People v. Whalen CA2/6

Filed 5/15/24 P. v. Whalen CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B326184 (Super. Ct. No. 18CR05267) Plaintiff and Respondent, (Santa Barbara County)

v.

KENNETH ROBBIE WHALEN,

Defendant and Appellant.

Kenneth Robbie Whalen appeals a judgment following his conviction of second degree murder (Pen. Code, § 187, subd. (a), 189) with jury findings that he personally used a deadly weapon (§ 12022, subd. (b)). He was sentenced to 16 years to life in state prison. We conclude, among other things, that the trial court properly instructed the jury on imperfect self-defense. We affirm. FACTS On April 3, 2018, Theopheus Bennett made a 911 emergency call. He told the dispatcher he was stabbed in the

park and “I’m bleeding to death.” He said he got jumped by “[m]en, I think.” They had a knife. Police Officer David Garza responded and went to the “Barkin’ Dog Park” in Lompoc, California. He went to assist Bennett who had “multiple stab wounds on his upper back and his lower back.” He remained with Bennett until the ambulance arrived. Garza testified that Bennett was unarmed. He had no weapons, knives, or any “sharp cutting instruments.” Bennett died at the hospital. Doctor Manny Montez, a county forensic pathologist, testified that the cause of death was “multiple stab wounds.” The depth of the stab wounds to Bennett’s back ranged from “four to six inches deep.” Ricardo Perea, an “acquaintance” of Whalen’s, testified Whalen told him about an incident at the dog park. Whalen said a man woke him going through his belongings. “So [Whalen] grabbed his knife [and] stabbed him. The guy ran away. [Whalen] ran after him and continued stabbing him.” Whalen said he “killed somebody.” Perea told Whalen that “it doesn’t look good” when you stab somebody in the back. Whalen said, “I know.” Whalen then asked, “something to the effect,” “[W]hat was I supposed to do, let him go?” Amanda Bobbitt, a friend of Whalen’s, testified that Whalen told her about the incident at the dog park. Whalen said he woke up and someone was reaching over him. He stabbed the person. That person “ran away.” Whalen said he chased that person and ‘kept stabbing him.” He said he “just couldn’t stop.” He “snapped.” In an initial police interview, Whalen said he did not know “anything about” the killing of Bennett at the dog park. In a