Opinion
NOT TO BE PUBLISHED
County of Alameda S.Ct. No.155892A
Bruiniers, J.
Appellant Eric Houston (Houston) was charged with killing a rival narcotics dealer and with inflicting serious bodily injury on a bystander—a four-year-old child who was wounded in the attack. He was convicted by a jury of: first degree murder (Pen. Code § 187, subd. (a)) with enhancements for use and intentional discharge of a firearm and infliction of great bodily injury (§§ 12022.5, subd. (a); 12022.7, subd. (a); 12022.53, subds. (b), (c), (d)); assault with a firearm (§ 245, subd. (a)(2)) with enhancements for use of a firearm and infliction of great bodily injury on a child (§§ 1203.06, subd. (a)(1); 12022.5, subd. (a); 12022.7, subd. (d)); shooting at an occupied motor vehicle (§ 246) with enhancements for use and intentional discharge of a firearm and infliction of great bodily injury upon a child (§§ 12022.7, subds. (a), (d); 12022.5, subd. (a); 12022.53, subds. (b), (c), (d)); and possession of a firearm by a felon (§ 12021, subd. (a)(1)). He seeks reversal of his murder conviction, alleging that the trial court erred in failing to instruct the jury sua sponte on voluntary manslaughter as a lesser included offense, under a theory of imperfect self-defense. We affirm.
All further code references are to the Penal Code unless otherwise indicated.
Factual and Procedural Background
On December 11, 2006, around 9:30 a.m., Daniel Leon picked up Luis Martinez from the home of their mutual friend, Joshua Ropati, on 101st Avenue near Birch in Oakland. Leon was driving a purple Buick Regal. Leon was a known narcotics dealer, and his “turf” was 100th Avenue and above. Leon and Ropati sold heroin in this neighborhood. After Leon picked up Martinez, they drove around the neighborhood and “hit some corners” to sell heroin.
At around noon on that date, Jose Rodriguez and his family were driving on 101st Avenue. Carlos Rodriguez, Jose’s brother, sat next to Jose in the front seat while Jose’s wife sat in the back seat with their four-year-old daughter, Jane Doe. Leon was driving behind the Rodriguez family, and Luis Martinez was in the passenger seat. The Rodriguez family stopped at a stop sign at the intersection of 101st Avenue and Plymouth Street.
As the Rodriguez’s vehicle drove into the intersection, Houston exited the passenger side of a vehicle parked near the intersection. He began shooting at Leon. Houston fired at least 13 shots from a semiautomatic AK-type rifle using 7.62 millimeter ammunition.
There were conflicting descriptions of the vehicle given by various witnesses. Carlos Rodriguez said the shooter exited a red or burgundy vehicle. Luis Martinez believed that Houston exited a Jeep before the shooting. Sarah Ropati described a four-door gray sedan like a Corsica. Houston told another witness, Jermaine Nelson, that he used a Mazda when he committed the shooting.
Thirteen shell casings were recovered from the intersection.
Jose Rodriguez heard the shots behind him and pulled his car to the side of the road. Leon’s car drove past Rodriguez on his left. Another friend of Leon, Sarah Ropati, was driving toward the intersection at that time from the opposite direction. Ms. Ropati saw a single shooter standing in the middle of Plymouth firing a gun with a banana clip at Leon who had at that point driven past the shooter. Houston ran forward, continuing to shoot, and then entered a waiting vehicle and fled.
The alleged driver, Domonic Addison, was jointly charged but at the conclusion of the prosecution evidence the court granted Addison’s motion for mistrial and severed his case from Houston’s.
Leon was hit twice in the back and began to swerve. His car eventually crashed through the fence of a home a couple blocks away from the shooting, at the corner of 101st Avenue and Birch, near the Ropati’s home. He died at the scene. Martinez was not hit and subsequently identified Houston as the shooter.
Rodriguez’s four-year-old daughter, Jane Doe, was struck in the lower back by two bullet fragments that penetrated the tailgate and backseat and which lodged less than an inch from her kidney, large intestine, and spinal cord. The bullet fragments could not be removed and remain in her back.
No shell casings, guns or other weapons were found inside Leon’s vehicle or near the area where his car came to rest. Tar heroin was found in the door handle area on the driver’s side of the car.
About five hours later on the same day, a close friend of Houston’s, Marquies Burton (also known as “Little Flip”) was shot. Jermaine Nelson, who was like an uncle to Burton, heard about the shooting and went to Highland Hospital, arriving ahead of the ambulance carrying Burton. Houston, whom Nelson had known for years and whom he also knew as “Feez,” called Nelson and said that he was just outside the building and was coming inside to wait with Nelson. When Houston entered the hospital waiting room, Nelson noticed a group of young African-American and Latino men looking strangely at Houston. Nelson asked Houston why the crowd was looking at him. Houston said that they were “Niggas from Walnut,” meaning rivals associated with a drug territory in “the nines” with whom he had just “got into it.” Houston told Nelson that he had “just knocked a boy down,” meaning that Houston just shot one of their associates, whom he referred to as “the Mexican.” Houston said “the Mexican” had been “hustling.” Houston later told Nelson that he had shot “the Mexican” using an “AK” and 7.62 caliber ammunition.
Tanika Smith told Oakland Police Sergeant Tony Jones that right after the shooting of Leon, Houston, whom she knew as “Little Feez,” said to her that he had just “smoked me a Nigga.” She identified Houston from a photo lineup as the person she knew as “Little Feez.” At trial, Smith denied speaking to Sergeant Jones, denied making any statement or identification, and denied that she knew Houston. Sergeant Jones testified as to Smith’s prior statements, and that she also told him “[t]hat the person was going to kill [Houston] but he killed the person first.”
Ronald Creggett, who was selling drugs a block away at the time of the shooting, also identified Houston, whom he knew as “Little Feez,” as the shooter in an in-custody statement to Sergeant Jones. At the preliminary hearing he recanted his statements.
Creggett was deemed unavailable at trial, and his preliminary hearing testimony was read to the jury.
Police arrested Houston on January 24, 2007. A search of Houston’s room revealed a box of 7.62 millimeter ammunition, with 10 bullets missing from the box. A manufacturer’s “headstamp” marking on the cartridges matched that on the shell casings found at the scene of the shooting of Leon and Jane Doe.
Houston did not testify. His defense was that he was not the shooter. Houston’s mother testified that Houston lived primarily with her in Sacramento, and that he went to Oakland to visit his father only about every other weekend and never for any extended period. Defense counsel attacked the credibility and motives of the prosecution’s witnesses and emphasized conflicting descriptions given of the shooter which differed from Houston.
The defense also called Rebecca Shrader, who testified that at about 11:30 a.m. on the date of the shooting, she saw Leon open the trunk of a beige sedan parked in front of her house. The trunk contained about six guns, and she saw Leon remove a machine-gun and drive off with it in his purple vehicle.
Luis Martinez denied that Leon had a gun at the time he was shot.
The information filed against Houston charged murder with enhancements for infliction of great bodily injury and use of a firearm in the commission of the offense (§§ 187, subd. (a); 12022.5, subd. (a); 12022.7, subd. (a); 12022.53, subds. (b), (c), (d)); assault with a firearm with enhancements for use of a firearm and infliction of great bodily injury on a child (§§ 245, subd. (a)(2); 1203.06, subd. (a)(1); 12022.5, subd. (a); 12022.7, subd. (d)); shooting at an occupied motor vehicle with enhancements for use and intentional discharge of a firearm and infliction of great bodily injury upon a child (§§ 246; 12022.7, subds. (a), (d); 12022.5, subd. (a); 12022.53, subds. (b), (c), (d)); and possession of a firearm by a felon (§ 12021, subd. (a)(1)). On May 13, 2008, the jury returned verdicts of guilty on all charged counts and found all enhancement allegations true.
On June 27, 2008, Houston was sentenced to an aggregate term of 57 years and 4 months to life. A timely notice of appeal was filed on July 9, 2008.
Discussion
Houston does not challenge the sufficiency of the evidence to establish his identity as the person who shot Daniel Leon and Jane Doe on December 11, 2006. His sole contention in this appeal is that the trial court erred in failing to instruct the jury sua sponte on voluntary manslaughter as a lesser included offense to the murder charge. Houston alleges that there was substantial evidence that he acted in an honest belief in the need for self-defense, negating the element of malice, and thus mandating an instruction on the lesser offense. We disagree.
A trial court must instruct on lesser included offenses whenever the evidence raises a question whether all the elements of the charged offense have been established and there is evidence of a lesser offense which is “ ‘substantial enough to merit consideration’ by the jury. [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 162.) In this context, “substantial evidence” means “ ‘ “evidence from which a jury composed of reasonable [persons] could... conclude[]” ’ that the lesser offense, but not the greater, was committed. [Citations.]” (Ibid., first and last instances of bracketed material added.) The lesser included offense instruction should be given, however, only “where there is substantial evidence to support it.” (People v. Burns (2009) 172 Cal.App.4th 1251, 1256 [citing People v. DePriest (2007) 42 Cal.4th 1, 50].) In other words, “the trial court need not instruct on a lesser included offense whenever any evidence, no matter how weak, is presented to support an instruction, but only when the evidence is substantial enough to merit consideration by the jury.” (People v. Barton (1995) 12 Cal.4th 186, 195, fn. 4 (Barton).) Instruction is not required “when the evidence is ‘minimal and insubstantial.’ [Citation.]” (Id. at p. 201.) We apply a de novo standard of review. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
Imperfect self-defense is a description of one type of voluntary manslaughter. (Barton, supra, 12 Cal.4th at pp. 200–201.) “ ‘ “Under the doctrine of imperfect self defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter.” [Citation.]’ ” (People v. Manriquez (2005) 37 Cal.4th 547, 581 (Manriquez).) “ ‘[T]he doctrine is narrow. It requires without exception that the defendant must have had an actual belief in the need for self-defense. We also emphasize what should be obvious. Fear of future harm—no matter how great the fear and no matter how great the likelihood of the harm—will not suffice. The defendant’s fear must be of imminent danger to life or great bodily injury. “ ‘[T]he peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with.’...”... [Citation.]’ [Citations.]” (Ibid., only citation omissions added.)
The evidence that Houston contends supports his theory of imperfect self defense is: (1) Tanika Smith’s statement to police that Houston had said that the person he killed was going to kill him, but that he killed the person first; (2) the testimony of Rebecca Shrader that the victim possessed a machine gun at a time shortly before the killing; (3) testimony that, although no guns were found in Leon’s car, a crowd had gathered around the car after the shooting and before police arrived; and (4) a close friend of Houston’s was shot in apparent retaliation “moments” after Leon was killed.
None of this evidence, however, supports an inference that at the time of the shooting Houston “actually, but unreasonably, believed he was in imminent danger of death or great bodily injury.” (In re Christian S. (1994) 7 Cal.4th 768, 771.) The trial testimony was that Houston waited in ambush for Leon, spraying the victim’s car with fire from an automatic weapon, ultimately shooting him in the back. There was neither witness testimony nor any physical evidence that the victim had or used a weapon at the time of the killing, and it is only speculation that someone at the scene may have removed a weapon before police arrived. There was no evidence that Houston expressed any such fears when he arrived at Highland Hospital, about five hours after the shooting of Leon, and confronted associates of the victim there.
There was no evidence from which a jury could conclude that Houston was ever in any actual or apparent imminent peril. The testimony “at most revealed that defendant may have harbored some fear of future harm” and clearly was insufficient to require instruction regarding imperfect self-defense. (Manriquez, supra, 37 Cal.4th at p. 582.)
Disposition
The judgment is affirmed.
We concur: Jones, P. J., Needham, J.