Filed 10/28/14 P. v. Hudson 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

GEORGE HUDSON,

Defendant and Appellant.

 B245904

 (Los Angeles County

 Super. Ct. No. BA370476)

APPEAL from a judgment of the Superior Court of Los Angeles County. John S. 

Fisher, Judge. Affirmed.

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney 

General, Margaret E. Maxwell and Eric E. Reynolds, Deputy Attorneys General, for 

Plaintiff and Respondent.

_________________________
2

A jury found appellant George Hudson guilty of second degree murder (Pen. 

Code, § 187, subd. (a)).1 The jury also found true the allegations that appellant 

personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)), 

and that he did so for the benefit of, in the direction of, or in association with a criminal 

street gang (§ 186.22, subd. (b)(1)(C)). Appellant was sentenced to 40 years to life in 

state prison, consisting of 15 years to life for murder plus 25 years to life for the firearm 

allegation, and ordered to pay various fines and fees. 

Appellant contends (1) there was no substantial evidence that he was the person 

who shot the victim, and (2) the trial court erred by not sua sponte instructing the jury on 

the lesser included offense of voluntary manslaughter and that the prosecution had the 

burden of proving the absence of heat of passion as an element of murder. We disagree 

and affirm.

FACTS

Prosecution Case

A. The Murder

On February 7, 2010, at approximately 12:50 p.m., appellant, a member of the All

For Crime (“AFC”) gang, entered the Compton Market & Liquor store on the corner of 

42nd Street and Compton Avenue in Los Angeles. Appellant was wearing a red hat and 

was with his cousin, Roderick Harris (Harris). Ernest Freeman (Freeman) was in the 

market with his sister, Willicia Moore (Moore). Either appellant or Harris asked Moore 

if they could buy some food stamps from her. She declined. Appellant bought paper 

plates, then waited outside the market.

The victim, Ruben Uroza, also known as “Smurf,” walked past appellant and 

Harris outside the market. Appellant asked the victim where he was from, and the victim

responded “38.” The victim started to run down the street. Appellant and/or Harris 

yelled something like “fuck 38” and “AFC.” Appellant chased the victim, pulled out a 

 

1 All further statutory references are to the Penal Code unless otherwise indicated.
3

gun, and shot him in the back of the head. The victim fell down in the middle of the 

street and died from the gunshot wound to the head. Appellant ran away from the scene. 

The market had four surveillance cameras. Video from the four cameras was 

played for the jury; the cameras did not capture the shooting. Appellant had a tattoo on 

his neck that was consistent with the tattoo evident on the man wearing the red hat in the 

market’s surveillance video. 

B. Witnesses

Freeman, who had been inside the market when appellant was present, told 

detectives he thought he saw the victim “bang” on appellant outside the market and that 

he thought they were fighting. Freeman did not see the shooting, but he saw appellant 

chasing the victim in front of the market and heard gunshots a few seconds later.

Witness A.S., who lived near the market, knew the victim. He also knew that the 

AFC and 38th Street gangs both claimed that particular territory. A.S. saw the victim 

walk past appellant, who was wearing a red hat, and another man in front of the market. 

Appellant asked the victim where he was from, and the victim replied that he was from 

“38.” Appellant ran after the victim. A.S. saw appellant shoot the victim in the middle 

of the street. A.S. identified appellant in court as the shooter. 

Witness Charles L. (Charles), who was in custody at the time of trial, lived across 

from the market. At trial, Charles denied knowing the victim, witnessing the shooting, or 

making any statements about the incident. He also stated that it was “bad” to be a snitch 

while in custody. An audiotape of Charles’s interview with detectives was played for the 

jury. Charles told the detectives that he knew the victim from playing basketball at a

nearby park. Charles saw the victim walking towards the park on the day of the shooting. 

There were some Bloods gang members standing in front of the market. He heard them 

yell “fuck 38” and “AFC.” The victim started to run away. Charles saw the man wearing 

a red hat run after the victim and shoot him in the middle of the street. The shooter then 

ran away. During his interview, Charles was shown still photographs from the 

surveillance videos taken from the market and identified appellant as the shooter. 
4

Miguel Morse (Morse) grew up with appellant.2 Morse testified that he did not 

know if appellant was a member of AFC. Morse knew that appellant’s cousin Harris was 

a gang member. In February 2012, Harris pulled a gun on Morse and said, “I ought to 

kill you,” and that Morse better not “snitch.” Morse testified that another AFC gang 

member also tried to keep him from testifying. Morse did not know this person’s name, 

but this person was in the courtroom while Morse testified on direct examination and left 

during cross-examination. Morse admitted that he told the detectives that appellant was 

“bragging” about what happened, that appellant and the victim each threw hand signs 

about their “hood” and “had words,” and that appellant started shooting. 

C. Interview of Appellant 

When detectives interviewed appellant, they told him that the market’s 

surveillance video showed him inside the market just before the shooting. They asked 

him if he knew anything about it. Appellant responded that he did not see anything and 

did not know anything. Appellant went to the store to buy paper plates. When he walked 

out of the store he saw people running, so he ran too. Appellant denied shooting the 

victim. 

D. Gang Testimony

The prosecution presented the testimony of two expert witnesses on the AFC 

gang. The Compton Market & Liquor store was in territory claimed by both AFC and the 

38th Street gang, which are rivals. AFC is associated with the Bloods gang. Appellant 

was a documented, admitted member of AFC with the moniker “CK Brazy,” and had 

numerous gang-related tattoos. The gang would not allow a person who was not a 

member to have gang tattoos, because members have to put in work for the gang to earn 

the tattoos.

 

2 Morse did not want to testify at trial. He ignored a subpoena and was arrested and 

brought into court to testify.
5

Defense Case

Morse’s grandfather testified that Morse had a reputation in the family for lying 

and stealing, and that Morse took medication for a mental illness. 

Alonzo Williams (Williams), who lived in the neighborhood near the Compton 

Market & Liquor store and was a former AFC gang member, saw appellant near the 

market on the day of the shooting. Williams was listening to an iPod as he walked. He 

saw a Hispanic man walk across the street toward the market, and then back across the 

street toward some apartments. Williams saw Henry “Monster” Johnson, an active AFC 

gang member, in front of the market. Williams pulled out one of his earphones just as 

Monster chased the Hispanic man and shot him in the street. Williams claimed that 

appellant was never a member of the AFC gang, just an associate of the gang. Williams 

did not tell anyone what he saw until the trial because he did not want to be known as a 

snitch. But as appellant’s trial approached, Williams decided to come forward because 

he did not want an innocent man to go to prison.

Appellant testified that on February 7, 2010, he went to the Compton Market & 

Liquor store to buy paper plates for his uncle’s Super Bowl party. As he walked

to the market, he saw his cousin Harris and they continued to the market together. At the 

market they encountered a man and woman. Appellant went into the market and bought 

paper plates. He left the market and was standing near the door waiting for Harris when 

he saw Williams walking toward him. Appellant then saw Monster run across the street 

and shoot the victim in the head. Appellant was scared and ran away. Appellant denied 

having a gun or seeing Morse that day. A couple of days later, appellant returned to 

Texas, where his family lived. 

Appellant denied being a gang member, having a moniker, or admitting to police 

that he was a gang member. He had at least six AFC-related tattoos, and testified that he 

got most of them in prison as a “fashion statement” and for protection. 
6

Appellant did not previously tell the police that Monster was the shooter because 

he did not want to be labeled as a snitch.

Appellant testified on cross-examination that the victim “never said anything to 

[him]” and never looked at him.

Rebuttal

One of the detectives assigned to the case searched department resources for an 

AFC gang member named Henry Johnson or a member using the moniker “Monster.” 

The search yielded no results.

DISCUSSION

I. Substantial Evidence Supports Appellant’s Murder Conviction

Appellant contends that his murder conviction must be reversed because there was 

no substantial evidence that he was the shooter. We disagree.

In addressing a substantial evidence challenge, we review the entire record in the 

light most favorable to the judgment to determine whether a rational trier of fact could 

find the defendant guilty beyond a reasonable doubt. (People v. Akins (1997) 56 

Cal.App.4th 331, 336.) We presume in support of the judgment the existence of every 

fact that a trier of fact could reasonably deduce from the evidence. (Ibid.) This standard 

applies whether direct or circumstantial evidence is involved. (People v. Thompson

(2010) 49 Cal.4th 79, 113.) Reversal is not warranted unless it appears “‘that upon no 

hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ 

[Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Appellant makes two arguments in support of his contention. First, he argues that 

the testimony of the prosecution’s four percipient witnesses was so “conflicting, 

improbable, and highly suspect in content” that it failed to establish appellant was the 

person who shot the victim. Appellant spends many pages of his opening brief reviewing 

inconsistencies between the witnesses’ statements to the detectives and in court. But as 

the People point out, this entire argument is an attempt to relitigate the evidence

presented to the jury. The jury was well aware of the inconsistencies in the witnesses’ 

statements and the fact that the witnesses were nervous and fearful about testifying. “[I]t 
7

is the jury, not the appellate court, which must be convinced of the defendant’s guilt 

beyond a reasonable doubt. [Citation.] Therefore, an appellate court may not substitute 

its judgment for that of the jury. If the circumstances reasonably justify the jury’s 

findings, the reviewing court may not reverse the judgment merely because it believes 

that the circumstances might also support a contrary finding. [Citations.]” (People v. 

Ceja (1993) 4 Cal.4th 1134, 1139.) Appellant does not get a second bite at the apple on 

appeal.

Second, appellant argues that there was no physical evidence to support the 

finding that he was the shooter. He points out that no gun was ever recovered and that he 

is not seen in the surveillance video holding a gun. Even so, there was substantial 

evidence that appellant was the person who shot the victim. The surveillance video 

placed appellant at the market just before the shooting. Freeman testified that he saw 

appellant chasing the victim in front of the market and heard gunshots a few seconds 

later. A.S. saw appellant shoot the victim in the middle of the street, and identified 

appellant in court as the shooter. Charles told the detectives that he saw appellant run 

after the victim and shoot him in the middle of the street. Charles also identified 

appellant as the shooter during his interview with the detectives. And Morse told the 

detectives that appellant bragged to him about the shooting.

We are satisfied that substantial evidence supports appellant’s murder conviction.

II. The Evidence Did Not Support an Instruction on Voluntary Manslaughter 

Appellant next contends that the trial court erred in failing to sua sponte instruct 

the jury on voluntary manslaughter based on a heat of passion theory as a lesser included 

offense of murder. He argues that the instruction was warranted because “there was 

evidence that shortly before the shooting there were words exchanged between the victim 

and appellant.” We find no error.

A. Applicable Law

“Under California law, a lesser offense is necessarily included in a greater offense 

if either the statutory elements of the greater offense, or the facts actually alleged in the 

accusatory pleading, include all the elements of the lesser offense, such that the greater 
8

cannot be committed without also committing the lesser.” (People v. Birks (1998) 19 

Cal.4th 108, 117.) “‘The trial court has a sua sponte duty to instruct on lesser included 

offenses when the evidence raises a question as to whether all of the elements of the 

charged offense were present and there is evidence that would justify a conviction of such 

a lesser offense.’ [Citation.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) This 

duty exists even in the absence of a request for such instruction or in the face of an 

objection by the defendant to the giving of the instruction. (People v. Breverman (1998) 

19 Cal.4th 142, 162.) But there is no duty to instruct on a lesser offense, even on request, 

in the absence of substantial evidence to support the instruction. (People v. Cole (2004) 

33 Cal.4th 1158, 1215; People v. Rios (2000) 23 Cal.4th 450, 463, fn. 10.) “[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. [Citations.]” (People v. Breverman, supra, 19 Cal.4th at p. 162.) “‘Substantial 

evidence’ in this context is “‘evidence from which a jury composed of reasonable 

[persons] could . . . conclude[]’” that the lesser offense, but not the greater was 

committed.’ [Citations.]” (Ibid.) 

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

subd. (a).) Manslaughter is the unlawful killing of a human being without malice. 

(§ 192.) Voluntary manslaughter is a lesser included offense of murder. (People v. 

Breverman, supra, 19 Cal.4th at p. 154.) Voluntary manslaughter can occur “upon a 

sudden quarrel or heat of passion.” (§ 192, subd. (a).) 

“Heat of passion has both objective and subjective components. Objectively, the 

victim’s conduct must have been sufficiently provocative to cause an ordinary person of 

average disposition to act rashly or without due deliberation and reflection. [Citation.] 

The standard is not the reaction of a ‘reasonable gang member.’ [Citation.]” (People v. 

Enraca (2012) 53 Cal.4th 735, 759.) “Subjectively, ‘the accused must be shown to have 

killed while under “the actual influence of a strong passion” induced by such 

provocation. [Citation.] “Heat of passion arises when ‘at the time of the killing, the 
9

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.]” [Citation.]’” (Ibid.; People v. Moye (2009) 47 Cal.4th 537, 550.) Both 

provocation and heat of passion must be affirmatively demonstrated. (People v. Steele

(2002) 27 Cal.4th 1230, 1252.)

B. Analysis

The trial court had no sua sponte duty to instruct on voluntary manslaughter based 

on a heat of passion theory because there was no evidence of either provocation on the 

part of the victim or that appellant killed the victim under the influence of a strong 

passion.

As to provocation, appellant points to Freeman’s statements to detectives that he 

thought the victim was “banging” on appellant and that they were fighting, and to A.S.’s 

and Morse’s statements that appellant and the victim had a few words. But the only 

evidence of words spoken by the victim was that he may have claimed membership in the 

rival 38th Street gang. Such words would not cause an ordinary person to become so 

inflamed as to lose reason and judgment. (See People v. Enraca, supra, 53 Cal.4th 735, 

759 [“we have rejected arguments that insults or gang-related challenges would induce 

sufficient provocation in an ordinary person to merit an instruction on voluntary 

manslaughter”]; People v. Avila (2009) 46 Cal.4th 680, 706–707 [even assuming member 

of victim’s group shouted a gang name, utterance not sufficient to provoke ordinary 

person].) Indeed, the evidence showed that even more inflammatory words were spoken 

by appellant or his cousin, when responding “fuck 38.”

There was also no evidence of the subjective element, i.e., that appellant killed the 

victim while under the influence of a strong passion induced by the victim’s provocation. 

Appellant’s defense at trial was that he was not the shooter. There was no defense that he 

acted under the heat of passion. Indeed, appellant testified that the victim “never said 

anything to [him]” and never even looked at him. Thus, appellant’s own testimony 
10

dispels any theory that he acted under the heat of passion in response to something the 

victim said.

Accordingly, the trial court did not have a sua sponte duty to instruct on voluntary 

manslaughter based on heat of passion.

III. There Was No Duty to Instruct that Heat of Passion Was an Element of 

Murder the Prosecution Had to Prove

Finally, appellant contends that the trial court erred by not sua sponte instructing 

the jury that the prosecution bore the burden of establishing beyond a reasonable doubt 

that the killing was not committed in the heat of passion. There is no merit to this 

contention.

Our Supreme Court has stated that “in a murder case, unless the People’s own 

evidence suggests that the killing may have been provoked or [was] in honest response to 

perceived danger, it is the defendant’s obligation to proffer some showing on these issues 

sufficient to raise a reasonable doubt of his guilt of murder.” (People v. Rios, supra, 23 

Cal.4th at pp. 461–462.) Thus, only when the issue of provocation or imperfect selfdefense is “‘properly presented’” in a murder case does the prosecution have the burden 

of proving beyond a reasonable doubt that these circumstances were lacking in order to 

establish the murder element of malice. (Id. at p. 462.)

Where, as here, there is no evidence of a heat of passion killing caused by 

sufficient provocation, it necessarily follows that the defendant cannot ask the jury to 

decide whether he acted under provocation. The law does not require the trial court to 

instruct on a theory that lacks evidentiary support. (People v. Rios, supra, 23 Cal.4th at 

p. 463, fn. 10.)
11

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

__________________________, Acting P. J.

ASHMANN-GERST

We concur:

_____________________________,J.

CHAVEZ

____________________________, J.

HOFFSTADT