Opinion
A167726
11-21-2024
THE PEOPLE, Plaintiff and Respondent, v. HOSEA ASKEW, Defendant and Appellant.
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. 20-CR-004918B)
LANGHORNE WILSON, J.
A jury convicted Hosea Askew of multiple felonies, including second degree murder. The trial court sentenced him to an aggregate prison term of 35 years to life. On appeal, Askew contends his murder conviction must be reversed because the court failed to instruct the jury regarding heat of passion/sudden quarrel manslaughter as a lesser included offense. He contends further that the court violated Penal Code section 654 by imposing punishment for more than one offense based on the same physical act or course of conduct. The People agree with the latter contention and argue the matter should be remanded for resentencing because the court committed several sentencing errors. We affirm Askew's convictions and remand for resentencing.
Undesignated statutory references are to the Penal Code.
I. BACKGROUND
Askew was charged by amended information with the murder of Diante Craig (§ 187, subd. (a); count one); shooting at an occupied vehicle (§ 246; count two); and assault with a firearm upon Craig (§ 245, subd. (a)(2); count three). The information alleged as to the murder and shooting at an occupied vehicle counts that Askew personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)), personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and personally and intentionally discharged a firearm causing great bodily injury and death (§§ 12022.53, subd. (d), 12022.7, subd. (a)). The information further alleged as to the assault with a firearm count that Askew personally used a firearm. (§ 12022.5, subd. (a).)
At trial, the prosecution and defense presented conflicting narratives as to how Craig was killed.
A. Account of the Prosecution's Witnesses
While Craig was driving with his sister, Imani Bolton, in Berkeley, a blue sedan driven by Askew was in front of them. Bolton testified that the blue car "brake checked" them. She did not think that Craig was tailgating the car. Craig changed lanes and attempted to pass the blue car, but it "swerved at" them.
When Craig was next to the blue car, he rolled his window down to see why the driver had brake checked and swerved towards them. Bolton did not remember exactly what was said but she heard the driver say "something like going to fight," and she recalled seeing him make a gesture with his right hand. The driver was not yelling and was the first person to bring up fighting. Craig responded, "Okay. Then pull over." Craig did not explicitly threaten the driver, though he "was kind of yelling during [their] interaction." Craig pulled over along a curb but the blue car kept driving so Craig followed it. Craig was driving at a "normal" speed; Bolton did not hear the tires screeching or the engine revving.
The driver of the blue car eventually parked on a residential street. Craig stopped behind him. The driver exited his vehicle and walked towards their car. Craig did not exit his car, and Bolton did not recall him saying anything as the driver approached them. Likewise, the driver did not say anything as he walked up to their driver's side door. When the driver of the blue car was about a foot away from their car, he pulled out a gun from his right hip and, without any warning, aimed the gun "a little bit off center from" Craig. When Craig saw the gun, he said something to the effect of, "Oh, you have a gun." He reached his hand outside his window to try to block the gun, but the driver fired it, hitting Craig in his chest. The whole confrontation lasted "a few seconds." Craig slumped forward, and their car collided with another parked car. The driver returned to his vehicle and left the scene.
Two neighborhood residents heard and saw parts of the incident. One woman testified that she heard a gunshot and then a woman screaming. She did not hear any "conversations" outside prior to the gunshot. She looked out the window and saw a car collide with another car. She said the car did not appear to be "willfully accelerating." Another resident heard a "loud noise" that sounded "kind of like a firework" outside and saw an SUV that had crashed into a parked car. She saw a man standing a few feet away from the SUV "looking directly at the vehicle." The man appeared "incredibly calm" as he walked to his car and did not "seem to be under any duress." Before the loud noise, she did not hear any arguing, tires screeching, or engines revving.
B. Askew's Account
Askew testified that he shot Craig because he feared for his life. According to Askew, the incident began when he was driving in Berkeley and an SUV approached him from behind. The SUV "follow[ed] very closely," so Askew "lightly tapped [his] brakes." He was not angry at the other driver, just concerned about being rear ended. The SUV initially backed off, but after a while, it moved closer to Askew, which prompted him to slow down to a stop. The SUV drove around Askew at "a fairly accelerated pace."
As Askew continued, he saw the SUV ahead of him, and at some point, it "rapidly decelerat[ed]" until it was next to Askew. He heard something hit his passenger side window and he looked over to see Craig "glaring" at him and "essentially yelling." He rolled his window down and heard Craig say, "Motherfucker, what the fuck is wrong with you" and "Bitch, I'll kick your ass." Askew did not respond and started "looking to get away" from the SUV. At this point, he was "concerned" but not afraid. He eventually pulled over to wait for the SUV to pass.
A short while later, the SUV turned on the street Askew was parked on and stopped behind his car. Askew approached the SUV, intending to "say something positive to . . . get [Craig] to disengage." Craig exited the SUV and "immediately . . . charg[ed]" at Askew, attacking him "with his left arm outreached." Craig was "roughly twice" Askew's size and "roughly half" his age. Fearing serious injury, Askew moved away from Craig and drew his gun "in a defensive display."
At the sight of the gun, Craig "immediately stopped" and returned to his car. He then "turn[ed] his steering wheel and accelerat[ed] at" Askew. Askew did not think he could get out of the way in time, so he fired his gun at Craig "to stop [Craig] from running into" him. "That's the only reason [he] shot." Askew testified that he was "terrified," not angry. He thought he "was going to be run over and killed."
C. Jury Instructions and Verdict
After the close of testimony, defense counsel asked for jury instructions on the lesser offense of voluntary manslaughter under the theories of imperfect self-defense and heat of passion. The trial court agreed to give instruction on imperfect self-defense but rejected one on heat of passion. The court found the instruction was not warranted because the defense evidence "point[ed] to an intentional firing of the gun in self defense." In addition to imperfect self-defense, the court instructed the jury on reasonable selfdefense.
The jury found Askew guilty of second degree murder and guilty as charged for the remaining counts. The jury further found true the allegations as to the murder and shooting at an occupied vehicle counts that Askew personally and intentionally discharged a firearm causing great bodily injury and death (§§ 12022.53, subd. (d), 12022.7, subd. (a)) and that he personally used a firearm (§ 12022.5, subd. (a)). As to the assault with a firearm count, the jury found true the allegation that he personally used a firearm. (§ 12022.5, subd. (a).) The trial court sentenced Askew to an aggregate term of 35 years to life in prison.
II. DISCUSSION
A. Failure to Instruct on Heat of Passion or Sudden Quarrel
Askew argues the trial court erred by not instructing the jury on the lesser included offense of heat of passion/sudden quarrel voluntary manslaughter. We disagree.
"If supported by substantial evidence, a trial court has the duty to instruct on a lesser included offense. [Citation.] 'The duty applies whenever there is evidence in the record from which a reasonable jury could conclude the defendant is guilty of the lesser, but not the greater, offense. . . .' [Citation.] Ultimately, '[i]t is for the court alone to decide whether the evidence supports instruction on a lesser included offense,'" and we independently review that decision. (People v. Trujeque (2015) 61 Cal.4th 227, 271, italics omitted.)
Voluntary manslaughter is a lesser included offense of murder. (People v. Cole (2004) 33 Cal.4th 1158, 1215.) The offense is defined as the unlawful killing of a human being without malice aforethought "upon a sudden quarrel or heat of passion." (§ 192, subd. (a); Cole, at p. 1215.)
"Heat of passion" must be shown both subjectively and objectively. (People v. Cole, supra, 33 Cal.4th at pp. 1215-1216.) The subjective element of voluntary manslaughter requires proof that the defendant killed while under the" 'actual influence of a strong passion'" resulting from the victim's provocation. (People v. Moye (2009) 47 Cal.4th 537, 550 (Moye).) To satisfy the objective element, the defendant's"' "heat of passion must be due to 'sufficient provocation.'" '" (Id. at p. 549.)" 'The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.'" (Id. at p. 550.) "Heat of passion, then, is a state of mind caused by legally sufficient provocation that causes a person to act, not out of rational thought but out of unconsidered reaction to the provocation." (People v. Beltran (2013) 56 Cal.4th 935, 942.)
The record before us contains no evidence of the subjective component of heat of passion voluntary manslaughter. If Askew's narrative is to be believed, he did not shoot at Craig out of a sudden boiling over of anger, rage, or distress at anything Craig had done up to the point Askew shot at him. (People v. Manriquez (2005) 37 Cal.4th 547, 585 [subjective element of heat of passion killing not met where there is no showing that defendant exhibited anger, fury, or rage when he started firing a handgun at his victim].) He testified that he was not angry during his encounter with Craig, nor was he afraid prior to Craig attacking him. When Craig charged at him, his emotions, as he described them, were focused on the fear of being hit by Craig. He said he pulled his gun out as a "defensive display" and that "the only reason [he] shot" Craig was "to stop [Craig] from running into" him, as he did not have time to get out of the way of Craig's car. Because "the thrust of [Askew's] testimony . . . was self-defense," it was insufficient to establish that he" 'actually, subjectively, kill[ed] under the heat of passion.'" (Moye, supra, 47 Cal.4th at p. 554; ibid. [voluntary manslaughter instruction not required where the defendant, as the only witness, "characterized every swing he took with the bat as a defensive response to each of [the victim's] successive advances"]; see People v. Wickersham (1982) 32 Cal.3d 307, 327328 [court should not instruct on heat of passion voluntary manslaughter where the same facts would give rise to a finding of reasonable self-defense], overruled on another point by People v. Barton (1995) 12 Cal.4th 186, 201.)
Aside from Askew, the only witness to the entire confrontation that ended in Craig's death was Bolton, who testified that Askew brake checked her and Craig, swerved at them for no apparent reason, and then challenged Craig to a fight. While Craig accepted the challenge, Bolton did not see or hear any physical or verbal provocation from Craig. Before Craig even exited his vehicle, Askew had walked to his car and shot him. Bolton's testimony does not indicate that Askew did so out of rage, anger, or distress. She did not hear him yell at Craig or say anything other than asking Craig to fight.
Consistent with Bolton's account, a third party witness testified that Askew seemed "incredibly calm" after the shooting and did not appear to be under duress. Thus, neither the defense's narrative nor the prosecution's narrative indicated that Askew killed Craig actually and subjectively under the heat of passion.
Further, Bolton's account shows insufficient provocation because the person who instigates a fight cannot claim the benefit of provocation as to reduce murder to manslaughter. (People v. Johnston (2003) 113 Cal.App.4th 1299, 1313-1314.) In Johnston, the court concluded that a defendant who taunted his victim into a fight was" 'culpably responsible'" for the altercation and not provoked by a victim even though the victim physically charged the defendant and the two engaged in mutual combat. (Id. at pp. 1313, 1312.) Likewise, here, Bolton's testimony shows that Askew instigated the confrontation with Craig. That Craig agreed to fight Askew does not constitute adequate provocation for the shooting. A defendant cannot cause the victim to commit an act and then claim the act provoked him to kill the victim. (Id. at p. 1312.) Nor would Craig's actions, per Bolton's account, lead a reasonable person to react rashly and violently. (See People v. Oropeza (2007) 151 Cal.App.4th 73, 83 [provocation insufficient where the victim merely cut off the truck in which the defendant was riding]; People v. Gutierrez (2009) 45 Cal.4th 789, 827 [simple assault and insults insufficient to support a voluntary manslaughter instruction].)
The authority relied on by Askew is distinguishable. In People v. Millbrook (2014) 222 Cal.App.4th 1122, the victim, who was much bigger in size than the defendant, acted belligerently throughout a party, engaged in intense arguments with the defendant's girlfriend, warned the defendant to" 'check your bitch,'" escalated a fight with the defendant, and lunged at him with clenched fists right before the defendant panicked and shot him. (Id. at pp. 1141, 1127-1130, 1139.) There was evidence that the defendant was angered by his victim's conduct, had been subjected to threats of violence in the past, and was intimidated by the fact he was surrounded by his victim's friends. (Id. at pp. 1139-1140.) From this evidence, jurors could conclude the defendant was sufficiently provoked and shot "spontaneously and under the influence of extreme emotion." (Id. at pp. 1140, 1141.)
In People v. Thomas (2013) 218 Cal.App.4th 630, the shooting was preceded by a heated argument and a physical attack on the defendant, during which several men cursed at, "body slammed," punched, and kicked him. (Id. at pp. 635, 634, 639-640, 645.) There was evidence the defendant was distraught and appeared angry before grabbing his gun from his car, and he testified that he fired the gun because he was "afraid, nervous and not thinking clearly." (Id. at p. 645.) The court concluded that while the facts fit more precisely with an imperfect self-defense theory, it could not "rule out that they may also show" the defendant's "passion was aroused and his reason was obscured due to a sudden quarrel." (Ibid.)
Unlike in Thomas and Millbrook, the evidence in this case does not suggest Askew was acting "under the actual influence of extreme emotion" and" 'without due deliberation and reflection.'" (People v. Millbrook, supra, 222 Cal.App.4th at pp. 1139, 1140.) Rather, Askew's own testimony shows he acted deliberately to defend himself. (Moye, supra, 47 Cal.4th at p. 555.) And Bolton's narrative shows that Askew instigated a confrontation with Craig and shot him without adequate provocation.
The facts of this case are also a far cry from People v. Breverman (1998) 19 Cal.4th 142, where "a sizeable group of young men, armed with dangerous weapons and harboring a specific hostile intent, trespassed upon . . . property occupied by [the] defendant," and they "challenge[d] . . . the defendant to fight, . . . use[d] [their] weapons to batter and smash [his] vehicle," and "caused immediate fear and panic" in the defendant, which may have prompted him to fire his gun. (Id. at p. 163.)
Askew contends in his reply that his voluntary manslaughter theory is based on the assertion a jury could have determined that the "true" facts "lie somewhere in the middle" of the two narratives presented at trial because the jury was free to believe some parts of a witness's testimony and disbelieve others. He suggests his testimony regarding the events preceding the shooting and of Craig driving his car at him, coupled with Bolton's testimony (though he does not specify which parts), established that he was "enraged based on a sudden quarrel at the time of the shooting." Askew appears to be claiming that the trial court should have combined various parts of two conflicting versions of events, neither of which would have supported a heat of passion instruction on their own, to invent a hypothetical third version of events which could support his heat of passion theory.
While it may be true, generally speaking, that a jury may believe portions of a witness's testimony and reject others (People v. Wader (1993) 5 Cal.4th 610, 641), there must still be substantial evidence in the record to support an instruction on a defense theory. (People v. Elize (1999) 71 Cal.App.4th 605, 615.) Speculation is not enough. (People v. Valdez (2004) 32 Cal.4th 73, 116; People v. Yarbrough (1974) 37 Cal.App.3d 454, 457 [no jury instruction based on hypotheticals].) "A trial court has a duty to instruct on general principles of law that are 'closely and openly connected to the facts before the court and that are necessary for the jury's understanding of the case.' [Citation.] But no principle of law required the trial judge below to disregard the evidence in order to find that the jury should consider whether defendant subjectively killed in the heat of passion, when no substantial evidence supported that theory of manslaughter." (Moye, supra, 47 Cal.4th at p. 554.)
On the record before us, the inferences Askew posits are speculative. There was no evidentiary basis for the jury to believe the hypothetical scenario Askew asserts on appeal, i.e., that Craig was the instigator and acted highly aggressive towards him, causing him to become enraged and react" 'without due deliberation and reflection.'" (Moye, supra, 47 Cal.4th at pp. 549-550; see People v. Young (2005) 34 Cal.4th 1149, 1201 [no aiding and abetting instruction required when it would require speculation and selective disbelieving of testimony].) Under these circumstances, the trial court properly declined to instruct the jury on heat of passion voluntary manslaughter.
B. Sentencing Errors
The parties assert that the trial court committed multiple sentencing errors that require a remand for resentencing. At the sentencing hearing, the court imposed a 15-year-to-life term for the murder count, plus 20 years for the firearm enhancement under section 12022.53, subdivision (c)), and it struck the second section 12022.53 enhancement for that count pursuant to section 1385. As to the counts of shooting at an occupied vehicle (count two) and assault with a firearm (count three), the court sentenced Askew to concurrent terms of five years and three years, respectively. It further concluded that the section 12022.53 firearm enhancement for the second count and the section 12022.5 firearm enhancement for the third count "merge[d] with" the firearm enhancement imposed for the murder count "pursuant to [section] 654." The court did not mention the section 12022.5 firearm enhancement attendant to the murder count or the shooting at an occupied vehicle count. The court sentenced Askew to an aggregate prison term of 35 years to life.
Askew contends, and the People concede, the trial court violated section 654 when it sentenced him to concurrent terms for second degree murder and assault with a firearm instead of staying his sentence for the assault with a firearm count. Additionally, the People argue the matter should be remanded for resentencing because the court misunderstood the scope of its sentencing discretion when it concluded the firearm enhancement associated with the shooting at an occupied vehicle count "merge[d] with" the firearm enhancement attendant to the murder count "pursuant to [section] 654." Askew agrees remand is warranted here.
We agree with the parties that the assault with a firearm count should have been stayed under section 654. "Section 654 prohibits multiple punishment for a single physical act that violates different provisions of law." (People v. Jones (2012) 54 Cal.4th 350, 358, italics added.) Here, as evidenced by the prosecution's closing argument at trial, the murder and assault with a firearm counts were based on the same physical act of Askew firing his gun at Craig. Accordingly, the punishment for the assault with a firearm offense and the associated firearm enhancement must be stayed pursuant to section 654. (See People v. Smith (1985) 163 Cal.App.3d 908, 914 [enhancements relating to a stayed term must also be stayed].)
We further agree that the record suggests the trial court misunderstood its sentencing authority with respect to the section 12022.53 firearm enhancement attendant to the shooting at an occupied vehicle count. Section 12022.53 enhancements must be imposed on each qualifying offense and cannot be stayed pursuant to the provisions of section 654, even if there are multiple qualifying offenses that are based on the same act or injury. (People v. Palacios (2007) 41 Cal.4th 720, 723, 733, abrogated by statute on another ground as stated in People v. Tirado (2022) 12 Cal.5th 688, 695-696.) Shooting at an occupied vehicle is a qualifying offense. (§ 12022.53, subd. (d).) The only limitations to this rule are found in the statute itself. (Palacios, at p. 726.) Under subdivision (f) of section 12022.53, the court may impose "[o]nly one additional term of imprisonment under this section . . . per person for each crime," but the court must "impose upon that person the enhancement that provides the longest term of imprisonment." (Italics added.) Additionally, "[t]he court may, in the interest of justice pursuant to Section 1385 . . ., strike or dismiss an enhancement otherwise required to be imposed by this section." (§ 12022.53, subd. (h).)
Here, the section 12022.53 firearm enhancement for the shooting at an occupied vehicle count is the enhancement that provides the longest term of imprisonment for that count. (§§ 12022.5, subd. (a), 12022.53, subd. (d).) Instead of striking or imposing the firearm enhancement (§ 12022.53, subds. (d), (h)), the trial court concluded it "merge[d] with" the firearm enhancement imposed for the murder count "pursuant to [section] 654." The court's comment indicates it failed to exercise its sentencing discretion under section 12022.53 for the firearm enhancement attendant to the shooting at an occupied vehicle count based on an erroneous understanding of the scope of its authority under section 654. (See People v. Palacios, supra, 41 Cal.4th at pp. 723, 733.) To the extent the court was relying on the merger doctrine, the doctrine does not apply to sentencing enhancements. (People v. Sanders (2003) 111 Cal.App.4th 1371, 1374.)
The minute order for the sentencing hearing stated that the 25-years-to-life term for the section 12022.53 enhancement associated with the shooting at an occupied vehicle count was "stayed," while a four-year term was imposed for the section 12022.5 enhancement for that count. (§§ 12022.5, subd. (a), 12022.53, subd. (d).) This is not reflected in the trial court's oral pronouncement for sentencing, which controls here. (People v. Clark (2021) 67 Cal.App.5th 248, 260-261.) In any event, subdivision (f) of section 12022.53 requires the court to impose punishment for the section 12022.53 enhancement with the longest term of imprisonment before imposing and staying other firearm enhancements. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1123.)
When "a sentence choice is based on an erroneous understanding of the law, the matter must be remanded for an informed determination." (People v. Downey (2000) 82 Cal.App.4th 899, 912.) Accordingly, we will remand for the trial court to exercise its discretion to strike or impose the section 12022.53 enhancement associated with the shooting at an occupied vehicle count. Because we are remanding the matter for a full resentencing (People v. Valenzuela (2019) 7 Cal.5th 415, 424-425), we need not address the parties' other claims regarding Askew's sentencing. On remand, the parties can advance whatever arguments they wish regarding the sentencing for the enhancements.
III. DISPOSITION
Askew's sentence is vacated, and the matter remanded for full resentencing consistent with this opinion. Upon resentencing Askew, the trial court shall stay the execution of sentence on count three pursuant to section 654. In all other respects, the judgment is affirmed.
WE CONCUR: HUMES, P. J., HILL, J. [*]
[*] Judge of the San Mateo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.