Opinion
G044464
10-04-2011
In re SERGIO GONZALEZ on Habeas Corpus.
Peter Gold for Petitioner and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Scott C. Taylor and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. Nos. 06CF2893 & M-13731)
OPINION
Original proceeding; petition for a writ of habeas corpus to challenge an order of the Superior Court of Orange County, Richard F. Toohey, Judge. Petition granted.
Peter Gold for Petitioner and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Scott C. Taylor and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
Petitioner Sergio Gonzalez filed a petition for writ of habeas corpus challenging his conviction for second degree murder. He contends he was denied his state and federal constitutional rights to the effective assistance of appellate counsel. His claim is based on defense counsel's failure to argue on appeal that the instruction on voluntary manslaughter based on heat of passion was erroneous. With his petition he filed a declaration from the lawyer who represented him in the earlier appeal wherein she stated she had not taken the issue into account when preparing the appeal but "[h]ad I considered this instruction more closely, I would have raised an issue on appeal contesting it."
For the reasons explained below, we grant the petition.
PROCEDURAL BACKGROUND
This court affirmed petitioner's conviction on August 17, 2009. (People v. Gonzalez (Aug. 17, 2009, G040209) [nonpub. opn.].) The only issue raised in that appeal was whether the sentence imposed constituted cruel and unusual punishment. Thereafter petitioner filed a petition for writ of habeas corpus in the Orange County Superior Court. It alleged he was denied effective assistance of counsel on appeal because his lawyer failed to argue that he was entitled to a reversal based on the erroneous jury instruction. The superior court denied the petition on the grounds petitioner had an adequate remedy at law in the form of a motion to recall the remittitur, which could be filed in this court.
Petitioner filed in this court a petition for habeas corpus and a motion to recall the remittitur. He also filed a request for judicial notice of the briefs, pleadings, motions, orders, and record on appeal in case number G040209. We granted the request for judicial notice of the specified documents and denied the petition for habeas corpus and the motion to recall the remittitur.
Thereafter, petitioner filed a petition for review in the California Supreme Court, which issued its order granting the petition and transferring it to this court. The Supreme Court ordered this court to vacate its order denying the habeas petition and to issue an order to show cause returnable before this court. We issued such an order.
FACTS
We repeat the facts as stated in our earlier opinion.
"Defendant Sergio Gonzalez was convicted of the second degree murder of Sam Chea. True findings were made that he personally discharged a firearm causing the victim's death and that he personally used a firearm in the murder. The jury returned a not true finding that he committed the crime for the benefit of a criminal street gang. He was found not guilty of street terrorism. The court sentenced defendant to 40 years to life in prison.
"Santa Ana Police Officer Jesus Delabarcena went to the scene of a stabbing at Century High School on September 11, 2006. His description of defendant was: 'Very emotional. He appeared to be very angry, and when his mom showed up, he became a little bit more emotional and went to her and gave her a hug.' Defendant told his mother 'not to worry that he knew who had done it, it was some Chinos, in Spanish, Chinese.' Defendant then placed a telephone call.
"Five persons were arrested for stabbing Oscar Gonzalez, defendant's 14-year-old brother. All five claim an allegiance to a criminal street gang known as Tiny Rascals or TRG. Oscar Gonzalez, who died two days after he was stabbed, claimed the Little Minnie Street gang. The victim of the shooting murder, Sam Chea, whose moniker was Midget, was a member of WDC or We Don't Care gang. The three who were arrested and charged with the instant shooting, defendant, Abel H. and Antonio Barboza, were also members of the Little Minnie Street gang.
"Defendant was 15 on September 11, 2006. 'Some girl' called him at about 3:00 p.m. and said his brother was surrounded by a lot of people and was being stabbed. She said to hurry over. Defendant ran to Century High School. When he got to the scene of the stabbing, he was told his brother had been attacked by Cambodians. At one point, while he was at the scene, he was placed in a police car and overheard a police officer 'radio that the people who had hurt my brother were five Asian gang members from TRG or WDC.'
"Afterward, Barboza twice asked defendant what he was going to do about it. Defendant started walking towards the train tracks. He heard footsteps behind him, and turned to see Barboza and Abel. He looked over the fence and saw three people. 'I knew one of them was Phany, she was from WDC.' Defendant said: 'And at that same time Tony handed me something. I looked over and it was a gun.' He said that was the first time he realized Barboza was carrying a gun, and that he had intended to fight 'whoever came [a]long that was a gang member that hurt my little brother,' but with his hands. Defendant placed the gun into his waistband. He looked over and saw a car with three male Asian gang members inside.
"Defendant walked up to the car and asked the victim where he was from. The response was 'We Don't Care,' as well as a gang sign for 'W.' To defendant that meant 'The Asian gang WDC.' At trial, defendant said he thought somebody from WDC had stabbed his brother. He said: 'In my head I said I found who did it, and I shot into the car.' Then he looked around and 'everything seemed brighter, whiter. I seen two figures running away and I assumed it was Tony and Abel so I followed them.'
"Abel was 13 years old when he testified, but 12 on the day of the murder. He said he was in the sixth grade on September 11, 2006, when his friend, Oscar Gonzalez, was stabbed. After the stabbing, Abel was sitting outside some apartments when defendant's uncle dropped him off. Defendant started walking around and Abel said, 'we started following him like we had to run to catch up to him.' Abel saw Tony pass something to defendant. The prosecutor asked who Tony was, and Abel answered: 'Tony, the one that got sentenced on this case.' They saw a car and Sergio 'hit them up,' which is a 'gang thing' for 'tell[ing] where they [are] from.' Abel said he turned his back and then heard a gunshot and started running.
"Phany Sam claimed the We Don't Care gang in the past, but no longer does. On September 11, 2006, she saw a shooting. She said she was 'walking and I just saw a group of people walking all wearing white T-shirts.' She estimated there were 'like 13' people coming from the railroad tracks right behind her apartment building. She said she 'saw them coming up to a black car where my brother's friend's car was.' Her brother's friend was named Midget; he was seated in the front passenger seat. Two others were in the car. Phany saw 'some guy' pull out a gun. The others surrounded the car. She heard three shots and went into her house. Phany said she remembered telling a detective that she 'recognized the guy who shot the gun as Sergio Gonzalez.'
"Matthew McLeod, who works for the Santa Ana Police Department, is the detective who interviewed Phany on September 19, 2006. Phany told McLeod that defendant shot the gun that day and that she knew defendant's brother Oscar. Mc Leod said: 'She told us that from her vantage point, which was approximately 20 feet from the victim vehicle, if you will, she saw Sergio Gonzalez, who was wearing a white T-shirt at the time, lift up his T-shirt and withdraw a handgun using his right hand from his waistband area, pointed it at the front passenger side of the vehicle and fired I think two shots that she said, into the vehicle.'
"McLeod testified as a gang expert. The prosecutor asked him about retaliation, and he responded: 'In terms of respect in the criminal street gang subculture, any action that's taken or any sign of disrespect must immediately be met with either the same and usually and I say usually, 99 percent of the time, a higher or greater level of disrespect such that, if I'm a gang member and another gang member looks at me in a disrespectful fashion, which is usually termed "mad dogging," if a rival gang member stares at me menacingly, then the onus is upon me to take some action, and that action is [fisticuffs], if I have a weapon, stabbing them, something like that.' He said that if a member of a gang were stabbed, it would be 'very, very, very strange . . . for there not to be any type of retaliation.'
"The prosecutor posed a hypothetical question, which included the same facts in the instant case, to McLeod and asked his opinion about whether or not the hypothetical murder was committed for the benefit of the Little Minnie Street gang. McLeod said it definitely was. He explained the hypothetical gang members were acting 'in concert to conduct the crime.' He said the hypothetical murder 'benefits the Little Minnie Street gang not only in exacting revenge, if you will, or retaliation for the primary or initiating a stabbing, but also garners respect for the gang as a whole as well as the individual members including the victim of the stabbing.'"
We add the following facts. After hearing petitioner's younger brother had been stabbed, petitioner and their mother went to the scene of the crime. Petitioner appeared angry and acted very emotionally. Petitioner and his mother went to the hospital; thereafter petitioner's uncle took him home. The events constituting the crime occurred after he had been returned to his home.
DISCUSSION
At the request of petitioner's attorney, the court instructed the jury on voluntary manslaughter, based on heat of passion, as a lesser included offense. The version of CALCRIM No. 570 in effect and given to the jury stated in part 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" and that this situation prevails if three elements are satisfied: "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 reasoning or judgment; and [¶] 3. The provocation would have caused an ordinary person of average disposition to act rashly and without due deliberation, that is from passion rather than from judgment." (CALCRIM No. 570.) This is a correct and unambiguous statement of the rule.
But the instruction went on to say: "It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts. . . ." (The italicized portion of the instruction is at issue here.) The instruction as given could be taken to mean the jury is to decide whether reasonable person would have acted rashly as a result of the provocation. But it could also be interpreted to mean the jury should consider whether the provocation would have caused a reasonable person to kill. And that is not the test.
Voluntary manslaughter is the unlawful killing of another without malice "upon a sudden quarrel or heat of passion." (Pen. Code, § 192, subd. (a); People v. Koontz (2002) 27 Cal.4th 1041, 1086.) "A heat of passion theory of manslaughter has both an objective and a subjective component. [Citations.] [¶] '"To satisfy the 'reasonable person' element . . . the accused's heat of passion must be due to 'sufficient provocation.'"' [Citations.]" (People v. Moye (2009) 47 Cal.4th 537, 549.) As petitioner points out, "the provocation must be 'sufficient to cause an ordinary person of average disposition to act rashly and without deliberation. [Citation.] The focus is on the provocation—the surrendering circumstance—and whether it was sufficient to cause a reasonable person to act rashly. How the killer responded to the provocation and the reasonableness of the response is not relevant to sudden quarrel or heat of passion." (People v. Najera (2006) 138 Cal.App.4th 212, 223.)
Yet, as noted, the instruction as given might be interpreted to mean that the test is not only whether a reasonable person would have been provoked, but also whether a reasonable person, when so provoked, would have committed the killing. Thus, the language at issue is, at best, ambiguous. And the ambiguity was recognized, resulting in a 2008 amendment to the language at issue in CALCRIM No. 570 as follows: "In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment." (Italics added.)
„"If a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction.' [Citations.] """[T]he 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.'"'" [Citations.] The reviewing court also must consider the arguments of counsel in assessing the probable impact of the instruction on the jury. [Citations.]" (People v. Young (2005) 34 Cal.4th 1149, 1202.)
Defense counsel's closing argument on this point was limited. She argued, in the language of the instruction, that heat of passion would reduce the charge to voluntary manslaughter "if the defendant was provoked as a result of provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment, and . . . 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."
The prosecutor's argument was more extensive. He stated, "But you know where voluntary manslaughter fails, is the next element. The next element is absolutely not met. 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. [¶] It is the reasonable persons standard. . . . But that's where this fails." He went on: "[I]t's not the rage person standard. It's not the reasonable gang member standard either. It is the reasonable person standard. What would a reasonable person do under the circumstances." (Italics added.) He further argued, "[I]t is not a 15-year-old gangster standard, it is a reasonable person, it is a person of average, ordinary prudence[,] what they could do, a reasonable person, under the circumstances." (Italics added.) Finally, he stated, "That's what [is] infuriating here, and in a state of anger he lashed out, as a 15-year old might do. Maybe a 25-year old won't do that, but that's not the standard that we're talking about here. Maybe a 25-year-old pauses, thinks about it, whatever. But you know what, this 15-year-old acted out of rage and went and killed a completely innocent person." (Italics added.)
Each of these statements highlights an act, what a reasonable person might "do." The jury heard a version of this three times from the prosecutor. It is not difficult to see it could have believed voluntary manslaughter required that a reasonable person would have "done that" or "could kill." And the ambiguous language of the instruction would only have emphasized that understanding. None of either counsel's arguments addressed the ambiguity or specifically told the jury it was not to consider whether a reasonable person in defendant's position would have killed. All of this taken together would support a conclusion the jury understood it had to decide whether a reasonable person would have committed the murder. This was error.
And based on all the circumstances of the case we cannot deem the error to be harmless. The jury rejected the prosecution's argument that the killing was deliberate, premeditated, and for the benefit of a criminal street gang. In doing so it presumably found there was sufficient provocation. Had the instruction unambiguously stated the law, it is reasonably probable defendant would have obtained a more favorable result. (People v. Breverman (1998) 19 Cal.4th 142, 178 [erroneous instruction on lesser included offense analyzed under standard in People v. Watson (1956) 46 Cal.2d 818, 836.)
The determination the error was not harmless leads to the conclusion there was ineffective assistance of counsel. In making such a determination we must find not only that there was error but that but for counsel's failure to raise the issue defendant would have obtained a better result. (Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052, 80 L.Ed.2 674].) Here, had this issue been briefed by defendant's lawyer in the appeal, based on our analysis in this opinion we would have remanded the case for a new trial.
DISPOSITION
The petition is granted. The case is remanded to the trial court for a new trial.
RYLAARSDAM, ACTING P. J. WE CONCUR: O'LEARY, J. MOORE, J.