P. v. Garcia

Filed 2/18/09 P. v. Garcia CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Defendant Onesimo Olmedo Garcia fired a shotgun at his girlfriend and, later the same day, shot her to death with a revolver. A jury convicted him of second degree murder, assault with a firearm (a shotgun), and two counts of possession of a firearm by a felon. (Pen. Code,  187, 189, 245, subd. (a)(2), 12021, subd. (a)(1).) The jury also found that defendant personally used a firearm in committing the murder and assault, and personally and intentionally discharged a firearm in committing the murder. (Pen. Code,  12022.5, subd. (a)(1), 12022.53, subd. (d).)

Defendant appeals, and contends that the jury was erroneously instructed on the law. First, defendant argues that the court prejudicially erred in administering CALCRIM No. 640, a standard jury instruction that explains how to complete verdict forms when considering different kinds of homicide (murder and manslaughter). Defendant says CALCRIM No. 640 told the jurors they could not convict him of involuntary manslaughter without first acquitting him of voluntary manslaughter, which is legally incorrect. Second, defendant maintains that the offense of brandishing a firearm is a lesser included offense of assault with a firearm, and thus the court erred in refusing to instruct on the lesser offense.

We conclude that CALCRIM No. 640, as read to the jury, was flawed in a minor respect but that the jury instructions as a whole adequately advised the jury on the types of homicide at issue in the case and that any deficiency in the instructions was not prejudicial. We also conclude that the trial court properly refused to instruct the jury on the offense of brandishing a firearm because that offense is not a lesser included offense of assault with a firearm. We affirm the judgment.

I. facts

Defendant had been dating Sandra Dodson. On July 31, 2005, defendant and Dodson were at a rural home in Napa County, where Dodson rented a room from the homeowner. Also present at the property that day were the homeowner, Bonnie Stanislawski, Dodsons brother-in-law, Porfirio Preciado (who was married to Dodsons sister), and Preciados two sons, David and Victor (Dodsons nephews). Preciado was there to polish the floors, a job that Dodson had arranged with the homeowner.

While Preciado worked on the floors, his sons and defendant went outside to fire a shotgun at a target. Dodson did laundry. During the target practice, defendant and Dodson got into a loud verbal argument. Dodson was standing near a clothesline, taking wet clothes from a basket and hanging them to dry. Defendant was standing away from the house where he had been firing the shotgun at a target against a tree. Defendant and Dodson yelled back and forth at each other and defendant called Dodson puta, which is Spanish for whore or slut.

Defendant turned away from the target, raised the shotgun, and fired it at Dodson. The shot from the gun did not strike Dodson but did strike the ground and a trash can or barrel near her. Dodsons nephew David testified that the shotgun pellets came pretty close to striking Dodson. Her nephew Victor said the shot came within inches of Dodson. David testified that defendant was angry when defendant shot at Dodson, and that Dodson looked scared. Preciado also saw defendant shoot at Dodson, when he came outside to retrieve a tool from his van. Preciado testified that Dodson turned pale white after she was shot at, and she leaned against the trash can to brace herself. After the shooting incident, Preciado brought his sons inside the house until his work was done and it was time to leave.

As he was preparing to leave, Preciado had a conversation with defendant and Dodson. Preciado mentioned problems he was having with his wife and defendant said that if Dodson did not understand him he would beat her to make her understand. Dodson looked fearful and bowed her head. Preciado left with his sons; Dodson stayed behind with defendant and sadly waved goodbye.

Later that day, Dodson asked her landlady, Stanislawski, for Stanislawskis guns and gun cleaning equipment, saying that defendant wanted to clean the guns. In addition to the shotgun, Stanislawski owned a rifle and a Smith and Wesson .38 caliber revolver. Stanislawski gave the guns to Dodson, and Dodson went into the bedroom with the guns and defendant. Stanislawski testified that she believe[d] she removed the cartridges from the handgun before giving it to Dodson and defendant. After giving the guns to Dodson, Stanislawski grew more and more nervous and knocked on Dodsons bedroom door to ask if she was okay. Stanislawski knocked on the door and received no reply. Stanislawski returned to her bedroom to watch television but returned again to knock on the door, again receiving no reply. After another interval, Stanislawski again knocked on the door and, this time, Dodson came to the door and said everything was fine.

Stanislawski returned to watching television. Suddenly, Stanislawski heard a loud noise and knew it was the sound of the revolver being fired. Stanislawski rushed into the hall and defendant rushed past her from the direction of Dodsons bedroom and toward the back door. Stanislawski asked [w]hat happened? and defendant said [n]othing. Stanislawski looked into the bedroom and saw Dodson lying in a pool of blood. Dodson was dead.

Defendant fled the premises in his car. He crashed his car through the gate to the property, knocking the gate off its hinges. As he sped down the mountain road leaving the property, he careened into a ravine. Defendant abandoned his crashed car. He was seen that evening making a telephone call from a delicatessen in the area. The police arrested defendant at his home later that same day. Defendant had Dodsons blood on his shirt, pants, and shoes.

An autopsy revealed that Dodson died from a gunshot wound to the face and neck, with the bullet entering below her ear. The autopsy also showed that Dodson had recently injected methamphetamine into her arm, and had a history of injections. A forensic scientist reconstructed the scene of the shooting from the physical evidence, which included the position of Dodsons body, gunpowder markings on Dodsons skin, and blood spatter. The expert opined that Dodson was seated on a stool in front of a vanity and the shooter was standing with the revolver pointed down at Dodson and held within six inches of her face when the gun was fired. At the time she was shot, Dodson appeared to have been administering methamphetamine to herself, as a bag of methamphetamine was found clenched in her left hand and syringes were near her right hand.

The Smith and Wesson revolver was on the bed, along with the rifle and gun cleaning equipment. The gun cleaning equipment was unused: the cleaning rod was not assembled, there was no gun oil on the cotton fabric patches, and the rifle and revolver were dirty. Defendants fingerprint was on the revolver. The revolver had an expended cartridge case directly below the hammer; there were no other cartridges in the cylinder. The revolver was in proper operating condition.

Two felons testified about jail conversations they had with defendant while he was in jail awaiting trial. One testified that defendant laughed about shooting his girlfriend, and defendant said he killed her because she was going to leave him. The other testified that defendant bragg[ed] about shooting his girlfriend and said:  If she aint mine, shes nobodys. 

The prosecution also presented evidence that Dodson was dating another man in the days leading up to the shooting, and had been with him the day before the shooting. This man testified that he saw bruises on Dodson. On a separate occasion, Dodson told this man that defendant kicked her in the ribs and she thought they were cracked. The autopsy found that Dodson had three fractured ribs in the process of healing.

Ii. VERDict and sentencing

The jury acquitted defendant of first degree murder and convicted him of second degree murder, assault with a firearm (shotgun), and two counts of possession of a firearm by a felon. (Pen. Code,  187, 189, 245, subd. (a)(2), 12021, subd. (a)(1).) The jury also found that defendant personally used a firearm in committing the murder and assault, and personally and intentionally discharged a firearm in committing the murder. (Pen. Code,  12022.5, subd. (a)(1), 12022.53, subd. (d).)

The court sentenced defendant to an indeterminate term of 15 years to life for second degree murder, plus 25 years to life for personally and intentionally discharging a firearm in committing the murder. The court imposed an additional and consecutive determinate term of four years for assault with a firearm, plus 10 years for personal use of a firearm in committing the assault. The court stayed sentence on the firearm possession counts. (Pen. Code,  654.)

Iii. discussion

Defendant contends that the jury was erroneously instructed on the law. First, defendant argues that the court prejudicially erred in administering CALCRIM No. 640, which explains how to complete verdict forms when considering different kinds of homicide (murder and manslaughter). Defendant says CALCRIM No. 640 told the jurors they could not convict him of involuntary manslaughter without first acquitting him of voluntary manslaughter, which is legally incorrect. Second, defendant maintains that the offense of brandishing a firearm is a lesser included offense of assault with a firearm, and thus the court erred in refusing to instruct on the lesser offense. We turn to a discussion of these claims.

A. The jury was properly instructed on homicide

Defendant was prosecuted for first degree murder. The prosecutor requested instructions on both first degree and second degree murder, and the defense requested instructions on voluntary and involuntary manslaughter. The court instructed the jury on all four types of homicide, as requested by the parties. The court also instructed the jury with CALCRIM No. 640, which explains how to complete verdict forms when considering different kinds of homicide.

CALCRIM No. 640 was adopted in January 2006 and revised in April 2008. We are concerned here with the original instruction, which was administered to the jury at defendants July 2007 trial. We note, however, that defendant asserts that both the original and revised versions of the instruction are defective for the same reason: the instruction allegedly does not allow a jury to convict a defendant of involuntary manslaughter while being unable to reach a verdict on voluntary manslaughter.

The basic legal principles are not in dispute on this issue on appeal: (1) a trial court should instruct a jury that the jury may not convict a defendant of a lesser included offense without first acquitting on the greater charged offense (People v. Fields (1996) 13 Cal.4th 289, 310); and (2) both voluntary and involuntary manslaughter are lesser included offenses of murder but neither voluntary nor involuntary manslaughter is a lesser included offense to the other (People v. Orr (1994) 22 Cal.App.4th 780, 784-785). The dispute in this appeal is whether CALCRIM No. 640 misstated these principles, and wrongly advised the jury that involuntary manslaughter is a lesser included offense of voluntary manslaughter, and told the jury it could not convict defendant of involuntary manslaughter without first acquitting him of voluntary manslaughter.

We conclude that the challenged instruction was flawed but that the instructions in their totality adequately advised the jury on the types of homicide at issue in the case. Moreover, any deficiency in the instructions was not prejudicial.

We set out the original CALCRIM No. 640 instruction in full, as read to the jury, with the challenged language italicized:

You will be given several verdict forms for each count of murder and manslaughter. These instructions apply to each count separately. In connection with those counts I have given you fourwill be giving you four separate verdict forms. These are guilty and not guilty of first degree murder and second degree murder and voluntary manslaughter and involuntary manslaughter. You may consider these different kinds of homicide in whatever order you wish.

I am going to explain how to complete the verdict forms using one order, but you may choose the order to use. As with all charges in this case, to return a verdict of guilty or not guilty on a count you must all agree on that decision.

If you all agree that the People have not proved that the defendant committed an unlawful killing you must complete each verdict form stating that he is not guilty. If you all agree the People have proved the defendant killed unlawfully, you must decide what kind of or degree of unlawful killing the People have proved.

If you all agree that the People have proved that the unlawful killing was first degree murder, complete the verdict form stating the defendant is guilty of first degree murder. Do not complete the other verdict forms for this count.

If you all agree that the defendant is not guilty of first degree murder but you agree the People have proved the killing was second degree murder, you must do two things: first, complete the verdict form stating the defendant is not guilty of first degree murder, then complete the verdict form stating the defendant is guilty of second degree murder.

Do not complete the verdict form stating the defendant is guilty of second degree murder unless you all agree that the defendant is not guilty of first degree murder. Do not complete the other verdict forms for this count.

If you all agree the People have proved the defendant committed murder but you cannot all agree on which degree they have proved, do not complete any verdict form. Instead, the foreperson should send a note reporting that you cannot all agree on the degree of murder that has been proved.

If you all agree the defendant is not guilty of first degree murder but cannot all agree on whether or not the People have proved the defendant committed second degree murder you must do two things: first, complete the verdict form stating the defendant is not guilty of first degree murder; second, the foreperson should send a note reporting that you cannot all agree that second degree murder has been proved. Do not complete any other verdict forms for this count.

The People have the burden of proving the defendant committed first degree murder rather than a lesser offense. If the People have not met this burden you must find the defendant not guilty of first degree murder. If you all agree the defendant is not guilty of first or second degree murder but you all agree the People have [] proved that he is guilty of voluntary manslaughter, then you must do two things: first complete the verdict forms stating he is not guilty of first and second degree murder; second, complete the verdict form stating he is guilty of voluntary manslaughter. Do not complete the verdict form stating the defendant is guilty of voluntary manslaughter unless you all agree the defendant is not guilty of murder. Do not complete any other verdict forms for this count.

If you all agree the defendant is not guilty of first or second degree murder but you cannot all agree on whether or not the People have proved the defendant committed voluntary manslaughter, then you must do two things: first, complete both verdict forms stating the defendant is not guilty of first and second degree murder; second, the foreperson should send a note reporting that you cannot all agree that voluntary manslaughter has been proved.

The People have the burden of proving that the defendant committed murder rather than the lesser offense. If the People have not met this burden you must find the defendant not guilty of murder. If you all agree the defendant is not guilty of murder or voluntary manslaughter, but you all agree the People have proved that he is guilty of involuntary manslaughter, then you must do two things: first complete the verdict form stating he is not guilty of first degree murder, second degree murder and voluntary manslaughter; second, complete the verdict form stating he is guilty of involuntary manslaughter.

Do not complete the verdict form stating that the defendant is guilty of involuntary manslaughter unless you all agree that the defendant is not guilty of murder or voluntary manslaughter.

If you all agree that the defendant is not guilty of murder or voluntary manslaughter, but you cannot all agree whether or not the People have proved the defendant committed involuntary manslaughter, then you must do two things: first, complete all three verdict forms stating the defendant is not guilty of first degree murder, second degree murder and voluntary manslaughter; second, the foreperson should send a note reporting that you cannot all agree that involuntary manslaughter has been proved.

The People have the burden of proving the defendant committed murder or voluntary manslaughter rather than a lesser offense. If the People have not met this burden you must find the defendant not guilty of murder and not guilty of voluntary manslaughter. (Italics added.)

The instruction, as read to the jury, was flawed. The court should not have told the jury: Do not complete the verdict form stating that the defendant is guilty of involuntary manslaughter unless you all agree the defendant is not guilty of murder or voluntary manslaughter. As defendant rightly notes, involuntary manslaughter is not a lesser included offense of voluntary manslaughter (People v. Orr, supra, 22 Cal.App.4th 780 at pp. 784-785), and thus there was no need for the jury to acquit defendant of voluntary manslaughter before considering involuntary manslaughter. But, considered as a whole, the homicide instructions properly instructed the jury on the relevant principles of law.

  [T]he correctness of jury instructions is to be determined from the entire charge of the court, not from consideration of parts of an instruction or from a particular instruction.   (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) While CALCRIM No. 640 told the jury not to complete the verdict form stating that the defendant is guilty of involuntary manslaughter unless you all agree that the defendant is not guilty of murder or voluntary manslaughter, the courts other instructions made plain that [m]urder and manslaughter are types of homicide and that manslaughter generally, in all forms, is a lesser offense to murder. Nothing in the jury instructions stated that involuntary manslaughter is a lesser offense to voluntary manslaughter. Also the proposed order set out in CALCRIM No. 640 for considering the different types of homicide is expressly optional. The trial court here, pursuant to CALCRIM No 640, told the jurors they were free to consider these different kinds of homicide in whatever order you wish. [] I am going to explain how to compete the verdict forms using one order, but you may choose the order to use. The jury was therefore not bound by the courts suggestion that it not complete the verdict form stating that the defendant is guilty of involuntary manslaughter unless you all agree the defendant is not guilty of murder or voluntary manslaughter. Defense counsel made this clear in his closing argument to the jury, when he informed the jury (with the courts express consent) that the jury should consider voluntary manslaughter and involuntary manslaughter concurrently, as lesser included offenses to murder.

Even if the jurors followed the suggested order for considering the verdict forms, defendant was not prejudiced by the instruction. A criminal conviction may not be reversed for instructional error unless there is a reasonable probability that the outcome of defendants trial would have been different had the trial court properly instructed the jury. (People v. Flood (1998) 18 Cal.4th 470, 490.) No reasonable probability of a different outcome exists here. If the jurors followed the order suggested by CALCRIM No. 640, their determination that defendant was guilty of second degree murder made it unnecessary for them to weigh the two types of manslaughter. The instruction told the jury: If you all agree that the defendant is not guilty of first degree murder but you agree the People have proved the killing was second degree murder, you must do two things: first, complete the verdict form stating the defendant is not guilty of first degree murder, then complete the verdict form stating the defendant is guilty of second degree murder. The courts further advisement (challenged here) concerning the order for considering the types of manslaughter never became relevant because the jury decided that defendant was guilty of the greater offense of murder:

Moreover, it is clear from a separate jury finding, independent of the homicide verdict, that the jury rejected the defense theory that the shooting was involuntary manslaughter. Involuntary manslaughter is defined as the commission of an act which involves a high degree of risk of death or great bodily injury, committed with criminal negligence; that is, conduct which is such a departure from the conduct of an ordinarily prudent person under the same circumstances as to be incompatible with a proper regard for human life. [Citations.] Although the degree of the danger to human life may be a factor in differentiating murder from manslaughter [citation], the essential distinction between second degree murder based on implied malice and involuntary manslaughter is the subjective versus objective criteria to evaluate the defendants state of mindi.e. if the defendant commits an act which endangers human life without realizing the risk involved, he is guilty of manslaughter, whereas if he realized the risk and acted in total disregard of the danger, he is guilty of murder based on implied malice. (People v. Cleaves (1991) 229 Cal.App.3d 367, 378.) The jury clearly rejected the contention that defendant acted negligently, without realizing the risk involved, when it found that defendant, in shooting Dodson, personally and intentionally discharge[d] a firearm inches from her face. (Pen. Code,  12022.53, subd. (d).) Any error in instructing the jury under CALCRIM No. 640 was harmless under these circumstances.

B. The jury was properly instructed on assault with a firearm

The prosecution charged defendant with assault with a firearm for firing a shotgun at Dodson earlier on the day of her death. (Pen. Code,  245, subd. (a)(2).) In addition to instructing the jury on assault with a firearm (and simple assault), the defense asked the court to instruct the jury on brandishing a firearm (Pen. Code,  417, subd. (a)(2)), which defense counsel claimed was a lesser included offense. The prosecutor objected to the requested instruction, and the court denied the defense request upon concluding that brandishing a firearm is not a lesser included offense to assault with a firearm. Defendant renews his claim on appeal that brandishing a firearm is a lesser included offense and should have been submitted to the jury.

The same claim has been considered, and rejected, many times. (See People v. Steele (2000) 83 Cal.App.4th 212, 218 [collecting cases].) An offense is lesser included to a greater offense if the greater offense cannot be committed without also committing the lesser offense. (Id. at p. 217.) The determination of whether an offense is lesser included is made from either the wording of the information or the statutory language, and not from the evidence adduced at trial. (Ibid.) Brandishing a firearm is not lesser included to assault with a firearm because, under the statutory elements test, it is theoretically possible to assault someone with a firearm without exhibiting the firearm in a rude, angry or threatening manner, e.g., firing or pointing it from concealment, or behind the victims back. (Id.at p. 218.)

Defendant argues that this long-standing principle that brandishing a firearm is not a lesser included offense to assault with a firearm should be disregarded because the principle conflicts with certain statements of the California Supreme Court that have been made in different contexts. We are unpersuaded, as were previous courts that have addressed the argument at length. (People v. Steele, supra, 83 Cal.App.4th at pp. 219-221; People v. Escarcega (1974) 43 Cal.App.3d 391, 398-400.) We agree with these earlier decisions in finding that precedent from both the high court and intermediate court of appeal compel the conclusion that brandishing a firearm is not a lesser included offense to assault with a firearm. The trial court here did not err in refusing the requested instruction.

Iv. disposition

The judgment is affirmed.

_________________________

Sepulveda, J.

We concur:

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Ruvolo, P. J.

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Rivera, J.

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