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concluding the trial court properly rejected the defendant's attempt to discharge counsel and delay the start of trial when that request was made on the date trial was set to begin
Summary of this case from People v. KennistonOpinion
No. B194821.
April 24, 2008. [CERTIFIED FOR PARTIAL PUBLICATION]
Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of the Factual and Procedural Background and Discussion parts B. through E.
Appeal from the Superior Court of Los Angeles County, No. LA036066, Kathryne A. Stoltz, Judge.
Fitzmaurice, Demergian Palaganas and David K. Demergian for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Appellant Shahen Eghia Keshishian was charged in a three-count information with murder (Pen. Code, § 187, subd. (a); count one), vehicular manslaughter (§ 192, subd. (c)(1); count two), and leaving the scene of an accident (Veh. Code, § 20001, subd. (a); count three). After a jury trial, appellant was found guilty of all three charges. In the published portion of this opinion, we address appellant's contention that his request to discharge retained counsel was erroneously denied. In the unpublished portion, we address his substantive contentions concerning the conduct of the trial and the verdict.
Unless otherwise indicated, statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
See footnote, ante, page 425.
A. Evidence at Trial 1. Prosecution Evidence The victim, Michael Craven, lived in Burbank. On April 29, 2000, he had dinner with a friend in Hollywood, leaving at approximately 10:30 p.m. Approximately 20 minutes later, he was fatally injured after having been run over by a vehicle on the southbound 101 Freeway. He died later that night after being taken to a nearby hospital. There was no dispute that the vehicle that killed him was driven by appellant. The issue at trial was whether appellant deliberately struck Craven. a. Percipient Witnesses There were four percipient witnesses, each of whom recalled the incident somewhat differently. Raquel O'Quinn testified as follows: She was in a car heading south on the 101 Freeway. Traffic was extremely heavy, "bumper-to-bumper." Her car was stopped in the number 4 lane of a 5-lane section of the freeway. She saw Craven's Jeep stopped in the number 5 lane (the slow lane, nearest to the shoulder). Craven got out of his Jeep, raised his hands toward shoulder level, palms facing upward, and started walking toward the driver's side of the vehicle directly behind him, appellant's Suburban.Appellant swerved to the left, accelerated and struck Craven "straight on." The Suburban rose up slowly as the front tire rolled over Craven, dropped down, came to an almost complete stop, and accelerated again. Appellant then turned the Suburban to the right, maneuvered behind the Jeep onto the shoulder, and sped away. Anderson Lee was driving the car in which O'Quinn was a passenger. Heavy traffic caused the car to be stopped behind the Suburban, in the lane to the left. Craven's Jeep was in front of the Suburban. Lee saw beer bottles and eggs being thrown toward the Jeep from the Suburban. Traffic stopped and Craven got out of his Jeep and walked toward the Suburban. He appeared "sort of confused at what was going on, not upset . . . [j]ust surprised." The Suburban accelerated quickly and hit Craven, not slowing down even as it rolled over him. Lee saw both tires on the driver's side roll over the middle of Craven's body. The Suburban fishtailed, then turned toward the right, going onto the right shoulder, and exited. At the time of the incident, Christa Shaffer was also on the 101 Freeway heading south. From the number 4 lane, she observed appellant's Suburban enter the freeway from a feeder lane to her right, moving "'erratically.'" Believing appellant was trying to pass her, Shaffer slowed down and moved into the number 5 lane, behind the Suburban. Just then, the traffic in that lane came to a stop, possibly because the Suburban hit Craven's Jeep, which was directly in front of it. The Suburban immediately backed up, almost hitting Shaffer's car. Shaffer saw Craven get out of the Jeep and walk quickly toward the Suburban. Appearing upset and confused, Craven was gesturing as if to say "'what's going on?'" Fearing a confrontation, Shaffer pulled her car onto the shoulder to get around both vehicles and left the scene. The last time she saw Craven, he was approaching the hood of the Suburban. A few minutes later, she noticed the Suburban in one of the fast lanes (the number 1 or number 2 lane), moving at high speed. When Brandee Hutton, who was a passenger in Shaffer's car, first saw the Suburban, the Jeep was behind it. The Suburban moved in front of Shaffer's car. The Jeep moved in front of the Suburban and braked, causing both the Suburban and Shaffer's vehicle to come to a sudden stop. The Suburban hit the Jeep, and Hutton saw the passenger in the Suburban throw a liquor bottle at the Jeep. As Shaffer moved her car forward on the shoulder, the Suburban went into reverse. The driver of the Jeep ran past Shaffer's car, toward the Suburban. As Shaffer drove away on the shoulder, Hutton looked out the back window and saw the headlights of the Suburban go up and down as if it had run over something. b. Other Evidence Craven was briefly conscious and lucid when paramedics and others arrived to assist him. There was egg residue on him and tire marks across his shirt, chest and stomach. Lee heard him say, "I can't believe they fucking ran me over." Craven also said that the person who drove over him had been throwing eggs at his Jeep and that he had been run over by two of the vehicle's tires. When law enforcement officials arrived to investigate, they found the Jeep stopped almost entirely in the number 5 lane, with a portion of the front end in the number 4 lane. There were no outward signs of a collision. There was egg residue on the Jeep on the driver's side window, on the back window, on the passenger's side, and on the spare tire mounted in the rear. A broken beer bottle lay on the shoulder near the Jeep. When police tracked down the Suburban, they found dried egg yolk and a piece of egg shell on its floor.The vehicle had "brush marks" on the bottom indicating that something had passed underneath it. There was a vertical dent on the front end of the bumper, just left of the license plate, the same height as the Jeep's steel back bumper. There were paint transfers on the front of the Suburban that matched the Jeep's paint and could have been the result of sideswiping the Jeep's passenger side step. According to the medical examiner, Craven died of "multiple blunt traumatic injuries." His most serious injuries were to the upper half of his body. His chest and ribs were crushed, but there were no injuries to his heart or lungs. There were marks that appeared to be from the Suburban's tires across the right side of his shirt and chest. There were marks on the back of his pants that could have come from the front grill of the Suburban. There were no drugs or alcohol detected in his system. Appellant's ex-girlfriend, Alejandra Navarro, testified that she saw appellant on the night of the incident, April 29, 2000. He seemed upset. Sometime later, appellant told her that he had done something "very bad." He and a friend had been throwing eggs at cars and someone "huge" got out of one of the cars.Appellant allegedly struck the man with his vehicle because he "got scared." During an interview in 2000, Navarro similarly told police investigators that appellant had said he and a friend "were throwing eggs at a guy's car," that "the guy got out of his car," that the man was "huge," that appellant "got scared that [the man] was going to beat [him]," and that appellant "panicked and drove over him." 2. Section 1118.1 Motion After the prosecution rested, appellant moved for a judgment of acquittal on the first degree murder charge. The prosecutor opposed, arguing that appellant's statement to Navarro that he deliberately ran over Craven because he was afraid was sufficient evidence to support that charge.The court denied the motion. The prosecutor then moved to dismiss the vehicular manslaughter count on the ground that the evidence pointed to "a deliberate act or intent to do the act" whereas the crime of vehicular manslaughter could occur only when the defendant was "doing something inherently dangerous or grossly negligent, and . . . somehow or another during the course of doing that, [he] accidentally cause[d], without intent, the death of a person." According to the prosecutor, appellant's statement that he ran over the victim because he was afraid of him demonstrated intent. The court denied the motion. 3. Defense Case Appellant did not testify. The defense called a single witness, accident reconstruction expert Thomas Shelton. Shelton concluded that the marks on the back of Craven's pants were left by contact between him and the grill of the Suburban. From this Shelton opined that Craven was likely standing upright, facing away from the vehicle when the impact occurred. As the vehicle rolled over Craven, his ribs and chest would have been crushed by the underbody skid plate, not the tires. This conclusion was based on Shelton's belief that impact with tires would have caused more injury to Craven's internal organs, not just his ribs and chest. Shelton estimated the Suburban was traveling 7 to 10 mph at the time of the impact, and that assuming the tires rather than the skid plate had crushed the victim, the driver could not have stopped after hitting Craven with the front tire before the rear tire made contact with him. Shelton disputed that the Suburban had hit the Jeep from behind or that the Suburban could have hit the Jeep hard enough to push it into its resting position (partially in the number 4 lane). He found evidence that the Suburban's front bumper came into contact with the Jeep's step located on the right side, which could have occurred if the Jeep had swerved in front of the Suburban and braked sharply.
Generally, we review the record in a criminal appeal "by reading it most favorably to the prosecution, indulging every reasonable intendment in favor of the judgment." ( People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304.) Here, appellant contends that certain jury instructions were supported by an alternate construction of the evidence and should have been given sua sponte. We therefore review the evidence in more detail.
At trial, O'Quinn described Craven as upset, but not angry; at a previous hearing, she had described him as angry.
At trial, Shaffer could not recall if she saw the Suburban hit the Jeep, but believed she saw something that made her think so at the time.
Authorities were able to identify the car and driver because appellant was cited for a traffic violation later that night.
Craven was 6 feet 1-1/2 inches tall and weighed 263 pounds.
In making the argument, the prosecutor stated: "He obviously felt that he was in a situation where he needed to somehow or another defend himself, and he deliberated and chose that course of action to defend himself, which is running over the victim."
B. Relevant Jury Instructions and ArgumentThe court gave the jury instructions on the crimes of first and second degree murder, vehicular manslaughter with gross negligence, and vehicular manslaughter with ordinary negligence. At the request of the prosecution, and over defense counsel's objection, the court gave instructions on ordinary self-defense.Neither side requested ordinary manslaughter instructions and the defense strenuously objected to any instruction on imperfect self-defense. In closing, the prosecutor articulated a theory to support premeditated murder based on O'Quinn's testimony that the Suburban turned to the left, toward Craven, before hitting him, slowed after impact, and then accelerated while the victim was still under appellant's vehicle. The prosecutor argued that this evidence established premeditation because "as the victim got out of the car, [appellant] assessed the situation. He saw the victim. He backed up. He backed up heading so that his nose was pointed to the left. He floored it. He swerved to hit the victim. He quickly accelerated. He ran over him two times, and then he escaped to the right shoulder, and he never stopped." In support of this theory, the prosecutor argued that if appellant had hit the brakes immediately after the initial impact, Craven might have lived. Defense counsel conceded that appellant was driving the Suburban, but argued that the passenger — not appellant — was throwing eggs and bottles at Craven's Jeep. Counsel argued, based on the testimony of Shaffer and Hutton, that appellant was trying to evade the Jeep and that Craven was seeking to force a confrontation when he cut in front of the Suburban and stopped suddenly. Counsel contended that appellant was trying to get off the freeway to get away. Based on the evidence of grill marks on the back of Craven's pants, counsel argued that it was likely appellant did not see Craven in front of him because Craven had turned away and was wearing dark clothing. Counsel further argued that the defense expert's testimony that Craven had been crushed by the skid plate rather than the tires established that there was no opportunity to avoid the victim's death after the initial impact. Counsel conceded that the evidence established gross negligence, but disputed that it was sufficient to establish first or second degree murder. Counsel urged the jury to convict appellant of vehicular manslaughter and hit and run, but to acquit him of the murder charge.
The prosecutor expressed concern that the jury could "without knowing what the law really is, think that he . . . possibly had a right to self-defense if he was afraid." Defense counsel argued: "[I]t's the defense prerogative whether or not they wish to offer self-defense as a defense, and we're not doing so. And we would ask that [self-defense instructions] not be given, and it would unduly confuse the jury." Defense counsel further argued that the prosecutor was "trying to create a red herring of a defense we're not going to argue so she can make [appellant] seem even more unreasonable."
The issue of imperfect self-defense came up during the discussion of self-defense instructions. The court inquired whether the defense intended to argue it was not a case of self-defense. Defense counsel stated: "There are so many other things to talk about. It wasn't something I was going to argue one way or the other. We've offered no affirmative [sic] that it is, and I think an imperfect self-defense only reduces a murder to a voluntary anyway, not a vehicular manslaughter. ¶ So it would put another red herring in all the voluntary instructions in this case, because . . . it would be a [People v.] Flannel [(1979) 25 Cal.3d 668] defense, and we're not raising that. So it really would confuse this jury beyond belief."
DISCUSSION
A. Request to Discharge Retained Counsel
On the day the matter was called for trial, appellant requested permission to address the court and stated: "Your Honor. I'm facing trial. I'm being charged with murder, and I was — I've lost confidence pretty much in my attorneys. I'm really looking for another trial attorney — to hire an attorney for trial. I would ask the court . . . if I can please get a continuance to hire some other lawyers, please." The court initially responded: "Well, I'm very surprised to hear that, Mr. Keshishian. You have some of the best attorneys in all of Southern California that you went out and hired. I mean, I don't know who you're going to look for if you already have two of the best attorneys in Southern California. Like, you want a miracle? . . . [¶] I know you're facing a very serious charge here, and I know you're kind of, like they say, there's the expression between a rock and a hard spot. You don't have good choices, but just changing your attorney is not going to change the charges, and it will not change the evidence, and it will not change your choices." Appellant replied: "I understand that. I would ask for the court to please grant me some time."
The court determined that the case had been pending for two and a half years, after numerous defense requests for continuances had been granted. The prosecution vigorously opposed a further continuance, citing the passage of time since the incident, the age of the case and problems with witnesses. The court denied the request. Appellant contends the court's denial represented reversible error.
The crime itself occurred in 2000, six years earlier. Appellant fled to Armenia and was not returned to the United States until 2004.
"The right of a nonindigent criminal defendant to discharge his retained attorney, with or without cause, has long been recognized in this state [citations]. . . ." ( People v. Ortiz (1990) 51 Cal.3d 975, 983 [ 275 Cal.Rptr. 191, 800 P.2d 547].) While a defendant may discharge appointed counsel only if that lawyer is rendering inadequate representation or there exists an irreconcilable conflict between counsel and client (see People v. Marsden (1970) 2 Cal.3d 118, 123 [ 84 Cal.Rptr. 156, 465 P.2d 44]), he or she may discharge retained counsel for any reason. ( People v. Ortiz, supra, at p. 984.) The right to discharge retained counsel is not, however, absolute. The trial court may deny a request to discharge retained counsel "if discharge will result in 'significant prejudice' to the defendant [citation], or if it is not timely, i.e., if it will result in 'disruption of the orderly processes of justice' [citations]." ( Id. at p. 983, quoting People v. Gzikowski (1982) 32 Cal.3d 580, 587 [ 186 Cal.Rptr. 339, 651 P.2d 1145].) "[T]he 'fair opportunity' to secure counsel of choice provided by the Sixth Amendment 'is necessarily [limited by] the countervailing state interest against which the sixth amendment right provides explicit protection: the interest in proceeding with prosecutions on an orderly and expeditious basis, taking into account the practical difficulties of "assembling the witnesses, lawyers, and jurors at the same place at the same time."'" ( People v. Marsden, at pp. 983-984, quoting Sampley v. Attorney General of North Carolina (4th Cir. 1986) 786 F.2d 610, 613.)
Because the right to discharge retained counsel is broader than the right to discharge appointed counsel, a Marsden-type hearing at which the court determines whether counsel is providing adequate representation or is tangled in irreconcilable differences with the defendant is "'[an] inappropriate vehicle in which to consider [the defendant's] complaints against his retained counsel.'" ( People v. Hernandez (2006) 139 Cal.App.4th 101, 108 [ 42 Cal.Rptr.3d 513], quoting People v. Lara (2001) 86 Cal.App.4th 139, 155 [ 103 Cal.Rptr.2d 201].) Instead, under the applicable test for retained counsel, the court should "balance the defendant's interest in new counsel against the disruption, if any, flowing from the substitution." ( People v. Lara, supra, 86 Cal.App.4th at p. 153.) In so doing, the court "must exercise its discretion reasonably: 'a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.'" ( People v. Ortiz, supra, at p. 984, quoting People v. Crovedi (1966) 65 Cal.2d 199, 207 [ 53 Cal.Rptr. 284, 417 P.2d 868].)
The court here applied the correct standard in rejecting appellant's last-minute attempt to discharge counsel and delay the start of trial. Appellant asked for and was given an opportunity to address the court concerning his desire to discharge counsel and his reasons for doing so. He stated only that he had "lost confidence" in his attorneys. This request was made on the day set for trial after the case had been pending for two and a half years. An indefinite continuance would have been necessary, as appellant had neither identified nor retained new counsel. Witnesses whose appearances had already been scheduled would have been further inconvenienced by an indefinite delay. "'The right to counsel cannot mean that a defendant may continually delay his day of judgment by discharging prior counsel,'" and the court is within its discretion to deny a last-minute motion for continuance to secure new counsel. ( People v. Rhines (1982) 131 Cal.App.3d 498, 506 [ 182 Cal.Rptr. 478], quoting People v. Kaiser (1980) 113 Cal.App.3d 754, 761 [ 170 Cal.Rptr. 62].) That appellant had inexplicably "lost confidence" in his experienced and fully prepared counsel did not constitute good cause for granting the continuance requested, nor justify the disruption to the judicial process that would have ensued. The trial court did not err in denying the request.
B.-E.fn_ B. Judicial Misconduct Appellant contends the court's statement that he "want[ed] a miracle" was evidence of judicial bias or at least created the appearance of bias justifying reversal of the judgment. The Supreme Court has said that "'[t]he trial of a case should not only be fair in fact, but it should also appear to be fair'" and that where the contrary appears, the judgment should not be allowed to stand. ( Webber v. Webber (1948) 33 Cal.2d 153, 155, quoting Pratt v. Pratt (1903) 141 Cal. 247, 252.) Appellate courts do not hesitate to step in and reverse a judgment where the record indicates the trial judge was prejudiced against one of the litigants or exhibited the appearance of bias. (See, e.g., Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 462 [trial judge "recited a veritable litany condemning and impugning the character of undocumented immigrants" and allowed defense counsel to question plaintiff concerning his undocumented status]; Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 249 [trial judge conveyed impression he considered sexual harassment cases "'detrimental to everyone concerned' and a misuse of the judicial system"].) The test is "whether the court's comments would cause a reasonable person to doubt the impartiality of the judge or would cause [the appellate court] to lack confidence in the fairness of the proceedings such as would necessitate reversal." ( Hernandez v. Paicius, supra, 109 Cal.App.4th at p. 461.) In this case, we see no evidence of misconduct or bias. The comment in question was made at the hearing on appellant's request to discharge retained counsel. The record reflects that the court was aware of the experience and qualifications of the attorneys in question. We interpret the comment as expressing the belief that it would take "a miracle" for appellant to find better or more qualified defense attorneys to represent him, not an intent to disparage appellant's case or prejudge his guilt. Appellant can point to no other statements or rulings over the course of the trial that even remotely suggest anything but proper judicial temperament and evenhandedness on the part of the judge. Accordingly, appellant has not supported his claim of judicial misconduct and has provided no grounds for reversal based on the conduct of the presiding judge. C. Sua Sponte Instructions Appellant contends the trial court should have given, sua sponte, a number of instructions not requested by either side. Before discussing the specific instructions identified in appellant's brief, we summarize the general rules outlining the court's obligations in this area. "'It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.]'" ( People v. Sedeno (1974) 10 Cal.3d 703, 715 [overruled in part on another ground in People v. Breverman (1998) 19 Cal.4th 142, 149 and People v. Flannel, supra, 25 Cal.3d at p. 684, fn. 12], quoting People v. St. Martin (1970) 1 Cal.3d 524, 531, "The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. [Citations.] Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense. [Citation.]" ( Id. at p. 716.) As the Supreme Court has explained: "'Our courts are not gambling halls but forums for the discovery of truth.' [Citation.] Truth may lie neither with the defendant's protestations of innocence nor with the prosecution's assertion that the defendant is guilty of the offense charged, but at a point between these two extremes: the evidence may show that the defendant is guilty of some intermediate offense included within, but lesser than, the crime charged. A trial court's failure to inform the jury of its option to find the defendant guilty of the lesser offense would impair the jury's truth-ascertainment function. Consequently, neither the prosecution nor the defense should be allowed, based on their trial strategy, to preclude the jury from considering guilt of a lesser offense included in the crime charged. To permit this would force the jury to make an 'all or nothing' choice between conviction of the crime charged or complete acquittal, thereby denying the jury the opportunity to decide whether the defendant is guilty of a lesser included offense established by the evidence." ( People v. Barton (1995) 12 Cal.4th 186, 196 ( Barton).) The rule is thus clear that "[w]hen the charged offense is one that is divided into degrees or encompasses lesser offenses, and there is evidence from which the jury could conclude that the lesser offense had been committed, the court must instruct on the alternate theory even if it is inconsistent with the defense elected by the defendant. . . ." ( Id. at p. 195, italics omitted.) Although "[t]he duty to instruct, sua sponte, on general principles closely and openly connected with the facts before the court also encompasses an obligation to instruct on defenses, including self-defense and unconsciousness" ( People v. Sedeno, supra, 10 Cal.3d at p. 716), objection by the defense to the giving of instructions on affirmative defenses leads to a different result. "Unlike the rule obliging the court to instruct on lesser included offenses and to give requested instructions whenever there is 'any evidence deserving of any consideration whatsoever,' [citation] the duty to give instructions, sua sponte, on particular defenses and their relevance to the charged offense arises only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case." ( Ibid., quoting, People v. Carmen (1951) 36 Cal.2d 768, 773.) 1. CALCRIM Nos. 510 and 511 Appellant contends the court erred in failing to give, sua sponte, CALCRIM Nos. 510 and 511. CALCRIM No. 510 informs the jury that the defendant is not guilty of murder or manslaughter if he or she killed someone "as a result of accident or misfortune" where "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." CALCRIM No. 511 informs the jury that the defendant is not guilty of murder or manslaughter if he or she killed someone "by accident while acting in the heat of passion" where "1. The defendant acted in the heat of passion; 2. The defendant was (suddenly provoked by [the decedent]/[or] suddenly drawn into combat by [the decedent]; 3. The defendant did not take undue advantage of [the decedent]; 4. The defendant did not use a dangerous weapon; 5. The defendant did not kill [the decedent] in a cruel or unusual way; 6. The defendant did not intend to kill [the decedent] and did not act with conscious disregard of the danger to human life; AND 7. The defendant did not act with criminal negligence." Respondent does not dispute that under the appropriate circumstances, CALCRIM Nos. 510 and 511 must be given sua sponte. Respondent contends, however, that neither instruction was applicable to the evidence. We agree. To support giving CALCRIM No. 511 on "heat of passion," there must be evidence that the defendant was induced to act by a "'"'violent, intense, high-wrought or enthusiastic emotion'"'" ( People v. Breverman, supra, 19 Cal.4th at pp. 163-164), such as "anger, fury, or rage" ( People v. Manriquez (2005) 37 Cal.4th 547, 585), and that this emotion was called into existence by an act of provocation on the part of the victim that would lead "an average, sober person [to] be so inflamed that he or she would lose reason and judgment" ( id. at p. 586, quoting People v. Lee (1999) 20 Cal.4th 47, 60). The defense's theory was that Craven, after being pelted by eggs and bottles emanating from appellant's Suburban, deliberately stopped his car in front of it in order to confront the perpetrators. No reasonable person would have been incited to fury or passion by that conduct. CALCRIM No. 510 is potentially applicable only when the evidence indicates that the victim's death was the result of "an accident or misfortune" and that the defendant "was acting with usual and ordinary caution." The evidence below left no room to argue that appellant was acting with "usual and ordinary caution." Indeed, defense counsel conceded the evidence was sufficient to support a conviction for vehicular manslaughter, a crime requiring negligence. Accordingly, the instruction was not "'relevant to the issues raised by the evidence.'" ( People v. Sedeno, supra, 10 Cal.3d at p. 715.) Moreover, had the failure to give CALCRIM No. 510 sua sponte been error, it would have been harmless. The Supreme Court has said that "in some circumstances it is possible to determine that although an instruction . . . was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions" and that "[i]n such cases the issue should not be deemed to have been removed from the jury's consideration since it has been resolved in another context" and "rejected by the jury." ( People v. Sedeno, supra, 10 Cal.3d at p. 721.) Here, in finding appellant guilty of first degree murder, the jury necessarily concluded that Craven's death was the result of a deliberate, premeditated act. Accordingly, the jury necessarily resolved the factual issue that would have been raised by CALCRIM No. 510 — whether Craven's death was the result of an accident — adversely to appellant. (See People v. Rogers (2006) 39 Cal.4th 826, 884 [where defendant found guilty of first degree murder, failure to instruct on involuntary manslaughter was harmless error].) 2. CALCRIM Nos. 570 and 571 Appellant contends the court should have given instructions on heat of passion and imperfect self-defense — specifically, CALCRIM Nos. 570 and 571. These instructions would have explained to the jury how those factors can potentially reduce murder to manslaughter by mitigating malice. CALCRIM No. 570 which addresses heat of passion and provocation was inapplicable for the reasons already discussed. "An intentional, unlawful homicide is 'upon a sudden quarrel or heat of passion' [citation], and is thus voluntary manslaughter [citation], if the killer's reason was actually obscured as the result of a strong passion aroused by a 'provocation' sufficient to cause an "'"ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection and from this passion rather than from judgment."'" ( People v. Breverman, supra, 19 Cal.4th at p. 163.) The provocation which incites the defendant to act in the heat of passion must have been caused by the victim or reasonably believed by the accused to have been so caused. ( People v. Lujan (2001) 92 Cal.App.4th 1389, 1411-1412.) Even if we assume every fact and inference in favor of appellant, nothing Craven did rose to the level of the provocation necessary to support a heat of passion instruction. (See People v. Williams (1997) 16 Cal.4th 153, 227-228 [court's refusal to instruct on heat of passion not error where no substantial evidence of provocation or heat of passion presented].) Noting that the court gave self-defense instructions at the behest of the prosecution, appellant contends imperfect self-defense was an issue in this case and in every case in which a court instructs on self-defense because "[i]f there is substantial evidence of a [d]efendant's belief in the need for self[-]defense, there will always be substantial evidence to support an imperfect self[-]defense instruction because the reasonableness of that belief will always be at issue." (Italics omitted.) Appellant's contention is based on evidence introduced by the prosecution. In order to establish that Craven's death was the result of a deliberate action on the part of appellant rather than the result of an accident, the prosecutor introduced evidence of appellant's hearsay statement to Navarro that he struck the victim with his car because he feared the victim was approaching in order to beat him. An actual, though unreasonable, belief in the need to defend oneself from an imminent threat of death or great bodily injury negates the malice element of murder. ( In re Christian S. (1994) 7 Cal.4th 768, 773, 783.) The theory that appellant deliberately struck Craven was inconsistent with the defense theory that the death was the result of an accident, and as we have said, the trial court need not give instructions on an affirmative defense that is inconsistent with the defense's theory. However, the Supreme Court has held that imperfect self-defense is not a "true defense" but is instead a "shorthand description of one form of voluntary manslaughter." ( Barton, supra, 12 Cal.4th at p. 200.) Voluntary manslaughter, "whether it arises from unreasonable self-defense or from a killing during a sudden quarrel or heat of passion, is not a defense but a crime; more precisely, it is a lesser offense included in the crime of murder." ( Id. at pp. 200-201.) Accordingly, a trial court errs when it fails to instruct on imperfect self-defense, if supported by the evidence, even though such instruction would have been "'inconsistent with the defense elected by the defendant.'" ( Id. at p. 199, fn. 7, quoting People v. Sedeno, supra, 10 Cal.3d at p. 717.) The Supreme Court has made clear, however, that "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." ( Barton, supra, 12 Cal. 4th at 195, fn. 4.) Appellant did not testify to his mental state. The sole evidence relevant to an imperfect self-defense instruction was given by Navarro. She testified to statements allegedly made by appellant weeks after the incident, and her testimony was unsupported by any contemporaneous evidence of appellant's state of mind. We need not determine whether this evidence was "substantial" enough to warrant an imperfect self-defense instruction, for as we explain below, assuming any failure to give the instruction was error, it presents no basis for reversal. The doctrine of invited error "preclude[s] a defendant from gaining reversal on appeal because of such an error made by the trial court at the defendant's behest." ( People v. Duncan (1991) 53 Cal.3d 955, 969; accord, Barton, supra, 12 Cal.4th at p. 198.) The invited error doctrine applies whenever "the record . . . show[s] . . . that counsel made a conscious, deliberate tactical choice between having the instruction and not having it." ( People v. Cooper (1991) 53 Cal.3d 771, 831.) One defense tactic the Supreme Court has recognized as falling under this doctrine is the decision to utilize an "all-or-nothing tactical strategy" in order to "guard against a compromise verdict" by rejecting offers to instruct the jury on murder's lesser included offenses. ( Id. at p. 827.) Here, the record clearly shows that experienced defense counsel made a deliberate, tactical choice to eschew manslaughter and imperfect self-defense instructions in order to enhance the argument that Craven's death was the result of an accident, not a deliberate act. When Navarro testified that appellant claimed to have struck Craven because he was afraid and to have believed Craven intended to beat him, the defense did not embrace her testimony. Instead, during cross-examination, defense counsel tried to undermine her credibility on this point by confronting her with another statement made to a private investigator and suggesting she had fabricated her trial testimony after hearing about a reward being offered. Defense counsel strenuously objected to giving the self-defense instructions the prosecutor requested and protested that permitting the jury to consider either ordinary or imperfect self-defense "really would confuse this jury beyond belief." Counsel specifically informed the court that the defense would not argue that Craven's death was the result of self-defense, imperfect or otherwise, because its theory was that appellant inadvertently struck Craven while frantically attempting to flee the scene. Having made a deliberate, tactical decision to preclude the jury from considering imperfect self-defense, appellant cannot now complain that the trial court complied with his wishes. Appellant's contentions of instructional error provide no basis for overturning the judgment in this case. D. Inconsistent Verdicts Appellant contends the guilty verdicts on the first count for deliberate, premeditated murder and the second count for vehicular manslaughter are inconsistent because the former called for a finding that appellant intentionally killed Craven after weighing the considerations and knowing the consequences, whereas the latter called for a finding that appellant acted in a reckless manner that created a high risk of death. "While it is well settled that inconsistent verdicts cannot be allowed to stand, it is also fundamental that verdicts are not inconsistent unless they are rendered upon charges wherein the elements of the offenses alleged are identical." ( People v. Calpito (1970) 9 Cal.App.3d 212, 219.) "[E]ach count in an indictment or information, which charges a separate and distinct offense must stand upon its own merit[s]," and "a verdict of either conviction or acquittal upon one such charge has no effect or bearing upon other separate counts." ( People v. Amick (1942) 20 Cal.2d 247, 252, quoting People v. Ranney (1932) 123 Cal.App. 403, 407; see § 954 ["An acquittal of one or more counts shall not be deemed an acquittal of any other count."].) The Supreme Court has concluded that the crime of gross vehicular manslaughter while intoxicated (§ 191.5) is not a lesser included offense of murder because the elements are different: "Gross vehicular manslaughter while intoxicated requires proof of elements that need not be proved when the charge is murder, namely, use of a vehicle and intoxication." ( People v. Sanchez (2001) 24 Cal.4th 983, 989.) Like assault with a deadly weapon, the offense "requires proof of additional elements that are not included in the offense of murder or in other forms of nonvehicular manslaughter," and therefore, the "long and settled tradition" that holds manslaughter is a necessarily included offense within murder "has not extended to the more recently enacted forms of vehicular manslaughter that require proof of additional elements." ( Id. at p. 992.) Based on that conclusion, the court further held that "a defendant may be convicted of both offenses [murder and gross vehicular manslaughter while intoxicated] arising out of the same act. . . ." ( Ibid.) The Supreme Court's holding in Sanchez applies equally to the type of vehicular manslaughter involved here. Section 192, subdivision (c) defines vehicular manslaughter with gross negligence as "the unlawful killing of a human being without malice" that occurs in the course of "driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death in an unlawful manner, and with gross negligence." The "driving a vehicle" element prevents this offense from being a lesser included offense of murder and permits conviction on both counts under the Supreme Court's holding in Sanchez. E. Reduction of Verdict Appellant contends the first degree murder conviction should be reduced to second degree murder or manslaughter under section 1260. An appellate court can reduce a conviction only where it is convinced that the evidence is legally insufficient to support the jury's verdict. ( In re Morse (1969) 70 Cal.2d 702, 710; People v. Ford (1966) 65 Cal.2d 41, 51, overruled on other grounds in People v. Satchell (1971) 6 Cal.3d. 28, 35; People v. Jackson (2000) 77 Cal.App.4th 574, 580.) We discern no insufficiency in the evidence here. There was no dispute that appellant was driving the vehicle that struck and killed Craven. Beyond that, substantial evidence supported that once Craven stepped out of his vehicle and approached appellant's Suburban, appellant had sufficient time to deliberate and decide on a deadly course of action. With regard to intent, the testimony of percipient witnesses, Craven's dying statements and even Navarro's testimony supported that appellant deliberately chose to drive over Craven with his car. Further, O'Quinn's testimony supported that the Suburban was moving slowly enough that appellant could have stopped even after the moment of initial impact. "[P]remeditation can occur in a very brief period of time." ( People v. Jackson (1989) 49 Cal.3d 1170, 1200.) "'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . .'" ( People v. Velasquez (1980) 26 Cal.3d 425, 435, quoting People v. Thomas (1945) 25 Cal.2d 880, 900-901.) Although appellant may have had only moments to decide what to do after Craven got out of his Jeep, the jury could reasonably have found that those moments were sufficient to formulate a plan and put it into effect. Moreover, the jury could have believed that appellant's decision to continue to drive his car over Craven after the initial impact was additional proof of malicious intent and deliberation. Accordingly, the evidence amply supported the jury's determination that appellant was guilty of first degree murder.
These instructions are based on section 195, which provides that homicide is excusable in the following cases: "1. When committed by accident and misfortune, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent. 2. When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation or upon a sudden combat, when no undue advantage is taken, nor any dangerous weapon used, and when the killing is not done in a cruel and unusual manner."
After summarizing the elements of vehicular manslaughter and defining gross negligence, defense counsel argued in closing: "That's what happened here. That is what occurred; and someone, unfortunately, died. That's why we're here. That's what the evidence shows."
CALCRIM No. 570 informs the jury that "[a] killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion," that is, "if: 1. The defendant was provoked; 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured (his/her) reasoning or judgment; AND 3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment." CALCRIM No. 571 informs the jury that a killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant acted in imperfect self-defense or imperfect defense of another, and that this occurs where "1. The defendant actually believed that (he/she/[or] someone else . . . was in imminent danger of being killed or suffering great bodily injury; AND 2. The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger; BUT 3. At least one of those beliefs was unreasonable."
As the Supreme Court emphasized in Barton, a trial court remains obligated to instruct on a lesser included offense supported by the evidence — regardless of defense counsel's position at trial: "The doctrine of invited error does not . . . vindicate the decision of a trial court to grant a defendant's request not to give an instruction that is otherwise proper: the error is still error. [Citation.]" ( Barton, supra, 12 Cal. 4th at p. 198.) Instead, the doctrine of invited error "bars the defendant from challenging on appeal the trial court's failure to give the instruction." ( Ibid.)
In his opening brief, appellant contended the trial court erred in failing to instruct on the predicate offenses or infractions necessary to establish vehicular manslaughter. Respondent contended the issue was "academic" because defense counsel conceded appellant's guilt of vehicular manslaughter. In his reply brief, appellant concedes respondent is correct.
In his opening brief, appellant also identified CALCRIM No. 522, which informs the jury that provocation can reduce a crime from first degree to second degree murder, as an instruction that "should . . . have been given [sua sponte]." However, as appellant admitted, this is considered a pinpoint instruction. Therefore, the trial court had no duty to give it sua sponte. (See People v. Middleton (1997) 52 Cal.App.4th 19, 31-33, disapproved in part on another ground in People v. Gonzalez (2003) 31 Cal.4th 745, 752-753, fn. 3.)
Section 1260 provides that a court may "reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed. . . ." Respondent points out that subdivision (6) of section 1181, which generally applies to granting new trials, specifically permits a court, including an appellate court, to "modify the verdict, finding or judgment accordingly without granting or ordering a new trial," where "the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein."
DISPOSITION
The judgment is affirmed.Epstein, P. J., and Suzukawa, J., concurred.
Appellant's petition for review by the Supreme Court was denied July 23, 2008, S164122.