Opinion
NOT TO BE PUBLISHED
Superior Court County No. F402666, of San Luis Obispo, John A. Trice, Dodie A. Harmon, Judges.
Marleigh A. Kopas, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Michael A. Katz, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, Acting P.J.
As a general rule, death resulting from a single blow with a fist is not murder. (People v. Spring (1984) 153 Cal.App.3d 1199, 1205.) But it can be involuntary manslaughter. (Id., at p. 1206-1207; see e.g., People v. Cox (2000) 23 Cal.4th 665, 668-669.) This may be such a case.
Angry about a pool game, Jeremy Lee Hollis asked Gregory Mascorro if he wanted to step outside and fight. Appellant let Mascorro take the first swing and punched him several times, causing Mascorro to strike the pavement and die of blunt-force trauma to the head. A jury convicted appellant of involuntary manslaughter (Pen. Code, § 192, subd. (b)) and assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)) with special findings that he personally inflicted great bodily harm (§ 12022.7, subd. (a)). Appellant was sentenced to two years state prison to run consecutive to a six year prison sentence in an unrelated case (San Luis Obispo County Sup. Ct., Case No. F422660).
All statutory references are to the Penal Code.
Appellant contends that the trial court erroneously instructed the jury and erred at sentencing. We affirm the judgment of conviction and sentence but we remand to the trial court with directions to clarify its April 29, 2009 order imposing restitution and parole revocation fines (§§ 1202.4, subd. (b); 1202.45).
Facts
On the evening of May 8, 2007, appellant and Gregory Mascorro got into an argument playing pool at Alex's Bar-B-Que in Pismo Beach. Mascorro won the game and pushed appellant. Appellant said, "Let's go outside and let's settle this." Mascorro followed appellant outside and threw the first blow. It was a slow punch and glanced off appellant. Appellant punched Mascorro in the jaw, dazing him.
Agostino Matteucci saw appellant throw a punch, grab Mascorro by the shoulders, and knee him the chest. Mascorro tried "to cover up and get away." Appellant landed another punch, causing Mascorro to fall on a car hood. Lifting Mascorro off the car, appellant drove Mascorro's head into the pavement.
Another witness, James Beckman, claimed that appellant slammed Mascorro's head into the ground twice. Beckman, however, told a detective that Mascorro fell and hit the curb; they were "drunk and kind of toppled over each other."
A third witness, Bruce McClanahan, said it was a brief altercation with less than a handful of swings. Appellant and Mascorro came together in a wrestling type move and fell on the ground.
Appellant told Detective A. J. Santana that Mascorro acted like "a hotshot guy" and shoved him after the game. Appellant asked if Mascorro wanted to go outside and fight. Appellant hoped they would not fight because Mascorro was bigger. Appellant let Mascorro take the first swing and punched Mascorro in the jaw. "We got in like a little scuffle and kind of twirled around [and] went to the ground." Appellant got back up, punched Mascorro, and "he went down." Mascorro stopped breathing and died from blunt-force trauma injuries consistent with his head striking a cement or asphalt surface.
Procedural History and People's Theory at Trial
Appellant was charged with voluntary manslaughter on sudden quarrel and heat of passion (count 1; § 192, subd. (a)), involuntary manslaughter (count 2; § 192, subd. (b)), and aggravated assault with a great bodily injury enhancement (GBI) (count 3; §§ 245, subd. (a)(1); 12022.7, subd. (a)).
The prosecutor argued that if appellant deliberately slammed Mascorro's head into the ground, the jury should find appellant "guilty of counts 1, 2, and 3. If you can't find that, but you find [that]... the manner in which Mr. Hollis was fighting caused [Mascorro's] death, you would find him guilty of counts 2 and 3 [i.e., involuntary manslaughter and aggravated assault]." The prosecutor called count 3 "the lucky-punch count.... [I]f you can't all agree on anything else, other than, okay, lets accept the face value of what Mr. Hollis said that night I -- I guess I got him with a good one and he went down. If that's all you find, you will find him guilty of count 3, aggravated assault with great bodily injury."
The jury returned a not guilty verdict on count 1 for voluntary manslaughter, convicted on counts 2 and 3 for involuntary manslaughter and aggravated assault, and returned a true finding on the GBI enhancement.
Aggravated Assault Is Not A Lesser Included Offense Of Involuntary Manslaughter
Appellant argues that the conviction for aggravated assault should be reversed because aggravated assault is a lesser included offense of involuntary manslaughter. An offense is necessarily included within another where the defendant is convicted of multiple charged crimes and the statutory elements of the greater offense include all the elements of the lesser offense. (People v. Reed (2006) 38 Cal.4th 1224, 1227, 1231.) "This rule is not overly complex and we believe, is quite workable." (Id., at p. 1231.) If a crime cannot be committed without also committing a lesser offense, the latter is necessarily included offense. (People v. Ramirez (2009) 45 Cal.4th 980, 985.)
A comparison of the statutory elements of aggravated assault (§ 245, subd. (a)(1)) and involuntary manslaughter (§ 192, subd. (b)) demonstrates that aggravated assault is not a lesser included offense. (See People v. Murray (2008) 167 Cal.App.4th 1133, 1139-1140 (Murray).) "One commits involuntary manslaughter either by committing 'an unlawful act, not amounting to a felony' or by committing 'a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.' (§ 192, subd. (b).)" (People v. Cook (2006) 39 Cal.4th 566, 596.) Aggravated assault is not a misdemeanor or "a lawful act which might produce death" within the meaning of the manslaughter statute (§ 192, subd. (b)).
"An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) Section 245, subdivision (a)(1) provides that an assault is aggravated when committed with a deadly weapon or "by any means of force likely to produce great bodily injury...."
In Murray, supra, 167 Cal.App.4th 1133, defendant punched and kicked a security guard during a fight, fracturing his skull. The security guard lapsed into a coma and died. (Id., at p. 1138.) Defendant claimed that he could not be convicted of both aggravated assault and involuntary manslaughter because aggravated assault is a lesser included offense.
Rejecting the argument, the Murray court stated: "It is readily clear the statutory elements of involuntary manslaughter do not necessarily include all of the statutory elements of aggravated assault. Aggravated assault requires an act that by its nature will directly and probably result in the application of force to a person. Involuntary manslaughter requires either an unlawful act or 'the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.' (§ 192, subd. (b).) It is not necessary for manslaughter that the act be such as would directly and probably result in the application of force to the victim." (Id., at p. 1140.)
Appellant argues that Murray is factually distinguishable but the determination of whether aggravated assault is a lesser included offense is based on the statutory elements of the offenses, not the evidence. (People v. Chaney (2005) 131 Cal.App.4th 253, 256.) Appellant cites no published case in which a California court has applied the statutory elements test and concluded that aggravated assault is a lesser included offense of involuntary manslaughter. The reason is obvious. Aggravated assault is not a misdemeanor or "an unlawful act, not amounting to [a] felony" within the meaning of section 192, subdivision (b).
Appellant argues that logic dictates that a homicide cannot occur without the use of force likely to produce great bodily injury, i.e., without committing an aggravated assault. Section 192, subdivision (b), however, provides that involuntary manslaughter may be based on "the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." It does not require the use of force likely to produce great bodily injury, as does aggravated assault. "[T]he issue here is not whether an aggravated assault is likely to occur when an involuntary manslaughter is committed but whether the statutory elements of involuntary manslaughter necessarily include all the statutory elements of aggravated assault." (Murray¸ supra, 167 Cal.App.4th at p. 1140.)
Preemption Based on More Specific Statute
Appellant argues that the aggravated assault statute (§ 245, subd. (a)(1)) is preempted by the manslaughter statute (§ 192) where the assault results in the victim's death. The doctrine of preemption bars prosecution under a general statute when a special statute covering the same conduct applies and the Legislature intended the specific statute to apply exclusively to the charged conduct. (People v. Jones (2003) 108 Cal.App.4th 455, 463.) "The rule is not one of constitutional or statutory mandate, but serves as an aid to judicial interpretation when two statutes conflict. [Citation.]" (People v. Walker (2002) 29 Cal.4th 577, 586.))
A conviction under the more general statute is preempted if either of two tests is met. (People v. Jones, supra, 108 Cal.App.4th at p. 463.) The first test requires that each element of the general statute correspond to an element on the face of the more specific statute. (Ibid.) The second test provides that prosecution under a general statute is prohibited if " 'it appears from the statutory context that a violation of the [specific] statute will necessarily or commonly result in a violation of the general statute.' [Citations.]" (Ibid.)
Neither test is met here. The first test is not satisfied because the statutory elements of involuntary manslaughter (§ 192, subd. (b)) and aggravated assault (§ 245, subd. (a)(1)) are not coextensive. (Murray, supra, 167 Cal.App.4th at p. 1142.) "[A]ggravated assault requires the commission of an act which by its nature would directly and probably result in the application of force to a person. [Citation.]" (Ibid.) Involuntary manslaughter does not have a comparable requirement.
Appellant asserts that the second test is met because involuntary manslaughter commonly occurs when a defendant commits an assault with force likely to cause great bodily injury and the victim dies. The court in Murray rejected a similar argument on the ground that a defendant can commit involuntary manslaughter without using force. (Id., at p. 1143.) The court cited examples: homicides that occur in the commission of selling an adulterated drug and homicides that occur during child endangerment. (Ibid.)
Appellant was convicted of involuntary manslaughter based on the misdemeanor offense of disturbing the peace by fighting in public. (§ 415(1).) As discussed in People v. Cox, supra, 23 Cal.4th at page 675, there is no "misdemeanor-manslaughter rule that automatically establishes the offense of involuntary manslaughter whenever a killing results from the commission of any misdemeanor, including assault or battery...." To say "[t]hat misdemeanor assault and battery may be predicates for conviction of involuntary manslaughter logically implies they also may not." (Id., at p. 674.)
The same principle applies here. "[W]hile a violation of section 192 can result in a violation of section 245, this will not necessarily or commonly be the case given the numerous ways in which section 192 can be violated." (Murray, supra, 167 Cal.App.4th at p. 1143.) The doctrine of preemption, which precludes prosecution under a general statute, "is a rule designed to ascertain and carry out legislative intent" where the Legislature has enacted a more specific statute. (People v. Jenkins (1980) 28 Cal.3d 494, 505; see e.g., People v. York (1998) 60 Cal.App.4th 1499, 1504.) Appellant makes no showing that the involuntary manslaughter statute (§ 192, subd. (b)) is a specialized statute, enacted to bar prosecutions for aggravated assault where a defendant fights in public and kills his victim.
GBI Exclusion For Manslaughter
The GBI enhancement statute provides that it "shall not apply to murder or manslaughter." (§ 12022.7, subd. (g).) Appellant contends that the murder-manslaughter exclusion bars a conviction for aggravated assault where great bodily injury is inflicted and results in the victim's death. We reject the argument because the GBI enhancement only increases the punishment on the assault conviction; it does not change the statutory elements of aggravated assault.
Appellant, in essence, claims that the GBI enhancement elevates the crime of aggravated assault to make it a lesser included offense of involuntary manslaughter if the victim dies. "Like Reed [People v. Reed, supra, 38 Cal.4th 1224], this case involves multiple charged crimes. Accordingly, the statutory or legal elements test applies. Under that test, enhancements are neither recognized nor considered in determining whether the defendant can be convicted of multiple charged crimes based on necessarily included offenses." (People v. Sloan (2007) 42 Cal.4th 110, 114.)
Appellant cites dicta in People v. Lewis (1993) 21 Cal.App.4th 243, 251 for the principle that aggravated assault with a GBI enhancement is the same as attempted manslaughter and merges into the manslaughter conviction. The argument fails because there is no crime of attempted involuntary manslaughter. (People v. Johnson (1996) 51 Cal.App.4th 1329, 1332.) "If there were such a crime, it would necessarily be based on the internally contradictory premise that one can intend to commit an unintentional killing. Since the essential premise posits a manifest impossibility, there is no such crime as attempted involuntary manslaughter. [Citation.]" (Ibid.)
CALCRIM 3516: Mutually Exclusive Charges
Appellant argues that the trial court erred in not instructing that involuntary manslaughter and aggravated assault are mutually exclusive charges. (CALCRIM 3516.) A trial court has a sua sponte duty to give CALCRIM 3516 where alternative charges are based on a single event and one of the charges is a necessarily included offense of the other charge. (See e.g., People v. Allen (1999) 21 Cal.4th 846, 851 [dual conviction of burglary and receiving same stolen property].)
As discussed, the statutory elements of involuntary manslaughter do not include all the elements of aggravated assault. (Murray, supra, 167 Cal.App.4th at pp. 1140-1143.) The failure to give CALCRIM 3516 did not violate appellant's due process rights or right to jury trial. Nor is this a case where the instructions given permitted the jury to convict based on legally impermissible grounds. (Murtishaw v. Woodford (9th Cir. 2001) 255 F.3d 926, 968.)
Appellant asserts that CALCRIM 3516 should have been given because the convictions are based on an indivisible course of conduct. That is a section 654 sentencing matter, not a jury instruction requirement in determining guilt. "The Legislature has clearly provided that a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. (§§ 654, 954.)" (People v. Sloan, supra, 42 Cal.4th at p. 114.)
CALCRIM 250 – Union of Act and Intent
Appellant argues that the trial court erred in not giving a CALCRIM 250 union of act and criminal intent instruction. Trial counsel agreed that CALCRIM 250 was not necessary in light of the other instructions which included a modified CALCRIM 251 instruction. Having made a tactical decision not to use CALCRIM 250, appellant is precluded from arguing that CALCRIM 250 was omitted in error. (People v. Wader (1993) 5 Cal.4th 610, 657-658; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.)
Waiver aside, the decision not to give CALCRIM 250 was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]; People v. Mayfield (1997) 14 Cal.4th 668, 774.) The jury received CALCRIM 251 which state: "The crimes charged in this case require proof of the union, or joint operation, of act, wrongful intent and/or mental state. [¶] To find someone guilty of the crimes in this case, that person must not only commit the prohibited act, but must do so with a certain wrongful intent or mental state. The act and the required intent or mental state are explained in the instruction for each crime or allegation."
The trial court also gave CALCRIM 225 which states: "The People must prove not only that the defendant did the acts charged, but also that he acted with a particular intent/or mental state. The instruction for each crime and allegation explains the intent/or mental state required."
On count 2 for involuntary manslaughter, the jury received CALCRIM 581 which states the People must prove that appellant committed a crime that posed a high risk of death or great bodily injury because of the way in which it was committed. The instruction states: "The People allege that the defendant committed the following crime: Disturbing the Peace By Fighting in Public in violation of Penal Code Section 415." The instruction referred the jury to CALCRIM 2688 which states that the People must prove that appellant willfully and unlawfully fought in public and "[t]he defendant did not act in self-defense. [¶] Someone commits an act willfully when he or she does it willingly or on purpose."
CALCRIM 250 conveys the same principle: "A person acts with wrongful intent when he or she intentionally does a prohibited act, however, it is not required that he or she intend to break the law." In a prosecution for involuntary manslaughter, the intent of the defendant is not material because the offense charged is the taking of life in certain unlawful ways without the intention of doing so. (People v. Barrett (1946) 77 Cal.App.2d 299, 304.)
On count 3 for aggravated assault, the jury was instructed that the People had to prove appellant willfully did an act that by its nature would directly and probably result in the application of force to a person. (CALCRIM 875.) The instruction states: "Someone commits an act willfully when he or she does it willingly or on purpose." CALCRIM 250 states the same principle and is redundant. (See e.g., People v. Wright (1988) 45 Cal.3d 1126, 1153-1154 [cumulative, duplicative instructions not required].)
Viewing the instructions as a whole, we conclude there was no reasonable likelihood that the jury was misled or construed the instructions to mean that the charged crimes did not require the joint operation of act and wrongful intent. The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole. (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) The alleged error, if any, in not giving CALCRIM 250 was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24 [17 L.Ed.2d at pp. 710-711].)
Requisite Intent for GBI Enhancement
On the GBI enhancement allegation, the trial court gave CALCRIM 3160 which stated that the jury was not to decide whether appellant personally inflicted great bodily injury unless it found appellant guilty of aggravated assault. "[T]he only intent required [for the GBI enhancement] is the general intent to commit the underlying felony." (People v. Lewis (2004) 120 Cal.App.4th 837, 853.) The defendant need not intend that great bodily injury result. (Ibid.) This language appears in the aggravated assault instruction (CALCRIM 875) and was considered by the jury.
The CALCRIM 3160 instruction states: "If you find the defendant guilty of the crime charged in Count 3, Assault with Force Likely to Cause Great Bodily Injury, you must then decide whether the People have proved the additional allegation that the defendant personally inflicted great bodily injury on Mr. Mascorro during the commission of that crime. You must decide whether the People have proved this allegation and return a separate finding for that allegation. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved."
Appellant speculates that the jury may have returned a true finding on the GBI enhancement based on the theory the head injury was accidentally inflicted. We reject the argument because the aggravated assault instruction (CALCRIM 875) states that the prosecution must prove that appellant willfully did an act which by its nature would directly and probably result in the application of force to the victim. The jury finding that appellant committed an aggravated assault necessarily includes a determination that appellant had the requisite intent to inflict great bodily harm. (People v. Lewis, supra, 120 Cal.App.4th at p. 853.)
Appellant complains that part of the assault instruction states that appellant did not have to touch or intend to use force in committing the assault. But the instruction also states: "The touching can be done indirectly by causing an object to touch the other person." (CALCRIM 875.) The object here was the pavement, the "touching" of which caused Mascorro to suffer blunt force trauma to the head.
Assault focuses on the nature of the act, not the defendant's subjective intent. If the defendant willfully commits an act the direct and probable result of which is a battery, the defendant has demonstrated the general criminal intent required for an assault, even if his intent was not to injure. (People v. Williams (2001) 26 Cal.4th 779, 787-788.)
Instructions are not reviewed in artificial isolation but in the context of the overall charge. (People v. Higgins (2006) 38 Cal.4th 175, 192.) "[N]ot every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is... whether the ailing instruction... so infected the entire trial that the resulting conviction violates due process." ' [Citations.]" (Middleton v. McNeil (2004) 541 U.S. 433, 437 [158 L.Ed.2d 701, 707].)
The jury was instructed that it had to find that appellant acted willfully or on purpose before it could find appellant guilty of aggravated assault and return a true finding on the GBI enhancement. The evidence is overwhelming and shows that appellant punched Mascorro several times during the course of a fight, inflicting great bodily injury. The failure to give CALCRIM 250, which duplicated CALCRIM 251 and the other instructions, was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24 [17 L.Ed.2d at pp. 710-711]; People v. Harris (1994) 9 Cal.4th 407, 424-425.)
Accomplice Instruction: GBI Enhancement
Appellant argues that the trial court had a sua sponte duty to instruct that the GBI enhancement does not apply if the person injured is an "accomplice" to the crime. (§ 12022.7, subd. (a); see People v. Verlinde (2002) 100 Cal.App.4th 1146, 1168.) Appellant claims that Mascorro was an accomplice because it was mutual combat. An assault victim, however, cannot be charged with assaulting himself. (See People v. Slaughter (2002) 27 Cal.4th 1187, 1202 [victim of crime not liable as accomplice]. Consent is not a defense to an assault that results in great bodily injury. (People v. Alfaro (1976) 61 Cal.App.3d 414, 429.) Mutual combat goes to the issue of self-defense, not accomplice liability. (People v. Ross (2007) 155 Cal.App.4th 1033, 1043-1047.)
Appellant's reliance on People v. Verlinde, supra, 100 Cal.App.4th 1146 is misplaced. There, two intoxicated persons drove a truck (the passenger steering and defendant operating the pedals) and caused a traffic fatality. (Id., at p. 1160.) The Court of Appeal concluded that accomplice liability for the crime of gross vehicular manslaughter was "possible" based on an unusual factual situation with "shared driving by two intoxicated individuals." (Ibid.)
To be liable as an accomplice, Mascorro had to "share[] the perpetrator's criminal purpose. [Citation.]" (People v. Sully (1991) 53 Cal.3d 1195, 1227.) Appellant told the police it was "a straight up street fight... [T]his guy's trying to hurt me and I'm trying to hurt him." An instruction stating that the prosecution had to prove that Mascorro was not an accomplice would be an incorrect statement of the law. A trial court has a duty to refrain from instructing on irrelevant principles of law that would confuse the jury. (People v. Saddler (1979) 24 Cal.3d 671, 681.) Finding no instructional error, appellant's derivative claim of constitutional error must fail. (People v. Avila (2006) 38 Cal.4th 491, 596.)
Excusable Homicide In Heat of Passion
Appellant contends the trial court erred in not giving CALCRIM 511 [Excusable Homicide: Accident in the Heat of Passion]. The trial court determined that CALCRIM 510 [Excusable Homicide; Accident] was more appropriate and stated that it was giving an amended CALCRIM 510 instruction and four instructions on accident and self-defense. The trial court asked if counsel wished to comment.
The court stated: "We had lots of discussion in my office about these issues and it seems to me, obviously, both sides have a different view of the case, but it seems to me that the possible defenses that are raised by the evidence, and the evidence in particular would be, perhaps, the testimony today by Mr. McClanahan, and more particularly the information presented to the jury of the videotaped interview of the defendant, it could be argued that there are two possible defenses in the case, which would be accident or possible self-defense."
Appellant's trial counsel replied, "We had numerous discussions. I don't think – this is the conclusion we came to. [¶] I do not – though these may be appropriate, I think we need to change the order." (Emphasis added.)
The fair import of counsel's remark is that appellant was no longer requesting CALCRIM 511. Counsel agreed that CALCRIM 510 and the instructions on accident and self-defense "may be appropriate" and asked the trial court to change the order the instructions were read to the jury. Appellant is precluded from arguing, for the first time on appeal, that the trial court erred in not giving CALCRIM 511. (People v. Wader, supra, 5 Cal.4th at pp. 657-658.)
Waiver aside, there is no substantial evidence to support a CALCRIM 511 heat of passion-accident instruction. Appellant invited Mascorro to go outside and fight and let Mascorro take the first swing. There is no evidence that appellant, acting under a heat of passion, accidentally punched Mascorro. (See People v. Waidla (2000) 22 Cal.4th 690, 740, fn. 17 [no evidence of provocation to arouse a reasonable person to make sudden and devastating attack]; People v. Bohana (2000) 84 Cal.App.4th 360, 371 [no evidence that defendant's "accidental" conduct caused victim to drown].)
In People v. Hampton (1929) 96 Cal.App. 157, the defendant knocked the victim down in a pool hall fight. The victim got up, advanced, and hit defendant. Defendant punched back, knocking the victim out the front door. The victim landed on his head and died. (Id., at p. 158.) The trial court instructed that a mortal blow struck in the heat of passion, reduced the charged murder to manslaughter. (Id., at p. 159.)
The Court of Appeal in Hampton reversed on the ground that the instruction amounted to a directed verdict. (Id., at p. 160.) The court stated that it was error not to instruct on excusable homicide committed by accident in the heat of passion upon sudden combat or sudden provocation. (Id., at pp. 159-160.)
Unlike Hampton, appellant did not make a sudden choice, under the heat of passion, to fight. Appellant could have avoided the fight by staying in the bar. He told the police that Mascorro followed him outside and there was a "standoff." Mascorro jabbed at him but it was "a weak little one...." Appellant punched back, but much harder. It was a "mutual combat thing and... and I caught him with a good shot. [¶]... And, he went down."
Appellant returned to the bar to calm his girlfriend, then administered CPR to Mascorro. These are not the actions of an enraged person acting under the heat of passion. (See e.g., People v. Manriquez (2005) 37 Cal.4th 547, 585 [no duty to instruct on heat of passion absent showing defendant exhibited anger, fury, or rage]; People v. Middleton (1997) 52 Cal.App.4th 19, 33-34 [push-and-shove argument insufficient provocation for heat of passion instruction].) The trial court did not err in declining to instruct on heat of passion – accidental death. (People v. Barton (1995) 12 Cal.4th 186, 201 [heat of passion instruction not required where evidence is minimal and insubstantial].)
CALCRIM 510: Excusable Homicide During Commission of Lawful Act
Appellant complains that the trial court instructed on excusable homicide by accident or misfortune during the commission of a lawful act. (CALCRIM 510.) Appellant agreed the instruction was proper and is precluded from arguing instructional error. Waiver aside, the alleged error is harmless.
The CALCRIM 510 instruction states: "The defendant is not guilty of voluntary or involuntary manslaughter if he killed someone as a result of accident or misfortune. Such a killing is excused, and therefore not unlawful, if: [¶] 1. The defendant was doing a lawful act in a lawful way; [¶] 2. The defendant was acting with usual and ordinary caution; AND [¶] 3. The defendant was acting without any unlawful intent. [¶] A person acts with usual and ordinary caution if he or she acts in a way that a reasonably careful person would act in the same or similar situation. [¶] The People have the burden of proving beyond a reasonable doubt that the killing was not excused. If the People have not met this burden, you must find the defendant not guilty of voluntary and involuntary manslaughter."
CALCRIM 510 is a defense instruction and states: "The People have the burden of proving beyond a reasonable doubt that the killing was not excused." It compliments the CALCRIM 2688 instruction which states the People must prove that appellant willfully and unlawfully fought in public and did not act in self-defense. Instructing the jury that the prosecution had to prove that appellant willfully fought in public (CALCRIM 2688) and further prove that the homicide did not occur while appellant "was doing a lawful act in a lawful way" (CALCRIM 510) did not lessen the People's burden of proof or deny appellant a fair trial.
Cumulative Error
Appellant's remaining due process arguments are based on the theory that the GBI enhancement elevated the aggravated assault charge to make it a lesser included offense of involuntary manslaughter. "[E]ven if California could constitutionally consider enhancement allegations as part of the accusatory pleading for the purpose of defining lesser included offenses, we see no reason to adopt that course. Not only is the weight of authority against it, but the result would confuse the criminal trial." (People v. Wolcott (1983) 34 Cal.3d 92, 101.)
Appellant asserts that the cumulative effect of the alleged instructional errors were prejudicial and denied him a fair trial. Because we reject all of appellant's claims, the claim of cumulative error also fails. (People v. Phillips (2000) 22 Cal.4th 226, 244; People v. Avila, supra, 38 Cal.4th at p. 608.) "A defendant is entitled to a fair trial, not a perfect one. [Citation.]" (People v. Mincey (1992) 2 Cal.4th 408, 454.)
Restitution Fine
On March 10, 2009, appellant was sentenced to six years state prison and ordered to pay victim restitution plus a $1,200 restitution fine (§ 1202.4, subd. (b)) and a $1,200 parole revocation fine (§ 1202.45).
Appellant was resentenced on April 29, 2009, after he entered into a negotiated plea in an unrelated case (case no. F422660l) to a sex offense (§ 289, subd. (d)(1)). The plea was taken by a different judge who, pursuant to section 1170, subdivision (d), recalled the sentence in this case (case no. F402666) and imposed an eight year aggregate sentence. (See Cal. Rules of Ct., rule 4.452(a).) Appellant was ordered to pay a $4,800 restitution fine and a $4,800 parole revocation fine.
Pursuant to the plea agreement in case number F422660, appellant was sentenced to six years state prison for sexual penetration of an unconscious person. (§ 289, subd. (d)(1).) In case number F422660, appellant was re-sentenced to one year state prison for aggravated assault (one-third the middle base term) plus one year on the GBI enhancement (one-third the term of three years), to run consecutive to the six year sentence in case number F422660. On count 2 for involuntary manslaughter, appellant received a three year sentence that was stayed pursuant to section 654.
It is well settled that restitution and parole revocation fines may not be increased on resentencing. (People v. Hanson (2000) 23 Cal.4th 355, 362-363.) Appellant argues, and the Attorney General agrees, that it is uncertain whether the trial court imposed a $4,800 restitution fine in each case or a $4,800 aggregate restitution fine (i.e., a $1,200 restitution fine in case number F402666 and a $3,600 restitution fine in case number F422660). We remand the matter to the trial court to clarify its April 29, 2009 order and specify the fine amounts imposed in each case.
The May 14, 2009 abstract of judgment erroneously states that $4,800 restitution and parole revocation fines were imposed in each case.
Section 4019 Conduct Credits
Appellant contends that he is entitled to additional presentence conduct credits based on amendments to section 4019 that went into effect after he was sentenced. Effective January 25, 2010, the Legislature amended section 4019 to increase presentence custody credits for certain defendants sentenced to state prison. (Stats.2009-2010, 3d Ex. Sess., ch. 28, § 50.) Section 4019, as amended, provides that enhanced presentence conduct credits are not available to prisoners "committed for a... violent felony, as defined in Section 667.5...." (§ 4019, subd. (b)(2).)
Here, the true finding on the GBI enhancement renders the conviction for aggravated assault a violent felony (§ 667.5, subd. (c)(8)). Appellant is not eligible for increased presentence conduct credits.
Conclusion
The judgment of conviction is affirmed. We remand solely to clarify the April 29, 2009 order and specify the restitution fines imposed in case number F402666 and case number F422660. The trial court is directed to issue an amended abstract of judgment reflecting the fine amounts imposed in each case and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: COFFEE, J., PERREN, J.
"Manslaughter is the unlawful killing of a human being without malice." (§ 192.) Section 192, subdivision (b) provides that involuntary manslaughter is manslaughter during "the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection."
The trial court gave CALCRIM 505 [Justifiable Homicide: Self-Defense or Defense of Another]; CALCRIM 510 [Excusable Homicide: Accident]; and CALCRIM 3404 [Accident (Pen. Code, § 195)]; CALCRIM 3470 [Right to Self-Defense or Defense of Another (Non-Homicide)]; and CALCRIM 3471 [Right To Self-Defense: Mutual Combat or Initial Aggressor].