Filed 3/3/15 P. v. Beuchel CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

NOAH OTTO BEUCHEL,

Defendant and Appellant.

 B251481

 (Los Angeles County

 Super. Ct. No. BA399361)

APPEAL from a judgment of the Superior Court of Los Angeles County, Monica 

Bachner, Judge. Affirmed with modifications.

Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Eric E. 

Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *
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Defendant Noah Otto Beuchel challenges his conviction for second degree 

murder. He argues that jurors should have been instructed on the lesser included offense 

of manslaughter. We disagree and affirm. We modify his sentence to add one day of 

custody credit.

FACTS AND PROCEDURE

Defendant was a member of the Pinoy Real gang. On January 12, 2012, late at 

night, he walked with his friend Benjamin Tan from his grandmother’s home to a nearby 

store. En route, defendant shot and killed rival Temple Street gang member Cesar 

Gonzalez. Gonzalez died of multiple gunshot wounds. An autopsy showed that 

Gonzalez’s blood alcohol level was between 0.16 and 0.2 percent (depending on the 

location of the test), and he tested positive for a byproduct of methamphetamine.

Two eyewitnesses, Maria Fernandez—Gonzalez’s girlfriend—and defendant’s 

friend and codefendant Tan testified at trial.

1. Maria Fernandez

Fernandez testified that on January 12, 2012, as they waited for a bus, Gonzalez 

removed his hat, revealing tattoos of horns on his head. Fernandez asked him to cover 

his head to hide the tattoos. Fernandez’s testimony was inconsistent as to whether 

Gonzalez complied with her request.

As Gonzalez and Fernandez waited for the bus, Gonzalez asked an unidentified 

man “where are you from,” which is jargon for asking him whether he belonged to a

criminal street gang. Gonzalez told the man that he was from Temple Street (referring to 

the name of his criminal street gang) and that “this is Temple Street.” Fernandez told 

Gonzalez to leave the man alone. The man appeared frightened and left the bus stop.

When defendant and Tan passed Gonzalez, defendant asked Gonzalez “where are 

you from,” again referring to his gang membership.1 Gonzalez responded that he was 

 

1 Although Fernandez identified defendant as the person who asked Gonzalez about 

his gang membership, she also identified Tan.
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from Westside Temple and his moniker was Little Devil. Tan pushed Fernandez. 

Defendant shot Gonzalez. Defendant and Tan then fled.

Fernandez testified that Gonzalez was physically imposing and had tattoos of tear 

drops near his eye.

2. Tan

Tan testified that he was a former member of the Pinoy Real gang and had gang 

tattoos. After his daughter’s birth, he tried to separate from the gang and began having 

his tattoos removed.

On January 12, 2012, Tan decided to accompany defendant to the store. As they 

neared the bus stop where Gonzalez and Fernandez were standing, Tan had a “bad 

feeling.” Tan was concerned that Gonzalez would ask him “where [he’s] from” and “try 

to fight [him] after.” Although Tan thought Gonzalez would ask where he was from, 

Gonzalez did not.

Gonzalez followed defendant and Tan and said “Temple.” Tan said “all right. All 

right. It’s cool.” Gonzalez, who was wearing gang attire, responded that this is 

“Westside Temple Street.” Tan said “don’t trip,” by which he meant “no problem.” 

Appearing upset, Gonzalez repeated “Temple” and displayed a gang sign. Tan thought 

Gonzalez was going to punch his face.

When Tan thought it was safe to continue to the store, he began crossing the street, 

and then he heard a gunshot. Tan turned around and saw defendant shoot Gonzalez. Tan 

testified Gonzalez never hit him or defendant. Gonzalez never displayed any weapon. 

Tan did not see Gonzalez threaten defendant. According to Tan, violence may easily 

ensue from a challenge by a gang member. Tan also testified that a gang member 

supports his gang by fighting a rival gang member and killing a rival gang member.

3. Other Evidence

A gang expert testified that gangs by their very nature are violent. Shooting 

someone who disrespected a gang is “putting in work for the gang.” The most common 

way to “put in work for a gang is to commit violent crimes.” A “hit-up” is when one 

gang member asks another gang member about his gang membership. Typically, a gang
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member asks “where are you from.” “A stabbing or shooting will usually occur 

subsequent to the hit-up.”

Gonzalez had numerous tattoos. As noted, he had devil horns on his head. The 

teardrop under his right eye might signify that he killed someone or that he lost a friend. 

Gonzalez had a spider web tattoo and a star in a circle. A spider web tattoo can mean a 

person spent time in prison and assaulted or killed someone. Gonzalez’s taking off his 

hat to show his horns may have been a means to claim the area he was in as territory for 

his gang.

4. Conviction and Sentence

Defendant was convicted of second degree murder. Firearm enhancements under 

Penal Code section 12022.53, subdivisions (b), (c) and (d) were found true. The gang 

enhancement was found not true. Tan was found not guilty. The court sentenced 

defendant to an aggregate term of 40 years to life in prison. The court awarded defendant 

426 days of actual custody credits. This appeal followed.

DISCUSSION

Defendant argues the court should have instructed on manslaughter based on two 

theories—imperfect self-defense and heat of passion. Both theories would reduce murder 

to voluntary manslaughter. (People v. Blacksher (2011) 52 Cal.4th 769, 832.)

Jurors must be instructed on lesser included offenses supported by substantial 

evidence. (People v. Duff (2014) 58 Cal.4th 527, 562.) Substantial evidence is 

“‘“evidence from which a jury composed of reasonable persons could conclude that the 

facts underlying the particular instruction exist.”’” (People v. Enraca (2012) 53 Cal.4th 

735, 758.)

“A killing with express malice formed willfully, deliberately, and with 

premeditation constitutes first degree murder. [Citation.] ‘Second degree murder is the 

unlawful killing of a human being with malice aforethought but without the additional 

elements, such as willfulness, premeditation, and deliberation, that would support a 

conviction of first degree murder.’” (People v. Beltran (2013) 56 Cal.4th 935, 942.) 
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“Manslaughter is a lesser included offense of murder. [Citations.] The mens rea element 

required for murder is a state of mind constituting either express or implied malice. A 

person who kills without malice does not commit murder.” (Ibid.)

We now turn to whether the trial court was required to instruct on imperfect selfdefense or heat of passion. There may be substantial evidence to support such an 

instruction even if a defendant does not testify. (People v. De Leon (1992) 10 

Cal.App.4th 815, 824.)

1. Imperfect Self-defense

“Unreasonable self-defense, also called imperfect self-defense, ‘obviates malice 

because that most culpable of mental states “cannot coexist” with an actual belief that the 

lethal act was necessary to avoid one’s own death or serious injury at the victim’s hand.’” 

(People v. Beltran, supra, 56 Cal.4th at p. 951.) “The killing is . . . mitigated because of 

the defendant’s misguided but good faith belief.” (Ibid.)

Defendant requested the court instruct jurors pursuant to CALCRIM No. 571

which provides: “A killing that would otherwise be murder is reduced to voluntary 

manslaughter if the defendant killed a person because (he/she) acted in (imperfect selfdefense/ [or] imperfect defense of another). [¶] If you conclude the defendant acted in 

complete (self-defense/ [or] defense of another), (his/her) action was lawful and you must 

find (him/her) not guilty of any crime. The difference between complete (self-defense/

[or] defense of another) and (imperfect self-defense/ [or] imperfect defense of another)

depends on whether the defendant’s belief in the need to use deadly force was reasonable. 

[¶] The defendant acted in (imperfect self-defense/ [or] imperfect defense of another) if: 

[¶] 1. The defendant actually believed that (he/she/ [or] someone else/ ____________)

was in imminent danger of being killed or suffering great bodily injury; AND [¶] 2. The 

defendant actually believed that the immediate use of deadly force was necessary to 

defend against the danger; BUT [¶] 3. At least one of those beliefs was unreasonable.” 

The court rejected defendant’s request, finding no substantial evidence supported the 

claimed imperfect self-defense.
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On appeal, defendant argues his conviction must be reversed because the court 

erroneously refused to instruct jurors on imperfect self-defense. He argues that his actual 

belief that he and Tan were in imminent danger of being killed was readily inferable from 

the circumstances. He emphasizes that Gonzalez was a heavy-set man, identified as a 

gang member from his multiple tattoos including a spider web and tear drops. He further 

highlights evidence that Gonzalez had an elevated blood alcohol level and his blood 

showed that he had used methamphetamine. According to defendant, Gonzalez

threatened someone else at the bus stop by asking the man “where are you from.” The 

man, who appeared afraid of Gonzalez, eventually left the bus stop.

Defendant persuasively shows that he could have believed he was in danger. 

Gonzalez was recognizable as a gang member, announced that he was from Temple 

Street thereby claiming his gang, and showed a gang sign. He was physically imposing. 

The man at the bus stop left after Gonzalez asked where he was from, suggesting that he 

may have feared Gonzalez. Tan’s testimony showed that Tan had a “bad feeling” when 

he saw Gonzalez. Tan believed Gonzalez would punch him in the face or “hit him up.”

However, defendant fails to identify any evidence supporting his claim that he 

actually believed he or Tan was in imminent danger of being killed or suffering from 

great bodily injury. Imperfect self-defense requires that the defendant “have had an 

actual belief in the need for self-defense.” (In re Christian S. (1994) 7 Cal.4th 768, 783.) 

Defendant did not testify and no witness testified as to his state of mind. Tan did not see 

Gonzalez do anything to defendant. Even if jurors could have inferred that defendant and 

Tan shared the same emotions when they encountered Gonzalez, Tan’s testimony does 

not show he feared that he would be killed or would suffer great bodily injury. Tan 

testified he was afraid defendant would punch him in the face or ask him about his gang 

membership. Tan believed he was able to diffuse the situation by telling Gonzalez, 

“don’t trip.” Nor was there evidence that Tan or defendant believed deadly force was 

necessary to defend against Gonzalez. For all these reasons, the trial court properly 

concluded the instruction on imperfect self-defense was not warranted.
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2. Heat of Passion

“Heat of passion arises if, ‘“at the time of the killing, the reason of the accused 

was obscured or disturbed by passion to such an extent as would cause the ordinarily 

reasonable person of average disposition to act rashly and without deliberation and 

reflection, and from such passion rather than from judgment.”’ [Citation.] Heat of 

passion, then, is a state of mind caused by legally sufficient provocation that causes a 

person to act, not out of rational thought but out of unconsidered reaction to the 

provocation. While some measure of thought is required to form either an intent to kill or 

a conscious disregard for human life, a person who acts without reflection in response to 

adequate provocation does not act with malice.” (Beltran, supra, 56 Cal.4th at p. 942.) 

“[P]rovocation is sufficient not because it affects the quality of one’s thought processes, 

but because it eclipses reflection. A person in this state simply reacts from emotion due 

to the provocation, without deliberation or judgment. If an ordinary person of average 

disposition, under the same circumstances, would also react in this manner, the 

provocation is adequate . . . .”2(Id. at p. 950.)

Defendant argues the evidence that Gonzalez threatened his life and Tan’s life 

indicates the court should have instructed jurors that he acted in the heat of passion. 

Defendant argues jurors could have inferred that he acted rashly because he panicked 

without due deliberation and reflection. According to defendant, “the nature of the 

provocation was an implicit, immediate threat” to his and Tan’s life.

The difficulty for defendant was that there was no evidence Gonzalez threatened 

his life or Tan’s life. While defendant could have panicked, for purposes of voluntary 

manslaughter he must show evidence that he was provoked by acts that would “render an 

ordinary person of average disposition ‘liable to act rashly or without due deliberation 

and reflection.’” (Beltran, supra, 56 Cal.4th at p. 957.) Gang-related challenges are 

 

2 Defendant did not request an instruction on heat of passion but the court is 

required to instruct sua sponte if the evidence is substantial. (People v. Enraca, supra, 53 

Cal.4th at p. 758.)
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insufficient provocation to require an instruction on voluntary manslaughter. (People v. 

Enraca, supra, 53 Cal.4th at p. 759.) The standard of an ordinary person “is not the 

reaction of a ‘reasonable gang member.’” (Ibid.) The evidence that Gonzalez had an 

elevated blood alcohol level and tested positive for methamphetamine were not probative 

of whether defendant acted out of passion because there was no evidence that defendant 

was aware of Gonzalez’s drug and alcohol use. Nor was there evidence that Gonzalez’s 

level of intoxication caused him to provoke defendant. Defendant failed to show the 

court should have instructed jurors on the heat of passion theory for manslaughter.

3. Custody Credit

The parties agree that defendant is entitled to one additional day of conduct credit. 

Appellant was arrested June 28, 2012, and sentenced on August 28, 2013. He was given 

426 days of custody credits but should have been given 427 days to reflect the number of 

days between his arrest and his sentencing.

DISPOSITION

The sentence is modified to reflect 427 days of custody credit. In all other 

respects the judgment is affirmed.

FLIER, J.

WE CONCUR:

BIGELOW, P. J.

GRIMES, J.