P. v. Lazcano
Filed 4/15/13
P. v. Lazcano CA2/7
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 SEVEN
THE
PEOPLE,
Plaintiff and Respondent,
v.
ADAN
LAZCANO,
Defendant and Appellant.
B234366
(Los Angeles County
Super. Ct. No. TA113013)
APPEAL from a judgment of the Superior Court of
County. Richard R. Ocampo, Judge. Affirmed.
John A. Colucci, under appointment by the
Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Linda C. Johnson and Robert M. Snider, Deputy Attorneys
General, for Plaintiff and Respondent.
___________________________________
Adan
Lazcano appeals from the judgment upon his
conviction of murder in the first degree and of Penal Code section 12022.53
firearm discharge allegations.
name="_ftnref1" title="">[1] Appellant
asserts that his judgment should be reversed because the lower court
erred: (1) in admitting evidence of
alleged prior uncharged criminal conduct;
(2) in failing to instruct the jury on the
lesser included offense of heat of passion manslaughter; and (3) during
sentencing to orally pronounce that the parole revocation fine was suspended. Appellant also claims that his trial counsel
was ineffective for failing to request a pinpoint instruction with CALCRIM No.
522 on provocation. As we shall explain,
only appellant’s contention about his sentence has merit. Nonetheless, remand is unnecessary because
the abstract of judgment reflects the proper suspension of the fine. Accordingly, we affirm.
AND PROCEDURAL BACKGROUND
A. Apellant’s Relationships
Appellant’s nickname is “Panda.†Appellant did not have gang monikers or
tattoos, and is not a gang member.
Appellant and Jesus Abarca have been good friends since 2010. They would see each other almost daily. Appellant met Jesus’ cousin Francisco Abarca
in March 2011. Jesus (“Chuitoâ€) and
Francisco (“Chuyâ€) grew up together and were like brothers.
B. Appellant’s Statements
Appellant
was heard to quote underground Latino music, saying “I learn to live life and
then I learned to take lives.†Appellant
had told Chuy, “I have knocked people down†and “I have taken people down,†but
never provided details. Appellant made
similar boasts in groups of friends.
Appellant said he was a pistolero, meaning gunman. Chuy thought appellant’s boasts were said in
the spirit of the music, which glorified violence and the Mafia. In Spring 2010, Chuy told appellant he had a
.22-caliber handgun. Appellant told Chuy
that appellant once had a nine-millimeter handgun and still had bullets for
it.
On the
night of June
26, 2010, Chuy hosted a backyard rave at an abandoned
house in Compton,
across the street from his residence.
Chuy brought his girlfriend, Priscilla Manzo (“Manzoâ€), and his cousin
Paola Santa Cruz. It was Manzo’s
birthday. About 80 people attended the
party. Guests were purchasing nitrous
oxide balloons filled from tanks.
name="_ftnref3" title="">[3]
1. Events
Leading Up To The Murder And The Murder
Manzo’s
prior boyfriend, Jaime Jauregui, who was intoxicated, confronted Chuy. In response to Jauregui’s question asking him
“where [he was] from,†Chuy replied “I don’t gang-bang.†Jauregui continued to speak to him, but Chuy
walked away.
Around
10:00 p.m., appellant arrived at the party with Chuito, Chuito’s younger
brother Christian Abarca, and Chuy’s brother Javier Abarca (who was also
friendly with Appellant).
name="_ftnref4" title="">[4] Then Jauregui and two of his friends, one of
whom was Pedro Martinez (“Victimâ€),
name="_ftnref5" title="">[5]
approached Chuy. Acting under the belief
that Chuy owned the house, Jauregui confronted Chuy about a nitrous oxide tank
that someone was preventing them from bringing onto the premises. Jauregui said he had a .45-caliber weapon in
the event that he was met with resistance.
Frightened,
Chuy retrieved a .22-caliber revolver from his residence across the street and
brought it to the party for protection.
Appellant asked to hold it several times, telling Chuy, “I will respond
for you; you know this.†Appellant asked
for the gun because Chuy was inhaling nitrous oxide and was acting “crazy.†Appellant was not drinking, doing drugs, or
using nitrous oxide during the party.
appellant when asked. When Chuy finally
handed appellant the handgun, appellant said “If anything happens, I got your
back.†Chuy said he was having problems
with the man who had confronted him. Appellant
thought someone in Jauregui’s group had a gun.
At this
time, Victim, one of Jauregui’s friends, was intoxicated and confrontational,
disturbing other guests with his behavior.
He had been pushing and cutting ahead of guests lined up to buy nitrous
oxide balloons, grabbing balloons out of hands and refusing to pay for
them. People did not want to “mess with
him†because “he didn’t look like he was all there.†Chuy told appellant that Victim had
confronted him and asked what gang he was affiliated with. Appellant believed Victim was a gang member
based on Victim’s clothing and behavior.
Victim
then initiated a fight with Manzo.
Victim stepped on her feet, and upon his statement that he was from
Compton, she said she was from Compton too.
Victim then pushed Manzo, saying “I am not afraid to hit a bitch,†while
holding a nitrous oxide balloon in each of his hands. Victim shoved her with closed fists. When Manzo responded by saying “I am not
afraid to hit you back,†Victim raised his fists as though he meant to punch
Manzo. Manzo cried out three times for
Chuy’s help.
When
Chuy responded to the cries, Victim turned his attention away from Manzo and on
to Chuy, and appellant stood behind Chuy to observe. Victim came within five inches of Chuy’s face
and asked “what’s up? You got a problem,
ese? What are you going to do about
it?†With these actions, Victim was
instigating a fight with Chuy, but he never actually hit Chuy or Manzo. Chuy began to argue with Victim. Chuy was afraid that Victim was going to hit
him. While stepping back with his hands
open, Chuy asked Victim, “Why you gotta be disrespecting the ladies?†Chuy said, “that’s my girl you are
disrespecting.†Chuy and Victim argued
for about a minute, but Victim neither hit nor attempted to hit Chuy.
While
holding the balloons, Victim reached into his waistband, saying he had a .45,
but nothing was withdrawn. Appellant
stated that he saw Victim trying to reach for something, but that he did not
see Victim holding any balloons nor a weapon.
Appellant could not see Victim’s hands because it was too dark. Within seconds, appellant stepped toward
Victim, reached into his own waistband, withdrew his gun, extended it toward
Victim’s head, and shot Victim once in the right temple at close range.
Appellant said he saw Victim acting crazy and thought
Victim was going to hurt Chuy or Manzo when he “saw a reaction on Victim,â€
causing appellant to panic and “snap.â€
Appellant took a close shot because he did not want to shoot someone
else accidentally. Victim fell to the
ground and died from that single gunshot wound to his head.
Victim
had been unarmed, had not thrown any punches, or said or done anything
threatening.
title="">[7] Appellant testified that he was afraid Victim
might shoot him, Manzo, Chuy, Chuito, or Javier.
Victim trying to reach for something.
Appellant was afraid that since Victim had been inhaling nitrous oxide,
he could have caused harm to Manzo or Chuy if he had a gun. Appellant was scared and acted quickly,
without thinking about whether Victim had a gun or what Victim was going to do.
appellant never heard him threaten to kill anyone.
Appellant was momentarily frozen, then ran across the
street; Chuy and Manzo remained frozen from shock. Javier yelled, “He shot him, he shot him in
the head! Chuy, Chuy, let’s go, let’s
go.†Chuy and Manzo walked home. A deputy sheriff responded to the murder,
where he found a couple dozen people leaving.
Two men were propping up Victim’s body, which had no weapons near
it.
In his backyard, Chuy came across Javier, Chuito,
Christian, and appellant. Appellant was
calm, quiet, and relaxed. Appellant
stated that he appeared calm but was actually panicked and in shock. “Nobody fucks with me,†appellant stated.
said in Spanish. Replaying a song on his
phone, appellant repeated to Chuy, “I told you I would respond for you if
anything happened.†“I told you I could
knock people down,†appellant stated.
Appellant said Victim had a .45, but he never claimed he was defending
himself, Chuy, or Manzo.
name="_ftnref11" title="">[11] Appellant told Chuito that he knew it was
wrong, but that he was scared and snapped when he shot Victim.
Appellant asked that no one tell his girlfriend what
happened. Around 1:00 a.m., appellant
left, stating he had hidden Chuy’s gun.
Appellant stated that he returned the gun to Chuy prior to getting a
ride home. Chuy thanked appellant for
“having his back.â€
D. Murder
Investigation
The next day, June 27, 2010, Los Angeles County Sheriff’s
Detective Richard Ramirez and his partner spoke with Chuy after Chuy’s
residence was searched. Chuy denied
owning a .22-caliber handgun, saying that the found casings came from a
shooting range. Chuy was taken into
custody and was arrested for murder.
Manzo then told the police the shooter was appellant, not Chuy. Chuy also told detectives that appellant had
shot Victim. He picked appellant out of
a photo array and wrote “He ran up and shot the guy in the head.â€
1. Questioning
Appellant
On June 29, 2010, police arrested appellant. Appellant did not contact investigators prior
to that date. Detectives recorded a
series of conversations with appellant, and these recordings were played for
the jury. Appellant had never been
questioned before, and was scared when interviewed about the homicide. He was afraid of being punished. In the first conversation, appellant denied
shooting anyone. Following a break,
Detective Ramirez asked appellant if he wanted to discuss the incident further,
at which point appellant said, “Okay, I did it.†Appellant did not want to talk further about
what happened or why.
Appellant then provided some details, telling the
detectives that Victim was “mad-dogging†him.
stating several times that he was afraid and scared. When asked whether he shot Victim because he
believed Victim was going to hurt Chuy, appellant answered no. Appellant also stated that while it appeared
to him that Victim and Chuy were going to fight, the two were only arguing and
it had not yet escalated to physical violence.
When asked whether he thought Victim had a gun or whether
he had heard that Victim had a “.45,†appellant did not reply
affirmatively. Appellant finally said he
obtained the gun from Chuy and had returned it after the shooting; he waited
until the end of the interview because he did not want to get Chuy in
trouble. During the interview, appellant
repeatedly told the officers that he shot Victim because he was scared, that he
thought Victim was a “gangster.†Prior
to trial, appellant never told the police that he acted in self-defense or in
defense of his friends.
Chuy subsequently admitted to Detective Ramirez that he
had provided the gun. When the
detectives asked Chuy to retrieve it, he agreed. However, on his parents’ advice, he moved the
gun and did not produce it for the detectives.
Chuy was then charged as an accessory after the fact.
Chuy signed an immunity
agreement, which required his truthful testimony in exchange for three
years probation, with credit for time served in custody and no additional
confinement absent a probation violation.
On February 11, 2011, Chuy reaffirmed to detectives that he provided the
murder weapon. Later, with the consent
of his attorney, Chuy attempted to recover the gun, but it had been
discarded.
E. Charges
Against Appellant
On December 3, 2010, the Los Angeles County District
Attorney charged appellant with murdering Victim in violation of section 187,
subdivision (a). The information filed
also alleged that appellant personally used and intentionally discharged a
firearm, causing great bodily injury and death to Hernandez, pursuant to
section 12022.53, subdivisions (b) through (d).
Appellant pled not guilty and denied special allegations,
and on April 1, 2011, a jury trial commenced.
Following argument, the People moved to add a special allegation
pursuant to section 12022.5, subdivision (a); the court granted the special
allegation. The court instructed the
jurors about imperfect self-defense, voluntary manslaughter, and homicides
justifiable in self-defense or in the
defense of another.
1. Section
402 Hearing
A pretrial hearing was held pursuant to Evidence Code
section 402 regarding appellant’s alleged statements that he had “knocked people
down before†and that he was a “gunner†or “pistolero.†During the Section 402 hearing, the
prosecutor offered Appellant’s statements “merely to show his state of mind,
his motive, which all directly is relevant and extremely probative to the
central issue in this case as to why the defendant did what he did.†The prosecutor explained to refute the
anticipated defenses of accident or defense of oneself or others, appellant’s
statements would show premeditation and deliberation “that he was doing this to
show off and to prove that he is the tough guy that he believed – that he had
been bragging about.â€
Appellant objected pursuant to Evidence Code section 352,
as well as state and constitutional grounds, stating that “jurors undoubtedly
will consider [appellant] to be someone who has killed in the past.†Appellant further argued that the vague
nature of the statement would make it difficult to rebut the truth of the
statement with independent evidence, and that it would be unfair to allow
uncorroborated evidence to be provided by witnesses granted with immunity. The court agreed that the statement allegedly
uttered by appellant, “I have taken people down before,†presented an Evidence
Code section 352 problem. To remedy
this, the prosecutor stated that witnesses testifying to the statement did not
believe appellant to be someone who had killed before, and would testify to the
fact that he was simply attempting to prove himself to be a tough guy to his
friends.
Following a defense voir dire, the court found the
admission of this fact “would be highly relevant†for the issues of intent and
premeditation. The court found the
evidence more probative than prejudicial, holding that the statement would be
permissible as long as there was no evidence of a prior murder, the statement
was not being used to show appellant was involved with a prior murder, and
there would be jury instructions to that effect. All parties agreed to have the court provide
limiting instructions to the jury.
Chuy testified to the relevant statements made by
appellant, stating that appellant had said “I have knocked people down†and “I
have taken people down,†but that Chuy understood it “as just trying to show
off to me, just to try to be in the group, I guess.†Chuy continued to speak of appellant’s
tendency to brag about prior crimes but never provided details. During Chuy’s testimony, the court provided
the jury with the instruction that the statement was not to be used for the
truth of the matter; the statement could only be interpreted to explain
appellant’s state of mind, and could be used for no other reason. On redirect examination, Chuy reiterated that
those comments by appellant were never believed, but rather taken as a boast in
an effort to fit in with the group.
Chuy further testified to the fact that appellant told
him he used to have a gun, and that appellant still had bullets for it. Chuy stated that appellant had said this in
reply to Chuy’s own statement that he owned a handgun. When defense counsel moved for mistrial based
on this evidence showing a propensity to own guns or shoot people, the court
disagreed. The court found that this
statement was showing appellant’s tendency to brag, that its relevance
outweighed its prejudicial effect, and that there was no harm in allowing the
jury to hear it.
When Chuy’s brother Javier later testified he heard
appellant speak of being a “pistolero,†defense counsel renewed the motion for
a mistrial, again alleging that prejudicial character evidence was being put before
the jury. The court rejected the
defense’s argument. The court found the
statement was properly admitted pursuant to the court’s prior ruling and was
relevant to show appellant’s tendency to brag, and his state of mind. The prosecutor then clarified for the jury
that Javier believed appellant was simply bragging, and was not asserting the
truth of the statement.
2. Appellant’s
Trial Testimony
On the
night of the incident, Chuy called appellant to tell appellant about the party
at Chuy’s house. Appellant’s cousin
dropped him off at the party at approximately 9:30 p.m. Appellant entered the party with Manzo,
Chuy’s girlfriend. Though this was a
“noz†party, appellant stated that he does not do drugs. Within 10-15 minutes of Appellant’s arrival,
Chuy told appellant that he had a gun with him because “some guy confronted
him†and the individuals who “banged on himâ€
were present at the party. Appellant
understood that the people who “banged on†Chuy belong to the same group as
Manzo’s ex-boyfriend.
Appellant
noticed that Victim had been walking around the party, “acting crazy, dumb,â€
and in his opinion, it seemed that Victim was on drugs. Appellant asked Chuy for Chuy’s gun because
appellant remembered that at another similar “noz†party, Chuy “was doing noz,
and he was going crazy.†Upon giving him
the gun, Chuy told appellant “hold it; but just like have my back.†From about 12 feet away, appellant saw Manzo and
Victim having an argument, but he could not hear what was said because of the
loud music that was playing. Appellant
saw Victim shove Manzo, which caused her to move back; Manzo looked at Chuy and
Chuy walked over to her. Appellant then
walked over to stand beside Chuy, as Chuy and Victim stood face-to-face.
Appellant
walked 12 steps toward Victim, pulled the gun out of his back pocket, and shot
Victim once, in the head. When Chuy gave
appellant the gun, Chuy had told appellant, “if anything happens, be right
there to help me. So he gave it to
me.†When Appellant “saw a reaction on
[Victim],†appellant “snapped.†When
Appellant shot Victim, appellant believed Victim was going to hurt Chuy or
Manzo. He was scared that Victim might
have a gun, and that he might shoot Manzo, Chuy, Chuito, Javier, or
himself. When asked if he was angry with
Victim or if he was in fear for Chuy and Manzo, appellant again stated that he
was in fear for Manzo, Chuito, Chuy, Javier, and for himself.
Though
appellant said he could not see Victim’s hands or the balloons in Victim’s
hands because it was too dark, he also stated that he saw Victim reach for
something. Appellant stated that he
panicked and had to act quickly because he was in fear, but that he never heard
Victim say to anyone that Victim was going to kill them. Appellant further testified that he shot
Victim from close range because he did not want to hurt anyone else, that he
thought about his action enough to consider others’ safety.
After
the shooting, appellant ran to Chuy’s backyard house and waited five minutes
before others arrived. Appellant asserts
that he was in “a calm like panic, shock†and that he did not brag about the
incident. At the house, Chuy thanked
appellant for “being there†for him.
When he reemerged from the backyard to the street, appellant saw police
officers investigating the shooting, but instead of telling the officers that
he had shot Victim in self-defense, he left the scene. After two and a half hours at Chuy’s
residence and after returning the gun to Chuy, Chuito’s mother took appellant
home.
Appellant
did not attempt to contact the police to explain what had happened. When the police arrested appellant two or
three days later, appellant was initially scared. At first, appellant denied shooting Victim,
but ultimately admitted to it. Appellant
did not mention to the police that he used Chuy’s gun because he did not want
to get Chuy in trouble. Appellant
repeatedly told the police that he was afraid of Victim because he believed
that Victim was a gangster. Appellant
again stated that he was acting in an attempt to protect Chuy and Manzo.
The jury convicted appellant of first degree murder and
found true the allegation that he personally and intentionally discharged a
firearm, causing death. At sentencing,
the trial court denied appellant probation and sentenced him to 25 years to
life in state prison and, consecutively, 25 years to life for the firearm
enhancement, for a total term of 50 years to life imprisonment. The court imposed fines and fees upon
appellant. Appellant received presentence
credit for 377 actual days in local custody.
Appellant
timely filed this appeal.
Evidence of Prior Purported Uncharged Criminal Conduct
Appellant contends that the statements that he had
“knocked people down before†and that he was a “gunner†or “pistolero,†were
inadmissible (1) under Evidence Code section 1101, because the statements
portray appellant as a violent character with a propensity to commit violent
crimes; and (2) because the evidence was unduly prejudicial under Evidence Code
section 352. The Attorney General
counters that the evidence was properly admitted to show appellant’s state of
mind, motive, and intent at the time of the murder, rather than to show his
character as one with the disposition to commit murder and that the evidence
was more probative than prejudicial under Evidence Code section 352.
Of Appellate Review
“A trial court’s exercise of discretion under [Evidence
Code] section 352 will be upheld on appeal unless the court abused its
discretion, that is, unless it exercised its discretion in an arbitrary,
capricious, or patently absurd manner.â€
(People v. Thomas (2012) 53
Cal.4th 771, 806, internal citations omitted.)
In fact, “[a] court need not expressly weigh prejudice against probative
value or even expressly state that it has done so, if the record as a whole
shows the court was aware of and performed its balancing functions under
Evidence Code section 352.†(
892.)
Additionally, the standard of review of a trial court’s
ruling on the admissibility of evidence of other crimes, under Evidence Code
section 1101, is also abuse of discretion.
(People v. Hovarter (2008) 44
Cal.4th 983, 1004.) This presents a
significant burden upon the appealing party to show the court’s abuse of
discretion as an overt disregard for the requisite balancing of probative
versus prejudicial value of the facts presented.
B. Evidence
Code Section 1101, Subdivision (b)
The
Evidence Code section 1101, subdivision (b) challenge centers on whether the
statements were evidence of prior bad acts that would show appellant’s
disposition to commit murder or whether they were presented to prove that he
had a homicidal motive or mindset at the time of the murder. The trial court found that appellant’s
statements were not evidence of prior uncharged crimes, but rather highly
relevant to appellant’s motive of showing off to prove himself to the others at
the time of the murder.
Under Evidence Code section 1101, “evidence of a person’s
character or a trait of his or her character (whether in the form of an
opinion, evidence of reputation, or evidence of specific instances of his or
her conduct) is inadmissible when offered to prove his or her conduct on a
specified occasion.†(Evid. Code. §1101,
subd. (a).) “Evidence that a defendant
committed crimes other than those for which the defendant is then being tried
is barred by Evidence Code section 1101 if it is offered to prove the
defendant’s criminal disposition, but not if it is offered to prove a material
disputed issue such as motive or intent.â€
(People v. Hayes (1990) 52
Cal.3d 577, 617, internal citations omitted.)
Appellant’s statements were offered to show appellant’s
state of mind at the time of the murder rather than to prove that appellant had
committed prior crimes. In fact, because
testimony of appellant’s statements was accompanied by testimony as to their
fictitious nature and because they merely refer to the unspecified and unsubstantiated
possibility of prior bad acts, the statements do not run afoul of Evidence Code
section 1101.
Specifically, Chuy testified that appellant had
repeatedly bragged about killing people; he further stated that he never
believed appellant actually did kill anyone and, in fact, believed appellant
made the statements in an effort to impress him. Javier testified that appellant had told him
he was a “pistolero,†but also stated that that he believed appellant was just
bragging. Chuy also testified that while
appellant had mentioned that he used to own a gun and still had bullets for it,
he never produced details about his gun use.
Here, the statements serve the purpose of showing appellant’s state of
mind at the time of the murder and his intent.
Additionally, admission of appellant’s statements did not
prejudice the jury into punishing him for having a criminal propensity. First, appellant himself had admitted to
shooting Victim, so there was no need for the jury to rely on vague,
unsubstantiated, and alleged prior bad acts referenced in witness testimony in
order to decide if he had the character to commit such a crime. Second, both witnesses providing testimony of
the statements concurrently testified they did not believe the statements to be
true. Thus there was no danger that a
juror might take those words to mean appellant had actually committed any prior
crime. Finally, to minimize any improper
use of the evidence or potential prejudice the court admonished the jury on the
limited purpose of this evidence.
Here, the possible prejudicial nature of appellant’s
statements is eclipsed by the abundant evidence of his guilt as well as the
precautionary measures taken by the court and the prosecution. The court did not abuse its discretion in admitting
the statements for the purpose of showing appellant’s boastful state of mind at
the time of the murder.
Code Section 352
Appellant’s
Evidence Code section 352 challenge centers on the argument that the court
abused its discretion by not accounting for the risk of prejudice and instead,
acted in a patently absurd manner. In
doing so, appellant ignores the balancing process required of the court, and
instead asserts that all prejudicial evidence of this nature should be
inadmissible, regardless of probative value.
Under Evidence Code section 352, the trial court “in its
discretion may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.†(Evid. Code, § 352.)
When appellant objected to the
admission of the statements at issue, the court held an Evidence Code section
402 hearing to determine the admissibility of the statements. During this hearing, the prosecution stated
that it was offering appellant’s statements “merely to show his state of mind,
his motive, which . . . is directly relevant
. . . to the central issue in this case as to why the defendant did what
he did.†The purpose of this evidence
was to prove that his state of mind was deliberate and premeditated, precluding
the anticipated defense of accident or defense of himself or others. Though the court initially expressed a
concern that there might be an Evidence Code section 352 problem, after
conducting a defense voir dire, it found the admission of the statements to be
“highly relevant†for determining intent and premeditation.
We agree with the trial court that
this evidence was probative to issues of appellant’s state of mind and intent
at the time he committed the charged crime.
Any potential prejudice from these statements was neutralized both by
the witnesses’ statements that they viewed them as false braggadocio and by the
limitations and admonitions that the court placed on the evidence. The trial court admitted the statements with
the proviso that no evidence of a prior murder was brought forth; the statement
was thus not being used to show appellant was involved with a prior
murder. The court also admonished the
jury as to the proper use of the evidence.
Indeed, during Chuy’s and Javier’s testimony, the court instructed the
jury that the statements were to be considered only to explain appellant’s state
of mind, and that the truth of the statements was not at issue. The trial court here took sufficient
precautions in an effort to decrease the risk of prejudice. The court did not abuse its discretion in
admitting the evidence under Evidence Code section 352.
II.
Instruct on the Lesser Included Offense of Heat of Passion Manslaughter
For Jury Instructions On Heat Of Passion Manslaughter
“Manslaughter,
a lesser included offense of murder, is ‘the unlawful killing of a human being
without malice.’ [Citation.] A defendant lacks malice and is guilty of
voluntary manslaughter in ‘limited, explicitly defined circumstances: either
when the defendant acts in a sudden quarrel or heat of passion, or when the
defendant kills in unreasonable self-defense – the unreasonable but good faith
belief in having to act in self-defense.â€
(People v. Blakeley (2000) 23
Cal.4th 82, 87-88, citing § 192.)
“Malice is presumptively absent when a defendant kills ‘upon a sudden
quarrel or heat of passion,’ provided that the provocation is sufficient to
cause an ordinarily reasonable person to act rashly and without deliberation,
and from passion rather than judgment.
[Citation.] Similarly, when a
defendant kills in the actual but unreasonable belief that he or she is in
imminent danger of death or great bodily injury, the doctrine of ‘imperfect
self-defense’ applies to reduce the killing from murder to voluntary
manslaughter. [Citation.]†(People
v. Cruz (2008) 44 Cal.4th 636, 664, citing § 192.)
“[A] trial court is
obligated to instruct the jury on all general principles of law relevant to the
issues raised by the evidence.
[Citation.] It is error for a
trial court not to instruct on a lesser included offense when the evidence raises a question
whether all of the elements of the charged offense were present, and the
question is substantial enough to merit consideration by the jury. [Citation.]
When there is no evidence the offense committed was less than that
charged, the trial court is not required to instruct on the lesser included
offense. [Citation.]†(People v. Booker (2011) 51 Cal.4th
141, 181.) Lesser
included offense instructions are “required
only where there is ‘substantial evidence’ from which a rational jury could conclude
that the defendant committed the lesser
offense, and that he is not guilty of the greater offense. [Citations.]â€
(People v. DePriest (2007) 42 Cal.4th 1, 50; see
142, 162, 165-169; People v. Barton
(1995) 12 Cal.4th 186, 194, 195.)
Substantial evidence, in this context, is “evidence from which a jury
composed of reasonable [persons] could conclude [ ] that the lesser offense,
but not the greater, was committed.†(
quotation marks omitted; see also People
v. Barton, supra, 12 Cal.4th at
p. 201, fn. 8.) “Speculation is an
insufficient basis upon which to require the trial court to give an instruction
on a lesser included offense.†(
942.) If the evidence supporting the
proposed lesser included offense is minimal and insubstantial, the trial court
need not instruct on its effect. (
306, overruled on other grounds by
898.) A claim that the trial court erred
by failing to instruct on a lesser included offense is reviewed de novo. (People
v. Waidla (2000) 22 Cal.4th 690, 733.)
At
trial, appellant argued that he was not guilty of murder because he had acted
in defense of himself and his friends.
Appellant did not make any argument in the trial court that he committed
the crime in the heat of passion. Nonetheless,
before this court, appellant contends that the trial court erred for failing to
instruct on heat of passion manslaughter.
We disagree. Appellant overlooks
the fact that there must be substantial evidence of the lesser offense that
would lead the fact finder to believe that the lesser, and not the greater,
offense was committed. (
The
doctrine of imperfect self-defense “applies to reduce the killing from murder
to voluntary manslaughter†“when a defendant kills in the actual but
unreasonable belief that he or she is in imminent danger of death or great
bodily injury.†(Cruz, supra, 44 Cal.4th
at p. 664.) Appellant asserted such
fearful belief and intention to act upon that belief. He stated his belief that someone in Victim’s
group had a gun at the party, that Victim was a gang member, that Victim was
acting crazy, and that Victim was going to hurt his friends. Indeed, appellant’s trial counsel stated, in
both the opening and closing statements, that the theory upon which appellant
rested his case was that of self defense.
Appellant
now speciously asserts that “there was substantial evidence that [appellant]
acted in the heat of passion in the midst of a quarrel with his friends
provoked by [Victim],†which would trigger the requirement of a sua sponte
instruction on heat of passion manslaughter.
Such an instruction would be required only if there was, in fact,
substantial evidence that the lesser included offense occurred rather than the
greater offense. Heat of passion
requires that the defendant “actually, subjectively, kill[s] under the heat of
passion … and the heat of passion must be such a passion as would naturally be
aroused in the mind of an ordinarily reasonable person under the given facts
and circumstances.†(
1168-1169.) The record below provides
neither justification for any objective cause of heat of passion, nor evidence
to prove that appellant subjectively acted under the heat of passion.
Although
there was evidence of the victim’s provocative actions, there was no evidence
of provocation directed at appellant.
Thus, no heat of passion instruction was required. “An unlawful killing is voluntary
manslaughter only ‘if the killer’s reason was actually obscured as the result
of a strong passion aroused by a ‘provocation’ sufficient to cause an ‘ordinary
[person] of average disposition … to act rashly or without due deliberation and
reflection, and from this passion rather than from judgment.’ [Citations.]
The provocation must be such that an average, sober person would be so
inflamed that he or she would lose reason and judgment. Adequate provocation must be affirmatively
demonstrated. [Citations.]†(People
v. Thomas, supra, 53 Cal.4th at
Breverman (1998) 19 Cal.4th 142, 163, and People v. Lee (1999) 20 Cal.4th 47, 60.)
The
record reflects no such provocation.
Appellant testified that when he saw Victim acting crazy, he thought
Victim was going to hurt his friends, and when he “saw a reaction on [Victim],â€
it caused appellant to panic and “snap.â€
This testimony shows appellant’s thought process and action in defense
of his friends, rather than an impulsive act brought on by provocation. The fact that he “snapped†implies a sudden
action, but it was in response to the threat of injury he feared for himself
and his friends rather than in response to a provocation. In fact, appellant testified that Victim
never approached him, Victim never threatened to kill anyone, and appellant did
not see Victim holding anything at the time of the killing (though others
testified to the fact that he was holding balloons in both hands). Appellant further testified that he took a
close shot because he did not want to shoot someone else accidentally. This deliberate action shows thought and
consideration that does not support the assertion of acting in the heat of
passion. While a trial court has the
duty to instruct on “general principles of law that are closely connected to
the facts before the court and that are necessary for the jury’s understanding
of the case,†nothing required the trial judge below to, as in
in order to find that the jury should consider whether the defendant
subjectively killed in the heat of passion, when no substantial evidence
supported that theory of manslaughter …â€
(People v. Moye (2009) 47
Cal.4th 537, 554.) Accordingly, the
lower court did not err in not instructing on failing to instruct on a “heat of
passion†theory of manslaughter.
Request Pinpoint Instruction with CALCRIM No. 522 on Provocation
A
criminal defendant has the right to the effective assistance of counsel. (U.S. Const., Amend. VI; Cal. Const., art. I,
§ 15; McMann v. Richardson (1970) 397
U.S. 759, 771, fn. 14.) To reverse a
conviction due to ineffective assistance of counsel, a convicted defendant has
the burden of proving (1) that counsel’s performance was deficient due to
errors so serious that counsel’s performance fell below that which would be
considered reasonable under prevailing professional norms; and (2) that the
deficient performance prejudiced the defense due to errors so serious as to
deprive the defendant of a fair trial. (
668, 687-688.) When faced with the
contention that a judgment should be reversed because counsel was ineffective,
there is a strong presumption that counsel has “rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional
judgment.†(Id. at p. 690.)
To show
ineffective assistance of counsel, the defendant must first prove that
counsel’s performance was unreasonable under prevailing professional standards
and considering all the circumstances. (
U.S. at p. 688.) The defendant “must
identify the acts or omissions of counsel that are alleged not to have been the
result of reasonable professional judgment.â€
(Id. at p. 690.) Once counsel actions have been established to
be unreasonable, the defendant next must show that counsel’s assistance was
prejudicial. To show sufficient
prejudice, “the defendant must show that there is a reasonable probability that
but for counsel’s unprofessional errors, the result of the proceeding would
have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.†(Id. at p. 694.) Thus,
prejudice is found where “there is a reasonable probability that, absent the
errors, the fact finder would have had a reasonable doubt respecting
guilt.†(Id. at p. 695.)
On
appeal, this court must decide whether, “in light of all the circumstances, the
identified acts or omissions were outside the wide range of professionally
competent assistance.†(
U.S. at p. 690.)
In doing so, the court “should keep in mind that counsel’s
function is to make the adversarial testing process work in the particular
case. At the same time, the court should
recognize that counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment.†(
Appellant states that the trial court failed to instruct
the jury with CALCRIM No. 522 (“that provocation could negate premeditationâ€),
and asserts that counsel’s failure to request that instruction indicates
ineffective assistance of counsel.
Appellant does not claim the trial court had a duty to instruct on the
issue of provocation, as CALCRIM No. 522 is a pinpoint instruction.
ineffective for not requesting the instruction.
CALCRIM No. 522 states: “Provocation may reduce a murder
from first degree to second degree [and may reduce a murder to
manslaughter]. The weight and
significance of the provocation, if any, are for you to decide. If you conclude that the defendant committed
murder but was provoked, consider the provocation in deciding whether the crime
was first or second degree murder. [Also,
consider the provocation in deciding whether the defendant committed murder or
manslaughter.] [Provocation does not
apply to a prosecution under a theory of felony murder.]†(CALCRIM, Judicial Council of California
Criminal Jury Instruction 522.)
A. Competence
“Reviewing
courts defer to counsel’s reasonable tactical decisions in examining a claim of
ineffective assistance of counsel [citation], and there is a ‘strong
presumption that counsel’s conduct falls within the wide range of reasonable
assistance.’ [Citation.] ‘[W]e accord great deference to counsel’s
tactical decisions’ [citation], and we have explained that ‘courts should not
second guess reasonable, if difficult, tactical decisions in the harsh light of
hindsight.’ [Citation.] ‘Tactical errors are generally not deemed
reversible, and counsel’s decision making must be evaluated in the context of
available facts.’†(People v. Weaver (2001) 26 Cal.4th 876, 925-926.) “No particular set of detailed rules for
counsel’s conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of legitimate decisions
regarding how best to represent a criminal defendant. Any such set of rules would interfere with
the constitutionally protected independence of counsel and restrict the wide
latitude counsel must have in making tactical decisions.†(Strickland,
supra, 466 U.S. at pp. 688-689.)
“Competent
counsel is not required to make all conceivable motions or to leave an
exhaustive paper trail for the sake of the record. Rather, competent counsel should
realistically examine the case, the evidence, and the issues, and pursue those
avenues of defense that, to their best and reasonable professional judgment
seem appropriate under the circumstances.
[Citation.]†(
Cal.App.4th 380, 394.)
Here,
the record does not indicate why trial counsel did not ask for pinpoint
instruction on provocation. Counsel may
have made a tactical choice to not do so because counsel was pursuing a theory
of self-defense. We cannot say, as a
matter of law, based on the record before us on appeal, that counsel displayed
incompetence.
As the
California Supreme Court has often noted, claims such as those made by
Appellant are better suited to a petition for writ of habeas corpus than to an
appeal:
“[N]ormally
a claim of ineffective assistance of counsel is appropriately raised in a
petition for writ of habeas corpus (see, e.g., People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267), where
relevant facts and circumstances not reflected in the record on appeal, such a
counsel’s reasons for pursuing or not pursuing a particular trial strategy, can
be brought to light to inform the two-pronged inquiry of whether counsel’s
‘representation fell below an objective standard of reasonableness,’ and
whether ‘there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.’ [Citation.]†(People
v. Snow (2003) 30 Cal.4th 43, 111; see, e.g., In re Cordero (1988) 46 Cal.3d 161 [habeas corpus proceeding
exploring whether defense counsel failed to conduct reasonable factual
investigation of defendant’s potential defense of intoxication];
[habeas corpus proceeding exploring whether defense counsel should have
investigated and presented defense based on defendant’s drug intoxication
during crimes and whether he should have challenged admission of taped
confession].) The Supreme Court made
clear in Mendoza Tello, that an
appellate court should not “set aside a jury verdict, and brand a defense attorney
incompetent unless it can be truly confident all the relevant facts have been
developed. . . .†(People v. Mendoza Tello, supra, 15 Cal.4th at p. 267.)
Here,
we cannot determine the merits of appellant’s assertions against defense
counsel.
B. Prejudice
In any
event, appellant has not shown the requisite prejudice. To establish the requisite prejudice, the
defendant must show that but for his counsel’s error, the outcome would have
been different; to assess the prejudicial value, the appellate court must
“reweigh the evidence in aggravation against the totality of available
mitigating evidence.†(
534.)
Here,
evaluating the evidence before the trial court and highlighting any possible
mitigating evidence would not alter the result of the trial. The only evidence appellant provided to
support his alternate theory based on provocation was that he “snapped†in
reaction to Victim’s actions on the night of the killing. This, however, contradicts other testimony as
to his ready-to-respond state of mind and his own assertion that he acted out
of fear for the safety of himself and others.
Additionally, appellant’s quick action does not necessarily mean he was
provoked. Nothing in the record shows,
nor does appellant point to any evidence, that he was personally
confronted. Instead, when appellant saw
Victim in an argument with his friends, appellant walked toward Victim and shot
him at close range. Even if his counsel
had requested an instruction on provocation and the instruction been given, we
are not convinced there is a reasonable probability that the result of the
proceeding would have been different.
IV.
Under section 1202.45, for a person
convicted of a crime and whose sentence includes parole time, “the court shall
at the time of imposing the restitution fine pursuant to subdivision (b) of
section 1202.4, assess an additional parole revocation restitution fine in the
same amount.†(§ 1202.45.) However, this parole revocation restitution
fine “shall be suspended unless the person’s parole is revoked.†(Ibid.)
Here, both parties agree that pursuant to
section 1202.45, it was appropriate for the court to suspend the parole
revocation fine. While the abstract of
judgment and the minute order properly reflect the suspension of the fine, the
trial court apparently misspoke in failing to state that the fine was suspended
when it orally pronounced the sentence. As a
result, an inconsistency appears between the oral pronouncement and the abstract
of judgment. However, the abstract of
judgment reflects the proper sentence and controls in this instance. As a result, remand is unwarranted in this
case.
The
judgment is affirmed.
WOODS,
Acting P. J.
We
concur:
ZELON, J.
JACKSON, J.
name="_ftn1" title="">
[1] All
further statutory references are to the Penal Code unless otherwise indicated.
name="_ftn2" title="">[2] As Jesus and Francisco share the “Abarca†last name, they
will be referred to by their familiar names for clarity: Jesus is “Chuito†and Francisco
is “Chuy.â€
