Filed 2/26/13 P. v. Antwane CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

LORD JULIAN ANTWANE,

Defendant and Appellant.

 B240539

 (Los Angeles County

 Super. Ct. No. MA053429)

APPEAL from a judgment of the Superior Court of Los Angeles County. Lisa M. 

Chung, Judge. Affirmed.

Landra E. Rosenthal, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Stacy S. Schwartz and 

Kimberly J. Baker-Guillemet, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *
2

A jury convicted defendant Lord Julian Antwane of first degree murder in 

violation of Penal Code section 187, subdivision (a).1 The jury found that defendant 

personally used and discharged a firearm causing death under section 12022.53, 

subdivisions (b), (c), and (d). The trial court sentenced defendant to a term of 50 years to 

life, consisting of 25 years to life for the murder and a consecutive 25 years to life for the 

firearm-use enhancement under section 12022.53.

Defendant appeals on the grounds that; (1) the trial court erred in refusing to 

instruct the jury regarding voluntary manslaughter; and (2) the court erred by failing to 

instruct the jury sua sponte that it could consider provocation in determining the degree 

of murder. Finding no error, we affirm.

FACTS

Prosecution Case

On the evening of November 1, 2009, defendant and his older brothers Lord 

Daireek Antwane and Lord Christian Antwane were at a barbecue at the family residence 

on Colleen Drive in Lancaster. Christian2 had recently moved from North Carolina to 

Los Angeles and was visiting his family in Lancaster. Donee Diamond and Michael 

Cooper were friends with the Antwane brothers and were also at the barbecue. Cooper 

had known the Antwane brothers since elementary school. He could tell the brothers 

apart by their facial features and also recognized the differences in their voices.

Cooper, Diamond and the Antwane brothers were drinking beer on the front lawn 

when Arthur Hicks pulled up in his car and asked for the time. Hicks accepted an 

invitation to stay and drink with the group. A verbal argument developed between Hicks 

and Cooper. Christian told Hicks not to use profanity in front of the Antwane brothers‟ 

 

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 We refer to Lord Christian Antwane and Lord Daireek Antwane by their middle 

names to avoid confusion, not out of disrespect.
3

sister who was present. A further argument ensued and Christian and Hicks agreed to 

fight down the street away from the house.

Hicks drove his car to the end of the street. Christian took his sister inside the 

house and asked Diamond to speak to Hicks and try to calm him down. Christian 

brought a gun from North Carolina and had shown it to defendant and Diamond the 

previous day. The gun was hidden in the backyard of the Antwane residence. Christian 

asked defendant to “grab the firearm just so we could be protected walking down the 

street to see if we‟re okay.” Christian, Daireek, Cooper and Diamond walked down the 

street to meet Hicks.

Diamond and Hicks started fighting and punches were exchanged. Diamond bled 

profusely from the forehead. Cooper saw defendant run past him holding something in 

his hand which was concealed by a bag. The bag “flew off” and Cooper saw something 

metallic in defendant‟s hand. He then heard gunshots and saw the muzzle flash come 

from defendant‟s hand. Christian saw Diamond fall to the ground and heard gunshots 

coming from where defendant was standing. Christian was aware of where everybody 

was positioned and did not see Daireek, Diamond, or Cooper shoot Hicks.3 Hicks was 

shot six times, including two gunshots to the chest, one of which was fatal.

Carlos Topete lived on Colleen Drive in Lancaster and heard gunshots on the 

evening of November 1, 2009. He went outside and saw four boys run down the street 

and enter the house directly across from him. He recognized some of the boys as his 

neighbors and identified defendant in a photographic line-up and in court as one of the 

individuals he saw that night.

After the shooting Diamond, Cooper and the Antwane brothers returned to the 

family residence on Colleen Drive. On the way back Cooper heard Christian and Daireek 

scream at defendant: “What are you doing? Are you crazy?” He did not hear any 

 

3 Christian testified that when the shooting occurred Diamond and Hicks were 

standing approximately six to nine feet from him. Daireek was approximately one foot to 

Christian‟s right, and Cooper was a couple of feet to his left.
4

response from defendant. Defendant and Christian left in a Chevy Impala with Diamond 

driving.4

At approximately 8:00 p.m. on November 1, 2009, Deputy Sheriff John Amis of 

the Lancaster Station responded to a call that shots had been fired and the suspects had 

left the scene in a white Chevy Impala. Deputy Amis saw the car with three occupants 

and followed it. The vehicle stopped and defendant ran from the car and jumped over a 

wall into a residential area near 18th Street and Jackman Street. Defendant was wearing 

a white jacket. Christian also jumped from the vehicle moments later and ran. Diamond 

was the lone occupant of the vehicle when he was arrested shortly afterwards.

Los Angeles County Deputy Sherriff Jason Phillippi and his K-9 dog assisted in 

searching the area for individuals that had run from the vehicle while police were in 

pursuit. Deputy Phillippi‟s dog located defendant hiding in a trash can in the backyard of 

a house. The dog bit defendant and dragged him out of the trash can. Defendant was 

taken into custody and subsequently treated at Antelope Valley Hospital for his injuries.

Los Angeles County Sherriff‟s Detective Peter Hecht arrived at the crime scene at 

approximately 1:00 a.m. on November 2, 2009. He noted the streetlights were working 

and the area where the shooting occurred was “fairly well lit” and “you can see without 

the assistance of a flashlight.” Detective Hecht observed numerous shell casings and 

bullet fragments scattered throughout the area. Drops of blood and bloody clothing were 

also present. In all, detectives and criminalists recovered 31 pieces of physical evidence 

from the scene of the crime.

Neil Small lived near 18th Street and Jackman Street in November 2009. He 

found a “wad of clothes” in his backyard that included a white sweatshirt and a black 

T-shirt. The black T-shirt was wrapped around a .45-caliber semiautomatic Glock 

Model 30 pistol. Also found was a magazine and two live rounds for the pistol.

 

4 Cooper testified that defendant, Diamond and Daireek “sped off” in the car, and he 

and Christian went inside the residence. Later, he and Christian jumped over the 

backyard fence and left.
5

Los Angeles County Sheriff‟s Department Deputy Sheriff Edmund Anderson

testified as the prosecutor‟s firearms identification expert. Sheriff Anderson analyzed the 

Glock Model 30 .45-caliber semiautomatic pistol, eight fired cartridge cases and five 

bullet fragments recovered from the scene of the crime, and three fired bullets recovered 

from the coroner‟s office removed from Hicks during his autopsy. He opined that all 

eight of the spent casings were ejected from the .45-caliber Glock pistol recovered from 

Small‟s backyard, the bullet fragments had no comparison value, and the three bullets 

recovered from the coroner‟s office “could have been fired from that particular Glock.”

Defense Case

Defendant‟s father, Christian Antwane, testified on behalf of defendant. 

Defendant was Antwane‟s youngest son, Daireek was the middle son, and Christian was 

his oldest son. He also had a daughter Christine, who was 10 years younger than 

defendant.

Antwane testified that Christian and defendant were always antagonistic toward 

one another dating back to their childhood. When defendant was just a baby, Christian 

would blame him for breaking things in the house. Christian was estranged from the 

family and blamed defendant. In approximately 2005 or 2006, Christian broke a toilet 

while having sex with his girlfriend in the bathroom of the family home. Defendant told 

Antwane about the incident and Christian had to leave the house. Antwane also testified 

that Christian had sex with defendant‟s girlfriend. When defendant found out he told 

Christian‟s wife, and this caused a fight between Christian and his wife. Antwane 

testified that there was “intense hatred” between defendant and Christian.

Antwane was familiar with both Cooper and Diamond. He did not consider 

Cooper to be a truthful person and saw him as a bad influence on his sons. Christian 

treated Cooper and Diamond more like family than he did defendant and they always 

came first.

At the time of the shooting on November 1, 2009, Antwane was in a recording 

studio in his home. He was wearing headphones and did not hear any gunshots. He 

testified that he learned the details of the shooting at defendant‟s preliminary hearing. 
6

Prior to that, defendant, Daireek, and Christian denied being in the vicinity of the 

shooting and claimed they did not know anything about it whenever he asked them. 

Antwane believed defendant when he denied involvement in the shooting.

Detective Hecht was also called by the defense. Cooper told Detective Hecht that 

he had been threatened by Christian and warned not to say anything. Diamond did not 

want to cooperate with law enforcement and had minimal information regarding the 

incident.

DISCUSSSION

I. Trial Court’s Refusal to Instruct on Voluntary Manslaughter

A. Contention

Defendant contends the trial court prejudicially erred by failing to instruct the jury 

on voluntary manslaughter upon sudden quarrel or in the heat of passion as a lesser 

included offense of murder. Defendant maintains that the record contains sufficient 

evidence that he acted in response to the adequate provocation of Hicks‟s offensive 

behavior.

Defendant and his brothers took offense to how Hicks acted in the presence of 

their younger sister. He contends that Hicks‟s behavior was particularly offensive and 

constituted such provocatory conduct so as to justify an instruction on voluntary 

manslaughter because defendant acted in the heat of passion.

B. Proceedings Below

During the discussion on jury instructions among counsel and the trial court, the 

trial court stated that it had included an instruction on the lesser included offense of 

voluntary manslaughter based on the theory of imperfect self-defense of another.5 The 

 

5 Pursuant to CALCRIM No. 571, the court instructed in pertinent part, as follows: 

“A killing that would otherwise be murder is reduced to voluntary manslaughter if the 

defendant killed a person because he acted in imperfect defense of another. [¶] . . . [¶] 

The defendant acted in imperfect defense of another if: [¶] 1. The defendant actually 

believed that Donee Diamond was in imminent danger of being killed or suffering great 
7

court also explained why it rejected a defense request for an instruction on the effect of 

voluntary intoxication. The court then asked if either side wished to be heard before final 

copies of the jury instructions were generated. The prosecutor and defense counsel stated 

on the record that they did not.

C. Relevant Authority

“The trial court is charged with instructing upon every theory of the case 

supported by substantial evidence . . . .” (People v. Montoya (1994) 7 Cal.4th 1027, 

1047.) Substantial evidence is evidence that is “reasonable, credible and of solid value.” 

(People v. Quintero (2006) 135 Cal.App.4th 1152, 1165; People v. Crew (2003) 31 

Cal.4th 822, 835.) Pure speculation does not constitute the requisite substantial evidence 

sufficient to support a lesser included offense instruction. (People v. Wilson (1992) 3 

Cal.4th 926, 942.) The failure to instruct on a lesser included offense is reviewed de 

novo. (People v. Licas (2007) 41 Cal.4th 362, 366 [„“We apply the independent or 

de novo standard of review to the failure by the trial court to instruct on an assertedly 

lesser included offense‟”].)

Murder is the unlawful killing of a human being with malice aforethought. (§ 187, 

subd. (a).) Voluntary manslaughter is the intentional but nonmalicious killing of a human 

being. (§ 192; People v. Manriquez (2005) 37 Cal.4th 547, 583; People v. Benavides

(2005) 35 Cal.4th 69, 102.) Voluntary manslaughter is a lesser included offense of 

murder. (People v. Manriquez, supra, at p. 583.) A killing may be reduced from murder 

to voluntary manslaughter if it occurs upon a sudden quarrel or in the heat of passion on 

sufficient provocation, or if the defendant kills in the unreasonable, but good faith, belief 

that deadly force is necessary in self-defense. (Ibid.)

“A heat of passion theory of manslaughter has both an objective and a subjective 

component. [Citations.]” (People v. Moye (2009) 47 Cal.4th 537, 549.) To satisfy the 

 

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. [¶] Belief in future harm is not sufficient, no matter 

how great or how likely the harm is believed to be.”
8

objective, or reasonable person, element of heat of passion voluntary manslaughter, the 

defendant‟s heat of passion must be attributable to sufficient provocation. (Ibid.) “To 

satisfy the subjective element of this form of voluntary manslaughter, the accused must 

be shown to have killed while under „the actual influence of a strong passion‟ induced by 

such provocation. [Citation.]” (Id. at p. 550.) “Heat of passion arises when „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.‟ [Citations.]” (People v. Barton (1995) 12 Cal.4th 186, 201.)

The circumstances giving rise to the heat of passion are also viewed objectively. 

(People v. Oropeza (2007) 151 Cal.App.4th 73, 82–83.) A defendant may not set up his 

own standard of conduct and justify or excuse his acts because his passions were aroused, 

unless the facts and circumstances were sufficient to arouse the passions of the ordinarily 

reasonable person. (People v. Manriquez, supra, 37 Cal.4th at p. 584; People v. Oropeza, 

supra, at pp. 82–83.) “The claim of provocation cannot be based on events for which the 

defendant is culpably responsible.” (People v. Oropeza, supra, at p. 83.)

If the trial court fails in its duty to instruct on a lesser included offense supported 

by the evidence, the error is one of state law alone. (People v. Breverman (1998) 19 

Cal.4th 142, 165.) It does not require reversal unless an examination of the entire record 

establishes a reasonable probability that the error affected the outcome. (Id. at p. 178; 

People v. Watson (1956) 46 Cal.2d 818, 836.)

D. No Evidence Justified a Voluntary Manslaughter Instruction

Here, there was no evidence from which the jury could conclude that defendant 

killed Hicks in a heat of passion or sudden quarrel. Defendant did not exchange any 

words with Hicks, nor did he engage in any physical confrontation with Hicks prior to 

shooting him. Nothing in the record supports the instruction and the evidence was strong 
9

that defendant committed first degree murder. (People v. Breverman, supra, 19 Cal.4th 

at p. 162.)6

The sequence of events was simply not one that would cause an ordinary person of 

average disposition to act in the heat of passion. Hicks did not show up unannounced as 

defendant contends. He was invited by the Antwane brothers and their friends to join the 

barbecue and have a drink. In the beginning, an argument developed between Hicks and 

Cooper. Defendant‟s brother Christian appeared upset by Hicks‟s behavior and also 

argued with him. There was no evidence that defendant was even aware of the dispute 

that was taking place and likewise no evidence that Hicks provoked a reaction from 

anyone other than Cooper and Christian.

The incident could not be characterized as a “sudden quarrel” because the 

evidence showed that Christian and Hicks agreed to engage in a physical confrontation 

and Hicks got in his car and drove to the end of the street. Diamond, who was sent

allegedly by Christian to intervene in the dispute, ended up fighting with Hicks. Nor was 

there any evidence that Cooper, Christian and Daireek either felt the need, or attempted to 

intercede in the fight to help their friend Diamond even though they were in close 

proximity. The evidence showed that defendant retrieved the gun (at Christian‟s request), 

and concealed it in a plastic bag before joining the others where Hicks and Diamond were 

engaged in a physical confrontation.

Defendant claims that due to his strict upbringing, Hicks‟s use of inappropriate 

language in the presence of defendant‟s sister was so egregious as to inflame defendant‟s 

passion. This claim is without merit because the yardstick is not how defendant or a 

member of the Antwane family would react. Defendant is not entitled to set up his own 

standard of conduct. (People v. Manriquez, supra, 37 Cal.4th at p. 584 [defendant cannot 

create an unreasonably heightened sense of injustice in order to justify his conduct].) 

Here, not only were the facts and circumstances insufficient to arouse the passions of the 

 

6 We note defendant‟s defense that he was not the person who shot Hicks, “Lord 

Julian Antwane did not murder Arthur Hicks” and “Lord Julian wasn‟t the shooter” 

effectively rejected any voluntary manslaughter theory.
10

ordinarily reasonable person, they were insufficient to provoke defendant‟s two brothers. 

Furthermore, the desire for revenge does not qualify as a passion that will reduce a killing 

to manslaughter. (People v. Bufarale (1961) 193 Cal.App.2d 551, 562.)

Although no specific type of provocation is required (People v. Berry (1976) 18 

Cal.3d 509, 515), the court may resolve the question when the provocation is so slight or 

so severe that reasonable jurors could not differ on the issue of adequacy. (People v. 

Brooks (1986) 185 Cal.App.3d 687, 693.)

In People v. Fenenbock (1996) 46 Cal.App.4th 1688 (Fenenbock), the evidence 

showed a group of people planned to punish the victim for an alleged child molestation, 

and a couple of days later a number of those in the group grabbed him and savagely 

killed him. Fenenbock‟s testimony was that he did not learn about the molestation claim 

until the day of the killing; although he admitted hitting the victim, he denied 

participating in the murder, testifying he calmed one of the other assailants down and 

then left the area. (Id. at pp. 1692–1702.) The trial court refused to instruct on any 

crimes less than first degree murder. Fenenbock argued the trial court should have 

instructed on provocation, as it pertained to second degree murder and to voluntary 

manslaughter. The court rejected the claims. The allegedly abused child was not a 

relative of Fenenbock, there was no evidence that he had any close personal bond with 

the child or her parents, and the child had not been visibly injured. The court found no 

evidence from which a jury could have found provocation so serious that it would 

produce a lethal response in a reasonable person.

In previous cases, the murder of a family member (People v. Brooks, supra, 185 

Cal.App.3d 687), a sudden and violent quarrel (People v. Elmore (1914) 167 Cal. 205, 

211), and infidelity of a wife (People v. Berry, supra, 18 Cal.3d 509) or paramour 

(People v. Borchers (1958) 50 Cal.2d 321) have been held to constitute legally adequate 

provocation for voluntary manslaughter. But here, as in Fenenbock, the circumstances 

did not constitute provocation sufficient to reduce the killing to manslaughter. Hicks 

allegedly used inappropriate language which was not directed at defendant. There was an 

agreement to resolve the issue in a physical fight not involving defendant. In sum, the 
11

circumstances here did not constitute “sufficient provocation” to warrant defendant‟s 

disproportionate reaction of firing eight shots, six of which struck Hicks inflicting one 

fatal wound. (People v. Moye, supra, 47 Cal.4th at p. 549.)

II. Court’s Failure to Sua Sponte Give CALCRIM No. 522

Defendant contends the trial court erred in failing to instruct sua sponte with 

CALCRIM No. 522 on provocation that reduces the degree of murder from first to 

second degree.7 We reject this contention.

“A pinpoint instruction „relate[s] particular facts to a legal issue in the case or 

“pinpoint[s]” the crux of a defendant‟s case, such as mistaken identification or alibi.‟” 

(People v. Ward (2005) 36 Cal.4th 186, 214 (Ward), quoting People v. Saille (1991) 54 

Cal.3d 1103, 1119.) Although a trial court is required to give a pinpoint instruction on a 

defense theory upon request when there is evidence supportive of that theory, it is not 

required to give a pinpoint instruction on the court‟s own motion. (People v. Rogers

(2006) 39 Cal.4th 826, 878–879 (Rogers); People v. Saille, supra, at p. 1119.)

As defendant acknowledges, the California Supreme Court has held that CALJIC 

No. 8.73 is a pinpoint instruction. (Rogers, supra, 39 Cal.4th at p. 878; see also Ward, 

supra, 36 Cal.4th at p. 214; People v. Mayfield (1997) 14 Cal.4th 668, 778.) CALCRIM 

No. 522, which is the CALCRIM analogue to CALJIC No. 8.73, is also a pinpoint 

instruction. (Rogers, supra, at p. 879; see also bench notes to CALCRIM No. 522.)

Accordingly, we conclude the court did not err in failing to sua sponte give 

CALCRIM No. 522 as defendant did not request such an instruction.

 

7 CALCRIM No. 522 reads: “Provocation may reduce a murder from first degree to 

second degree [and may reduce a murder to manslaughter]. The weight and significance 

of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant 

committed murder but was provoked, consider the provocation in deciding whether the 

crime was first or second degree murder. [Also, consider the provocation in deciding 

whether the defendant committed murder or manslaughter.] [¶] [Provocation does not 

apply to a prosecution under a theory of felony murder.]”
12

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, P. J.

 BOREN

We concur:

____________________________, J.

ASHMANN-GERST

____________________________, J. *

FERNS

 

*

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.