the knife.
         While defendant was being subdued by Lopez and other police officers, he
remained agitated and challenging. He kept saying, “That’s what you get, John. You’re
the biggest meth dealer. You deserved it. You deserve to die. I hope you die.” In fact,


                                               4
defendant continued his aggressive posture even when he was warned he would be tased.
He eventually had to be tased. Lopez found no evidence defendant manifested symptoms
of alcohol intoxication. Lopez did indicate, based on the aggressiveness of defendant,
that he could have been under the influence of a stimulant.
      Sergeant Wing Wong also arrived at the Brookdale address. Wong saw a knife
blade protruding from the chest and throat area of Frum, and blood covered his shirt.
Defendant kept saying the victim was “the biggest meth dealer,” and that he hopes the
man dies.
      A team of paramedics arrived for the victim and another for defendant. The
defendant had cuts on his hands and blood on his body.
      All during this time, the defendant remained very resistant. Tasing did not subdue
him for a substantial period. At one time, defendant had a loose handcuff around his
wrist and was swinging it at the people handling the scene. Officer Brett Estrada had to
tase defendant twice. Estrada thought defendant could have been under the influence of a
stimulant because of his behavior. After the tasing, defendant became calmer.
      Officer Richard McNeely of the Oakland Police Department also responded to the
scene. Among the places he checked out was the parking area where Frum parked his
car. McNeely saw a silver Honda that had been vandalized in the carport.
      Son Tran was a paramedic who came to the scene at noon. He observed the very
hostile demeanor of defendant and his refusal to comply with the police. He was tased at
least two times before the paramedics could successfully strap him onto a gurney. While
in the ambulance, Tran noticed several lacerations on the defendant’s right hand. He
asked defendant if he had ingested drugs or alcohol. The accused answered in the
negative. Tran found defendant lucid and coherent. Altogether, Tran was in the physical
presence of defendant for approximately one hour. He did not observe symptoms of
alcohol intoxication. Tran recalled in the ambulance that defendant was crying and
declared someone had cheated on him.
      Crime scene technician Cheryl Cooper arrived at the apartment building at 12:10
p.m. She noticed the victim had numerous stab wounds and was in a bloody condition,


                                            5
speaking erratically on a gurney. The blade of a knife protruded from his neck. Entering
the front gate of the building, Cooper saw blood spatter on the wall and a pool of blood
by the mailboxes in the front. She collected a broken knife blade, a shoe and silver chain.
At the front of Frum’s apartment, Cooper observed broken glass, overturned flower pots
and a broken window in both the bedroom and living room. Inside the unit, Cooper noted
the place was in considerable disarray, “as if things were turned over.” The broken
wooden handle from a hammer was found on the floor. Also, the mallet head was on the
desk in the apartment. Cooper also found a knife handle in the hallway. In the bedroom,
she found a broken window and blood on the pillows.
       This criminalist went to the carport and inspected Frum’s car. There were dent
marks all over the car, most circular in nature. They were fresh marks. The damage
appeared caused by a mallet head.
       Sergeant David Cronin was at the crime scene at noontime. He accompanied
defendant in the ambulance to the hospital. During the ride, defendant began crying
about what had happened. He appeared rational and coherent to the sergeant. He had
screwed up his life. He was angry at Frum for what he had done to him. Frum was
involved in drugs, namely methamphetamine and defendant asked Cronin to search
Frum’s apartment. Frum was a big drug dealer. Defendant asked Cronin if Frum was
dead and the officer replied in the negative. With that, defendant said, “I hope the fucker
is dead. I want him dead for what he did to me.” Defendant asked Cronin if he “was
going to prison for 20 years behind that fucking liar?” Then defendant told Cronin the
two men had dated, but broke up two years before and that defendant had not seen Frum
much in the past year. Defendant described Frum as his lover and a methamphetamine
dealer. Frum had ruined his life.
       Defendant then told Cronin that within the past week, he had seen an ad in
Craigslist which upset him. Defendant had sought to speak with Frum concerning a dog
that might have to be euthanized. After reading the ad, defendant consumed vodka and
decided to visit Frum at his home. He told Cronin he wanted to kill Frum for the pain the
man had caused him. When the defendant again asked if Frum was dead, Cronin told


                                             6
him he was not, but would have a serious scar on his chin from the wound. Defendant
then said the scar was not enough for what Frum had done to him and restated he wanted
to kill Frum. During the trip, defendant did not seem under the influence of alcohol. He
was not really questioned by Cronin because of his emotional and irrational condition.
       The victim Frum was taken to Alameda County Medical Center for treatment. He
was a man in his 50’s, and had several substantial stab wounds to his upper body. He
presented wounds to the neck, chest and face. The blade of a knife was still protruding in
his chest through the sternum or breast bone. Once his chest was opened, the blood loss
was so substantial it would not coagulate. Dr. Gregory Victorino simply could not stop
the bleeding. He noticed there were lacerations to Frum’s diaphragm, liver and right
kidney. Blood tests of Frum disclosed the high level of methamphetamine in his system.
The pathologist, Dr. David Levin, performed the autopsy on Frum on December 3, 2009.
He concluded the cause of death was “multiple stab and incised wounds” to the victim’s
body. Frum had 14 fresh stab wounds.
       The defense case focused primarily on the testimony of defendant. Much of it
concerned how defendant and Frum met and became intimate with each other. They
began dating around December 4, 2006. The pair used Craigslist to solicit additional men
for intimate relationships. They both believed in “full disclosure” of their dating life and
Craigslist would be the vehicle for meeting new people. The couple broke up when Frum
disclosed he had cheated on defendant.
       They subsequently engaged in a series of on-and-off relations with each other.
Defendant testified Frum would cheat and the two argued. He related that Frum would
become upset with defendant and take his car keys and other possessions. On one
occasion, defendant told Frum he was going to his boss’s home which triggered Frum
into taking defendant’s keys and hitting him numerous times. By October 2008, the
couple was still seeing each other, but was often having arguments. During that month,
Frum hit defendant with a broomstick and the police were called. After this incident, the
couple tried to reconcile, but Frum had another man living with him and the two men did
not get back together.


                                             7
       During the weekend of Thanksgiving 2009, defendant checked out Craigslist for
the first time since they broke up. Defendant observed several entries in the “style” Frum
used for such entries. One ad identified by defendant in his testimony as significant was:
“Beware. This guy is a smart ass and he will come over to your place and try to use your
computer to find out who your friends are. Someone should do something about him.”
Defendant took this entry as an “omen.” He believed the entry was an omen designed by
Frum to hurt him.
       From the first reading of the “omen,” defendant obsessed over the note and
became upset at what Frum had done. On the day of the homicide, defendant consumed
vodka and four Zoloft tablets. He drove to Frum’s apartment to discuss the listing and
find out about the couple’s dog Jetta who was sick. Once defendant arrived at Frum’s
home, he entered the parking area and began hitting the car. He then ran up to Frum’s
apartment and proceeded to break all the windows. He did not know why he did this. He
did not recall much anything else about the incident.
       Defendant acknowledged he was taller, heavier and younger than Frum. On his
Craigslist ads, defendant would describe himself as a jock or muscular. He testified that,
during the October 2008 incident, Frum choked him for 30 seconds. However, he
affirmed he told the police the couple had no prior violent acts between them. He said
this to protect Frum. Since the couple broke up for the last time in January 2009,
defendant had no contact with Frum until the day of the homicide.
       On the Saturday before the homicide, while looking at Craigslist, defendant
noticed the listing quoted above. He testified reading the entry made him feel “[p]hysical
and emotional injury due to the threats” contained in it. Defendant thought Frum was
threatening him. The entry said, “Beware.” He saw the entry as a threat and an omen
“[b]ecause it was a forecast of a hurtful ad . . . . [I]t is one that I regarded as [a] possible
physical and emotional threat against me. The emotional toll of that ad was profound.”
       Apparently, because of this deep impression and to inform Frum about the pet dog
Jetta, defendant decided to go to Frum’s apartment. On the stand, defendant



                                                8
acknowledged he had no recall of the events in the apartment on the day of the homicide.
While he did not want to kill Frum, he could not explain why he stabbed him 14 times.
       Officer Aaron Bowie of the Oakland Police Department testified regarding the
October 2008 incident when Frum allegedly choked defendant. Bowie noticed bruising
on the back of defendant and recalled he was shaking and visibly upset. The officer
arrested Frum at the time, and the arrestee was calm during the occurrence.
       The licensed clinical toxicologist Kenton Wong also was a defense witness. He
was an expert on the effect of alcohol and Zoloft on the body. Evidence disclosed
defendant had a blood-alcohol concentration at 4:59 p.m. on December 1, 2009, of 0.07.
The drug screen of defendant at that time was “negative.” Zoloft would not appear in a
drug screen, according to Wong. According to Wong, a person of defendant’s body
weight with a blood-alcohol read at 4:59 p.m. of 0.07 would have an alcohol level of 0.17
at 11:43 a.m. Wong also believed Zoloft tends to magnify the effects of alcohol. On
cross-examination, Wong indicated that a person with a blood-alcohol level of 0.17 at the
time of a crime could be only slightly impaired. Also, he acknowledged that objective
symptoms of intoxication would be witnessed by persons who came in contact with
defendant having that blood-alcohol level. Additionally, Wong stated that a person who
began drinking at 11:15 a.m. and stopped at 11:30 a.m., and took four Zoloft pills during
that time, would not have the Zoloft in his system at 11:43 a.m.
                                      DISCUSSION
       The single issue raised in this appeal focuses on whether the trial court committed
error in omitting any instruction on imperfect self-defense. Based on the facts presented
at trial and described above, we conclude there was no legal basis for instructing on
imperfect self-defense. Indeed, this legal theory of voluntary manslaughter was not even
advanced by trial counsel.
       The trial position of the defense was this was a case of voluntary manslaughter.
This theory was advanced in spite of the witness testimony regarding the stabbing death
of Frum and the acknowledgement by defendant he had no recall how the killing took
place. In the settling of jury instructions, the court agreed with defendant it would


                                             9
instruct the jury on voluntary manslaughter giving CALJIC No. 8.50. However, the trial
court stated it would delete the following language, “actual but unreasonable belief in the
necessity to defend against imminent peril to life or great bodily injury” from the
instruction. Defense counsel did not object to this determination by the trial court. In its
charge to the jury, the court instructed on voluntary manslaughter along with murder, but
limited the voluntary manslaughter instructions to the theory of provocation or heat of
passion.
       Now, on appeal, defendant contends the trial court had a sua sponte obligation to
instruct on imperfect self-defense. In a word, there is no basis for this theory of voluntary
manslaughter.
       Our trial courts have the duty to instruct on a lesser-included offense where the
evidence presented raises the need to so instruct. Substantial evidence is “evidence
sufficient to ‘deserve consideration by the jury’ ”—“evidence that a reasonable jury could
find persuasive.” (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8; People v. Flannel
(1979) 25 Cal.3d 668, 684.) There is no need to instruct on imperfect self-defense when
the evidence is “minimal and insubstantial.” (People v. Flannel, supra, at p. 684.) In this
case, the facts simply belie the need to instruct on imperfect self-defense. Rather, the
uncontroverted evidence indicates defendant went to Frum’s apartment after reading an
entry on Craigslist. The men had not had contact since January 2009. The defendant first
goes to the parking area and inflicts substantial and violent damage on Frum’s
automobile. He then goes to Frum’s second-floor apartment and breaks in the windows
with a mallet. Finally, he confronts the victim and chases Frum from his apartment onto
the street where he stabs him numerous times in front of civilian witnesses and police
officers. To require a sua sponte instruction of imperfect self-defense in this factual
scenario would, to this court, stand the defense on its head. Add to this recipe the fact
defendant presented no evidence that Frum posed an imminent threat to his safety
because defendant provided no information of anything remotely threatening by the
victim. Finally, no request was made by trial counsel to so instruct the jury.



                                             10
        Our trial courts need to instruct the jury on legal theories supported by the
evidence. (People v. Watson (2000) 22 Cal.4th 220, 222.) Only if that theory is credible
and reasonable, based on the evidence at trial, need it be given. (People v. McDaniel
(2008) 159 Cal.App.4th 736, 747.) We do not allow our trial courts to speculate and
engage in conjecture to find a fitting “defense” for the accused. (People v. Memro (1985)
38 Cal.3d 658, 695, overruled on another ground in People v. Gaines (2009) 46 Cal.4th
172, 181, fn. 2.) In this case, the trial court was not asked to instruct on imperfect self-
defense and we find no valid basis here to find it had to instruct based on a sua sponte
duty.
                                       DISPOSITION
        We affirm the judgment.




                                                   ______________________
                                                    Dondero, Acting P.J.


We concur:


______________________
 Banke, J.

______________________
 Sepulveda, J.




                                              11
