Filed 8/25/15 P. v. Strauter CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A140951
v.
DANTE RODNEY STRAUTER,                                               (San Mateo County
                                                                     Super. Ct. No. SC069471)
         Defendant and Appellant.


         Defendant Dante Rodney Strauter appeals his conviction for voluntary
manslaughter, arguing the trial court erred in denying his request for the jury to be
instructed on involuntary manslaughter. We affirm.
                                                       I.
                                                  BACKGROUND
         On August 12, 2009, Strauter shot and killed JT Long1 after a confrontation at JT’s
residence on Ralmar Avenue in East Palo Alto. Earlier that day, JT had asked Colina
Williams, Strauter’s cousin, to move her car, which was apparently blocking JT’s
driveway. The request triggered a violent argument. According to Colina, JT threw a
bottle at her, leaving a bruise on her arm. At least one witness stated that Colina
responded by taking out her pocket knife and trying to stab JT. Kamarlon Walker, JT’s
cousin and Colina’s boyfriend, intervened and asked Colina to leave, which she did.



         1
          Because some of the witnesses share the same last name, we refer to them by
their first names for the sake of clarity.

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       Upon returning home, Colina recounted the incident to Strauter. Strauter told
Colina “he wanted to talk to [JT] to let him know that he can’t be doing that.” Strauter
then headed to JT’s home in Colina’s white Nissan Maxima. A gun was underneath
Strauter’s seat. Strauter testified: “[T]he gun was just there. I didn’t think that there was
any bad vibes between anybody.” Colina followed Strauter in his van.
       In the meantime, JT went for a drive with Denise Doughty and Domenika
Johnson, his fiancée. Soon after the three left Ralmar Avenue, JT saw Colina’s Nissan
driving in the opposite direction, and he told Denise to turn around and return to the
house, which they did.
       When Strauter arrived at JT’s residence, he saw Kamarlon standing in the
driveway. Strauter parked the Nissan in front of Kamarlon and asked him, “Why did you
let your cousin throw a bottle at your girlfriend?” Soon thereafter, JT pulled up and
confronted Strauter, saying “Get the fuck out of my driveway, bitch as[s] motherfucker.
Bringing drama to my house.” JT then entered the garage. Strauter and Kamarlon
followed.
       What happened next is disputed. Strauter testified that he saw JT talking to an
older woman in the garage and decided to return to his car, claiming he did not want to be
disrespectful. Other witnesses stated Strauter and JT traded punches in the garage, and
Kamarlon eventually separated the two.
       According to several witnesses, JT then entered the house. Domenika found JT in
the bathroom inspecting himself for wounds; there were none. She said JT appeared
angry. Sammy Williams, the in-home caretaker for JT’s grandmother, testified JT went
inside the house, said he was going to get his gun, and then called someone on the house
telephone.
       Meanwhile, about the time Strauter returned to his car, Colina pulled up in
Strauter’s van, blocking the Nissan. She emerged from the vehicle, went to the passenger
side, removed a baseball bat, and began swinging it. Denise tried to take the bat away




                                              2
from her, and a struggle ensued. Strauter testified he took the bat away from both women
and then told Colina to get into the car.2
       Strauter testified that the events immediately before the shooting made him
believe his life was in danger. According to him, the following events occurred: JT
came out of the garage and said, “All right, bitch ass motherfucker. You still here? I got
something for you.” JT then ran back in the garage, and Strauter went to the Nissan,
grabbed the gun, and “racked it,” putting a live round in the chamber. Strauter then saw
JT and Kamarlon standing in front of the car. Kamarlon had a gun in his hand, and JT
tried to take it. The gun fell to the ground, and Kamarlon picked it up. JT then said: “All
right. Then I got my own shit. [F]uck this motherfucker.” As JT walked to the garage
door he pointed at Strauter and said: “You bitch ass motherfucker. I’m going to down
your ass. Watch.” Strauter then noticed a shotgun leaning out of the garage. He had not
seen the shotgun in the garage earlier, but he had seen the weapon on a previous visit to
JT’s residence.3 As JT reached for the shotgun, Strauter crouched, threw his arm
between the car’s door and frame, and shot three times. Strauter did not aim at JT, or
even look where he was shooting. He “just pointed in that direction,” wanting “to do
something to distract [JT] long enough to get out [of] the driveway.” Unaware of
whether he hit JT, Strauter drove off. He was arrested later that day in San Jose.
       Eye witness accounts of the shooting varied and were different from Strauter’s
account. Domenika testified that she followed JT who ran out of the house yelling:
“Bringing bullshit to my house.” The next thing she remembered was a shell casing
“burning” her stomach. She heard three gun shots. Domenika then saw JT lying on the
ground in a pool of blood. Marsha Mitchell, a neighbor who had approached the house,
testified she saw JT arguing with Colina and Strauter standing by the Nissan. She then


       2
          Phillip Donty Steward, a relative and close friend of JT who was also present,
testified he took the bat away from a woman, whose identity he could not recall, and
returned it to Colina.
       3
        A search of JT’s home several months after the shooting revealed a loaded
shotgun on a shelf in the washroom in the garage.


                                             3
saw Strauter shoot at JT from about 10 feet away. According to Marsha, JT had both
hands raised in the air and was shot “in the front.” Marsha heard about four shots. Philip
Donty Steward initially stated he did not see the shooting but later claimed his earlier
testimony was a lie, and testified he saw Strauter shoot JT “out of anger” but
“unintentionally.” Sammy saw JT run out of the garage with the house telephone in his
hand as Strauter was backing out of the driveway in the Nissan. JT then ran back toward
the garage, and Sammy saw the Nissan’s door open and heard two shots. Colina, who
testified for the defense, said she saw both JT and Kamarlon with guns when she arrived
on the scene. Strauter told her to drive away. As she did so, she saw JT lift up his gun
and “point[] it all over the place.” She then heard gunshots, but she was unsure who fired
them.
        An autopsy of JT revealed three gunshot wounds. One shot entered through the
left upper back. Another entered to the right of the midline of the back. A third shot
entered the back of the right thigh and probably reentered the left leg below the knee. It
was not possible to determine which gunshot wounds came first. Analysis of JT’s blood
revealed the presence of methamphetamine.
        A grand jury returned an indictment against Strauter, alleging one count of murder
(Pen. Code, § 187, subd. (a))4 and one count of unlawfully possessing a firearm having
been convicted of a felony (former § 12021, subd. (a)(1)). The indictment further alleged
that, in the commission of the first count, Strauter personally discharged a firearm,
causing great bodily injury (§ 12022.53, subd. (d)) and intentionally personally inflicted
great bodily injury within the meaning of section 1203.75. Before trial, Strauter pleaded
no contest to the firearm count and admitted he personally inflicted great bodily injury
within the meaning of section 1203, subd. (k).
        The remaining counts proceeded to trial. Strauter asked the trial court to instruct
the jury on involuntary manslaughter, but the request was denied. The jury returned not
guilty verdicts on the first and second degree murder counts, but it found Strauter guilty

        4
            All subsequent statutory references are to the Penal Code.


                                                4
of the lesser included offense of voluntary manslaughter. The trial court later imposed a
sentence against Strauter for the convictions in this case and for two probation violations
determined in earlier cases. As to the voluntary manslaughter count, the court imposed
the midterm of six years, with a consecutive midterm of four years for the firearm
enhancement. As to the unlawful possession count, the court sentenced Strauter to two
years, but stayed the sentence. With the sentences for the probation violations, Strauter’s
total prison term was 11 years, four months.
                                           II.
                                       DISCUSSION
       Strauter argues his conviction for voluntary manslaughter must be reversed
because the trial court improperly denied his request for an instruction on the lesser
included offense of involuntary manslaughter. We conclude there was no error. A
defendant cannot commit involuntary manslaughter where he or she acts with a conscious
disregard for life. (See People v. Blakely (2000) 23 Cal.4th 82, 91.) In this case, there is
insufficient evidence to negate such a finding. Furthermore, even if we were to find error
based on the failure to give the involuntary manslaughter instruction, we would
nonetheless affirm because Strauter was not prejudiced.
       We independently review a trial court’s failure to instruct on a lesser included
offense. (People v. Cook (2006) 39 Cal.4th 566, 596.) The trial court was required “to
instruct fully on all lesser necessarily included offenses supported by the evidence.”
(People v. Breverman (1998) 19 Cal.4th 142, 148-149.) “[T]he existence of ‘any
evidence, no matter how weak’ will not justify instructions on a lesser included offense,
but such instructions are required whenever evidence that the defendant is guilty only of
the lesser offense is ‘substantial enough to merit consideration’ by the jury.” 5 (Id. at


       5
        Strauter argues that a trial court must provide a requested instruction on a lesser
included offense whenever there is any evidence on that issue deserving of any
consideration whatsoever. Although this may have been the law at one time (People v.
Carmen (1951) 36 Cal.2d 768, 773), it has been disapproved. (People v. Flannel (1979)
25 Cal.3d 668, 684-685, fn. 12; see also People v. Wickersham (1982) 32 Cal.3d 307,
324, overruled on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200.)


                                               5
p. 162, original italics.) Thus, the court must instruct when there is “ ‘evidence from
which a jury composed of reasonable [persons] could have concluded’ ” the defendant is
guilty of the lesser crime but not the greater. (People v. Flannel, supra, 25 Cal.3d at
p. 684.) When assessing the sufficiency of the evidence we may not weigh the credibility
of the witnesses, “a task exclusively relegated to the jury.” (Ibid.)
        In this case, Strauter was charged with first degree murder. The trial court agreed
to instruct on the lesser included offense of voluntary manslaughter but refused Strauter’s
request to also instruct on the lesser included offense of involuntary manslaughter. Thus,
the question is whether there was sufficient evidence to merit consideration by the jury
that Strauter was guilty only of involuntary manslaughter.
       Voluntary manslaughter is statutorily defined as the “unlawful killing of a human
being without malice” that occurs “upon a sudden quarrel or heat of passion.” (§ 192,
subd. (a).) It may also be found “when the defendant kills in ‘unreasonable self-
defense’—the unreasonable but good faith belief in having to act in self-defense.”
(People v. Barton, supra, 12 Cal.4th at p. 199.) Involuntary manslaughter is statutorily
defined as the “unlawful killing of a human being without malice” that occurs in the
commission of (1) “an unlawful act, not amounting to a felony” or (2) “a lawful act
which might produce death, in an unlawful manner, or without due caution and
circumspection.” (§ 192, subd. (b).)
       In Blakely, our Supreme Court held that “when a defendant, acting with conscious
disregard for life, unintentionally kills in unreasonable self-defense, the killing is
voluntary, not involuntary, manslaughter.” (People v. Blakely, supra, 23 Cal.4th at
pp. 88-89.) In his dissent, Justice Mosk argued that a defendant who acts in unreasonable
self-defense may lack the requisite mental state to commit voluntary manslaughter:
“[A]n actor who entertains an actual, but unreasonable, belief in imminent danger of
death or great bodily injury may happen not to harbor malice aforethought implied in a
wanton disregard for human life. Wantonness, at least, may be lacking.” (Id. at p. 98,
italics omitted.) In response, the majority stated it had “no quarrel” with the view that a
defendant who kills in unreasonable self-defense may sometimes be guilty of involuntary


                                               6
manslaughter. (Id. at p. 91.) It “conclude[d] only that a defendant who, with the intent to
kill or with conscious disregard for life, unlawfully kills in unreasonable self-defense is
guilty of voluntary manslaughter.” (Ibid., original italics.)
       Strauter argues that the trial court here should have instructed on involuntary
manslaughter because there was evidence Strauter had an actual belief in the need to use
self-defense and “the jury had been treated to a wide array of accounts of the events.”
Strauter maintains he was unable to appreciate the danger posed by his actions because it
was a “confusing [and] fluid situation.” In support, he points to his own testimony at
trial. Specifically, Strauter testified that, at the time of the shooting, Kamarlon had a gun
in his hand, JT was reaching for a shotgun, and Strauter “didn’t know what to do.”
Strauter also testified he was not prepared to kill JT. Instead, he fired the gun because he
needed to “do something” to distract JT so he could escape. Strauter claimed he did not
aim at JT, he “just kind of threw [his] arm in the V of the door and just pointed in that
direction.”
       We are not persuaded that this testimony gave rise to an obligation to give an
involuntary manslaughter instruction. At most, this evidence suggests Strauter may have
acted in imperfect self-defense and lacked an intent to kill. But it still shows a conscious
disregard for life. Strauter did not claim he fired his weapon accidentally. He purposely
shot three times in JT’s direction, hitting JT twice in the back and once in the leg. If, as
Strauter claims, he did not take aim before shooting, then his actions posed a deadly
threat to all in his line of fire, including JT, Kamarlon,6 and others who may have been in
or around the garage. At trial, Strauter conceded he “basically sprayed the garage,” and
as far as he knew, he could have shot two people. Strauter claimed he was merely trying
to distract JT. But instead of firing in the air, he fired toward the garage, where there
were more people. This was not a case where the victim’s death resulted from an
unlucky blow. (See People v. Cook, supra, 39 Cal.4th at p. 597.) Instead, there was a

       6
         Although Kamarlon was armed, there is no indication he posed a threat to
Strauter. Multiple witnesses testified Kamarlon tried to deescalate the situation, and
Strauter stated Kamarlon kept a gun away from JT after JT had threatened Strauter.


                                              7
high probability Strauter’s actions would result in death. We recognize that, in some
instances, “The testimony of a single witness, including the defendant, can constitute
substantial evidence requiring the court to instruct on [a lesser included offense].”
(People v. Lewis (2001) 25 Cal.4th 610, 646.) But in this case, Strauter’s admitted
actions cannot support a conclusion that he acted without a conscious disregard for life. 7
       Finally, even if we were to determine that the jury should have been instructed on
involuntary manslaughter, we would conclude the error was harmless. The parties
dispute the measure we should apply in assessing prejudice. When errors do not
implicate constitutional rights, we assess them under People v. Watson (1956) 46 Cal.2d
818, which requires us to reverse only if there is a reasonable probability that the
defendant would have obtained a more favorable result. (Id. at p. 836.) But when errors
implicate constitutional rights, we assess them under Chapman v. California (1967)
386 U.S. 18, which requires us to reverse unless it is clear beyond a reasonable doubt that
the defendant would not have obtained a more favorable result. (Id. at p. 24.) We
conclude that we need not resolve this dispute here because any error was harmless under
either measure. Given Strauter’s conscious disregard for life in shooting his weapon, it
would have been nearly impossible for the jury to have found that he committed
involuntary manslaughter and not voluntary manslaughter. It is unlikely enough that a
reasonable juror could have believed Strauter did not intend to shoot JT since Strauter
discharged his weapon three times and hit JT twice in the back and once in the leg. But
even if Strauter could be believed that he shot in the direction of two people in the garage
without aiming, he exhibited a conscious disregard for the lives of those who might have
been in his line of fire.



       7
         Alternatively, Strauter argues the trial court should have instructed on
involuntary manslaughter because there was evidence he killed without malice in the
commission of an inherently dangerous assaultive felony. But even under this theory,
Strauter would have committed voluntary manslaughter, not involuntary manslaughter, if
he had acted with a conscious disregard for life. (See People v. Bryant (2013) 56 Cal.4th
959, 969-971.) Strauter concedes as much in his brief.


                                              8
                                     III.
                                 DISPOSITION
     The judgment is affirmed.




                                          _________________________
                                          Humes, P.J.


We concur:


_________________________
Margulies, J.


_________________________
Banke, J.




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