People v. Beuchel CA2/8

Filed 3/3/15 P. v. Beuchel CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B251481

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA399361) v.

NOAH OTTO BEUCHEL,

Defendant and Appellant.

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