1 Filed 12/18/13 P. v. Estrada CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. MATTHEW JOEL ESTRADA, Defendant and Appellant. E057454 (Super.Ct.No. RIF1100789) OPINION

APPEAL from the Superior Court of Rive rside County. Charles J. Koosed, Judge. Affirmed with directions. Jennifer Peabody, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Atto rney General, Charles C. Ragland, and Kimberley A. Donohue, Deputy Attorneys Ge neral, for Plaintiff and Respondent.2 I INTRODUCTION Defendant Matthew Joel Estrada stabbed to death his friend, Rene Gonzalez. Before the killing, defendant had been drinking heavily. A jury convicted defendant of one count of first degree mu rder (Pen. Code, §§ 187, 189) 1 and found true the allegation that he personally used a deadly weapon in committing murder. (§§ 12202, subd. (b)(1), 1192.7, subd. (c)(23).) The trial court sentenced defendant to an indeterminate term of 25 years to life in prison, plus one year on the personal weapons-use enhancement, for a total indeterminate prison te rm of 26 years to life. On appeal, defendant admits he killed Gonzalez but argues he did not act with premeditation and deliber ation. He contends the court erred in admitting prior acts of violence and in refusing to give the jury an instruction on the lesser included offense of voluntary manslaughter. We reject these contentions and affirm the judgment. II STATEMENT OF FACTS Gonzalez’s Death On March 27, 2011, defendant visited th e home of Angel Guzman. Defendant showed Guzman a butcher knife and said he was planning to stab someone because he

1 All statutory references are to th e Penal Code unless stated otherwise.3 was mad about an incident in which his son's dog was run over two or three years earlier. Defendant blamed Albert Torre s and his friends for the dog’ s death. He asked Guzman to be his “back-up.” Later in the evening, around 8:00 or 9: 00 p.m., defendant arrived at the Torres house, where Torres and Gonzalez were hangin g out and drinking. Initially Torres told defendant that he could not stay because defendant was already drunk, and Torres knew defendant liked to fight. Defendant did not leave but remained at Torres’s house where the three men continued to drink. At one po int, they drove to defendant’s house to get another bottle of liquor. They returned to the Torres home for more drinking. Defendant returned to Guzm an’s house, where Guzman said defendant was visibly drunk. Defendant went back to the Torres ho me and kept drinking in the side yard. Gonzalez asked Torres why defendant was “itchi ng” to fight him. Torres said to ignore defendant because “that’s how he is when he’s drunk.” Torres was holding his infant son several feet away from Gonzal ez and defendant. Torres could not hear their conversation over the loud music. Defendant then stabbed Gonzalez in the back w ith a knife. Gonzalez appeared “dazed” and tried to swing at defendant but he did not make contact. Torres removed his son for safety. When he came back outside, defendant was running down the street and Go nzalez was standing, dazed in the yard, until he fell down.4 After Torres’s girlfriend called 911, an ambulan ce transported Gonzalez to the hospital, where he underwent surgery but eventually died from a stab wound to the chest. Defendant’s Flight and Arrest Defendant sought out his neig hbor, Jonathan Solis, and aske d to hide in his yard. Defendant told Solis, “I think I killed some body,” and showed him a knife. Solis told defendant to get off of his property, and de fendant ran through Solis’s back yard and jumped the fence. Defendant dropped a liquor bottle and a steak knife. Defendant was eventually taken to jail. Defendant’s Admissions In recorded telephone calls from jail to family members, defe ndant admitted that he had “messed up.” He also discussed the po lice search for the knif e he used to stab Gonzalez and had shown to Solis, corroborati ng Solis’s testimony that defendant dropped a knife when defendant jumped the fence in Solis’s backyard. Defendant’s Uncharged Assaults While in jail, defendant attacked a cellm ate and stabbed him with a toothbrush. He continued kicking and punching the cellmat e until correctional officers were able to subdue defendant with pepper balls. On another occasion, after defendant ha d been drinking, he asked his neighbor, Jose Pinto, to assist him in a fight for reve nge. Pinto refused. About 30 minutes later, defendant returned with a bloody gash on his head and asked Pinto to take him to the5 hospital. Pinto waited several hours for defendant to be trea ted but finally left defendant to walk home about a mile and a half. De fendant responded by coming to Pinto’s house in a rage, throwing a brick at Pinto’s car, and cracking defendant’s own windshield. Defendant struck Pinto on th e side of the head, leaving Pinto “a little incoherent.” Pinto’s wife and defendant’s uncle tried to calm defendant down and eventually called the police. Defense Defendant did not testify. Instead, he presented stipula tions between the parties that (1) an investigator with the prosecuto r’s office would testify that Guzman told him that defendant was drunk all day on the date he stabbed Gonzalez and that Torres was a member of a gang; (2) that th e investigator would testify that Torres’s neighbor did not mention hearing loud music coming from the To rres house that night; (3) that Gonzalez’s blood alcohol level at the time of his death was .25; (4) that defendant’s blood alcohol level at 6:00 a.m. the day after he stabbed Gonzalez was .13; and (5) that, through a process called “retrograde extrapolation,” the blood alcohol level decreases at a certain rate over time. III EVIDENCE OF UNCHARGED CONDUCT Defendant contends that the court im properly admitted evidence of the two uncharged assaults on defendant’s cellmate a nd his neighbor. Resp ondent contends the6 trial court properly exercised its discreti on in allowing the evidence because the uncharged acts were sufficiently similar to the murder and rele vant to prove intent and to negate the defense of intoxication. Additiona lly, the evidence was not unduly prejudicial and any error in admitting it was harmless, given the overwhel ming evidence of defendant’s guilt. We agree. In a pretrial hearing, the prosecutor argued the evidence showed defendant intended to use a weapon to inflict great bo dily injury or enda nger the life of an individual. The prosecutor described each incident as similar unprovoked attacks and probative to establish defendant’s intent at the time of the stabbing. Defense counsel argued the incidents were distinguishable and overly prejudicial. The attack in jail was part of the “code of conduct” for incarcerat ed persons. Similarly, defense counsel argued that the attack on the neig hbor with a brick was different because defendant hit the neighbor with the brick only once before he was distracted. The trial court allowed evidence of the two assaults on the cellmate and the neighbor and precluded evidence of a third attack on de fendant’s stepfather. “A trial court’s decision to admit or excl ude evidence is revi ewable for abuse of discretion.” ( People v. Vieira (2005) 35 Cal.4th 264, 292; see also People v. Davis (2009) 46 Cal.4th 539, 602.) A trial court’s exercise of discretion must not be disturbed on appeal except where the court acted in an arbitrary, capr icious or patently absurd7 manner that resulted in a manifest miscarriage of justice. ( People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) Evidence of uncharged misconduct is admi ssible “when relevant to prove some material fact other than th e defendant’s general disposition to commit such an act.” ( People v. Jones (2012) 54 Cal.4th 1, 49.) Eviden ce Code section 1101, subdivision (b), provides, in relevant part: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong or other act wh en relevant to prove some fact (such as motive, opportunity, intent, pr eparation, plan, knowle dge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act.” (Evid. Code, § 1101, subd. (b).) In determining whether evid ence of uncharged misconduct is admissible, the trial court must look to the simi larities between the uncharged misconduct and the charged conduct. The required degree of similarity changes depending on the purpose for which the proponent of the evidence wishes to introduce the uncharged acts: “[E]vidence of a defendant’s uncharged misconduct is relevant where the uncharged misconduct and the charged offense are sufficiently similar to support the inference that they are manifestations of a common design or plan. [¶] . . . [¶] Th e least degree of similarity . . . is required in order to prove intent”—that the defendant probably harbored the same intent in each instance. ( People v. Ewoldt (1994) 7 Cal.4th 380, 401-402.) The trial court must also decide whether the proba tive value of the evid ence is substantially8 outweighed by the probability that its ad mission would (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudic e, of confusing the issues, or of misleading the jury. ( Id. at p. 404, citing Evid. Co de, § 352.) “Prejudicial” is not synonymous with “damaging,” but refers instead to evidence that “‘“uniquely tends to evoke an emotional bias against defenda nt”’” without regard to its relevance on material issues. [Citations.]” ( People v. Kipp (2001) 26 Cal.4th 1100, 1121; see also People v. Dejourney (2011) 192 Cal.App.4th 1091, 1105.) We conclude the evidence of defendant ’s unprovoked assaults with deadly weapons on two other persons was properly admitted to es tablish his intent to kill Gonzalez. The trial court determined that the uncharged assau lts were sufficiently similar to Gonzalez’s murder to allow the evidence under Evidence Code section 1101, subdivision (b). The trial court considered the similarities between the stabbing of Gonzalez and defendant’s cellm ate. Specifically, the c ourt examined the manner in which defendant attacked both victims, the injuries caused, and the circumstances. Defendant’s attack on his cell mate was suffi ciently similar to th e attack on Gonzalez because it showed that he attacked his vic tims with a weapon from behind in order to gain an advantage. After wounding his victim s, he proceeded to attack them further. Each attack was severe enough to show an in tent to kill. The trial court concluded that these att acks, although one occurred in jail and another on the streets, were sufficiently simi lar to allow admission. The trial court also9 concluded that any prejudice from the evid ence was outweighed by its probative value under Evidence Code section 352. Noting that it is “hard to ignore the highly, I think, probative value of these acts,” and rec ognizing that many inmates in jail do not physically attack other inmates when they ar e “disrespected,” the trial court found that the probative value of an unpr ovoked attack against defenda nt’s cell mate outweighed the prejudice, especially given the signific ant similarities between the two attacks. The trial court also examined the simila rities between defenda nt’s attack on his neighbor and found it was suffi ciently similar to the attack on Gonzalez to warrant its admission under Evidence Code section 1101 , subdivision (b). When defendant’s neighbor left him at the hosp ital, it took defendant 30 to 45 minutes to walk home and he became so enraged that he hit his neighbor in the head with a brick. This unprovoked attack was sufficiently similar to the unpr ovoked attack on Gonz alez to warrant its admission to establish defendant’s intent to e ndanger the life of another with a weapon. The trial court then examined the probative nature of the evidence, compared to its prejudicial effect. Defenda nt’s irrational attack on his neighbor outweighed any prejudicial impact. When instructing the jury, th e trial court indicated that any evidence of uncharged acts could be considered only for the limite d purpose of determin ing whether defendant had the intent to kill. The trial court’s deci sion was well within the bounds of reason, and therefore not an abuse of discretion.10 Even if this court were to conclude that the trial court erred in admitting evidence of defendant’s uncharged assaults, any such error was harmless—as it is not reasonably probable that defendant would have rece ived a more favorable result absent the admission of that evidence. ( People v. Welch (1999) 20 Cal.4th 701, 750.) Defendant does not dispute he stabbed Gonzalez, intending to kill him. After first stabbing Gonzalez in the back, defendant continued to attack, culminating in a fatal stab to the chest. Defendant stabbed Gonzalez with so mu ch force that the tip of the knife bent. Defendant pierced the sternum and continued sta bbing to a depth of four to five inches, damaging two separate chambers in Gonzalez’ s heart and piercing Gonzalez’s upper left lung. As defendant acknowledges, “Stabbing th e victim in the torso with such force that it penetrates muscle, bone and two vital organs constitutes comp elling and virtually irrefutable evidence of intent to kill.” Additional evidence confirmed defendant in tended to stab someone that night. Defendant told Guzman he wa s angry because Torres and his friends had killed his dog a few years before and he wanted retribution. Considering the eviden ce against defendant, it is not reasonably probable that, absent the evidence of the prior assaults, a different result would have occurred. Th us, any error was harmless. ( People v. Williams (2009) 170 Cal.App.4th 587, 612.) Finally, defendant forfeited an objection to the admission of evidence on federal constitutional grounds by failing to raise th at objection with the trial court. ( People v.11 Sanders (1995) 11 Cal.4th 475, 510, fn. 3, citing People v. Gordon (1990) 50 Cal.3d 1223, 1264-1265, overruled on other grounds in People v. Edwards (1991) 54 Cal.3d 787.) Defendant never asserted any objecti on based on the Fifth, Sixth or Fourteenth Amendments when opposing th e prosecution’s motion to ad mit the evidence. In any event, as discussed above, the trial court did not abuse its discretion in admitting the evidence. Because defendant’s due process argument can re st only on the premise that the trial court abused its discretion in admitting the evidence, his claim fails. ( Sanders, at p. 9.) It is also not reas onably likely defendant would have obtained a more favorable outcome. ( People v. Watson (1956) 46 Cal.2d 818, 836.) For th e same reasons, any error does not rise to the level of prejudice under Chapman v. California (1967) 386 U.S. 18, 24.) IV VOLUNTARY MANSLAUGHTER Defendant next asserts the trial court shou ld have instructed th e jury on the lesser included offense of voluntary manslaughter. We hold the trial cour t had no duty to give the instruction but any error in failing to instruct the jury was harmless because the jury was instructed on both first a nd second degree murder and convicted appellant of first degree murder.12 We conduct an independent review of instructional error concerning a lesser included offense. ( People v. Avila (2009) 46 Cal.4th 680, 705.) When discussing jury instructions, the trial court stated: “We have been discussing jury instructions. “There were a couple, there were tw o specifically which the defense has requested, and the Court is inc lined to deny that request, sp ecifically it is CALCRIM 570, voluntary manslaughter, heat of passion as a lesser-included offense, as well as 571, voluntary manslaughter, imperfect self-def ense as a lesser-included offense. “. . . The Court in reviewing the evidence that was presented in the trial does not believe that there is substantial evidence wa rranting those instructions be given to the jury. “The facts which were argued in support of those instructions, . . . was that there was an argument, a verbal argument which took place, I think logically you could conclude between the victim a nd [defendant], because Mr. Torres said he was taking care of his kid at the time and overheard an argument. “And I think Mr. Philips also mentioned that there was some—there could have been some injuries to [def endant], although I will tell you that in listening to the evidence, I am not aware of any injuries that would have occurred by way of a fist fight.13 “In any event, that was all I was provided w ith, so as to the provocation, heat of passion, I am not aware of any evidence that was presented which would otherwise have provoked [defendant] to the point where he wo uld have acted in the way that he did. [¶] . . . [¶] “Again, it is just a verbal argument. If a ny one of those instructions is even close to being applicable, it would pr obably be the heat of passion as opposed to self-defense, but even that one there is a big hole and lack of evidence to warrant those instructions.” The court ultimately instructed the jury only on first degree and second degree murder. The jury fou nd defendant guilty of first degree murder. A trial court must instruct the jury on the general principles of law that are “closely and openly conn ected with the facts be fore the court.” ( People v. Wickersham (1982) 32 Cal.3d 307, 323, disa pproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200-201.) This obligation extends to lesser included offens es if the evidence “‘raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense.’ [Citations.]” ( People v. Lopez (1998) 19 Cal.4th 282, 287.) Voluntary manslaughter is a lesser-included offense of murder. ( People v. Booker (2011) 51 Cal.4th 141, 181.) However, as the trial court decide d, the evidence in this case did not justify the giving of an instruction on voluntary manslaughter based on heat of passion or pr ovocation or imperfect self-defense. A court’s duty to in struct on lesser included offenses arises only14 where there is substantial eviden ce for a jury to evaluate. ( People v. Barton, supra , 12 Cal.4th at p. 195, fn. 4; People v. Oropeza (2007) 151 Cal.App.4th 73, 78.) Speculation is not sufficient evidence. ( People v. Escobar (1996) 48 Cal.App.4th 999, 1016; People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Voluntary manslaughter is “the unlawful killing of a human being without malice . . . [¶] . . . upon a su dden quarrel or heat of passion.” (§ 192, subd. (a).) An intentional, unlawful homicide caused by sudden quarrel, h eat of passion, or provocation is voluntary manslaughter. ( People v. Barton, supra , 12 Cal.4th at p. 201.) There must be evidence that: (1) the provocation was caused by the victim or the defendant reasonably believed it was caused by the victim, and (2) the provoc ation was such as to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. ( People v. Moye (2009) 47 Cal.4th 537, 550; People v. Lee (1999) 20 Cal.4th 47, 59.) Similarly in order for a killing to be imperfect self-defense , a defendant must have an actual, but unreasonable, belief of having to act in self-defense. ( People v. Barton, supra , 12 Cal.4th at pp. 200-201.) In People v. Manriquez (2005) 37 Cal.4th 547, 585-586, the California Supreme Court held that a defendant was not en titled to jury instru ctions on voluntary manslaughter based on heat of passion or provocation beca use an average, reasonable person would not shoot someone who ta unted him or called him names. ( Ibid. ) In15 another instance, the same defendant c onfronted another victim, who had been romantically involved with the defendant’s gi rlfriend, and fatally shot him. A witness told law enforcement officers that, just before the shoo ting, the victim asked the defendant, “Why are you mad at me?” and “What’s your proble m with me?”' The defendant shot the victim from a distan ce of several feet and drove off. ( Id . at pp. 561- 562.) The California Supreme Court held that the defendant was not entitled to an instruction on voluntary mans laughter based on imperfect self-defense because the defendant never indicated that he felt a threat of immediate harm or fear of the victim. ( Id. at p. 582.) At most, the evidence showed the defendant had a fear of future harm which is insufficient to requir e an instruction on imperfect self-defense, which requires an actual, but unreasonable, fear of imminent harm. ( Ibid. ) The evidence here was, likewise, insufficien t to require an instruction on the lesser included offense of voluntary manslaughter, eith er under a theory of heat of passion or imperfect self-defense. There was no evid ence defendant feared imminent harm from Gonzalez. Defendant was the unprovoked aggressor, stabbing G onzalez in the back with the knife. Additionally, any injuries defenda nt sustained were, by his own admission, caused by jumping and eluding law enforcemen t—not inflicted by Gonzalez. Defendant had told Guzman earlier in th e day that he was planning to stab someone. Finally, defendant fled the scene of the murder, leading po lice on a chase through the neighborhood. The only men tion of self-defense arose in the context of defendant’s16 jailhouse conversation with his stepfather, in which he agreed with the stepfather’s comment that he acted in self-defense. The only possible provocation was an argument between him and Gonzalez. Bu t an average, reasonable pe rson would not stab someone based on a verbal dispute. ( People v. Manriquez, supra , 37 Cal.4th at pp. 585-586.) Defendant maintains the jury reasonably could have inferred that Gonzalez threatened or taunted defendant, justifying an instru ction on voluntary manslaughter. ( People v. Berry (1976) 18 Cal.3d 509, 515.) Th e evidence simply does not support such a conclusion. The trial court had no duty to instruct on vo luntary manslaughter, either under the theory of heat of passion or the theo ry of imperfect self-defense. In any event, there could be no prejudice from any error in this case. Error is harmless unless the court finds it is reasonabl y probable a result more favorable to the defendant would have been r eached absent the error. ( People v. Breverman (1998) 19 Cal.4th 142, 178; People v. Moye, supra , 47 Cal.4th at pp. 555-556.) Because the jury found defendant guilty of first degree murder, they necessarily found that he acted with premeditation and deliberation. It is not reas onably probable, therefore, that had the trial court instructed on voluntar y manslaughter, the jury’s ve rdict would have been any different: “The jury’s verdict finding defendan t guilty of the first de gree murder of [the victim] implicitly rejected defendant’s versio n of the events, leav ing no doubt the jury would have returned the same verdict had it been instructed regarding imperfect selfdefense.” ( People v. Manriquez, supra , 37 Cal.4th at p. 582, citing People v. Lewis17 (2001) 25 Cal.4th 610, 646.) Any error in failing to instruct on voluntary manslaughter was harmless. V DISPOSITION We affirm the judgment. The abstract of judgment should be corrected to show defendant was sentenced to an indeterminate sentence of 25 years to life on count 1 (first degree murder) along with a one-year sentence on the person al weapons-use enhancement to run consecutively to the sentence on count 1, for a total indeterm inate sentence of 26 years to life. ( People v. Avila (2013) 212 Cal.App. 4th 819, 828, citing People v. Farell (2002) 28 Cal.4th 381, 394, fn. 2.) The trial court should forward the corrected abstract of judgment to the Department of Corrections and Rehabilitation. NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON J. We concur:

RAMIREZ P. J.

HOLLENHORST J.