Filed 6/23/17 P. v. Lopez CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT SAMSON LOPEZ,

Defendant and Appellant.

F070426

(Super. Ct. No. F13902206)


OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted Robert Samson Lopez of first degree murder in connection with the shooting death of his nephew. He was sentenced to 50 years to life in prison. On appeal, Lopez argues that a standard jury instruction on perfect self-defense (CALCRIM No. 505) misstates the law and should not have been given below. He further contends that the trial court neglected a sua sponte duty to explain how provocation can negate premeditation and deliberation. In the alternative, Lopez claims ineffective assistance of counsel based on his trial attorney’s failure to request such an instruction. We find no error, and thus affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Lopez was charged with murder (Pen. Code, § 187, subd. (a)) committed by means of personal and intentional discharge of a firearm (§ 12022.53, subd. (d)). He was 69 years old at the time of the offense. The victim was 42-year-old Michael James Lopez, Sr. (hereafter referred to as Michael or “the victim”).
The shooting occurred at an apartment in Parlier, where Lopez essentially sublet a room from his sister, Lucille. The full-time occupants of the apartment were Lopez, Lucille, her son Vincent, and Vincent’s domestic partner, Sergio. Lucille’s other son, Michael, was permitted to come and go as he pleased and sometimes spent the night on a couch in the living room. Of the four men who enjoyed the benefits of this living arrangement, only Lopez contributed to the rent. He gave his sister $450 on a monthly basis, paid the cable bill, and also bought groceries for the household.
Lopez knew that his nephew Michael was a gang member and habitual user of narcotics, and was not unhappy to learn of Michael’s arrest on March 5, 2013. The next day, when Michael’s girlfriend telephoned the apartment, Lopez informed her that he was in jail and told her to “quit calling.” Michael had actually been released from custody that morning. Lopez’s rudeness toward the girlfriend led to a confrontation between him and Michael later that evening.
The fatal encounter occurred shortly before 10:00 p.m., after Lopez had come out of his bedroom and gone into the kitchen to get a snack. Michael allegedly came up to him and complained about being “disrespected.” He said words to the effect of, “I’m back” and “I’m the boss,” and made vague threats of future harm. In response, Lopez went into his bedroom, retrieved a .22-caliber pistol, and shot Michael four times.
Lucille testified to coming out of her bedroom and seeing Lopez aiming a pistol at her already-wounded son. She ran to Lopez and attempted to disarm him. Following a brief struggle, he put the gun down and said, “I’m done.” Lopez then went into his room, changed out of his pajamas, lit a cigarette, and calmly waited for the police to arrive. He made no effort to render aid to the victim.
Lopez was arrested that night and waived his right to remain silent. He submitted to a recorded custodial interview, which was played for the jury at trial. In the words of his own defense attorney, the recording made him appear “sarcastic and trite and unapologetic about what had occurred.” During the interview, Lopez repeatedly opined that the sheriff’s department bore responsibility for the shooting: “They came and arrested [Michael], uh, the night before. … They let him out today in the morning. Uh, they’ve done that two or three times. … [I]t’s your fault. You guys let him outta jail.”
When the homicide detectives asked what prompted the shooting, Lopez said, “He just threatened me. … I mean, he weighs 200 pounds. I weigh 130. Uh, he was gonna get me tomorrow when my sister went to work.” Further questioning about the victim’s alleged threats yielded inarticulate responses: “[It was] gang shit. … [He] starts tellin’ me about his girlfriend and shit and, you know, that, uh, he’s back. He’s the boss, you know, that kinda bullshit stuff. Fuck that shit. … Then I went to my room. Uh, I’m scared. Uh, never in my whole life have I ever been scared … you know. Why start now? Gonna fuck me up[?] Fuck you. That’s it.”
Lopez initially described the following sequence of events: “I walked in my room, and he was, uh, comin’ after me. So I went inside. I got my gun, and then he k- started going the other way, you know. And fuck it[,] [I shot him].” When presented with opportunities to justify his actions, he was glib and impudent: “You looking for a motive or what, guy? … I’m a man. … I got two balls bigger than [his,] and I’ve had ‘em longer. … I’ve been a man 68 years, okay? … [Do I regret what happened?] Not really. Uh, not really. Shit happens, so if it hadn’t happened to him, it would happen to me, right? Uh, I’m not gonna go around being scared.” Lopez also professed a lack of concern for any legal consequences, including imprisonment. He ultimately acknowledged that Michael did not threaten him with imminent harm, and characterized the shooting as a preemptive measure.
An autopsy confirmed that Michael died of gunshot wounds to the heart, liver, and lungs. Toxicology screening revealed traces of methamphetamine, but at a level not typically associated with violent behavior. The prosecution relied heavily on the custodial statements, arguing that Lopez was a “cold blooded” killer who had acted out of anger and resentment.
The defense evidence established that Michael was a Sureno gang member and convicted felon with a history of violence. Lopez testified on his own behalf, claiming to have shot at Michael out of fear for his personal safety. He also provided a revised account of the events, notably alleging to have fired three shots as Michael was rushing toward him, and a fourth shot after Michael had armed himself with a frying pan.
In closing argument, the prosecution highlighted significant discrepancies in Lopez’s testimony as compared to his prior statements and the forensic evidence. For example, his story was inconsistent with the autopsy findings, which indicated that some of the bullets had entered the victim’s body from the side and rear, not straight on. One of the entry wounds was located in the lower back.
The jury returned a verdict of first degree murder and a true finding on the gun enhancement allegation. The trial court imposed a prison sentence of 25 years to life for the conviction plus a consecutive term of 25 years to life for the enhancement. Lopez filed a timely notice of appeal.
DISCUSSION
CALCRIM NO. 505
The trial court used CALCRIM No. 505 to instruct on the elements of perfect self-defense. The instruction stated, in pertinent part: “The defendant is not guilty of murder or manslaughter if he was justified in killing someone in self-defense. The defendant acted in lawful self-defense if: [¶] 1. The defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily injury; [¶] 2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of death or great bodily injury to himself. Defendant’s belief must have been reasonable and he must have acted only because of that belief.” (Italics added.)
Defense counsel requested this instruction. On appeal, however, Lopez contends that the above italicized language is a misstatement of the law as applied to the evidence adduced at trial. His argument is based on the interplay between sections 197 and 198.
Section 197 provides:
Homicide is … justifiable when committed by any person in any of the following cases:
(1) When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person.
(2) When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony , or against one who manifestly intends and endeavors, in a violent, riotous, or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein.
(3) When committed in the lawful defense of such person, or of a spouse, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he or she was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed.
(4) When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace.
Section 198 provides: “A bare fear of the commission of any of the offenses mentioned in subdivisions 2 and 3 of Section 197, to prevent which homicide may be lawfully committed, is not sufficient to justify it. But the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone.” In other words, section 198 limits the availability of a justifiable homicide defense to situations where the defendant harbors a reasonable fear of imminent peril and is driven to act solely on the basis of that fear. Lopez argues these limitations do not apply to the felony-resistance circumstances described in section 197, subdivision (1) because section 198 only makes reference to section 197, subdivisions (2) and (3).
Citing to the earliest versions of section 197, Lopez contends that for “more than 140 years, a California defendant has been entitled to rely on self-defense while resisting an actual attempt to kill or cause him great bodily injury regardless of whether there may have been other motives for defendant’s actions as well.” Section 197 is a codification of a common law defense. (People v. Ceballos (1974) 12 Cal.3d 470, 477-478; People v. Jones (1961) 191 Cal.App.2d 478, 481.) Where statutes are merely codifications of the common law, they are assumed to be limited by the corresponding traditional common law rules. (Parsley v. Superior Court (1973) 9 Cal.3d 934, 938-939.) Contrary to Lopez’s argument, even the earliest cases involving section 197 recognized that to establish perfect self-defense, “the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone.” (People v. Herbert (1882) 61 Cal. 544, 546.)
Although section 198 makes no reference to section 197, subdivision (1), it is beyond dispute that the element of reasonableness, in terms of the defendant’s fear of death or imminent peril, is necessary to establish perfect self-defense under any set of circumstances. (See People v. Randle (2005) 35 Cal.4th 987, 998-999, overruled on other grounds in People v. Chun (2009) 45 Cal.4th 1172, 1201.) The existence or nonexistence of a reasonable fear is primarily what distinguishes justifiable homicide from manslaughter. (People v. Manriquez (2005) 37 Cal.4th 547, 581; People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262.) The defendant’s motivation to inflict harm is also a necessary consideration. In People v. Nguyen (2015) 61 Cal.4th 1015 (Nguyen), the California Supreme Court recognized that a defendant who engages in a lethal response to imminent deadly force cannot claim self-defense if “he did not act on the basis of fear alone but also on a desire to kill.” (Id. at p. 1044.) The Nguyen opinion cites with approval to our District’s holding in People v. Trevino (1988) 200 Cal.App.3d 874 (Trevino) that “ ‘an instruction which states that the party killing must act under the influence of such fears alone, is a correct statement of the law.’ ” (Nguyen, supra, 61 Cal.4th at p. 1045, quoting Trevino at p. 879.) We thus conclude the challenged portion of CALCRIM No. 505 accurately reflects settled California law.
In his reply, Lopez submits that Nguyen left open “the precise question presented in this case.” He cites to the following excerpt from that opinion: “We note that defendant did not argue in the trial court, nor has he argued on appeal, that the jury should have been instructed that acting based on mixed motives is permissible so long as reasonable fear was the but-for cause of his decision to kill. We therefore have no occasion to consider whether such a rule would be consistent with section 198 as interpreted in Trevino or other cases.” (Nguyen, supra, 61 Cal.4th at p. 1046.)
We read the passage upon which Lopez relies as relating to the propriety of a clarifying instruction in cases where the evidence permits inferences of mixed emotions (e.g., fear and animosity), but also as a confirmation of the necessity of reasonableness and good faith. Lopez makes a different argument. In his words: “Pursuant to sections 197 and 198, the jury here should have been told that if [he] acted in self-defense while resisting an attempt to kill, that is the end of the self-defense inquiry.” If the issue presented truly mirrors the one outlined in the quoted passage from Nguyen, it is governed by the rule that “[a] party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial.” (People v. Hillhouse (2002) 27 Cal.4th 469, 503.)
Finally, even if Lopez’s argument had merit, we would affirm for lack of prejudice. Regardless of any mixed motives, one who kills in self-defense must perceive imminent danger. “ ‘Fear of future harm—no matter how great the fear and no matter how great the likelihood of the harm—will not suffice.’ ” (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) It is telling that the jury rejected the alternate theory of imperfect self-defense and instead returned a verdict of premeditated murder. The jury instructions on imperfect self-defense explained the imminent danger requirement, but, unlike CALCRIM No. 505, did not identify any restrictions concerning mixed motives. There was scant evidence of imminent danger and overwhelming proof that Lopez had, at best, acted out of a fear of future harm. As such, it is not reasonably probable that the outcome would have been different but for the allegedly erroneous statement in the CALCRIM No. 505 instruction. (See People v. Flood (1998) 18 Cal.4th 470, 487, 490 [misdirection of the jury, including incorrect, ambiguous, conflicting, or wrongly omitted instructions that does not amount to federal constitutional error, is reviewed under the harmless error standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)]; People v. Villanueva (2008) 169 Cal.App.4th 41, 53 [failure to instruct on self-defense evaluated for prejudice under the Watson standard].)
CALCRIM. No. 522
The jury was instructed pursuant to CALCRIM No. 522 as follows: “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.”
CALCRIM No. 522 is applicable in cases where jurors could find the defendant experienced subjective provocation before using deadly force, but the circumstances do not otherwise satisfy the objective standard of reasonableness necessary to reduce malice murder to voluntary manslaughter. “The rationale is that provocation may negate the elements of premeditation, deliberateness and willfulness,” thus warranting a verdict of only second degree murder. (People v. Jones (2014) 223 Cal.App.4th 995, 1000 (Jones).) Lopez contends that neither CALCRIM No. 522 nor CALCRIM No. 570 (Voluntary Manslaughter: Heat of Passion) adequately explains how subjective provocation can negate the elements of premeditation and deliberation and, therefore, the trial court had a sua sponte duty to elucidate that concept with further instructions. A nearly identical claim was considered and rejected by the Second District Court of Appeal in Jones, supra. Although cited repeatedly in the respondent’s brief, Lopez fails to acknowledge the case in his reply.
As in Jones, the jury below was instructed pursuant to CALCRIM Nos. 520, 521, 522, and 570. These instructions “accurately inform[ed] the jury [of] what is required for first degree murder, and that if the defendant’s action was in fact the result of provocation, that level of crime was not committed. CALCRIM Nos. 521 and 522, taken together, informed jurors that ‘provocation (the arousal of emotions) can give rise to a rash, impulsive decision, and this in turn shows no premeditation and deliberation.’ [Citation.] As the jury also was instructed, a reduction of murder to voluntary manslaughter requires more.” (Jones, supra, 223 Cal.App.4th at p. 1001.)
Lopez’s claim regarding the lack of further guidance on how provocation can negate premeditation and deliberation is, in essence, a complaint about the absence of a pinpoint instruction. (Jones, supra, 223 Cal.App.4th at p. 1001.) An instruction that “ ‘relates the evidence of provocation to the specific legal issue of premeditation and deliberation … is a “pinpoint instruction” … , and need not be given on the court’s own motion.’ ” (People v. Nelson (2016) 1 Cal.5th 513, 541-542.) Thus, the trial court did not commit instructional error.
Ineffective Assistance of Counsel
As a fallback position, Lopez alleges ineffective assistance of counsel based on his trial attorney’s failure to request additional instructions on provocation to support a theory of second degree murder. To prevail on such a claim, he must establish that (1) the performance of his trial attorney fell below an objective standard of reasonableness and (2) prejudice occurred as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); People v. Anderson (2001) 25 Cal.4th 543, 569.) As we explain, the first prong of the Strickland test is not satisfied.
“When examining an ineffective assistance claim, a reviewing court defers to counsel’s reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance. It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.” (People v. Mai (2013) 57 Cal.4th 986, 1009.) “All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding.” (Ibid.)
Lopez’s trial counsel advocated for a finding of justifiable homicide and briefly noted the grounds for imperfect self-defense, but disavowed the prosecution’s argument that Lopez had acted out of anger or animosity toward the victim. It would be reason enough for the attorney to discourage consideration of second degree murder because provocation did not factor into his theories of the case (see Jones, supra, 223 Cal.App.4th at pp. 1001-1002), but there is a more obvious justification in light of his client’s age.
Given the undisputed evidence that Lopez shot the victim, a conviction of second degree murder would have resulted in a prison sentence of 40 years to life; 15 years to life for the killing (§ 190, subd. (b)) plus an additional 25 to life for the firearm enhancement (§ 12022.53, subd. (d)). Since his client was 71 years old at the time of trial, defense counsel may have concluded there was no practical benefit to securing a verdict of second degree murder because it would result in a de facto sentence of life without the possibility of parole. With nothing to gain from a conviction of anything greater than manslaughter, counsel could have made a tactical decision to eschew further instruction on provocation to avoid detracting from the defense theory of self-defense or increasing the risk of a compromise verdict. We therefore reject the ineffective assistance claim.


DISPOSITION
The judgment is affirmed.



GOMES, J.
WE CONCUR:



HILL, P.J.



LEVY, J.