P. v. Castaneda



















Filed 12/24/12 P.
v. Castaneda CA4/2















NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER DANIEL CASTANEDA, Defendant and Appellant.

E053861 (Super.Ct.No. FMB1000161) O P I N I O N

APPEAL from the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San
Bernardino County.
Rodney A. Cortez, Judge.
Affirmed.

Michelle May, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, and Melissa Mandel and Meredith S. White,
Deputy Attorneys General, for Plaintiff and Respondent.

I.
INTRODUCTION

A jury convicted
defendant and appellant Christopher Daniel Castaneda of href="http://www.fearnotlaw.com/">second degree murder. (Pen. Code, § 187.)href="#_ftn1" name="_ftnref1" title="">^[1] The jury also found true
certain enhancement allegations based upon defendant’s personal use and
discharge of a firearm in committing the murder. (§ 12022.53, subds. (b), (c), (d).) He was sentenced to a term of 40 years to
life in prison.

Defendant makes the
following contentions on appeal: (1)
there is no substantial evidence of malice aforethought, an element of murder;
(2) there is no substantial evidence of the corpus delicti of murder
independent of defendant’s out-of-court statements; (3) the court’s corpus
delicti instruction erroneously permitted the jury to convict defendant of
murder if the jury found there was independent evidence of involuntary
manslaughter; (4) the court erred in failing to instruct the jury href="http://www.mcmillanlaw.com/">sua sponte on the lesser included
offense of voluntary manslaughter; and (5) there is no substantial evidence
that defendant intentionally discharged the gun, a requirement of two firearm
enhancements. We reject these arguments
and affirm the judgment.

II.
FACTUAL SUMMARY

A. Events Leading Up to Defendant’s Shooting of Nick Fuller

Four or five weeks
prior to the shooting of Nick Fuller, defendant, Sarah Leeds, and Fuller were
at Amanda Mansfield’s apartment.
According to Mansfield, Leeds got into a confrontation with Fuller. Leeds and defendant called Fuller a snitch and “started rapping about
killing the snitch.”

One or two weeks
later, defendant, Leeds, and “Richie” were at Mansfield’s apartment. Richie and Leeds brought a gun with them
and gave it to defendant. Defendant
loaded a clip of bullets into the gun, left the house, returned a while later,
and gave the gun back to Leeds and Richie.

At some point,
defendant regained possession of the gun.

On April 22, 2010, defendant, Jermaine Scott, R.L., and Fuller met up in Mansfield’s garage
to drink and smoke cigarettes and marijuana.href="#_ftn2" name="_ftnref2" title="">^[2] Defendant had the gun. They talked about selling the gun or trading
it to someone for some marijuana. They
left the garage and walked to a friend’s house about three blocks away to see
if the friend would buy the gun.

The friend did not
want the gun. On the way back to the
garage, Fuller pointed out the home of someone who had previously confronted
him and given him some problems.
Defendant got mad and, as Scott put it, “hyped up about it.” Defendant “wanted to do something to the guy
that gave [Fuller] problems.” He lifted
up his shirt, held the gun, and said, “I want to do this.” Scott agreed with the prosecutor’s
characterization that defendant wanted to “settle the score . . .
with that gun[.]” However, Scott and
Fuller calmed defendant down, and the three of them continued on their way back
to the garage.

When they returned
to the garage, they smoked marijuana and tried to figure out a way they could
get more.

Leeds and Richie came to the
garage with some marijuana. At some
point, they left and R.L. rejoined defendant, Scott, and Fuller in the garage.

Defendant became upset
with Fuller because he believed that Fuller had been flirting with Leeds. According to Scott, defendant told Fuller
that Leeds was his girl and that Fuller needed to “chill out, like, leave it
alone. Don’t flirt. Don’t talk to her as much.” Fuller told defendant, “I’ll leave it
alone. Like, don’t worry about it.” Defendant, however, continued to tell Fuller
not to flirt with Leeds.

Defendant pulled
the gun out of a pocket and pointed it at Fuller. According to R.L., defendant held the gun six
inches away from Fuller. It looked to
R.L. and Scott like defendant was trying to intimidate Fuller. Fuller told defendant to get the gun out of
his face. R.L. saw Fuller swat at the
gun three times to push it away from him, but defendant kept turning the gun
back toward Fuller. Fuller also moved
his head away from the direction of the gun and scooted away from the gun.

To R.L., defendant
seemed “mad” and had an angry tone in his voice. He was talking loudly, but not yelling. Although defendant “sound[ed] serious,” R.L.
believed it was “nothing too big to worry about.”

At one point,
defendant told Fuller, “I’m going to shoot you,” or “Don’t make me shoot
you.” R.L. said, “You’re not going to
shoot him. He’s your cousin.” Defendant responded, “‘I’m not going to shoot
him.’”

Scott, meanwhile,
was focused more on preparing the marijuana for smoking than he was on the
argument between defendant and Fuller.
He did not think the argument between defendant and Fuller sounded
serious, and did not believe that defendant was mad or angry. According to Scott, defendant and Fuller were
laughing and Fuller did not seem to believe defendant would shoot him
intentionally.href="#_ftn3"
name="_ftnref3" title="">^[3] It was “like, they were
cousins” having a “regular argument.”

Scott did not
believe that Fuller was close enough to the gun to touch it. He said defendant waved the gun around and
pointed it towards Fuller. He saw Fuller
put his hand up in front of the gun as if to protect himself, but did not see
Fuller physically touch the gun or knock it away.

At the moment
defendant fired the gun, Scott was looking down; R.L. was “just trying to
smoke” and not “really paying attention.”
A bullet hit Fuller in the neck, behind his left ear.

No one said
anything.href="#_ftn4" name="_ftnref4"
title="">^[4] R.L. ran into the
house. Defendant and Scott ran
outside. As Scott ran up the street
toward a friend’s house, he looked back and saw defendant either putting the
gun in, or pulling it out of, his pants.

Someone called
911. An officer arrived and performed
cardiopulmonary resuscitation on Fuller.
Fuller was brain dead and maintained on life support until he died three
days after the shooting.

Scott testified
that he believed the shooting was “an accident.” He explained that defendant “wasn’t
angry. . . . [I]f [defendant]
really had a problem with [Fuller] to where he was that serious, he could
. . . have treated him like a big cousin would have, like beat him
up, like my older cousins would have did me.”


R.L. told an
investigating officer that the shooting “‘was accidental.’” At trial, she was reminded of what she told
the officer and was asked how she currently perceived the shooting. She said, “I don’t really know. It . . . could have been an
accident or it couldn’t have been.” When
asked to elaborate, she added, “I don’t know if it was an accident or not, and
I have no reason to believe that it wasn’t or it was.”

B. Defendant’s Arrest and Interview

Defendant was
apprehended following a traffic stop approximately two hours after the
shooting. When defendant resisted arrest,
officers pulled him from the vehicle and laid him on the ground. Defendant had a gun under his
sweatshirt. There were no bullets in the
gun. After he was handcuffed and picked
up off the ground, a magazine of bullets was found on the ground where he had
been lying.

The gun recovered
from defendant was the gun that fired the bullet that killed Fuller and that
Mansfield saw Leeds give to defendant three weeks earlier. It is a semiautomatic .22-caliber pistol. The magazine for the gun had a window that
allowed one to see whether there were bullets inside. To load a bullet from the magazine into the
gun’s chamber, the shooter needed to pull the slide back and release it. The gun has a safety button, which, if
switched on, will prevent the trigger from being pulled. The trigger pull weight—i.e., the pressure
required to pull the trigger—is three pounds.
The manufacturer’s specifications for the weapon indicate the trigger
weight for that type of gun ranges from three to five pounds.

Defendant was
interviewed by a sheriff’s detective following his arrest. Initially, defendant indicated that Richie
shot Fuller and “dumped” the “heater” on him.
When the detective informed him that “we’ve talked to people” and told
defendant he was being untruthful, defendant admitted shooting Fuller.

Defendant
repeatedly described the shooting as an accident and said he did not intend to
shoot Fuller. He “meant to scare him,”
“to fuck with him just cause he was always talking shit to me,” but not hurt
him.

He gave different
explanations for the incident. At times,
he said he did not know the gun was loaded.
He said Richie had given him the gun only 30 minutes before the
shooting. Someone told him the gun was
loaded and to not pull the trigger.
However, he checked the gun by pulling the hammer back and saw there was
no bullet in the chamber. He admitted
that he meant to fire the gun, but only “to make it go click,” not “go
boom.” He explained that when he cocked
the gun back, a new bullet entered the chamber; he, however, still thought the
chamber was empty.

At one point,
defendant said he pulled the clip out of the gun and put it back in; later, he
said he did not know how to load the gun or put a clip in.

In addition to
saying he did not know the gun was loaded, defendant stated repeatedly that he
intended to shoot and hit the wall of the garage, not Fuller. Defendant stated, for example: “I meant to hit the fucking wall”; “I shot
directly towards the wall thinking that I was gonna hit the wall”; the shot
“was suppose[d] to hit the wall and it hit him”; “when I aimed it at the wall I
was thinking that I was gonna hit the wall”; “I didn’t point it, point it
directly at him. I pointed it at the
wall”; and “I was all about to pop at . . . the garage . . .
[a]nd when I popped off at the garage, [Fuller] moves.” He also explained that he aimed to the right
of Fuller, but Fuller moved into the shot.


Defendant also
suggested that his aim was off because he was under the influence of
alcohol. He also said he thought the
safety was switched on, and was unaware that the gun had a “hair trigger.”

III.
ANALYSIS

A. Substantial Evidence of Malice

Defendant contends
there is insufficient evidence in the record to establish the element of malice
for the crime of murder.

“In addressing a
challenge to the sufficiency of the evidence supporting a conviction, the
reviewing court must examine the whole record in the light most favorable to
the judgment to determine whether it discloses substantial evidence—evidence
that is reasonable, credible and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. [Citation.]
The appellate court presumes in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence. [Citations.]
The same standard applies when the conviction rests primarily on
circumstantial evidence.
[Citation.]” (>People v. Kraft (2000) 23 Cal.4th 978,
1053.) “‘[O]ur power begins and ends
with a determination as to whether there is any
substantial evidence to support [the jury’s findings]; . . . we
have no power to judge of the effect or value of the evidence, to weigh the
evidence, to consider the credibility of the witnesses, or to resolve conflicts
in the evidence or in the reasonable inferences that may be drawn
therefrom.’ [Citations.]” (Leff
v. Gunter (1983) 33 Cal.3d 508, 518.)

“Murder is the
unlawful killing of a human being . . . with malice
aforethought.” (§ 187, subd.
(a).) Malice aforethought can be express
or implied. (§ 188.) Express malice is, in essence, the intent to
unlawfully kill. (People v. Perez (2010) 50 Cal.4th 222, 233, fn. 7; >People v. Turk (2008) 164 Cal.App.4th
1361, 1382.) Malice is implied “when a
killing results from an intentional act, the natural consequences of which are
dangerous to human life, and the act is deliberately performed with knowledge
of the danger to, and with conscious disregard for, human life.” (People
v. Cook (2006) 39 Cal.4th 566, 596.)


There is
substantial evidence in the record of implied malice. Defendant pointed a loaded gun at Fuller, as
close as six inches away. When Fuller
pushed the gun away three times, each time defendant turned the gun back on
Fuller. He pulled the trigger. The natural consequences of such actions are
dangerous to human life.

Defendant argues
there is no substantial evidence he had actual knowledge the gun was loaded and
ready to fire. We disagree. Three weeks before the shooting, Mansfield
saw defendant load a clip of bullets into the gun. This indicates some familiarity with the gun
and knowledge of how to load the gun. In
his postarrest interview, he admitted he was told, just 30 minutes before the
shooting, that the gun was loaded. He
also told the detective that he removed the clip and put it back shortly before
shooting. The clip has a window through
which defendant could see the bullets inside.
Although he said he pulled the hammer back and did not see a bullet, the
jury could have easily rejected this statement because defendant repeatedly
stated he intended to shoot at a wall; one cannot shoot a wall with an unloaded
gun.

In addition,
Scott’s testimony regarding the walk back to the garage on the day of the
shooting supports an inference that defendant knew the gun was loaded. When Fuller pointed out the house of the
person who had been giving him problems, defendant wanted to settle the score
with the gun. He reached under his shirt
for the gun saying, “I want to do this.”
Defendant was prevented from confronting Fuller’s foe only because the
others calmed him down. This testimony
indicates that defendant intended to use the gun against another and would have
done so if the others did not stop him.
The jurors could reasonably conclude that if defendant was going to use
a gun to settle the score against someone, he would do so only if he knew the
gun was loaded.

Because there is
substantial evidence to support reasonable inferences that defendant knew the
gun he was pointing at Fuller was loaded, the jury could find that defendant
deliberately pulled the trigger with knowledge of the danger to, and with
conscious disregard for, human life.
There was thus sufficient evidence of implied malice to support the
conviction of second degree murder.href="#_ftn5" name="_ftnref5" title="">^[5]

B. Sufficiency of the Evidence of the Corpus Delicti

Defendant next
argues that there is no substantial evidence of the corpus delicti of murder
independent of defendant’s statements to the police.

“In every criminal
trial, the prosecution must prove the corpus delicti, or the body of the crime
itself—i.e., the fact of injury,
loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been
held, the prosecution cannot satisfy this burden by relying >exclusively upon the extrajudicial
statements, confessions, or admissions of the defendant.” (People
v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169 (Alvarez).) This corpus
delicti rule “is neither a rule of constitutional magnitude nor statutorily
mandated. It is a common law rule of
evidence the purpose of which is to ‘ensure that one will not be falsely
convicted, by his or her untested words alone, of a crime that never
happened.’ [Citation.]” (People
v. Jablonski (2006) 37 Cal.4th 774, 826-827.)

“[T]he modicum of
necessary independent evidence of the corpus delicti, and thus the jury’s duty
to find such independent proof, is not great.
The independent evidence may be circumstantial, and need only be ‘a
slight or prima facie showing’ permitting an inference of injury, loss, or harm
from a criminal agency, after which the defendant’s statements may be
considered to strengthen the case on all issues.” (Alvarez,
supra, 27 Cal.4th at p. 1181.)

The corpus delicti
of murder is death caused by a criminal agency.
(People v. Towler (1982) 31
Cal.3d 105, 115; People v. Malfavon
(2002) 102 Cal.App.4th 727, 734.)
“Neither the identity nor the intent of the perpetrator—much less the
degree of the crime—is necessary for the corpus delicti.” (People
v. Malfavon, supra, at p. 734>.)
The rule does not require that the possibility of an accidental death
“be eliminated. ‘Rather, the foundation
may be laid by the introduction of evidence which creates a reasonable inference
that the death could have been caused by a criminal agency [citation], even in
the presence of an equally plausible noncriminal explanation of the
event.’ [Citation.]” (People
v. Ochoa (1998) 19 Cal.4th 353, 451.)

Here, defendant
does not dispute that there is sufficient evidence, independent of his
extrajudicial statements, that a criminal homicide occurred. After all, Fuller died because someone shot
him in the head. Rather, he asserts
that, except for proof of the identity of the perpetrator and the degree of the
crime, the corpus delicti rule requires independent evidence of each element of
the charged crime; in this case, murder.
Because malice aforethought is an element of murder, he contends there
must be independent evidence that the shooter acted with express or implied
malice.

Defendant refers us
to his previous arguments regarding the sufficiency of the evidence of malice
and argues that if his own statements are excluded, there is insufficient
evidence that he acted with express or implied malice.

Defendant does not
cite to any case in which proof of the corpus delicti of murder required
evidence of malice or the perpetrator’s mental state. Indeed, there is ample authority to the
contrary. (See, e.g., >People v. Daly (1992) 8 Cal.App.4th 47,
59 [for attempted murder conviction, defendant’s state of mind is not an
element of the corpus delicti]; People v.
McGlothen (1987) 190 Cal.App.3d 1005, 1014 [same]; Ureta v. Superior Court (1962) 199 Cal.App.2d 672, 676 [proof of
malice aforethought not required to establish corpus delicti of murder]; 1
Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Elements, § 50, p.
331 [not “necessary to show malice aforethought as a part of the corpus delicti
in a prosecution for murder”]; see also Alvarez,
supra, 27 Cal.4th at p. 1183 (conc. opn. of Brown, J.) [while the People
must corroborate the act of an unlawful killing, “a defendant’s statements may
alone establish the malice element of murder”].)

The question was
addressed in Ureta: “Petitioner contends that to establish the
corpus delicti of murder there must be evidence that the death be shown to have
been caused by the criminal agency of a person with malice aforethought. Petitioner cites no cases to support this
contention. While conviction of the
crime of murder either in the first or second degree requires malice
aforethought [citations], logically it is not required for proof of the corpus
delicti, as malice aforethought as required by section 187 and defined in
section 188 clearly relates to the state of mind of the person committing
it. As the establishment of the corpus
delicti does not require proof of the identity of the perpetrator of the crime
[citation], it necessarily follows that malice aforethought, which relates to
the mind of the perpetrator, cannot be an essential element of the corpus
delicti. [Citation.] Thus, to prove the corpus delicti, it is only
necessary to show by prima facie evidence that death was caused by a criminal
agency.” (Ureta v. Superior Court, supra, 199 Cal.App.2d at p. 676.)

In light of these
authorities, we reject defendant’s argument that the corpus delicti of murder
requires proof that the perpetrator acted with malice; it is enough to show
that Fuller’s death was caused by a criminal agency. (See Alvarez,
supra, 27 Cal.4th at p. 1171.)
Although malice must be proved to support a conviction for murder,
evidence of malice may be supplied by the defendant’s own statements.

Even if independent
evidence of malice was required, such evidence is present in this case for two
reasons. First, there is undisputed
independent evidence that defendant pulled out a gun, pointed it at Fuller
repeatedly, and shot Fuller in the head at close range. Even without defendant’s statements about how
he was told the gun was loaded, he loaded the clip into the gun, or his intent
to shoot at a wall, jurors could reasonably infer from the independent evidence
that defendant could have acted with the intent to kill (express malice) or
with knowledge of the danger to, and with conscious disregard for, human life
(implied malice). The fact that there
might be another explanation (i.e., that he did not know the gun was loaded),
which might reduce the crime to manslaughter, does not mean that inference of
malice is unreasonable. (Cf. >People v. Jacobson (1965) 63 Cal.2d 319,
327 [to make a prima facie showing of the corpus delicti of murder, “the
prosecution need not eliminate all inferences tending to show a noncriminal
cause of death”].)

Second, with
respect to implied malice, the specific question raised by defendant is whether
there is sufficient independent evidence that he had knowledge the gun was
loaded. As discussed in the preceding
part, Scott’s testimony of defendant’s actions regarding Fuller’s
enemy—reaching for his gun and saying, “I want to do this”—indicates that
defendant was aware the gun was loaded when he pointed it at Fuller and pulled
the trigger. Such testimony constitutes
the modicum of evidence necessary to establish that defendant knew the gun was
loaded.

For all the
foregoing reasons, we reject defendant’s argument that there was insufficient
evidence of the corpus delicti of murder.

C. Corpus Delicti Instruction

Defendant contends
the court erred prejudicially in its corpus delicti instructions. We disagree.

The trial court
gave a version of CALCRIM No. 359 as follows:

“The defendant may
not be convicted of any crime based on his out-of-court statements alone. You may only rely on the defendant’s
out-of-court statements to convict him if you conclude that other evidence
shows that the charged crime was committed.
[¶] That other evidence may be
slight and need only be enough to support a reasonable inference that a crime
was committed. [¶] The identity of the person who committed the
crime may be proved by the defendant’s statements alone. [¶]
You may not convict the defendant unless the People have proved his
guilt beyond a reasonable doubt.”

Defendant contends
the court erred by failing to insert the words, “or a lesser included offense,”
following the reference to “the charged crime” in the first paragraph of the
instruction. If this had been done, he
asserts, jurors would have understood that the phrase, “a crime was committed,”
in the second paragraph could refer to either the charged crime (murder) or the
lesser included offense (involuntary manslaughter). Without the additional words, he contends,
the jury could believe they could convict defendant of murder based upon
independent evidence that established only involuntary manslaughter.

Defendant’s
argument is predicated upon the argument he asserted, and we addressed, in the
preceding part—that the corpus delicti of murder requires independent evidence
of malice. Defendant offers no
additional authority for this argument.
Because we reject his argument in the preceding part, this argument
fails as well.

Even if the
instruction was erroneous, the error is harmless “if there appears no
reasonable probability the jury would have reached a result more favorable to
the defendant had the instruction been given.
[Citations.]” (>Alvarez, supra, 27 Cal.4th at p. 1181,
citing People v. Watson (1956) 46
Cal.2d 818, 836.) There was ample
evidence, independent of defendant’s statements, that Fuller’s death was caused
by a criminal agency. In particular, and
as set forth above, there was independent evidence that defendant knew the gun
was loaded before they returned to the garage (he was ready to use the gun to
settle the score with Fuller’s foe), bullets could be seen through the gun clip’s
window, he pointed the gun at Fuller’s head, and pulled the trigger. Even if the jury was given the instruction
with the additional language defendant contends should have been given, there
is no reasonable probability the jury would have reached a result more
favorable to defendant.

D. Failure to Sua Sponte Instruct on Voluntary Manslaughter

The court
instructed the jury on second degree murder and the lesser included offense of
involuntary manslaughter. The
involuntary manslaughter instruction was predicated on the alleged crime of
brandishing a firearm and the lawful act of handling a loaded firearm with
criminal negligence. Counsel did not
request an instruction on voluntary manslaughter and none was given.

Defendant contends
the court erred in failing to sua sponte instruct the jury as to voluntary
manslaughter. He argues there is
substantial evidence that he knew the gun was loaded and ready to fire, and
that he intentionally fired the gun, just not at Fuller; he intended to shoot
the garage wall. Such facts, he
continues, would support the crimes of assault with a deadly weapon
(§ 245) and discharging a firearm in a grossly negligent manner
(§ 246.3). Because there is also
evidence that these inherently dangerous felonies were committed without the
express or implied malice necessary to convict him of murder, he concludes, it
was possible for the jury to convict him of voluntary manslaughter.

We reject
defendant’s contention for two reasons.
First, although a court must sua sponte instruct on general principles
of law, it is not required, in the absence of a request, to instruct on a
theory “that has been referred to only infrequently,” and with “‘inadequate
elucidation.’” (People v. Bacigalupo (1991) 1 Cal.4th 103, 126, quoting >People v. Flannel (1979) 25 Cal.3d 668,
681.) Defendant’s theory of voluntary
manslaughter, asserted for the first time on appeal, is based on dictum in one
recent Court of Appeal decision—People v.
Garcia (2008) 162 Cal.App.4th 18 (Garcia). It is not a general principle of law for
which the jury must be instructed in the absence of a request. Second, if the court erred in failing to give
the instruction, it was harmless.

Voluntary
manslaughter has traditionally been limited to two scenarios: (1) when the killer acts in a sudden quarrel
or heat of passion (People v. Lasko
(2000) 23 Cal.4th 101, 109; § 192, subd. (a)); and (2) the theory of
imperfect self-defense; i.e., when the killer acts with an honest but
unreasonable belief that it is necessary to defend oneself from imminent peril
to life or great bodily injury (People v.
Flannel, supra, 25 Cal.3d at p. 674; People
v. Blakeley (2000) 23 Cal.4th 82, 88-89).

In> Garcia, the Second Appellate District
suggested a third possible scenario for voluntary manslaughter: an unlawful killing, committed without malice
aforethought, that occurs during the commission of an inherently dangerous
felony. (Garcia, supra, 162 Cal.App.4th at pp. 31-32.) In that case, the defendant struck the victim
in the face with the butt of a shotgun, causing the victim to fall, hit his
head on the sidewalk, and die. (>Id. at p. 22.) The defendant said that the victim lunged at
him and “he ‘just reacted’” by jabbing or swinging the shotgun at the victim;
he did not intend to hit the victim or to kill him. (Id.
at p. 25.) The trial court instructed
the jury on the crimes of murder and voluntary manslaughter (based on sudden
quarrel or heat of passion and imperfect self-defense), but refused to instruct
on involuntary manslaughter. (>Id. at pp. 25-26.) He was found guilty of voluntary
manslaughter. (Id. at p. 23.) On appeal,
the defendant argued that the court erred in denying his request for an
instruction on involuntary manslaughter.
(Id. at p. 24.) The Court of Appeal disagreed. (Id.
at pp. 22, 32.) The court concluded that
because the victim’s “death did not occur in the commission of either a
dangerous misdemeanor [citation], or a lawful act in an unlawful manner or
without due caution and circumspection, it does not fall within the statutory
definition of involuntary manslaughter [citation.]” (Id.
at p. 32.) The court added that the
killing was “properly classified as voluntary manslaughter
. . . .” (>Id. at p. 32.)

The statements in >Garcia regarding voluntary manslaughter
must be understood in accordance with the facts and issues before the
court. (See People v. Knoller (2007) 41 Cal.4th 139, 154-155; >Ginns v. Savage (1964) 61 Cal.2d 520,
524, fn. 2.) “‘An appellate decision is
not authority for everything said in the court’s opinion but only “for the
points actually involved and actually decided.”’ [Citation.]”
(People v. Knoller, supra, at
p. 155.) Significantly, the defendant in
Garcia did not challenge the decision
to give the voluntary manslaughter instruction or the sufficiency of the
evidence to support the verdict of voluntary manslaughter. The question of whether the defendant’s
actions constituted voluntary manslaughter was simply not presented to the
Court of Appeal or necessary to its decision.
It was enough to conclude, as the court did, that there was no
substantial evidence to support the giving of an instruction on involuntary
manslaughter. (Garcia, supra, 162 Cal.App.4th at pp. 32-33.) To the extent the court’s statements suggest
that an unlawful killing, without malice, during the commission of an
inherently dangerous felony is voluntary manslaughter, the suggestion is dictum
and not binding on the trial court.
Moreover, it has not been followed on this point in any decision that
has remained published.href="#_ftn6"
name="_ftnref6" title="">^[6] We conclude, therefore, that
the Garcia theory of voluntary
manslaughter was not a general principle of law of which the trial court was
required to instruct the jury in the absence of a request to do so.href="#_ftn7" name="_ftnref7" title="">^[7]

The second reason
why we reject defendant’s argument is that any error in failing to instruct the
jury as to the Garcia theory of
voluntary manslaughter was harmless. The
erroneous failure to instruct on a lesser included offense generally is subject
to harmless error review under the standard of Watson. (>People v. Rogers (2006) 39 Cal.4th 826,
867-868; People v. Breverman (1998)
19 Cal.4th 142, 177-178.) “Such
posttrial review focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under
consideration. In making that
evaluation, an appellate court may consider, among other things, whether the
evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome
is so comparatively weak, that there
is no reasonable probability the error of which the defendant complains
affected the result.” (>People v. Breverman, supra, at p. 177.)

Defendant’s theory
of voluntary manslaughter is based on the factual argument that he intended to
fire a loaded gun at the garage wall, but that Fuller “move[d] into the path of
the shot.” This scenario is supported
primarily by statements defendant made in his postarrest interview. These statements, however, conflicted with
other versions of the events he described.
In addition to intending to fire the gun at the wall (which might
support a Garcia theory of voluntary
manslaughter), defendant gave other explanations that would not support a >Garcia theory of voluntary
manslaughter: he said someone else shot
Fuller; he admitted shooting Fuller, but did not know the gun was loaded and
thought it would “go click,” not “boom”; he did not mean to pull the trigger;
and he “didn’t mean to aim at [Fuller].”
The multiple conflicting explanations weaken the strength of the one
explanation he now relies on—that he intended to shoot at the wall. By contrast, the circumstances indicate
strong evidence that defendant acted with implied malice; i.e., that he knew
the gun was dangerous and acted with conscious disregard for human life. As discussed above, there was ample evidence
that he knew the gun was loaded and yet repeatedly pointed the gun at Fuller
with his finger on the trigger, eventually pulling it. Based on our review of the record, even if
the jury had been presented with an instruction on voluntary manslaughter based
on Garcia, it is not reasonably
probable defendant would have obtained a more favorable result.

E. Substantial Evidence to Support the Firearm Enhancement

The jury found true
three enhancement allegations that in the commission of the murder defendant
(1) personally used a firearm, (2) personally and intentionally discharged a
firearm, and (3) that such intentional discharge caused great bodily
injury. (§ 12022.53, subds. (b),
(c), (d).) Defendant contends that if
the murder conviction stands, there is substantial evidence to support only the
personal use allegation, not the two allegations that require an intentional
discharge of the firearm. This argument
is based upon the argument we addressed in part III.A., ante, that there is no substantial evidence that defendant knew the
gun was loaded and ready to fire. As
explained above, there is substantial evidence that defendant knew the gun was
loaded. Therefore, this argument fails.

IV.
DISPOSITION

The judgment is
affirmed.

NOT TO BE PUBLISHED
IN OFFICIAL REPORTS



KING

J.





We concur:



HOLLENHORST

Acting
P. J.



CODRINGTON

J.