People v. King, No. B213358 (Cal. App. 5/21/2010)

Decision Date21 May 2010
Docket NumberNo. B213358.,B213358.
CourtCalifornia Court of Appeals
PartiesTHE PEOPLE, Plaintiff and Respondent, v. MICHAEL STEVEN KING, Defendant and Appellant.

Page 1

THE PEOPLE, Plaintiff and Respondent,
v.
MICHAEL STEVEN KING, Defendant and Appellant.
No. B213358.
Court of Appeals of California, Second District, Division Five.
Filed May 21, 2010.

Appeal from a judgment of the Superior Court of Los Angeles County, No. MA039197, John Murphy, Judge. Affirmed with modifications.

Patricia Ihara, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.


I. INTRODUCTION

Defendant, Michael Steven King, appeals from his conviction for second degree murder (Pen. Code,1 § 187, subd. (a)) and the jurors' finding that he personally used a deadly weapon. (§ 12022, subd. (b)(1).) Defendant stabbed Jermaine Tryon twice. Defendant argues the trial court improperly admitted the testimony of a supervising medical examiner and failed to instruct the jury on involuntary manslaughter and proximate causation. Defendant further argues that the cumulative effect of errors requires reversal. The Attorney General argues that the trial court should have imposed a court security fee. We affirm the judgment and order imposition of the section 1465.8, subdivision (a)(1) court security fee.

II. FACTUAL BACKGROUND

Defendant's sister, Mercedes Jones, lived with her boyfriend, Jermaine Tryon, in May 2007. Defendant lived at his mother's home part of the time. On other occasions, defendant stayed with Ms. Jones and Mr. Tryon. On May 13, 2007, Ms. Jones, Mr. Tryon, defendant, and friends, Courtney Rose, and others identified only as "Kanika," "Roderick," "Bethany," "Juan," "Agradeno" and "some kids" gathered at Ms. Jones's home for a party. At approximately 11 p.m. or 12 a.m., Ms. Jones and the persons identified only as Bethany and Kanika went to a bar. Defendant, Mr. Tryon, the individual identified as Roderick, and Roger Reese went to the bar in another car.

Earlier that evening, Ms. Jones saw defendant with a 3 to 4-inch knife that would flip open. Defendant cut a tag off the shirt Ms. Jones was wearing with the knife. Defendant was unemployed at the time. Ms. Jones gave defendant money periodically. Ms. Jones gave defendant $20 for drinks. Within an hour, Ms. Jones gave defendant an additional $20 for drinks. When defendant asked for money a third time, Ms. Jones told him, "No." Defendant became angry and called Ms. Jones a "bitch." Defendant grabbed Ms. Jones's finger and bent it. Ms. Jones had broken the finger and was recovering from the break. The pain made Ms. Jones cry. Defendant called Ms. Jones a "cry baby." The person identified as Kanika stood between defendant and Ms. Jones. Defendant bit the face of the person identified as Kanika. Defendant attempted to slap Ms. Jones, but he missed. Although defendant had been drinking, he was not staggering or incoherent. Ms. Jones went to an enclosed patio area of the bar. Mr. Tryon came up to an open window of the patio and asked Ms. Jones what was wrong. Ms. Jones told her that defendant was "tripping" and she was ready to leave. Mr. Tryon said he would be right back.

Defendant went outside and continued to argue with Ms. Jones through the open window on the patio. Defendant told Ms. Jones she was not supposed to cry. Defendant then reached through the window and hit Ms. Jones. Ms. Jones saw Mr. Tryon pass by and proceed in the direction of the parking area. When Ms. Jones was leaving the bar, and individual identified only as "Andre" ran up to her and said that Mr. Tryon was hurt. Mr. Tryon staggered into the bar. Mr. Tryon had blood on his shirt, which he took off. Mr. Tryon collapsed as Ms. Jones tried to get him into the car. When Ms. Jones asked Mr. Tryon "[W]ho did this?" he responded, "Your brother."

Still photographs from a security video from the bar, as shown at trial, depicted Mr. Tryon going outside the bar. Another still photograph depicted defendant facing the inside portion of the patio. Thereafter a photograph showed Mr. Tryon walking by without speaking to defendant or Ms. Jones. Defendant was then seen walking in the same direction that Mr. Tryon had gone. The video still photographs then show Mr. Tryon returning to the bar with a dark stain on his shirt.

Ms. Rose spoke with defendant after the stabbing. Ms. Rose left Ms. Jones's house at approximately 10 p.m. Ms. Rose picked up her boyfriend and went to his home. Ms. Rose left for home between 12:30 a.m. and 1 a.m. As Ms. Rose was driving home, she received a call on her cellular telephone from defendant. Defendant asked Ms. Rose to pick him up on 10th Street. Ms. Rose found defendant near his mother's home. Defendant got into Ms. Rose's car. When Ms. Rose asked defendant what was wrong, he said he "got into it with his sister's boyfriend . . ." and, "I tripped out and I stabbed him." Defendant denied meaning to stab Mr. Tryon and began to cry. Defendant admitted stabbing Mr. Tryon in the stomach twice.

Ms. Rose told defendant to go to the police. Ms. Rose testified, "He said he had to get his son first. [¶] . . . I asked him where his son was and he told me and I took him over there." However, no one answered defendant's knock on the door. Ms. Rose waited in the car with defendant. As they talked in her car, defendant told Ms. Rose that his hand was injured. Defendant told Ms. Rose that Mr. Tryon said, "We can get on right now but we will be friends tomorrow." Defendant said that he wanted to have a fair fight. Ms. Rose presumed that was why defendant pulled out the knife. Defendant seemed coherent and responded appropriately during their conversation. Ms. Rose waited with defendant in the car. She and defendant got something to eat and later went for soft drinks. Defendant fell asleep in the car. Finally, defendant returned to the house, where someone answered the door. Defendant told Ms. Rose that he was contemplating suicide. Defendant later got out of Ms. Rose's car on 10th Street.

Defendant was arrested on May 22, 2007, by Detectives Ty Labbe and Martin Rodriguez. When interviewed, defendant said he had some drinks at a house on May 12, 2007. Thereafter, defendant went to the bar. Defendant admitted calling someone when he left the bar, but could not recall who he telephoned. Defendant could not remember: stabbing anyone; how he left the bar; or talking to Ms. Rose or his mother. Detective Labbe told defendant that Mr. Tryon had been stabbed. Defendant reacted as though he did not care. The detectives telephoned defendant's mother. While on the speaker phone, defendant's mother told him to tell the truth. Defendant continued to deny having any knowledge about what happened to Mr. Tryon.

On May 15, 2007, Dr. James Ribe, Los Angeles County Senior Deputy Medical Examiner, supervised the autopsy of Mr. Tryon. The autopsy was performed by Dr. Joanna Rice. Dr. Rice's report indicated she observed two stab wounds to Mr. Tryon's body. The fatal wound was just below Mr. Tryon's left nipple that penetrated the lung and heart. Dr. Ribe was supervising Dr. Rice during the autopsy.

Defendant testified on his own behalf. Defendant recalled that he was drinking gin or vodka at Ms. Jones's house on the evening of May 12, 2007. Defendant did not want to go to the bar. But, Ms. Jones and Mr. Tryon talked defendant into joining them. Defendant had four or five additional drinks at the bar. Defendant recalled arguing with Ms. Jones because he bought drinks with money that he was supposed to use for something else. Ms. Jones was "running [defendant] off in front of" the others in the bar. Defendant remembered bending Ms. Jones's finger back and biting the person identified as Kanika. Defendant felt intoxicated at the time. Mr. Tryon was drinking the same kinds of drinks that defendant drank. Defendant recalled talking to Ms. Jones from outside the club. Defendant had not argued with Mr. Tryon. When Mr. Tryon walked past him outside the bar, they did not make eye contact or speak to one another.

Defendant walked toward the parking lot. Mr. Tryon confronted defendant. Mr. Tryon wanted to fight defendant. The reason for the fight was the argument with Ms. Jones. Defendant did not want to fight. Mr. Tryon rushed toward defendant. Defendant pulled out a knife. Defendant had a folding knife that could be opened by touching a button. The blade on the knife was three to four inches long. Mr. Tryon ran into the knife. Mr. Tryon backed up and said: "Bro, you're going to stab me, Bro? . . . For real?" Mr. Tryon rushed toward defendant. Mr. Tryon hit defendant again. Defendant stabbed Mr. Tryon again. Mr. Tryon left. Defendant fled.

Defendant called Ms. Rose for a ride. Ms. Rose told defendant to turn himself in to the police. However, defendant was worried about taking care of his children first. Defendant did not intend to hurt or kill Mr. Tryon. Defendant did not believe Mr. Tryon would die. Defendant admitted lying to Detective Labbe. Defendant was cross-examined about his knowledge about the dangerousness of his conduct: "Q You said you were feeling buzzed, right? [¶] A Yes. [¶] Q But even with that buzz going on, you understood that that knife you pulled out was a weapon that you were using to keep [Mr. Tryon] at bay, correct? [¶] A Yes. [¶] Q And you understood, even in your buzzed state, that that knife could cause great bodily injury to [Mr. Tryon]; correct? [¶] A Yes. [¶] Q And that it could kill [Mr. Tryon], right? [¶] A Yes."

III. DISCUSSION
A. Dr. Ribe's Testimony
1. Factual and procedural background

Defendant argues that his Sixth Amendment confrontation right was violated because the trial court improperly admitted Dr. Ribe's testimony rather than that of Dr. Rice, who performed the autopsy on Mr. Tryon. At trial, defendant objected to Dr. Ribe's...

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