Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 191354
Premo, J.
A jury convicted defendant Sunny Van Nguyen of one count of first degree murder and two counts of second degree murder. It also found that defendant had committed multiple murders (special circumstance for life-without-parole sentence for first degree murder) and personally used a firearm in each of the murders (10-year sentence enhancements). On appeal, defendant contends that the trial court erred by (1) refusing his request to instruct the jury on the involuntary manslaughter theory that he committed the predicate felony of assault with a deadly weapon, and (2) instructing the jury in the language of CALJIC No. 8.45 (theories of involuntary manslaughter) without eliminating the reference to the unreasonable self-defense theory. We affirm the judgment.
BACKGROUND
While defendant socialized in a nightclub with members of the “Asian Boys” gang, someone shot one of the gang members and ran away. Defendant and others then gathered at a home, upset and wanting to know who shot their friend. One of those gathered answered the telephone and learned that the shooter was at the May Tiem Café. The group talked about getting the shooter. Some took out guns. Khan Hinh then drove defendant, Senh Duong, and Khoa Nguyen to the café. Defendant possessed a 9-millimeter semi-automatic Glock, Duong possessed a handgun, and Nguyen possessed a shotgun. Another driver from the home transported three others with handguns to the café. Since no one could identify the shooter, the plan was to shoot at random. When the cars arrived at the café, six gunmen entered. One had a shotgun and five had handguns. Defendant and the other gunmen went to a game room in the café and started firing at three unarmed victims who were playing videogames. Defendant fired seven shots. One entered a victim’s back. When the firing stopped, the six fled. The victims died from massive injuries.
An automatic weapon fires bullets so long as the trigger is depressed. A semi-automatic weapon ejects a fired cartridge and reloads a new cartridge automatically but requires the shooter to pull the trigger for each shot fired.
Defendant told his girlfriend that he had fired one or two shots into a wall. He told another that he had just turned his head, pointed the gun, and shot. He described to another that he became sick at seeing one of the victim’s neck being almost blown off and turned his head away, firing his own gun without looking.
Defendant asked the trial court to instruct the jury as to involuntary manslaughter by (1) adapting the standard instruction (CALJIC No. 8.45) to inform that involuntary manslaughter could be found if a killing resulted from a felony assault with a deadly weapon, and (2) giving the standard instructions on assault with a deadly weapon (CALJIC Nos. 9.00, 9.02). He argued that the evidence supported that he was not trying to shoot anyone but instead “turned his head and pointed towards the wall and pulled the trigger of his gun a number of times.” The trial court disagreed that an involuntary manslaughter instruction on this theory was justified. It reasoned that defendant admitted intentionally shooting a gun, which was a felony rather than a misdemeanor or gross negligence. Defendant countered that “If you’re firing at a wall intending to hit a wall, I’m not sure that that would give rise to an assault.” The People agreed with the trial court but “in an abundance of caution” agreed to an involuntary-manslaughter instruction where the predicate offense was misdemeanor brandishing a weapon. They reasoned that a basic rule for involuntary manslaughter is that it can arise from a misdemeanor rather than a felony. The trial court then agreed to instruct on the involuntary manslaughter theory of a killing resulting from misdemeanor brandishing a weapon.
The trial court gave the jury numerous standard instructions on murder. Then, over defendant’s objection grounded on his refused request, it instructed the jury in the language of CALJIC No. 8.45 as follows.
“Every person who unlawfully kills a human being, without malice aforethought, and without an intent to kill, and without conscious disregard for human life, is guilty of the crime of involuntary manslaughter in violation of Penal Code section 192 [subdivision] (b). [¶] There is no malice aforethought if the killing occurred in the actual but unreasonable belief and necessity to defend oneself or another person against imminent peril to life or great bodily injury. [¶] A killing in conscious disregard for human life occurs when a killing results from an intentional act, the natural consequences which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for human life. [¶] A killing is unlawful within the meaning of this instruction[] if it occurred: [¶] One, during the commission of an unlawful act which is dangerous to human life under the circumstances of its commission; or, [¶] Two, in the commission of an act, ordinarily lawful, which involves a high degree of risk of death or great bodily injury, without due caution and circumspection. [¶] A violation of Penal Code section 417, exhibiting a firearm, is an unlawful act. The commission of an unlawful act, without due caution and circumspection, would necessarily be an act that was dangerous to human life in its commission. [¶] In order to prove this crime, each of the following elements must be proved: [¶] One, a human being was killed; and [¶] Two, the killing was unlawful.”
The trial court thereafter instructed on misdemeanor brandishing a weapon as follows. “Every person who, in the presence of another person, draws or exhibits any firearm, whether loaded or unloaded in a rude, angry or threatening manner, or who in any manner unlawfully uses the same in any fight or quarrel, is guilty of a violation of Penal Code section 417 [subdivision] (a)(2), a misdemeanor. [¶] In order to prove this crime, each of the following elements must be proved: [¶] One, a person, in the presence of another person, drew or exhibited a firearm, whether loaded or unloaded, and, [¶] Two, that person did so in a rude, angry or threatening manner; and, [¶] Three, the person was not acting in lawful self-defense.”
ASSAULT WITH A DEADLY WEAPON THEORY
Defendant contends that the trial court erred by failing to instruct the jury on his proffered theory of involuntary manslaughter--a killing that occurred in the commission of a felony that was not inherently dangerous to human life. (See People v. Burroughs (1984) 35 Cal.3d 824, 835, overruled on another ground in People v. Blakeley (2000) 23 Cal.4th 82, 89-91.) He argues that assault with a deadly weapon is not an inherently dangerous felony and there was substantial evidence from which the jury could have found that the killings were committed during the commission of an assault with a deadly weapon. He cites authorities to support the legal argument that assault with a deadly weapon is not an inherently dangerous felony. And he relies on his witnesses who attested to his self-serving statements to the effect that he shot into a wall without looking. We reject defendant’s claim.
An unlawful killing is either murder or manslaughter, and the defining boundary between the two is malice. (People v. Rios (2000) 23 Cal.4th 450, 460.) Involuntary manslaughter is generally considered a lesser included offense of murder. (People v. Prettyman (1996) 14 Cal.4th 248, 274.) The trial court must instruct on lesser included offenses even in the absence of a request “ ‘when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.’ ” (People v. Barton (1995) 12 Cal.4th 186, 194-195.) The duty extends to all theories of a lesser included offense. (People v. Lee (1999) 20 Cal.4th 47, 60-61.) Therefore, for example, instructing on a criminal-negligence, but not a misdemeanor-manslaughter, theory of involuntary manslaughter may be error. (Ibid.)
In a context similar to the one before us, however, the Supreme Court has explained that claims of instructional error, such as defendant’s claim, are patently nonprejudicial. “ ‘Because a trial court’s failure to instruct on a lesser included offense is not prejudicial if, as here, the jury necessarily resolved the factual question adversely to the defendant under other instructions [citations], we need not decide whether in this case the evidence required the giving of instructions on [involuntary] manslaughter.’ [Citations.] By finding defendant guilty of first degree murder in the face of exhaustive instructions pertaining to the lesser included offenses of second degree murder and voluntary manslaughter, the jury reached the factual conclusion that defendant acted with malice aforethought, deliberation, and premeditation, and necessarily rejected the argument that defendant’s claimed . . . taking of methamphetamine interfered with his ability to form these requisite mental states. Thus, to the extent the failure to give the involuntary manslaughter instruction was error, it was harmless.” (People v. Barnett (1998) 17 Cal.4th 1044, 1155-1156; accord People v. Seaton (2001) 26 Cal.4th 598, 665; People v. DeJesus (1995) 38 Cal.App.4th 1, 18, 21-22.)
Likewise, defendant’s murder convictions presuppose that the jury found that defendant had acted with malice. This finding necessarily precludes a finding of involuntary manslaughter. (See, e.g., People v. Earp (1999) 20 Cal.4th 826, 886 [by finding true two special circumstance allegations, jury necessarily determined the killing was first degree felony murder and not any lesser form of homicide; failure to give implied malice second degree murder and involuntary manslaughter instructions was harmless].)
Moreover, defendant’s argument is essentially that he should have been allowed to tell the jury that he committed a felony (assault with a deadly weapon) so as to defend the murder theory with a Burroughs theory. But a Burroughs theory is indistinguishable from a traditional misdemeanor-manslaughter theory. The only distinction between the two theories is that the predicate “unlawful act” in a Burroughs theory is a felony while the predicate “unlawful act” in a traditional misdemeanor-manslaughter theory is a misdemeanor. This is a distinction without a difference. Here, the trial court’s instructions allowed defendant to tell the jury that he committed a misdemeanor (brandishing) so as to defend the murder theory with a traditional misdemeanor-manslaughter theory. (People v. Steele (2000) 83 Cal.App.4th 212, 218 [brandishing is a lesser related offense of assault with a deadly weapon rather than lesser included offense, “though most assaults with a firearm undoubtedly include conduct fitting into the definition of brandishing”].) In other words, the trial court’s instructions allowed defendant to use the same facts and argue the same theory that he sought to use and argue via his proffered instructions. There is no conceivable prejudice.
CALJIC NO. 8.45
Defendant contends that the trial court erred by giving CALJIC No. 8.45 without first eliminating the reference to unreasonable self-defense (“There is no malice aforethought if the killing occurred in the actual but unreasonable belief in the necessity to defend oneself or another person against imminent peril to life or great bodily injury”). According to defendant, the instruction tells the jury that there is only one theory that can negate malice (unreasonable self-defense). Defendant reasons that the instruction misled the jury into believing that it could not find involuntary manslaughter absent unreasonable self-defense, a theory that was not in issue. We disagree with defendant.
“In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant’s rights.” (People v. Andrade (2000) 85 Cal.App.4th 579, 585.) The correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) Accordingly, to prevail on a claim that the jury instructions were misleading, the defendant must prove a reasonable likelihood that the jury misunderstood the instructions as a whole. (People v. Van Winkle (1999) 75 Cal.App.4th 133, 147.) We assume jurors are intelligent persons capable of understanding and correlating all jury instructions given. (People v. Guerra(2006) 37 Cal.4th 1067, 1148.)
Defendant’s interpretation of CALJIC No. 8.45 is unreasonable. The instruction plainly states that “Every person who unlawfully kills a human being without malice aforethought . . . is guilty of . . . involuntary manslaughter.” The later reference to “There is no malice aforethought if the killing occurred [during unreasonable self-defense]” by no means states or implies that “without malice aforethought” exists only if there is unreasonable self-defense. Such a construction would render meaningless the rest of the instruction, which informs that a killing is unlawful within the meaning of involuntary manslaughter if it results from an unlawful act dangerous to life or a lawful act committed without due caution. Considering the instruction as a whole, the reference to unreasonable self-defense can only be construed to refer to a form of involuntary manslaughter that is defined by the mental state of the actor rather than by the unlawful or lawful act of the actor. Defendant simply fails to demonstrate a reasonable likelihood that the jury misunderstood CALJIC No. 8.45.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.