Filed 3/7/14 P. v. Larson CA4/1
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                         COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                       DIVISION ONE

                                                STATE OF CALIFORNIA



THE PEOPLE,                                                         D063069

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. Nos. SCD 235068,
                                                                                     SCD 219125)
JOSHUA JAMES LARSON,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of San Diego County, Theodore

M. Weathers, Judge. Affirmed.



         Michael Bacall, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Julie L. Garland, Assistant

Attorneys General, Charles C. Ragland, Kimberley A. Donohue, Deputy Attorneys

General, for Plaintiff and Respondent.
       A jury convicted Joshua James Larson of second degree murder (Pen. Code,1

§ 187, subd. (a)); assault with a deadly weapon by means of force likely to cause great

bodily injury (§ 245, subd. (a)(1)); and threatening a witness (§ 140). The jury found true

allegations that in committing the murder and assault, Larson personally used a deadly

weapon. (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23).) The court sentenced Larson to a

total term of 19 years to life in state prison.

       Larson contends the court: (1) violated his constitutional right to present a defense

by precluding him from introducing certain third party culpability evidence; and (2)

prejudicially erred by denying his request to instruct the jury regarding involuntary

manslaughter. We affirm the judgment.

                                    FACTUAL BACKGROUND

       On June 22, 2011, Nathan Meza and his boyfriend Jason Huggins, also known as

Cowboy, were living in a tent in a San Diego canyon. They spent that day together

visiting different places for meals, medications and clothes. That afternoon, as they were

going to a fast food restaurant, they encountered Larson and another man. Meza testified

that Huggins exchanged words with one of the men. Huggins and Meza continued to the

restaurant. Minutes later, Larson followed them inside the restaurant. Huggins and Meza

ordered their food and left with it to return to their tent.

       After a few minutes, Larson appeared at their tent. Huggins said, "Oh no," in a

worried tone of voice. Larson, referring to Huggins, told Meza something like: "You



1      All statutory references are to the Penal Code unless otherwise stated.
                                                  2
know this little shit right here you're with? He accused me in court." Larson asked,

"Have you ever felt what a rock in the face feels like?" At that, Larson threw a large rock

inside the tent, hitting Meza's face and knee. Larson walked around the tent, flicking a

cigarette lighter and threatening to burn them. Larson threw his body against the tent,

and Meza and Huggins struggled to prevent the tent from collapsing. Meza left the tent

and saw Larson holding Huggins in a chokehold as they fought. Meza asked what was

happening, and told Larson not to kill Huggins. Larson said something like, "I'm not

going to hurt him. I just want to scare him." Larson warned Meza to get away from the

scene.

         Meza left the canyon, not thinking the fight would cause Huggins grave injuries or

his death. Meza went to a hospital and received stitches for his injuries. That night,

Meza initially lied to police, telling them the fight had occurred behind a grocery store

near the canyon. Meza later explained he had lied because he was afraid to further anger

one of the older residents of the canyon who he had previously angered by bringing a

stranger to the canyon.

         Judy Bryant, who also lived in the canyon, testified that Larson went to the canyon

that evening asking for Huggins's tent, and she directed Larson to it. Bryant then went to

the store, and upon leaving, she saw Huggins waving his arms and asking for help.

Huggins seemed like he was going to pass out, and he said a man had hit him with a rock.

         Shortly after 6:00 p.m. that day, a fire captain, a paramedic, and an emergency

medical technician attended to Huggins near the grocery store. Huggins was agitated and

uncooperative, screaming that he was hit by a rock and his head hurt. Huggins also

                                              3
repeatedly asked for Meza. Huggins said he knew who had hit him with the rock, but did

not disclose his attacker's name. Huggins had no outward bleeding on his head or signs

of trauma. He was taken to the hospital.

      Medical personnel discovered Huggins had a fracture to the head and a hematoma

or bleeding inside the skull. He was operated on to relieve the pressure from the

hemorrhage, but never recovered. Huggins died on July 6, 2011, after he had been in a

coma for approximately two weeks. A pathologist testified that Huggins had bruises on

his body that were consistent with him being punched. His cause of death was head

injury, and the manner of death was homicide.

      Surveillance images taken at the restaurant showed Huggins and Meza had arrived

there at approximately 4:41 p.m., followed shortly thereafter by Larson. Other

surveillance images taken from cameras mounted on a condominium building recorded

Huggins and Meza walking toward the canyon, and Larson following shortly afterwards.

The condominium cameras also captured Huggins leaving the Canyon after the attack.

      A criminal investigator analyzed Larson's cell phone call records for June 22,

2011, and concluded calls were made to and from that phone while it was in the vicinity

of the restaurant and the canyon around the relevant times.

      Police arrested Larson and retrieved from his house items of clothing matching

those he was seen wearing on the day of the crime. Upon Larson's arrest, a detective told

him he was a suspect in a very serious crime that had caused moderate injuries to one

victim and severe injuries to another victim. Approximately an hour and a half later,

Larson asked the detective for the names of the victims, and which one was severely

                                            4
injured. The detective identified Huggins as being severely injured. Larson bowed his

head and did not respond.

       The parties stipulated that in February 2009, Huggins had reported to police that

Larson had robbed him of his wallet. Larson was arrested and charged with grand theft

from a person. In March 2009, Huggins testified against Larson at trial on that matter.

Larson pleaded guilty to the crime and spent 88 days in jail. In February 2011, Larson

served jail time for violating probation by testing positive for drugs. He was released

from custody on May 4, 2011.

       The jury heard audio recordings of Larson's jailhouse phone calls to his parents

shortly after his arrest. In one call, Larson described Huggins as having "showed up at

court, pointed the finger at me, and said, 'This is the guy who sold me drugs and, uh, uh,

stole my wallet and whatever." Larson's mother responded, "Mm-hmm. So obviously

what you told me earlier about letting all that go really wasn't true." Larson replied,

"Then it was let go." Larson also admitted in a phone call that he had seen Huggins at the

fast food restaurant. Larson continued: "[I]t didn't seem like he recognized me or

anything, and so I was going to leave him alone. And I don't know if I can say anything

more than that right now." Larson recounted to his mother that somebody had asked him,

"Why'd you do it?" Larson's reaction to that question was, ". . . like I killed this guy on

purpose or something. You know? What difference is it gonna make? My life is over."

       At trial, Chandice Lucas denied killing Huggins or having previously confessed to

doing so. Lucas also denied having had a sexual or dating relationship with Huggins.

Rather, Lucas testified that he and Huggins were friends, and in some ways had a father-

                                              5
son type relationship. Lucas testified that on the day before the crime, he had told

Huggins that in order for Huggins to get off the streets and join Lucas in a business

venture, Huggins would have to get rid of Meza. Although Lucas acknowledged telling

an investigator that that conversation with Huggins had occurred on June 22, 2011, he

clarified that the conversation with Huggins had happened one day earlier. Lucas

admitted that one day when Huggins was in a coma, he met Meza at the hospital, pushed

Meza against a wall, insisted he go to a drug rehabilitation center, and threatened to "beat

his butt because he left [Huggins in the canyon] to die."

       After the close of evidence and just before closing arguments, a juror asked the

court about Lucas's whereabouts on June 22, 2011, between 5:00 p.m. and 6:30 p.m. The

court discussed the issue with counsel and stated that Lucas had been excused as a

witness and it was too late to address the juror's question.

                                           DISCUSSION

                                                  I.

       Larson argues the trial court should have permitted him to present additional third

party evidence that Lucas was the purported killer, contending: "The trial court

erroneously precluded the defense from introducing evidence that [Lucas] and [Huggins]

were selling HIV medicine for cash and/or methamphetamine and that [Lucas] was angry

with [Huggins] because [Huggins] gave [Lucas] no money to pay the supplier. The

evidence was more probative than prejudicial under Evidence Code section 352." (Italics

omitted.)



                                              6
A. Background

       The People moved in limine to exclude the proffered third party culpability

evidence on grounds it was speculative. At a hearing held under Evidence Code section

402, the prosecutor argued: "This evidence is incompetent hearsay and is inadmissible.

Further, the defense has proffered no evidence of any person with a particular motive to

kill Huggins as it relates to his alleged HIV medication business. There is no direct or

circumstantial evidence linking any person to the alleged HIV medication business and

the death of Huggins."

       Defense counsel countered that there was testimony supporting the assertion that

Lucas and Huggins were involved in the sale of HIV medications. Defense counsel also

noted that one witness had testified that Lucas had angrily argued with Huggins over

monies Huggins allegedly owed Lucas.

       The prosecutor rebutted defense counsel's theories regarding third party

culpability, pointing out that there was no cell phone evidence placing Lucas near the

canyon between 3:00 p.m. and 6:00 p.m. on the day of the crime. The prosecutor argued:

"The fact that there was money owed over drugs—even if that were true, and there was

some anger, I still think that that's a huge leap, to say that that provides a motive for the

killing in this case."

       The court partially ruled in Larson's favor, permitting him to question Lucas

whether Huggins had owed him money. However, the court excluded testimony

regarding Huggins's alleged sale of HIV medication, ruling, "I think that is not

particularly probative. I think it's highly prejudicial. I think it would result in a mini-trial

                                               7
within this trial. I think it would result in undue consumption of time, and I don't think

it's particularly probative. [¶] This notion that Mr. Huggins owed unnamed people in

Los Angeles, I think is so far removed and speculative as to not fall within the [standard

set forth in People v. Hall (1986) 41 Cal.3d 826 (Hall) regarding] admissibility.

Similarly, the testimony . . . about these individuals involved in sales of drugs and then

leading to HIV medication, I think is, once again, not particularly probative."

B. Applicable Law

       In Hall, supra, 41 Cal.3d 826, the California Supreme Court explained the criteria

for admitting third party culpability evidence: "To be admissible, the third-party

[culpability] evidence need not show 'substantial proof of a probability' that the third

person committed the act; it need only be capable of raising a reasonable doubt of

defendant's guilt. At the same time, we do not require that any evidence, however

remote, must be admitted to show a third party's possible culpability. . . . [E]vidence of

mere motive or opportunity to commit the crime in another person, without more, will not

suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or

circumstantial evidence linking the third person to the actual perpetration of the crime.

[¶] . . . [¶] . . . [C]ourts should simply treat third-party culpability evidence like any

other evidence: if relevant it is admissible [citation] unless its probative value is

substantially outweighed by the risk of undue delay, prejudice, or confusion [under

Evidence Code section 352]." (Hall, at pp. 833-834.) The trial court's discretionary

ruling under Evidence Code section 352 may not be disturbed absent a showing that the

court abused its discretion. (People v. Lewis (2001) 26 Cal.4th 334, 372-373.)

                                               8
C. Analysis

       The court did not abuse its discretion in excluding testimony regarding Lucas and

Huggins's involvement in the sale of HIV medication. Under Hall, supra, 41 Cal.3d 826,

the proffered testimony did not provide direct or circumstantial evidence linking Lucas to

the actual perpetration of the murder. Rather, at best, it would point to motive or

opportunity, but that does not suffice to admit such third party culpability evidence. The

court reasonably concluded the challenged testimony would consume too much time and

lead to a trial within a trial. Further, we note that the topic of the sale of HIV medication

in exchange for methamphetamine is a highly prejudicial one, and it had no probative

value in this case.

       Even assuming error, the court did not act arbitrarily when it compromised by

permitting the defense to ask Lucas about the relevant issue of whether Huggins had

owed him money. "Because the trial court merely rejected some evidence concerning a

defense, and did not preclude defendant from presenting a defense, any error is one of

state law and is properly reviewed under [People v. Watson (1956) 46 Cal.2d 818, 836

(Watson)]." (People v. McNeal (2009) 46 Cal.4th 1183, 1203.)

       In applying the Watson, supra, 46 Cal.2d 818 standard of prejudice, we follow the

California Supreme Court's guidance in People v. Breverman (1998) 19 Cal.4th 142, 153-

154 (Breverman): "Appellate review under Watson . . . focuses not on what a reasonable

jury could do, but what such a jury is likely to have done in the absence of the error under

consideration. In making that evaluation, an appellate court may consider, among other

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

                                              9
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."

(Breverman, at p. 177.)

       We conclude that overwhelming circumstantial evidence supported Larson's

conviction. Larson placed himself at the restaurant just minutes before the crime

occurred, relating in a jailhouse conversation that he saw Huggins there. He recalled

Huggins had testified against him. Larson asked directions to Huggins's tent, and threw a

rock in the tent, hitting Meza. Afterwards, Meza saw Larson fight with Huggins.

Huggins told the first responders that he was hit with a rock. The jury was instructed

regarding adoptive admissions, which was relevant for Larson's reaction to the detective's

statement that Larson was suspected of having caused severe injuries to Huggins; Larson

did not deny the claim but remained silent. As noted, the testimony on critical matters

was corroborated by Larson's phone records and images from surveillance cameras

located at the restaurant and the condominium.

       By contrast, the evidence assertedly implicating Lucas was weak. At trial, the

defense premised its case on Lucas having visited the canyon around the time of the

crime. The defendant argues the same on appeal, pointing out that one juror had asked

about Lucas's whereabouts around the time of the incident. However, that question came

before jury deliberation, and the jury did not renew it. Further, the jury heard Lucas

testify that he was mistaken about the date he went to see Huggins, and that in fact he did

not go to the canyon on the day of the crime. Lucas testified he did not kill Huggins.

The jury was able to evaluate Lucas's demeanor and credibility, and by its verdict elected

                                            10
to believe him. Thus even if we were to assume some error, on this record, it is not

reasonably probable that the jury would have reached a result more favorable to Larson

absent the exclusion of the challenged testimony regarding the sale of HIV medications.

                                                     II.

       Larson contends the court prejudicially erred by declining his request that it

instruct the jury regarding involuntary manslaughter.

A. Background

       In proceedings outside of the presence of the jury, Larson's counsel argued for an

instruction regarding involuntary manslaughter: "The evidence hasn't clearly depicted

exactly what happened in the canyon and by who. There's no witness that actually sees

anybody hit Mr. Huggins in the head with a rock. And it's certainly possible that the jury

could conclude that he was hit in the head with a rock. But not necessarily with the intent

to kill. Maybe injured by punches, maybe by falling on a collapsed tent and injuring his

head. These could all rise to the level of criminal negligence without rising to the level

of, necessarily, the intent to kill. [¶] . . . [¶] It's certainly possible that if the jury

concludes that there was a strike in the head with a rock, that it wasn't with intent to kill,

but it was with disregard for human life and indifference to the consequences. They

could also conclude that when the men collapsed on the tent, there was a head injury as a

result of this fighting, this indifference to the consequence of . . . the fight and injury as

sustained to Mr. Huggins' head, and as a result, he later passes away."

       The prosecutor opposed the instruction, pointing out the defense theory was

someone else, not Larson, had killed Huggins. The prosecutor further argued substantial

                                                11
evidence was presented from the first responders and others who testified Huggins had

said he was hit with a rock. Also, the evidence showed Larson had planned the attack on

Huggins and had a motive for doing so, namely, in retaliation for Huggins's trial

testimony against Larson.

       The court agreed with the prosecutor and declined to instruct the jury regarding

involuntary murder, ruling that the evidence did not support that instruction.

B. Applicable Law

       "California statutes have long separated criminal homicide into two classes, the

greater offense of murder and the lesser offense of manslaughter. The distinguishing

feature is that murder includes, but manslaughter lacks, the element of malice." (People

v. Rios (2000) 23 Cal.4th 450, 460.) Murder is the unlawful killing of a human being

"with malice aforethought." (§ 187, subd. (a); People v. Knoller (2007) 41 Cal.4th 139,

151 (Knoller); People v. Blakeley (2000) 23 Cal.4th 82, 87 (Blakeley).) Express malice is

an unlawful intent to kill. (§ 188.) Malice is express "when the defendant manifests 'a

deliberate intention unlawfully to take away the life of a fellow creature.' " (Blakeley, at

p. 87.) "Implied malice" requires a defendant's awareness of engaging in conduct that

endangers the life of another. (Knoller, at p. 143.) "Malice is implied when the killing is

proximately caused by ' "an act, the natural consequences of which are dangerous to life,

which act was deliberately performed by a person who knows that his conduct endangers

the life of another and who acts with conscious disregard for life." ' " (Ibid.)

       Manslaughter is the "unlawful killing of a human being without malice." (§ 192;

Blakeley, supra, 23 Cal.4th at p. 87.) A defendant who commits an intentional and

                                             12
unlawful killing but who lacks malice is guilty of voluntary manslaughter. (See

Breverman, supra, 19 Cal.4th at pp. 153-154.) However, a specific intent to kill is not

a necessary element of manslaughter. (Blakeley, at pp. 88-89.) Involuntary manslaughter

is the unlawful killing of a human being without malice "in the commission of an

unlawful act, not amounting to 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).) Involuntary manslaughter based on "an unlawful act, not amounting to

felony"—a killing resulting from the commission of a misdemeanor—requires proof not

only that the defendant acted with general criminal intent but also that the predicate

misdemeanor was dangerous to human life under the circumstances of its commission.

(People v. Cox (2000) 23 Cal.4th 665, 667, 675-676; People v. Wells (1996) 12 Cal.4th

979, 982.) Involuntary manslaughter based on the commission of a lawful act that might

produce death "without due caution and circumspection" requires proof of criminal

negligence—that is, "aggravated, culpable, gross, or reckless" conduct that creates a high

risk of death or great bodily injury and that evidences a disregard for human life or

indifference to the consequences of the conduct. (See People v. Penny (1955) 44 Cal.2d

861, 879; People v. Evers (1992) 10 Cal.App.4th 588, 596.)

       Instructions on lesser included offenses must be given when there is substantial

evidence for a jury to conclude the defendant is guilty of the lesser offense but not the

charged offense. (Breverman, supra, 19 Cal.4th at p. 177.) Substantial evidence is

defined for this purpose as "evidence sufficient to 'deserve consideration by the jury,' that

is, evidence that a reasonable jury could find persuasive." (People v. Barton (1995) 12

                                             13
Cal.4th 186, 201, fn. 8.) "In deciding whether evidence is 'substantial' in this context, a

court determines only its bare legal sufficiency, not its weight." (Breverman, at p. 177.)

       Here, the court instructed the jury with CALCRIM No. 520 (murder with malice

aforethought) and CALCRIM No. 521 (first degree murder). During jury deliberations,

in response to a jury question seeking clarification regarding second degree murder, the

court further instructed the jury: "CALCRIM [Nos.] 520 and 521 set forth the elements

of first degree murder. All other murders are of the second degree. [¶] To prove that the

defendant is guilty of second degree murder, the People must prove that: [¶] 1. The

defendant committed an act that caused the death of another person, and [¶] 2. When

the defendant acted, he had a state of mind called malice aforethought. [¶] For second

degree murder there are two kinds of malice aforethought, express malice and implied

malice. The definition of each is set forth in CALCRIM [No.] 520. [¶] Malice

aforethought does not require hatred or ill will toward the victim. It is a mental state that

must be formed before the act that causes death is committed. It does not require

deliberation or the passage of any particular period of time."

       An involuntary manslaughter instruction was not warranted under the facts of this

case. An instruction on a lesser included offense is not required if the evidence was such

that the defendant, if guilty at all, was guilty of the greater offense. (People v. Kelly

(1990) 51 Cal.3d 931, 959.) A manslaughter theory requires the killing be committed

without malice (People v. Cook (2006) 39 Cal.4th 566, 596), whereas the evidence in this

case showed implied malice. As explained above, malice is implied " 'when the killing

results from an intentional act, the natural consequences of which are dangerous to life,

                                              14
which act was deliberately performed by a person who knows that his conduct endangers

the life of another and who acts with conscious disregard for life.' " (People v. Lasko

(2000) 23 Cal.4th 101, 107 (Lasko); People v. Swain (1996) 12 Cal.4th 593, 602.) A

defendant acts with implied malice when he acts with an awareness of endangering

human life. (Knoller, supra, 41 Cal.4th at pp. 143, 153.)

       A defendant's intent is rarely susceptible of direct proof, and may be inferred from

the facts and circumstances surrounding the offense. (People v. Ramos (2004) 121

Cal.App.4th. 1194, 1207-1208.) Here, the jury could reasonably find Larson acted with

malice based on his conduct immediately before he hit Huggins with a rock: Larson

elected to follow Huggins to the canyon. He specifically asked for directions to

Huggins's tent, and picked a fight with him, referring to Huggins as "a little piece of shit"

who had testified against him. Larson specifically asked Meza and Huggins if they knew

how it felt to be hit with a rock, and proceeded to throw an eight-inch rock into the tent.

Larson also threatened to burn their tent. In light of Larson's recognition that hitting

someone with a rock would cause injury, the jury's only reasonable inference was that

Larson acted with malice because he hit Huggins's head with a rock, knowing it could

endanger Huggins's life.

       In any event, we would conclude there was no prejudice to Larson from any

instructional error. "[W]hen a trial court violates state law by failing to properly instruct

the jury on a lesser included offense, this test applies: '[I]n a noncapital case, error in

failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and



                                              15
theories thereof which are supported by the evidence must be reviewed for prejudice

exclusively under [Watson, supra, 46 Cal.2d at p. 836]. A conviction of the charged

offense may be reversed in consequence of this form of error only if, "after an

examination of the entire cause, including the evidence" (Cal. Const., art. VI, § 13), it

appears "reasonably probable" the defendant would have obtained a more favorable

outcome had the error not occurred.' " (Lasko, supra, 23 Cal.4th at p. 111.)

       Based on our review of the record, if the trial court erred by failing to instruct the

jury regarding involuntary manslaughter, that error was harmless under Watson, supra,

46 Cal.2d 818. Our prejudice analysis set forth above applies equally here. We note that

Larson concedes in his opening brief that the evidence supported his identity as Huggins's

attacker: "While the defense attorney presented the best possible defense that [Lucas]

was the killer, there was evidence that it was Larson who struck [Huggins] with the rock,

albeit without malice or intent to kill. The [restaurant's] surveillance camera recorded

Larson leaving the restaurant shortly after [Huggins] and Meza. Judy Bryant and

Maurice Daniels saw Larson walk down the hill toward the campsite. Meza testified that

Larson threw a rock at him inside their tent. A minute later, Meza saw Larson and

[Huggins] fighting."

       However, Larson argues he did not "subjectively appreciate the risk to [Huggins's]

life when he struck him with the rock." As evidence of that, Larson notes that he had told

Meza he was not going to hurt Huggins, but simply scare him. Also, he had told his

mother by phone that he did not kill Huggins on purpose. The jury evaluated that



                                             16
evidence regarding Larson's intent, but still convicted him of second degree murder. We

may not reweigh that testimony on appeal. We conclude the jury would not likely have

reached a more favorable verdict absent any instructional error.

      Larson relies on Justice Kennard's concurrence in People v. Bryant (2013) 56

Cal.4th 959. We need not discuss that claim further because one justice's concurrence

lacks precedential value. (People v. Retanan (2007) 154 Cal.App.4th 1219, 1231.)

                                         DISPOSITION

      The judgment is affirmed.




                                                                         O'ROURKE, J.

WE CONCUR:


HUFFMAN, Acting P. J.


IRION, J.




                                            17
