P. v. Conner

Filed 8/13/09 P. v. Conner 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

A jury found Eddie Lamont Conner guilty of willful, deliberate and premeditated attempted murder (Pen. Code,  664/187.) On appeal, Conner contends the trial court erred in not giving a sua sponte instruction on attempted voluntary manslaughter. We affirm.

FACTS

On April 1, 2007, Daron Polk, then 15 years old, walked to a minimart in Los Angeles. The minimart is in Rolling 20's territory. Polk was a member of the Rolling 20's, a Blood gang. The main rival of the Rolling 20's is the Rolling 30's Harlem Crips gang.

Polk was walking back home when a man approached him. Polk said, "What's up, Blood," because the man was looking at him. The man replied, "What's up, Blood," and shot Polk a number of times. Polk fell to the ground.

Los Angeles Police Officers Richard Campos and Anibal Carrasco were in a marked police car on patrol in the area. They saw Conner standing over Polk. Conner ran past the police officers, making eye contact with Carrasco as he passed. Conner was holding his right pants pocket, leading the officers to conclude he was carrying a gun.

The officers drove parallel to Conner, ordering him to stop several times. Conner continued to run stating, "They're shooting." Conner stopped, crouched down, reached into his pants pocket, and attempted to throw a black object over an eight-foot-high fence. The object hit the top of the fence and fell back. When it hit the ground, a piece of black plastic splintered from it. Conner continued to flee. The police left their patrol car, pursued him on foot and arrested him.

Officer Carrasco directed another officer to the area where Conner had thrown the object. The officer found a .32-caliber gun on the sidewalk. The black plastic grip of the gun was broken.

At the scene of the shooting, Carrasco recovered five shell casings and two expended bullets. Ballistics tests showed the casings and bullets were from the recovered gun.

Los Angeles Police Officer Jesse Murphy testified as an expert on gangs. He said that Conner is a Rolling 30's gang member. This opinion was based on discussions with other police officers, review of field identification cards, and photographs of Conner flashing gang signs. When he was arrested, he wore a blue belt with the letter "T" on the buckle. Blue and the letter "T" signify the Rolling 30's gang. Murphy testified that the Rolling 20's, to which Polk belonged, is a rival of the Rolling 30's.

The day before Polk was shot, Conner's cousin, Kurtis Livingston, was shot. Livingston was a member of the Rolling 30's. Murphy testified retaliation against a Rolling 20's member would be a motive for Polk's shooting.

Defense Case

Conner testified on his own behalf. He denied any involvement in Polk's shooting. He said that on April 1, 2007, he ran out of gas and began walking to a gas station. Before he reached the station, he heard gun shots. He turned around and began running back to his car. A blue or green minivan drove past him running two red lights. The van had two occupants.

Officers Campos and Carrasco drove along side Conner in a blue, unmarked police car. The passenger in the unmarked car asked Conner why he was running. He pointed out in the direction of the minivan and said, "They are shooting." When the police told him to stop, he stopped running. The police got out of the car, searched him, handcuffed him, and put him in the back of the police car.

The police started searching an area near a green tarp. A "Hispanic" man came out of a house and handed them something wrapped in a white shirt. The officers put the object in the trunk of the police car. When they got back in the car an officer said, "We got it." Conner asked what they were talking about. The officer replied, "We got you."

Conner denied he was a Rolling 30's member. He said, however, that some of his family and friends were members. He also admitted that at the time the photograph was taken showing him flashing gang signs, he was a gang associate. But said he no longer associates with gangs.

On cross-examination, the prosecution played a recording of an interview Conner had with the police. Conner said he was walking from his girlfriend's cousin's house when Polk walked up to him and asked, "Blood? What's up Blood? Where are you from?" Conner was scared because his cousin had just been shot. Polk pulled out a gun. Conner snatched the gun and the two began fighting over it. Conner believed it was "kill or be killed." Conner said he did not know if he shot Polk.

In response to the recording, Conner testified that at first he told the police he never came in contact with Polk. But the police said he was lying. Eventually, Conner told the police what they wanted to hear. He said he changed his story because he was tired, he had nothing to eat, and the police were denying him visits from friends.

Conner testified that his trial testimony was the truth, and the recorded statement was a lie.

At trial, Polk testified that Conner was not the shooter. He also testified that if he identified Conner or anyone else, his life could be in danger. Nevertheless, Polk said if he could identify the shooter, he would.

DISCUSSION

Conner contends the trial court erred in failing to instruct sua sponte on the lesser included offense of attempted voluntary manslaughter.

The jury was instructed only on premeditated attempted murder. Conner claims the jury also should have been instructed on attempted voluntary manslaughter based on "heat of passion" or "sudden quarrel."

Manslaughter is the unlawful killing of a human being without malice aforethought. (Pen. Code,  192.) Voluntary manslaughter is a lesser included offense of murder. (People v. Breverman (1998) 19 Cal.4th 142, 154.)

An intentional killing may be without malice where the defendant acts in a sudden quarrel or heat of passion. (People v. Barton (1995) 12 Cal.4th 186, 201.) Sudden quarrel or heat of passion have subjective and objective elements. The sudden quarrel or heat of passion must be such that at the time of the killing the reason of the accused was obscured or disturbed, and it must be obscured or disturbed to such an extent as would cause the ordinary person of average disposition to act rashly, without deliberation or reflection, and from passion rather than judgment. (Ibid.) An intentional killing may also be without malice where the accused acts in the good faith but unreasonable belief in the need for self-defense. (Id. at p. 199.)

The trial court has a sua sponte duty to instruct on the general principles of law raised by the evidence. (People v. Breverman, supra, 19 Cal.4th at p. 154.) An instruction on a lesser included offense is required where the "evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citation.]" (Id. at p. 162.)

Here Conner relies on his pretrial statement to the police in which he said Polk challenged him first and pulled out a gun; Conner believed it was "kill or be killed"; and they fought over the gun. Conner said he did not know if he shot Polk. Conner points out that Polk confirmed that Polk challenged the shooter first.

We might assume that it is possible to infer from Conner's pretrial statement to the police that he shot Polk in the heat of passion or in the good-faith belief in the need for self-defense. But Conner testified his pretrial statement to the police on which he now relies was false. Instead, Conner testified he had no confrontation with Polk, he did not shoot Polk and was not present when Polk was shot. In other words, he did not have the subjective state of mind necessary to reduce murder to manslaughter.

Under Conner's theory, the jury would have to draw an inference in his favor from a statement which he expressly branded a lie to draw a conclusion that he harbored a subjective state of mind, which he testified he did not have. Suffice it to say, the evidence on which Conner relies is too insubstantial to require a voluntary manslaughter instruction.

In any event, if the trial court erred in not giving a manslaughter instruction, the error was harmless by any standard. The failure to instruct on a lesser included offense is not prejudicial if the jury necessarily resolved the question adversely to the defendant under other instructions. (People v. Mincey (1992) 2 Cal.4th 408, 438.) Here the trial court instructed: "If you find the defendant guilty of attempted murder, you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully, and with deliberation and premeditation. [] The defendant acted willfully if he intended to kill when he acted. The defendant deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant premeditated if he decided to kill before acting."

The jury found that the attempted murder was willful, deliberate and premeditated. That finding is necessarily inconsistent with manslaughter. (See People v. Wharton (1991) 53 Cal.3d 522, 572 [jury's finding of premeditated murder necessarily inconsistent with heat of passion].)

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

COFFEE, J.

PERREN, J.

Drew E. Edwards, Judge

Superior Court County of Los Angeles

______________________________

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

Edmund G. Brown Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar, Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com