P. v. Carrillo-Garcia















Filed 8/1/12 P. v.
Carrillo-Garcia CA3









NOT
TO BE PUBLISHED







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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Plumas)

----




>

THE PEOPLE, Plaintiff and Respondent, v. REYES CARRILLO-GARCIA, Defendant and Appellant.

C063650 (Super. Ct. No. 0835256)

On Mother’s Day
2008, three mothers awoke to a horrific tragedy. Broken hearted, 18-year-old defendant Reyes
Carrillo-Garcia stabbed his ex-girlfriend, Jennifer Carrigan, eight times and
her new boyfriend, Steven Furtado, 35 times in Jennifer’s bedroom. The prosecution argued the murders were
premeditated and committed while lying in wait for his unsuspecting victims;
the defense argued he was guilty of voluntary
manslaughter, not murder. The jury
convicted him of two counts of first degree murder with the special
circumstance of lying in wait.

On appeal
defendant claims his confession was involuntary and his lawyer was ineffective
for failing to request an instruction encouraging the jury to consider
provocation in determining the degree of the murders. He also alleges a series of href="http://www.fearnotlaw.com/">instructional errors. To preserve his right to a federal appeal, he
raises three arguments he acknowledges are nonmeritorious in California. The grief occasioned by this case is
unfathomable; the legal issues, however, are straightforward and without
merit. We affirm.

FACTS

Because there is
no question that defendant stabbed and killed the two young victims, we need
not recount much of the grisly forensic evidence. We provide a brief chronology of the events
leading up to, and following, the stabbings as relevant to the instructional
issues raised on appeal.

Defendant and
Carrigan had had an off-and-on relationship with each other since they were 13
years old. When they broke up, Carrigan
would date other boys. In March 2008 she
met Furtado at an interscholastic honors band event and they began seeing each
other. Defendant told a friend that he
would kill Furtado if he ever hurt Carrigan.
On one occasion defendant was seen driving his car slowly by a house
where Furtado was staying with a friend, and on another, sitting on his bike
looking toward Carrigan’s house at 10:45 p.m. By May, Carrigan’s mother acquiesced in her
daughter’s request to let Furtado spend the night.

Meanwhile,
defendant and Carrigan continued to work together at a grocery store. The evidence about their relationship at the
time is ambiguous. Defendant, as well as
some others, reported they were still having sexual relations. They spent time together. Indeed, during a senior “skip day,” a
tradition where participating students stay out all night “partying” because
they do not have to be at school until noon the next day, Carrigan got drunk
and passed out in defendant’s car. Some
witnesses testified they were cuddling and acting normal together. But defendant became angry when he read text
messages on Carrigan’s phone that Furtado had sent to her. He threw the phone, stating, “This is
bullshit.” At that time, defendant had
no prior arrests, convictions, or juvenile adjudications.

On May 10, 2008,
neither defendant nor Carrigan attended their senior prom. Carrigan planned to spend the night with
Furtado. She and Furtado were watching
television together in Carrigan’s bedroom when her mother said goodnight and
locked the front door.

Defendant attended
a party with his cousin and some friends. He played beer pong and, to at least one
witness, seemed to be in good spirits.
(2 RT 461-462, 524-525) He opened
beer bottles for other guests with a knife that had a three- to six-inch-long
blade. But he left without saying
goodbye and drove to Carrigan’s house.
He gave three different accounts of what happened after he arrived. We will describe his interviews with the
police in discussing our first issue in part I, post. Suffice it to say, he
ultimately confessed to entering the home and stabbing the victims. The forensic evidence, including fingerprints
and blood evidence, left no doubt he was the perpetrator of the bloody carnage.

Defendant claims
to have little recollection of what transpired thereafter. He went into the bathroom and put bandages on
the cuts on his fingers. Apparently he
left the house, but discovering he did not have his car keys, he climbed back
in through Carrigan’s window. He took
keys to Carrigan’s and Furtado’s cars and moved them down the street.

The corpses were
rearranged. A clean knife was put in
Furtado’s hand. A blanket covered a
pattern of blood on the carpet in the living room. Carrigan’s mother awoke on Mother’s Day
morning unaware that anything had happened.
Because the doors to her daughter’s room were closed, the bloody carpet
was covered, and the cars had been moved, she assumed Carrigan had reported for
her 7:00 a.m. shift and Furtado had left.
She did not discover the bodies until close to noon, after receiving a
call that her daughter had not come in to work as scheduled.

Defendant called
his cousin to help him retrieve his car keys from the trunk of his car. Eventually, he drove home and slept for a few
hours before his friend came to the house and told him something had happened
to Carrigan. The police arrived at his
house shortly after the bodies were discovered.

Stepping out onto
his front porch, defendant admitted to Detective Jeremy Beatley that he had
driven over to Carrigan’s house, parked in a parking lot behind a nearby
Chinese restaurant, and planned to go into Carrigan’s house to talk to
her. He told the detective, however,
that he changed his mind when he saw Furtado’s car and decided to leave. His departure was delayed when he discovered
he had locked his keys in the trunk, and he called family members to assist
him. He agreed to a follow-up interview
at a nearby sheriff’s substation. The
admissibility of the statements he made during those subsequent interrogations
raises the threshold issue on appeal.

I

The Motion to Suppress

Defendant contends
the trial court improperly admitted the statements he made to Sergeant Greg
Hagwood on May 11 and May 12 because they were the result of police coercion
and therefore involuntary. He does not
argue any deficiencies in his Miranda
advisements.href="#_ftn1" name="_ftnref1"
title="">[1] But he does insist that Hagwood, taking full
advantage of defendant’s age and inexperience, coerced him with implied
promises of leniency and implied threats that his failure to cooperate would
work against him. The trial court found
the statements were voluntary and denied the motion to suppress. The record supports the court’s ruling.

The Interrogations

The first
interrogation at the substation began approximately five minutes after
defendant arrived. For the first half
hour, defendant repeated the story he had given earlier; that is, he had gone
to Carrigan’s house but he had not gone in.
For the next half hour, the sergeant urged defendant to be more
forthcoming. He described the evidence
the killer had left at the scene and suggested it would be good for defendant
to confess, better for him to do so before the prosecutor arrived and the
forensic evidence independently established his guilt, and best for him to
provide a mitigating explanation for the killings such as that he had acted
emotionally without intending to kill.

Rather than
relying on the scientific evidence, the sergeant told defendant: “I think there’s a more kind of, kind of
human way to understand. You know it
makes a difference in the way, in the way of how things work out. It makes a big difference. But this is our time here right now I think
to deal with it in a, in a compassionate and kind of a personal way that makes
sense.” The sergeant warned defendant
the district attorney was “on his way up right now” and “[i]ts [>sic] better now to say I did it, it
wasn’t meant to happen it wasn’t supposed to happen I didn’t want to happen
emotions things but, but it did and its [sic]
an opportunity for you to tell me that you know its [sic] not what you wanted to happen but it did . . . .” He then assured defendant, “[W]e can talk to
the District Attorney and say he feels horrible he didn’t, he didn’t want that
to happen he’s, that he’s honest and he’s remorseful and please consider that
when you have to make the decisions,” and a confession “mean[s] a lot.”

Defendant asked to
speak to his mother. Once again, the
detective tried to leverage his contact with the district attorney to persuade
defendant to talk. He stated: “Let’s get through this then I’ll let you
talk to your mom for a long time, you can sit privately with her for a
while. Let’s tend to our business and
let’s get through this. The District
Attorney when he called on my cell phone he was on his way, I want to be able
to go to him and say listen we got a nice kid here, we’ve got a nice kid in a
bad situation. I don’t want to go to him
and say prove it through the science, prove it through the blood and the
fingerprints . . . . [¶] . . . [¶]
[W]hen you’ve done it the weight of the world will be lifted off
your shoulders and I want to show the people that your, that your, that you
were heartbroken, that your [sic]
sad, that your [sic] devastated that
you’ve [sic]
did not want it to happen that way.
I want the people making the decisions to understand that. I don’t want it to be some cold situation
that just involves evidence [be]cause it’s all there.”

Defendant relented
and confessed. “I went over there
thinking that I was going to talk to her be fine [sic] and I thought that he was raping her so my first reaction I
just freaked out and grabbed the closest thing that was to me and tried to
defend her and he got in the way and things that I don’t remember the rest.”

The sergeant
prodded further, but then allowed defendant the opportunity to consult with his
mother. When the sergeant returned,
defendant continued to insist that he could not remember more about what had
happened. As the interrogation
continued, defendant at last recalled “me and him [Furtado] falling down we
like lost our balance and fell on top of her” and then next remembered walking
from Carrigan’s house to his car, and realizing he had locked his keys in the
trunk. He did not remember moving the
Carrigan and Furtado cars. Nor did he
remember changing or getting rid of his clothes.

The same sergeant
interrogated defendant the following day.
Tired and frustrated, he told defendant, “I don’t want to hear that I
don’t remember ok.” He again told
defendant he had to “knock this off you got to, you got to level with me here,
you have got to level with me here this, this, this crap that we have been
going down is, is just bs you’ve got to knock this off.”

Defendant’s memory
improved. He now remembered going into
the bedroom and seeing Carrigan and Furtado naked, and Furtado trying to fight
with him. “I remember getting into a
fight and like we fell down and we got back up and then I think he like grabbed
my face and I fell backwards into the uh little couch that was sitting there.” He remembered “walking out of the room and
looking back and I saw them both lying down.”
He also remembered putting Band-Aids on his cuts, changing his clothes,
and moving the cars.

Voluntariness

“‘A finding of
coercive police activity is a prerequisite to a finding that a confession was
involuntary under the federal and state Constitutions. [Citation.]
A confession may be found involuntary if extracted by threats or
violence, obtained by direct or implied promises, or secured by the exertion of
improper influence. [Citation.] Although coercive police activity is a
necessary predicate to establish an involuntary confession, it “does not itself
compel a finding that a resulting confession is involuntary.” [Citation.]
The statement and the inducement must be causally linked. [Citation.]’
[Citation.]” (>People v. McWhorter (2009)
47 Cal.4th 318, 347 (McWhorter).)

In determining
whether defendant’s confession was voluntary, we must examine all the
surrounding circumstances, including both the characteristics of the accused
and the details of the interrogation. We
conduct an independent review of the trial court’s ruling where, as here, the
facts are undisputed. (>McWhorter, supra, 47 Cal.4th at pp. 346-347.)

Defendant, who
maintains he was particularly susceptible to influence because he was only 18
years old and naive about the criminal justice system, contends the police
coerced his confession with repeated promises of leniency. Not so.
As aptly pointed out by the Attorney General, two Supreme Court cases
with remarkably similar interrogations found the confessions were voluntary.

In >People v. Holloway (2004) 33 Cal.4th 96,
the interrogator suggested that the killings might have been accidental or
resulted from a fit of rage and that these circumstances could “‘make[] a lot of difference.’” (Id.
at p. 116.) Similarly, the sergeant
here also suggested to defendant that mitigating circumstances could “make[] a
difference.” Thus, he reinforced the
message that defendant might not have intended to kill, but that his emotions
got out of control. Here, as in >Holloway, the interrogator’s suggestions
“fall far short of being promises of lenient treatment in exchange for
cooperation. The detectives did not
represent that they, the prosecutor or the court would grant defendant any particular
benefit if he told them how the killings happened.” (Ibid.) Rather, the interrogators’ admonitions did no
more than tell defendant the benefit that might “‘“flow[] naturally from a
truthful and honest course of conduct”’ [citation] . . . .” (Ibid.)

The interrogator
in People v. Carrington (2009)
47 Cal.4th 145 (Carrington)
employed the same techniques. He too
tried to convince his suspect that it would behoove her to explain any
mitigating circumstances and suggested, “‘What if she scared you‌ She confronted you. Or maybe there was someone else with
you.’” (Id. at p. 170.) Like the
sergeant, the interrogator in Carrington
encouraged the suspect to tell the truth and take the weight off her
shoulders. (Ibid.) And he promised that
if the suspect cooperated during the interview, the officers “‘would try to
explain this whole thing with, with Los Altos P.D. as [best] we can.’” (Id.
at p. 169.)

None of these
exhortations crossed the impermissible line and rendered the police conduct
coercive. The officer’s statement that
“he would help defendant in explaining ‘this whole thing’ to the Los Altos
police did not constitute a promise of leniency . . . .” (Carrington,
supra, 47 Cal.4th at p. 170.) Nor did the assurances that the police were
attempting to understand the defendant’s motivation coerce her to confess;
rather “they merely suggested possible explanations of the events and offered
defendant an opportunity to provide the details of the crime.” (Id.
at p. 171.)

The sergeant used
the very same interrogation techniques in trying to persuade defendant to tell
the truth. Neither his repeated
references to the district attorney, his attempts to get a better understanding
of defendant’s motives and to extract mitigating circumstances, nor his
encouragement to defendant to lighten his load constituted coercion, even when
considering defendant’s age and lack of experience with the criminal justice
system. Although defendant, to his
credit, had no criminal record and was a very young adult, there is nothing in
the record to suggest he was particularly vulnerable, did not understand
English, or was mentally or emotionally compromised. Given the utter lack of coercive police
interrogation and no evidence defendant’s statements were not voluntary, we
conclude the trial court properly admitted the statements he made during his
interrogation.

Personal Presence

Defendant attended
the morning hearing on the motion to suppress, but following the lunch recess,
his lawyer informed the court that defendant did not feel well and wished to
return to the jail. The court informed
defendant that he had a right to be personally present at all stages of the
proceedings. Defendant stated that he
understood but wanted to return to the jail, and he waived his “right to be
personally present.” On appeal, he
contends he did not intelligently and knowingly waive his right to be present
because the court failed to advise him that the proceedings could be postponed
until he felt better.

The question posed
is not whether defendant had the right to be present, for clearly he did, but
whether his waiver was valid in the absence of an express advisement the
proceedings could be postponed. We
conclude his argument is without merit for at least two reasons.

First, Penal Code
section 1043 provides that a felony defendant “shall be personally present at
the trial” (§ 1043, subd. (a)), but that the trial may continue in the
defendant’s absence if (1) the defendant persists in href="http://www.fearnotlaw.com/">disruptive behavior after being warned (§
1043, subd. (b)(1)); (2) the defendant in a noncapital case is voluntarily
absent (§ 1043, subd. (b)(2)); or (3) the defendant waives his right to be
present pursuant to Penal Code section 977 (§ 1043, subd. (d)). . Relying
on People v. Davis (2005)
36 Cal.4th 510, a capital case, defendant ignores section 1043’s provision
that proceedings can continue in a noncapital case if a defendant is
“voluntarily absent.” (§ 1043,
subd. (b)(2).) There is no question that
defendant voluntarily absented himself from the afternoon hearing on the motion
to suppress.

Second, we reject
the notion that his waiver was not knowing and intelligent because the court
did not advise him that the proceedings could be continued. The Supreme Court rejected a similar argument
in People v. Weaver (2001) 26 Cal.4th 876 (>Weaver).
Although, as here, the court informed the defendant that he had a
constitutional right to be present during the proceedings, the defendant
claimed his subsequent waiver was not knowing and intelligent because the court
did not advise him of the importance of his personal presence. The Supreme Court responded: “Defendant cites no authority for his
argument that we must apply a heightened waiver standard under the
circumstances, or that the trial court had a sua sponte duty to admonish him of
the importance of his decision to absent himself from the courtroom. Defendant was represented by counsel, and he
himself chose, for his own reasons, to leave the courtroom. We find nothing improper about the procedure
used, and we conclude defendant’s waiver of his state and federal
constitutional right to be present at this phase of his capital trial was both
voluntary, knowing and intelligent.” (>Id. at p. 967.)

Similarly, the
trial court properly advised defendant that he had the right to be present at
the suppression hearing. Defendant cites
no authority, and we have found none, to support an expanded duty to advise a
criminal defendant of the possibility of seeking a continuance. Applying the logic of Weaver, we too refuse to apply a heightened waiver standard whereby
a trial court, akin to a fortune teller and guidance counselor, must foresee
the myriad of speculative consequences that might result from a defendant’s
election not to attend and counsel him about the mechanisms that might be
available to him to accommodate his special requests.

There is no
evidence in the record before us to suggest that defendant did not knowingly
and intelligently waive his right to be present for the afternoon hearing. Indeed, there is no evidence that defendant
did not know he could request a continuance.
All we have is the speculative notion that defendant, who purportedly
did not feel well, did not know he could ask for the hearing to be
postponed. Thus, defendant would have us
presume an invalid waiver based not on any evidence he did not knowingly and
intelligently waive his right to be present, but on the court’s failure to give
an express advisement. In the absence of
any authority imposing such a duty, or any compelling reason to do so, we conclude defendant’s argument is without
merit.

II

Inadequacy of
Counsel

Defendant argues
he was deprived of the effective assistance of counsel based on his lawyer’s
failure to request a pinpoint instruction on provocation. He does not cite any cases in which the
failure to request a pinpoint instruction constituted ineffective assistance of
counsel. He acknowledges he must
demonstrate that his lawyer’s representation fell below an objective standard
of reasonableness and that there is a reasonable probability the result of the
proceeding would have been different in the absence of the lawyer’s deficient
performance. (Strickland v. Washington (1984) 466 U.S. 668, 686 [80 L.Ed.2d
674].) We conclude he fails to
demonstrate the requisite prejudice to sustain his ineffectiveness claim in
light of the instructions the jury was given, the evidence at trial, and the
jury’s findings.

Defendant
complains that his lawyer did not request an instruction in the nature of
CALCRIM No. 522, which states: “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.” The trial court need not
instruct jurors that if they find provocation is not sufficient to reduce the
homicide to manslaughter, they may consider the evidence of provocation in
determining whether the murder is of the first or second degree. (People
v. Rogers (2006) 39 Cal.4th 826, 878 (Rogers).) In the absence of a sua sponte obligation to
instruct on the relationship between provocation and the degree of murder,
defendant shifts the responsibility to defense counsel to request a comparable
pinpoint instruction.

We first must
consider the probability that the missing pinpoint instruction would have
achieved a different outcome in this case by examining the package of
instructions the jury was given on murder and manslaughter. Indeed, they were instructed to decide
whether defendant had committed murder and, if so, whether it was murder in the
first or second degree. They could find defendant guilty of first
degree murder under either of two theories:
1) the murder was willful, deliberate, and premeditated, or 2) the
murder was committed by lying in wait.

The court
explained: “The defendant is guilty of
first degree murder if the People have proved that he acted willfully,
deliberately, and with premeditation.
The defendant acted willfully if he intended to kill. The defendant acted deliberately if he
carefully weighed the considerations for and against his choice and, knowing
the consequences, decided to kill. The
defendant acted with premeditation if he decided to kill before committing the
act that caused death.”

Alternatively, the
court told the jurors they could find defendant guilty of murder in the first
degree if they found he was lying in wait for his victims. The jurors were instructed: “The defendant murdered by lying in wait
if: [¶]
1. He concealed his purpose from
the person killed; [¶] 2. He
waited and watched for an opportunity to act;
[¶] AND [¶]
3. Then, from a position of advantage, he intended to and did

make a surprise attack on the person killed. [¶]
The lying in wait does not need to continue for any particular period of
time, but its duration must be substantial enough to show a state of mind
equivalent to deliberation or premeditation.”
The court expressly explained to the jurors that “[a]ll other murders
are of the second degree.”

Thus, the jurors became
well acquainted with the distinctions between first and second degree murder
and the pivotal requirement for both theories of first degree murder that the
perpetrator’s mental state must include either deliberation or premeditation,
or, in the case of lying in wait, a mental state “equivalent” to deliberation
or premeditation.

The court also
explained the nuances of voluntary manslaughter and the role of provocation in
reducing a potential murder to manslaughter because of a sudden quarrel or heat
of passion. The killing is voluntary
manslaughter if: “1. The
defendant was provoked; [¶]
2. As a result of the
provocation, the defendant acted rashly and under the influence of intense
emotion that obscured his reasoning or judgment; [¶]
AND [¶] 3. The
provocation would have caused a person of average disposition to act rashly and
without due deliberation, that is, from passion rather than from judgment.”

The instruction
emphasized that “[w]hile no specific type of provocation is required, slight or
remote provocation is not sufficient.”
Furthermore, “[i]t is not enough that the defendant simply was
provoked. The defendant is not allowed
to set up his own standard of conduct.
You must decide whether the defendant was provoked and whether the provocation
was sufficient. In deciding whether the
provocation was sufficient, consider whether a person of average disposition,
in the same situation and knowing the same facts, would have reacted from
passion rather than from judgment.”

Defendant insists
that these instructions, when taken together, leave a critical link
missing. In defendant’s view, the jury
may have found either that defendant was not subjectively provoked or that a
person of average disposition would not have been provoked and therefore found
there was not an adequate provocation as necessary for voluntary
manslaughter. Nevertheless, defendant
contends the jury should have been forewarned that it could consider the same
provocation to reduce the murder from first to second degree. More to the point, defendant concludes that
had the jury been given such a pinpoint instruction, there is a reasonable
probability he would not have been convicted of first degree murder. We disagree.

At the outset, we
note that the instructions, as given, accurately distilled the general
principles of law governing first and second degree murder and voluntary
manslaughter. Thus, this case is not
analogous to the case cited by defendant, People
v. Valentine (1946) 28 Cal.2d 121, where the combination of instructions,
taken as a whole, obliterated the distinctions between first and second degree
murder. (Id. at p. 134.) Here
defendant does not argue the instructions were erroneous, only that his lawyer
did not provide constitutionally adequate representation by failing to direct
the jury’s attention to the subtle nuance that provocation could also impact
his ability to premeditate and deliberate.
Would that fine-tuning of the instructions have made a difference‌

Let us consider
the evidence. The prosecution presented
a compelling case. Unlike the
quintessential heat-of-passion scenario where an unsuspecting spouse encounters
his or her partner having a sexual relationship with a lover, defendant and
Carrigan had broken off their relationship several months before the killings,
defendant knew she had a new boyfriend, and defendant even knew the new
boyfriend was planning to spend the night with Carrigan. He hid his car in a nearby parking lot,
changed into black clothing, entered the house without knocking or alerting any
of the occupants, and, armed with a knife, burst into Carrigan’s bedroom while
she was having sex with her new boyfriend.

Defendant contends
he did not have time to premeditate or deliberate the killing because, as he
entered the house, he heard Carrigan making noises he interpreted as rape. While this provocation may not have been
objectively reasonable, he argues the jury might have found it was sufficient
to support his theory that he neither premeditated nor deliberated the killings. He contends the pinpoint instruction, on
these facts, was essential.

As the Attorney
General points out, the jury found true the special circumstance that defendant
was lying in wait for his victims. The
jury’s finding demonstrates that the jury must have also necessarily found that
the murders were of the first degree based on a theory of lying in wait within
the meaning of Penal Code section 189.
Defendant insists, however, that because lying in wait requires
sufficient time to premeditate or deliberate, the failure to give the pinpoint
instruction means the jury did not necessarily resolve the pivotal factual
question, i.e., whether the provocation reduced his ability to premeditate or
deliberate.

Defendant
underestimates the jury, overstates the potential impact of the pinpoint
instruction, and divorces theory from reality.
Because the jury was properly instructed on the difference between first
and second degree murder, including the elements of premeditation and
deliberation, it was equipped to acquit him of first degree murder if it was
not satisfied he had the requisite mental state and whether provocation or any
other factor robbed him of the ability to premeditate or deliberate. While theoretically a focus on provocation
might direct the jury’s attention to the finer nuances of premeditation or
deliberation, there is no reasonable probability that a pinpoint instruction
would have caused the jury to doubt his premeditation or deliberation here.

The jury found
that defendant was lying in wait, thus rejecting the notion that suddenly
hearing noises from the bedroom triggered his passionate and spontaneous
rage. Moreover, hiding his car, changing
into dark clothing, and sneaking into the house knowing his ex-girlfriend’s
lover was spending the night was powerful evidence that his malevolent
intention preceded the so-called provocation of hearing her in distress. On this evidence, and given the jury’s
findings, it simply is not reasonably probable that the pinpoint instruction
would have caused the jury to reevaluate its verdict of murder in the first
degree. As a result, defendant suffered
no prejudice from his lawyer’s failure to request the instruction, and
therefore, his inadequacy claim fails.

III

Sua Sponte
Instructions

Involuntary Manslaughter. While acknowledging he was responsible for
the killings that occurred during a knife assault, defendant contends he
neither premeditated nor harbored malice.
He was suffering from acute stress disorder triggered by his belief that
his former girlfriend was being raped by Furtado and his fear that Furtado
would attack him; he did not have the intent to kill. In defendant’s view, there is substantial
evidence that he stabbed the victims without malice, and the trial court had a
sua sponte obligation to instruct the jury on involuntary manslaughter. There is no sua sponte obligation to instruct
on involuntary manslaughter where, as here, the defendant committed the killing
during the course of an inherently dangerous assaultive felony. “[A]n unlawful killing during the commission
of an inherently dangerous felony, even if unintentional, is at least voluntary
manslaughter.” (People v. Garcia (2008) 162 Cal.App.4th 18, 31 (>Garcia).) Because the Supreme Court has disapproved the
principles underlying People v. Cameron
(1994) 30 Cal.App.4th 591 (Cameron),
a case cited by defendant, Garcia is
controlling and the court had no duty to instruct on involuntary manslaughter.

In >Garcia, supra, 162 Cal.App.4th 18, the defendant complained that the trial
court improperly failed to instruct his jury on involuntary manslaughter. The Court of Appeal upheld the ruling. It held that “[a]n unlawful killing during
the commission of an inherently dangerous felony, even if unintentional, is at
least voluntary manslaughter.” (>Garcia, at p. 22.) Because Garcia had assaulted his victim with
a deadly weapon, an inherently dangerous felony, the trial court properly
concluded the evidence would not support a conviction for involuntary
manslaughter and therefore did not err in not instructing the jury on
involuntary manslaughter as a lesser included offense of murder. (Ibid.)

In >Cameron, the binding principle was that
voluntary manslaughter required an intent to kill, and thus in the absence of
an intent to kill, the killing, a fortiori, had to have been an involuntary
manslaughter. (Cameron, supra, 30
Cal.App.4th at p. 604.) However, in >People v. Lasko (2000) 23 Cal.4th 101
and its companion, People v. Blakeley
(2000) 23 Cal.4th 82, the Supreme Court held that voluntary manslaughter
did not require an intent to kill.
Thereafter, Garcia held that
an unlawful and unintentional killing during the commission of an inherently
dangerous felony is at least voluntary manslaughter. Our case fits neatly within the >Garcia template.

By defendant’s own
admission, he stabbed his victims. On
appeal, he does not argue otherwise.
Thus, like his counterpart in Garcia,
he committed an assault with a deadly weapon, an inherently violent
felony. The statutory definition of
involuntary manslaughter, as pertinent here, is the unlawful killing of a human
being without malice “in the commission of an unlawful act, not amounting to
felony; or in the commission of a lawful act which might produce death, in an
unlawful manner, or without due caution and circumspection.” (Pen. Code, § 192, subd. (b).) . Because
Carrigan’s and Furtado’s deaths did not occur either in the commission of a
dangerous misdemeanor or a lawful act in an unlawful manner or without due
caution and circumspection, they do not fall within the statutory definition of
involuntary manslaughter. Rather, as the
court in Garcia concluded, the
unlawful killings occurred, even if unintentionally, during the course of an
inherently dangerous felony, and therefore they constituted at least voluntary
manslaughter. The trial court did not
err by failing to instruct sua sponte on involuntary manslaughter.

Unconsciousness. Defendant also asserts the trial court had a
sua sponte obligation to instruct the jury on the complete defense of
unconsciousness, despite the fact the defense was completely at odds with the
defense he presented at trial. The court
had no obligation to instruct on a defense that was inconsistent with the
defendant’s theory of the case. (>Rogers, supra, 39 Cal.4th at p. 887.)

Defendant offered href="http://www.fearnotlaw.com/">expert testimony that after his arrest he
was in shock and unable to remember what had happened. The expert explained that in traumatic
situations there can be “a splitting of consciousness or association.” A second expert opined that defendant
suffered “acute stress disorder” and was unable “to form the specific intent
for the offenses for which he is charged.”

Defendant did not
argue at trial, however, that he was unconscious. To the contrary, he emphasized that he was not
seeking an acquittal. He fully accepted
responsibility for committing manslaughter.
Defense counsel told the jury:
“[B]efore I begin, I’m asking for a conviction on this case because my
client’s guilty. I’m asking for a
conviction of manslaughter in two counts, use of a knife, two allegations. That’s what I’m asking for. I’m not asking for a verdict of innocent. I’ve never asked for it. Never will.
I’m not asking that Mr. Carrillo shed responsibility for this. Won’t do it.
He’s not going to walk out of this courtroom a free man. We haven’t pled insanity. We haven’t pled any other defense other than
what I want is manslaughter.”

Later he
continued: “I’m not asking for an
innocent verdict, like I said.
Responsibility is responsibility.”
He reiterated, “I want manslaughter convictions.”

The expert
testimony was offered to support defendant’s theory that he was guilty of
manslaughter, not murder. His theory was
consistently and clearly expressed. Thus, it was reasonable for the court to
conclude that the complete defense of unconsciousness would have been
inconsistent with his defense and his concession that he was not entitled to an
acquittal. In these circumstances, the
trial court had no obligation to instruct the jury on the defense of
unconsciousness.

Iv

Lying in Wait

Defendant raises
three issues just “to preserve [them] for federal habeas corpus review.” He acknowledges that California case law
involving various aspects of lying in wait does not support his arguments. We need not consider his arguments in the
face of an even more fundamental flaw.
The jury found that the murders were committed with deliberation and
premeditation and that he committed multiple murders within the meaning of
Penal Code section 190.2, subdivision (a)(3). Thus, any potential error in the jury’s
finding of the lying-in-wait special circumstance is harmless in light of its
simultaneous finding of the multiple-murder special circumstance.

We need only point
out that the California Supreme Court has rejected each of his arguments
involving various aspects of lying in wait.

In >People v. Russell (2010) 50 Cal.4th 1228, the Supreme Court
held: “Because lying in wait and
deliberate and premeditated theories of murder are simply different means of
committing the same crime, juror unanimity as to the theory underlying its
guilty verdict is not required.
Defendant presents us with no compelling reason to reconsider our sound
prior reasoning to that effect.” (>Id. at p. 1257.) Under compulsion of Russell, defendant’s first argument, that the court committed
reversible error by failing to instruct the jury to unanimously agree on
whether the murders were premeditated or committed by lying in wait, fails.

Next, defendant
claims the special circumstance of lying in wait is unconstitutionally vague
under the due process clause of the Fourteenth Amendment. The California Supreme Court upheld the
constitutionality of the former version of the lying-in-wait special circumstance. (People
v. Carasi (2008) 44 Cal.4th 1263, 1310.)
Prior to 2000 the special circumstance of lying in wait applied to a
first degree murder in which the defendant “intentionally killed the victim
while lying in wait.” (Pen. Code,
§ 190.2, former subd. (a)(15).)

In 2000 the
electorate amended the lying-in-wait special circumstance with the
inconsequential change that a defendant who “intentionally killed the victim by
means of lying in wait” commits first degree murder. (Pen. Code, § 190.2, subd. (a)(15).) The Fourth District Court of Appeal held that
the current version of the lying-in-wait special circumstance, like its
predecessor, is not constitutionally vague.
(People v. Superior Court
(Bradway) (2003) 105 Cal.App.4th 297, 300-301, 311 (Bradway).)

Similarly, the
California Supreme Court held that the special circumstance of lying in wait
provides a sufficiently principled distinction between different classes of
murderers and thus comports with the Eighth
Amendment. (People v. Edelbacher (1989) 47 Cal.3d 983, 1023.) The current version of the lying-in-wait
special circumstance continues to comport with the Eighth Amendment. (Bradway,
supra, 105 Cal.App.4th at
p. 311.)

DISPOSITION

The judgment is affirmed.







RAYE , P. J.







We concur:







HULL , J.







MURRAY , J.