Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Diego County, No. SCD212070, Charles G. Rogers, Judge.
BENKE, J.
The evidence in this murder case shows Terrence Maurice Stamps shot the unarmed victim four times. At trial Stamps's counsel argued Stamps was not the shooter, but instead the victim of misidentification by a prostitute who had been with the decedent at the time he was shot. Although counsel requested and received an instruction on the theory of manslaughter as a killing committed during the heat of passion, Stamps's counsel indicated to the trial court Stamps did not desire an instruction on imperfect self-defense.
On this record we find no error in the trial court's failure to give an instruction on imperfect self-defense. Moreover, because the record would not support an imperfect self-defense theory and because it was somewhat inconsistent with the misidentification theory counsel was advancing, we find no deficiency in counsel's decision not to request such an instruction. In any event, because the jury rejected a heat of passion theory, we find Stamps was not prejudiced by the failure of counsel to request an imperfect self-defense instruction.
FACTUAL AND PROCEDURAL SUMMARY
1. Procedural Background
A jury found Stamps (also known as Mack Viscious) guilty of first degree murder and found he discharged a firearm and caused great bodily harm or death. (Pen Code, §§ 187, subd. (a), 12022.53 subd. (d).) The trial court sentenced Stamps to a term of 50 years to life.
2. Factual Background
A. Prosecution Case
Stamps is a pimp and member of the Bloods street gang. On the evening of January 3, 2008, one of his prostitutes, Curtina Gildon, was on El Cajon Boulevard working as a prostitute.
Jamal Hill was also a pimp. Hill was a member of the rival Crips street gang. On the evening of January 3, 2008, Hill was in the company of another prostitute, Sheri Mitchell. Hill approached Gildon, and told Gildon the corner where Gildon was working was his girl's corner and Gildon needed to leave. Shortly after Hill told Gildon to leave the corner, Stamps drove up to the corner and Gildon told him what Hill had said.
At trial, Mitchell stated that on the evening of Hill's death she was not working as a prostitute.
At one point that evening, a potential customer drove up to Gildon in a truck, Gildon approached the truck and, as she did so, Hill pulled a gun on Gildon and threatened to blow her brains out if she did not leave his corner. In response to Hill's threat, Gildon ran across the street.
According to both Gildon and Mitchell, at some point at or near the time Hill threatened Gildon, Stamps and Hill had an angry exchange. According to Gildon, during the exchange Stamps claimed membership in the Blood street gang and Hill claimed membership in the Crips street gang.
Hill left the vicinity a short while later to buy cigarettes and malt liquor. Hill returned to the area and Stamps drove by again.
Stamps then picked up Gildon and they drove to a house on 68th Street. On the way to the house, Gildon heard Stamps call someone and say "get that, " which Gildon assumed was a reference to a gun. When Stamps and Gildon arrived at the house on 68th Street, a black man got in Stamps's car. The three then drove to Gildon's home, Gildon got out of the car and Stamps and his companion drove away.
In the meantime, Hill and Mitchell walked to a bus stop located on the El Cajon Boulevard overpass above Interstate Highway 15. On their walk to the overpass, Hill told Mitchell he wanted to "get [that] nigger, " which Mitchell took as a reference to Stamps. Hill and Mitchell were alone at the bus stop where they sat and talked for a few minutes about Hill's membership in the Crips street gang.
While Hill and Mitchell were at the bus stop talking, Stamps drove by them. A very short time later, Stamps approached the bus stop on foot and Stamps and Hill began arguing. At one point in the argument, Stamps pulled out a gun and Mitchell got up and started running to the rear of a bathroom structure. While Mitchell was running, Stamps shot Hill four times, including one shot in the center of Hill's chest, once in the back, once in Hill's neck, and once in the back of Hill's wrist.
According to Gildon, shortly after the shooting Stamps called her and told her to watch the news and that he needed a phone number from her. Gildon watched the news and the shooting of Hill was reported. Later, investigators were able to use cell phone records to establish Stamps was in the area of the shooting at the time Hill was killed. Eventually, police found ammunition similar to the bullet which killed Hill at the 68th Street house.
B. Defense Case
In support of his argument Mitchell had misidentified Stamps, Stamps's counsel put on an identification expert. Thereafter, counsel began his closing argument by stating: "Terrence Stamps is not guilty of murder. He is not guilty of any of the lesser offenses. And he did not discharge a firearm...." During the course of his argument, counsel vigorously and in some detail attacked Mitchell's identification of Stamps as the shooter and repeatedly suggested that the actual shooter may have been the person Stamps picked up that evening on 68th Street.
I
On appeal Stamps contends the trial court had a sua sponte duty to instruct the jury on a theory of imperfect self-defense. On this record, no such duty arose.
A. Background
During the course of discussing jury instructions, Stamps's counsel asked the trial court to instruct on voluntary manslaughter as the result of a killing committed during the heat of passion. Counsel relied on evidence Hill had chased Gildon off the corner, that Hill and Stamps had exchanged harsh words earlier in the evening, that Hill had told Mitchell he wanted to "get [that] nigger" and that according to Mitchell, Hill and the shooter had argued before the shooting started. Counsel stated: "I think that's provocation and quarrel, if the jury believes it's the same person, and there's obviously ill will toward that individual that did the shooting.
"If they believe it's somebody else, obviously the argument and the duration of the argument prior to any shots being fired show there was more than just a cold, sudden murder."
However, later during the instruction conference, the trial court asked Stamps's counsel: "Am I correct, Mr. Epley, and forgive me if I already asked you this, that there is no contention of either actual self-defense or imperfect self-defense on the part of the shooter, whoever that might have been?
"[Counsel]: That is correct."
B. Analysis
As the Attorney General points out, any claim the trial court was required to instruct on imperfect self-defense is barred by the doctrine of invited error. " '[A] defendant may not invoke a trial court's failure to instruct on a lesser included offense as a basis on which to reverse a conviction when, for tactical reasons, the defendant persuades a trial court not to instruct on a lesser included offense supported by the evidence. [Citations.] In that situation, the doctrine of invited error bars the defendant from challenging on appeal the trial court's failure to give the instruction.' " (People v. Horning (2004) 34 Cal.4th 871, 905.)
Here, the trial court specifically inquired of counsel whether Stamps would be asserting imperfect self-defense as an alternative theory and counsel directly stated that he would not be relying on the defense. This is not an instance where there is any suggestion in the record counsel was merely acquiescing in a ruling by the trial court or made the decision to forego imperfect self-defense out of any mistake or ignorance. (See People v. Horning, supra, 34 Cal.4th at p. 905; People v. Cooper (1991) 53 Cal.3d 771, 831.) In this regard, counsel's later argument, in which he unsuccessfully requested that the jury be instructed on Stamps's potential liability as an aider and abettor after the fact, thoroughly expressed counsel's view of the case, which very consciously did not include any self-defense or imperfect self-defense theory: "[Counsel]:.... My theory would be that whoever went to that area looking for Mr. Hill was going there with the intention of running him off in a similar fashion as he was running the girls off. Not with an intent to kill him. Not with an intent to cause him harm. But an intent to show him similar type of force that he's showing these girls, running them off the street and saying actually this is our block. And something happened there that escalated that conduct into a shooting which resulted in the death of Mr. Hill. [¶]... [¶] [And] later on, when [Stamps] joined up with the people that committed this crime, he learned of it. And that was some 17 minutes after the fact.... And so he might have helped harbor, conceal or aid those perpetrators of the crime by his actions after the fact." In large part, this is theory Stamps's counsel reiterated in his argument to the jury: Stamps may have been around at or near the time of the shooting and may have associated with the shooter, but he was not the shooter.
In sum then, in light of counsel's express statement Stamps was not contending that he acted in self-defense or in imperfect self-defense, the trial court did not err in declining to give an imperfect self-defense instruction.
II
In the alternative, Stamps suggests that in failing to request an imperfect self-defense instruction, counsel was ineffective. We reject this argument for two reasons: the record shows that there was a reasonable tactical basis for counsel's unwillingness to pursue an imperfect self-defense theory and, moreover, the jury's rejection of the heat of passion theory and its adoption of the prosecution's premeditation theory shows that it would have also rejected an imperfect self-defense theory, which had far less factual basis in the record.
A. Tactical Choice
"Reviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel's omissions." (People v. Lucas (1995) 12 Cal.4th 415, 442.) Here, counsel represented a client who was a pimp, a member of a gang and sometimes was known as "Mack Viscious, " in a case where four shots were fired at an unarmed victim who suffered two wounds to his back and side and third wound to the back of his hand. In light of these circumstances, counsel made an obvious and rational tactical decision to focus the jury's attention on what he perceived was the weakest part of the prosecution case, Mitchell's identification of Stamps. While a theory that some other gang member was the actual shooter, not Stamps, would explain Stamps's effort to get a gun as well as evidence Stamps drove by the bus stop shortly before the killing, imperfect self-defense was not a credible explanation in light of the undisputed evidence that the person who shot Hill, whoever it was, had been looking for Hill.
In this regard, we reject Stamps's argument on appeal that there was no tactical reason to ask for a heat of passion instruction but not ask for an imperfect self-defense instruction. While the volume of evidence the shooter had been pursuing Hill plainly permitted a heat of passion defense, it would not so readily accommodate the notion that although the shooter hunted down Hill, the shooter became afraid of the unarmed Hill when he found Hill at the bus stop.
B. Prejudice
In any event, no ineffective assistance of counsel can be shown where, as here, the client was not prejudiced by counsel's asserted deficiency. (People v. Ochoa (1998) 19 Cal.4th 353, 414.) As the Attorney General points out, where there has been a failure to instruct on a lesser included offense, reversal is not warranted "unless an examination of the entire record establishes a reasonable probability that the error affected the outcome. [Citations.]" (People v. Breverman (1998) 19 Cal.4th 142, 165; see also People v. Moye (2009) 47 Cal.4th 537, 555-556; People v. Watson (1956) 46 Cal.2d 818, 836.)
Here, the jury considered and rejected the heat of passion defense and instead found Stamps was guilty of premeditated murder. As we have noted, in light of evidence Stamps had been looking for Hill, an imperfect self-defense theory was far weaker than a heat of passion defense. Thus, the jury's rejection of the heat of passion theory shows that, had an imperfect self-defense instruction been given, the result would have been the same: Stamps would have been found guilty of first degree murder.
DISPOSITION
The judgment of conviction is affirmed.
We Concur: McConnell, P. J., Irion, J.