People v. Duran CA2/8

Filed 2/29/16 P. v. Duran CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B260495

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA099338) v.

ERNEST M. DURAN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Thomas C. Falls, Judge. Affirmed as modified.

James Koester, 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, Paul M. Roadarmel, Jr. and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

Ernest M. Duran appeals from his conviction of attempted first degree murder, contending that the trial court erred by failing to instruct the jury on the lesser included offense of attempted voluntary manslaughter. We conclude that there was insufficient evidence to warrant that instruction, and, after modifying the judgment to correct two sentencing errors, affirm the judgment as modified.

FACTS AND PROCEDURAL HISTORY

In the early morning hours of September 4, 2012, Ernest Duran stabbed Carol Yang several times in the neck and torso. Yang survived and Duran was later convicted of attempted first degree murder and mayhem. Yang was a heavy methamphetamine user and had met methamphetamine dealer Duran about one month earlier. The two had a brief romantic relationship that had recently ended, although they remained friends. On September 2, 2012, Yang drove two of Duran’s friends to a liquor store. Yang went into the store and left Duran’s friends in her car with the engine running. When she came back out, her car was gone. At Yang’s request, Duran agreed to use his influence to get her car back. Over the next day or so, Yang grew increasingly impatient with the delay in getting her car returned and both texted and phoned Duran multiple times to express her increasing frustration. At one point, she let Duran know she would report her car as stolen if it were not returned soon. During this 24-hour or so period, Yang traveled about and hung out with numerous relatives or acquaintances of Duran. She also used a great deal of methamphetamine during that same period.1 Yang retrieved her car sometime on the evening of September 3, 2012. After discovering that the car had been damaged and that some of her possessions were missing, she texted Duran and insisted that he have her things returned. She also texted Duran that he was a “punk ass bitch” and that she was so angry that he “better kill [her].”