Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD185763, David M. Gill, Judge.
HUFFMAN, J.
In this case involving three drive-by shootings, a jury convicted Marcus Andrews of first degree murder, with the special circumstance that it was committed by shooting from a vehicle with the intent to kill (Pen. Code, §§ 187, subd. (a); 190.2, subd. (a)(21); count 1); two counts of attempted murder, one that was premeditated (§§ 187, subd. (a)/644; 189; counts 2 & 7); two counts of assault with a semiautomatic firearm (§ 245, subd. (b); counts 3 & 8); three counts of discharging a firearm from a motor vehicle at another person (§ 12034, subd. (c); counts 4, 5 & 9); and shooting at an unoccupied vehicle (§ 247, subd. (b); count 6). The jury also found true allegations that Andrews committed counts 1, 2, 4 and 5 by intentionally and personally discharging a firearm that proximately caused great bodily injury or death to a person other than an accomplice (§ 12022.53, subd. (d)); that he intentionally and personally inflicted great bodily injury on a person not an accomplice during the commission of counts 2, 3 and 4 (§ 12022.7, subd. (a)); that he personally used a firearm in committing counts 3 and 8 (§ 12022.5, subd. (a)); and that he intentionally and personally discharged a firearm in committing count 7 (§ 12022.53, subd. (c)).
All statutory references are to the Penal Code unless otherwise specified.
The trial court sentenced Andrews to life without the possibility of parole for the count 1 murder with special circumstances. It then imposed a consecutive nine-year determinate upper term with an indeterminate term of 25 years to life for the personal and intentional discharge of a firearm causing great bodily injury enhancement for the count 2 attempted murder plus a consecutive indeterminate life term for the count 7 premeditated attempted murder with its accompanying enhancement of 20 years for the personal and intentional discharge of a firearm. Finally, it imposed a consecutive term of eight months (1/3 the midterm) for the count 6 shooting at an unoccupied vehicle and stayed execution of sentence on all other counts and enhancements under section 654. The court additionally imposed various restitution fines, including a $10,000 parole revocation fine under section 1202.45.
Andrews appeals, contending the trial court prejudicially erred in failing to instruct the jurors on voluntary manslaughter based upon heat of passion and unreasonable self-defense as a lesser offense of the count 1 murder; in giving the jurors instructions on the count 2 attempted murder that were confusing and misleading and may have resulted in a guilty verdict without finding the required specific intent to kill; in imposing upper terms based on factors he neither admitted nor the jury found true in violation of his constitutional rights to a jury trial; and in imposing a parole revocation fine when he is not eligible for parole.
As we explain, we find no instructional error or error in imposing the parole revocation fine on this record. However, because we conclude the trial court improperly imposed upper terms in light of Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296 (Blakely), we modify the judgment to strike the upper terms imposed. Because Andrews's total prison sentence is not capable of being served in his lifetime, it would be futile to remand the matter for resentencing of those upper term counts at issue. Thus, in the interests of justice, we impose midterm sentences for those counts and affirm the judgment as so modified. (§ 1260.)
FACTUAL BACKGROUND
Around 5:40 p.m. on August 24, 2004, someone in a car driving by 42nd and Market Street in San Diego fired a series of shots at some Neighborhood Crips congregating around the "Yo Spot," a youth opportunity center, and Oscar's Market, across the street. Responding police officers recovered bullets from a conference room at the Yo Spot and inside a back wall of Oscar's as well as shell casings from the street outside those businesses. No injuries were reported from the incident.
At about 10:00 p.m. that same day, a grey or silver car drove past Carla Aguiar and her boyfriend Adrian Acosta, both 17 years old, as they were kissing on the corner of Polk and Marlborough in San Diego. Someone inside the car yelled for the couple to get a room and Acosta yelled back, "Fuck you." The car stopped, backed up and stopped again in the street in front of the couple. When someone from the car then asked, "What did you say," Acosta replied, "You heard what I said." Additional words were exchanged and Aguiar held on to Acosta to prevent him from approaching the car. As she pushed Acosta backwards, facing him with her back to the car, a single shot was fired and the car drove off. Aguiar then realized she had been hit and Acosta started to help her walk toward her house before they both collapsed on the grass near the sidewalk. The bullet had gone through Aguiar's back and into Acosta's heart. Within a few minutes law enforcement and paramedics responded and transported the couple to the hospital, where both underwent emergency surgery. Aguiar survived, but Acosta died during surgery. Although no shell casings were found at the scene of the shooting, a projectile was removed from Acosta's body and turned over to the police.
On September 14, 2004, September Johnson, who was the cousin of Andrews's girlfriend, telephoned the police to ask for help in retrieving some items she believed Andrews had taken from her car. The responding police officers detained Andrews and obtained the items from him to return to Johnson. Later that day, as Johnson's car was parked on the street in front of a house in Lemon Grove, California and she was inside the house, she heard a "pop" sound, which she discovered the next day was a bullet hole in her car. A shell casing found in the street near her car was turned over to the police.
During the subsequent investigation, police impounded and searched Andrews's car, in which they found several .380 caliber CCI rounds of ammunition hidden. The police also took paint scrapings from the car, which showed that the car had originally been painted grey or silver, had been repainted black and then red. Papers found in the car revealed that on August 30, 2004, the All Pro Paint and Body shop in El Cajon, California had painted Andrews's car red, after just having painted the car silver a month earlier. Ballistics comparisons determined that most of the bullets and casings found in connection with the Market Street shooting and recovered from Johnson's car were .380 caliber CCI casings and had been fired by the same gun as the bullet removed from Acosta's body. Andrews was charged in this case with the nine crimes stemming from the three shooting incidents.
At trial, in addition to the above evidence, the jury heard testimony about all three incidents from various accomplices, police, the victims and an in-custody informant. Because Andrews does not challenge the sufficiency of the evidence to support any of his convictions and attendant allegations, we summarize that additional evidence.
As background, the jury learned that Andrews and Deundra Harkins were members of the Lincoln Park or Skyline O'Farrell Park sect of the Bloods, a criminal street gang that does not get along with the Crips. On August 24, 2004, Andrews spent time with Harkins and Harkins's best friend, Thaddeus Williams, and Andrew Ivy, a friend he had known several years. Andrews initially met Harkins at Car Audio Heaven where Andrews had a "limousine dark" tint put in his front car windows. Andrews was a regular customer at Car Audio Heaven, which had installed almost $4,600 worth of top-of-the-line gear bought there for the car, for which either he or his mother had paid cash, including a 50-watt amplifier, speakers and subwoofers, several TV monitors, a power inverter to power up a Playstation or X-Box, a security system, four 55-watt amplifiers, a stereo with built-in DVD player, and an extra power supply. The car also had some secret compartments, including one behind the steering wheel in which Andrews stored his gun and another where he stored ammunition.
After the windows of the car were tinted, Andrews drove with Harkins, Ivy and Williams to Horton Plaza to shop for clothes before going to the home of Lovelee Johnston, where Andrews had been staying with his girlfriend for several weeks. The group "chilled for a minute" before going to a nearby liquor store to buy some beer. When Ivy went inside to purchase the beer, the others waiting outside in the parking lot were confronted by six Crips gang members in a car who had just come from a gang funeral. After Andrews and the others fled into the store, they heard a car alarm sound. When they went back outside, they discovered that the clothes Andrews had just purchased were missing from his car and that his in-dash DVD system and television had been damaged.
Andrews and the others went back to Johnston's house where Andrews telephoned his mother to meet him at Car Audio Heaven. Andrews and the others met her there where it was determined that the equipment could not be repaired, that the warranty would not cover a replacement unit for $1,600, and that Andrews and his mother did not have enough credit or money to purchase the unit at that time. Afterwards, Andrews and his friends returned to Johnston's home again where they dropped off Andrews's car and decided to take Williams's car to go Crip hunting.
Williams first drove to El Cajon Boulevard looking for the Crips who had vandalized Andrews's car and not finding anyone, continued to drive around until they spotted some Crips gang members throwing up hand signs, standing in front of a liquor store on Market Street. When Williams made a U-turn and drove back by the market at Andrews's direction, Andrews fired shots out the back seat window at the Crips. Williams sped off when the Crips returned fire. Williams drove back to Johnston's house and left after dropping Andrews and the others off.
The group again "chilled a minute," before Andrews left with them to drive Andrews's girlfriend, who was pregnant with his child, to a hospital for a birth facility tour. After dropping her off and returning to Johnston's home, the group drank some wine with Johnston until Andrews and Harkins walked to a nearby park where they met Ciara Rojas, Harkins's friend. While at the park, Andrews shot his gun in the air before he and Harkins walked back to Johnston's. Andrews and Harkins left again in Andrews's car to go pick up his girlfriend from the hospital. When they could not find her there, Andrews drove around while Harkins talked on his cell phone to Rojas. Harkins was still on the phone when Andrews eventually drove past the corner where they encountered Aguiar and Acosta kissing. Rojas heard Harkins say, "Oh my God, you shot and killed him" and then tell her he had to go and would call her back.
Afterwards, Andrews drove to a McDonald's restaurant to get some food and then back to Johnston's house, where Harkins, who was intoxicated, told the others about the shooting. Andrews, who was also somewhat intoxicated, denied he had shot anyone. However, when a news flash about the shooting came on the television, and Johnston's mother saw Andrews with a gun in the house, she told him to get out and called his mother, who came by and left with Andrews. Andrews later returned to Johnston's home several times before her mother took him to his mother's house the next day.
Harkins and Williams had been with Andrews on September 15, 2001, when he fired the shot into Johnson's car. Andrews told Harkins he shot the car because Johnson had keyed his car.
Ivy, Harkins and Williams all conceded that they had initially lied to police when contacted after the incidents, and each had received benefits for agreeing to testify against Andrews in this case. The extent of those benefits were fully explained to the jury.
Evidence was also presented to the jury that an inmate housed with Andrews had telephoned a defense investigator and had told him that he had been with Andrews the night Acosta had been killed and that it was he who had been the shooter. A subsequent investigation, however, revealed that the call had been orchestrated by Andrews from jail and that the inmate had been in custody on the date of the murder.
Additionally, several of Andrews's telephone conversations from jail were entered into evidence to show that he did not get drunk on the night of the murder until after he had left Johnston's house with his mother, and that he was trying to arrange the intimidation and silence of the witnesses against him from jail. An in-custody informant also testified that he had overheard Andrews talking to another inmate about setting Harkins up for a crime to get him incarcerated so he would be able to beat him up and also heard him say, "he shot the dude."
DISCUSSION
I
CLAIMED INSTRUCTIONAL ERRORS
The general rule is that in a criminal case the trial court must instruct on the "principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty 'to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.' [Citation.]" (People v. Saddler (1979) 24 Cal.3d 671, 681.) With this preliminary rule in mind, we address each of Andrews's instructional error contentions in turn.
A. Specific Intent to Kill for Attempted Murder
The essence of Andrews's first contention is that the trial court's instructions on attempted murder for count 2 involving Aguiar and the court's subsequent answering of juror questions during deliberations regarding those instructions had the effect of removing the intent to kill element of attempted murder from the jury's consideration for that charge. For this argument, Andrews relies on People v. Bland (2002) 28 Cal.4th 313, 327-331 (Bland), which held that the doctrine of transferred intent does not apply to attempted murder and that although concurrent intent may apply, it "is not a legal doctrine requiring special jury instructions, as is the doctrine of transferred intent. Rather, it is simply a reasonable inference the jury may draw in a given case: a primary intent to kill a specific target does not rule out a concurrent intent to kill others." (Id. at p. 331, fn. 6.) He argues that because the court gave such an instruction regarding concurrent intent in this case, the jury could have erroneously convicted him of Aguiar's attempted murder on an improper transferred intent theory because the concept of a kill zone and concurrent intent has no application to the facts of this case. We disagree.
Here, while instructing the jury regarding the count 2 attempted murder of Aguiar, the court stated, "[s]o there are two basic essential elements as alleged in count two. [¶] First, the People must prove that Mr. Andrews took at least one direct but ineffective step toward killing another person[,] and[] secondly, that he intended to kill that person. This is a specific intent crime." After explaining what a "direct step" requires, the court then stated:
"A person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm or 'kill zone.' In order to convict the accused of the attempted murder of Carla Aguiar, the People must prove that the accused not only intended to kill Adrian Acosta, but also either intended to kill Carla Aguiar or intended to kill anyone within the kill zone. If you have a reasonable doubt whether the accused intended to kill Carla Aguiar or intended to kill Adrian Acosta by harming everyone in the kill zone, then you must find the accused not guilty of the attempted murder of Carla Aguiar."
During closing argument, the prosecutor explained that with regard to the count 2 attempted murder on Aguiar, "[t]he question is if he [Andrews] intended to kill. [¶] Imagine she's wearing a white shirt on this night this occurred. His sites must have lined up beautifully on her back center mass. Pulls the trigger. He was going [to] kill anybody that stood in his way. That's known as the 'kill zone.' Anybody that was in the way was gonna die. Shot a 17 year-old girl who had her back turned to him. She must have been a threat to him. That's what he did 15 yards away."
Andrews's counsel argued that the evidence did not show an intent to kill as to either Aguiar or Acosta and that if the jury believed Andrews was the shooter, the evidence showed he only intended to injure his victims because the physical evidence showed the bullet hit Aguiar in her lower back, hit her rib and deflected upward to hit Acosta's heart.
After the verdicts were in and the jury released, the trial judge made a record of the discussions it had had with counsel regarding notes received from the jury during deliberations. The trial judge commented that the "real substantive matter" was contained in notes 3, 4 and 5, explaining that note 3 read: "Can you please give us a definition of the kill zone and recharge on attempted murder Count 2." After conferring with counsel and researching the matter, while the trial judge and parties were drafting a response to that note, "out came note no. 4 [asking d]oes Mr. Andrews have to have specific intent against [Aguiar] independent of intent against [Acosta]." Separate responses were sent back for notes 3 and 4. The response to note no. 3 read as follows:
"Your question refers expressly to Count 2 -- alleged attempted murder of Carla A[g]uiar, on or about 24 August 2004. [¶] There is a separate count of attempted murder, Count 7, which alleges the attempt murder of unidentified 'Crips', as a separate incident, earlier on that same date. [¶] Since you did not expressly mention Count 7, I understand your questions relate just to Count 2. [¶] The basic instruction dealing with the crime of attempted murder is [CALCRIM No.] 600 -- Attempted Murder. You have two copies of that instruction --one for Count 2 [Aguiar] and another for Count 7 (unidentified Crips). [¶] A portion of the instruction for Count 2 states: [¶] 'A person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm or "kill zone".' [¶] That paragraph then goes further to explain that intent to kill on the part of the defendant must be proved beyond a reasonable doubt to prove the attempted murder of [Aguiar], as alleged in Count Two. [¶] As used in the instruction, the words 'a particular zone of harm' and 'kill zone' are used synonymously, and mean the same thing. Those words carry their commonly understood meaning from everyday usage. [¶] This 'zone' includes the area in the immediate vicinity of the primary intended victim within which others are placed at risk of death based on the method employed to commit the crimes. You may consider the nature and scope of the attack in determining the area of the kill zone. [¶] As the judges of the facts, you must determine whether by his actions defendant created 'a particular zone of harm or kill zone', and whether [Aguiar] was within that zone, as well as whether he acted with the required intent. [¶] The second portion of your question asks that I 'recharge' on attempted murder, Count 2. [¶] With the answer I have provided to the first part of your question, as well as my oral instructions during the trial, and the written instructions which you have I am not sure what further instructions I can offer at this point. [¶] If you are still requesting further instructions, please provide more detail concerning the subject of such instructions."
The response to jury note no. 4 provided: "The intent required for Count 2 is stated in instruction [CALCRIM No.] 600, which requires proof beyond a reasonable doubt of either a specific intent to kill [Aguiar] or anyone within the zone of harm, concurrent with the specific intent to kill [Acosta]."
Almost immediately thereafter, the trial judge received note no. 5 which asked, "If we find as a fact that Marcus Andrews intended to kill Adrian Acosta but had no specific intent to kill Carla, but she was in the kill zone, does that [satisfy] the requirement under [CALCRIM No.] 600 for attempted murder[?]" Because the judge and counsel thought that the jury either had not read the response to note no. 3 or had not understood it, they "unanimously agreed that the court could provide them with a copy of CALJIC [No.] 8.66.1, feeling that that was perhaps yet a better explanation of the notion of concurrent intent and the so-called 'kill zone' or zone of risk. The jury returned their verdicts shortly after receiving CALJIC No. 8.66.1 in response to note no. 5.
As given the jurors, CALJIC No. 8.66.1 provided, "ATTEMPTED MURDER--CONCURRENT INTENT [¶] A person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone of risk. This zone of risk is termed the 'kill zone.' The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victim's vicinity. [¶] Whether a perpetrator actually intended to kill the victim, either as a primary target or as someone within a 'kill zone' or zone of risk is an issue to be decided by you."
The court then noted that in answering the three substantive questions regarding count 2, it had basically relied upon Bland, supra, 28 Cal.4th 313 and the federal authority on which that case was based and that it was comfortable in the responses given the jury because it thought that "factually in this case [the jury] could reasonably find that there was a rather narrow zone of harm here because [Aguiar] was literally between the shooter and [Acosta]." The court then permitted Andrews's counsel to make a record of his objections to the court's responses and noted he could also pursue a motion for new trial on such ground.
Andrews's counsel basically argued that the concurrent intent theory should not have been instructed on for count 2 or explained further in the responses to jury questions nos. 3, 4, and 5 because "[w]e don't have a mass destructive device here. We don't have multiple shots here. We don't have special ammunition here. We have a single gunshot. And because of that . . . this was in fact an attempt to use a transferred intent, which is not permitted by the law as opposed to a zone of death, or whatever the actual terms they're using in the instruction, 'kill zone.' " Counsel disagreed that this case was factually one of concurrent intent, but agreed that if it were, then the instructions under CALJIC No. 8.66.1, to which he eventually agreed upon because he had lost the original ruling, were proper.
Andrews's counsel subsequently filed a motion for new trial arguing again, among other things, that the legal theory of concurrent intent for attempted murder of Aguilar was inappropriate in this case because only one shot had been fired. The court denied the motion, finding that the law permitted instructions on such concurrent intent/kill zone theory in this case.
On this record, we find the court properly answered the jury questions and instructed the jury concerning the elements of attempted murder for count 2, making it clear that the jury had to find Andrews either specifically intended to kill Aguiar or concurrently intended to kill her "as someone within a 'kill zone' or zone of risk" as defined in Bland, supra, 28 Cal.4th at pp. 329-330.
Contrary to Andrews's assertion that a single shot fired cannot factually create a kill zone for which concurrent intent instructions would be relevant, in People v. Smith (2005) 37 Cal.4th 733 (Smith), our Supreme Court recognized that where there is evidence that two victims are seated in a vehicle, "one behind the other, with each directly in [the defendant's] line of fire, [such supports] an inference that [the defendant] acted with intent to kill both. [Citations.]" (Id. at p. 743.) Although Smith did not involve the special "kill zone" instructions from Bland, supra, 28 Cal.4th 313 as used in this case, it still found that there was evidentiary support for finding two separate or concurrent intents to kill for two attempted murders due to the closeness of the victims in that case. Similarly here, the close proximity of the victims, i.e., Aguiar standing directly in front of Acosta with her back to Andrews when he shot at them from his car, provided the jury with facts to define the narrow "kill zone" in this case. Thus, even though the nature and scope of Andrews's confrontation and attack with a firearm may have been mainly directed at Acosta, the jury could also reasonably find that he intended to kill Aguiar to get to Acosta who was standing directly in front of him. (See Smith, supra, 37 Cal.4th at pp. 744-748; Bland, supra, 28 Cal.4th at pp. 329-330.)
Moreover, the court's instructions and its answers to the jury questions left no room for the jury to convict Andrews of the attempted murder of Aguiar solely on a finding that he intended to kill Acosta without also finding he specifically intended to kill her. Although the jury appeared at first to have been confused about the "kill zone" alternative for proving that specific intent to kill Aguiar, the responses to the jury's notes, which included giving them CALJIC No. 8.66.1, clearly defined that zone and the concurrent intent concept for the jury which the prosecutor was relying upon and argued. Even though our Supreme Court reiterated in Smith that such special "kill zone" instructions were not required even if argued (Smith, supra, 37 Cal.4th at p. 746), we believe it is better practice for a court to give instructions on the general principles of such legal concept of concurrent intent in the interest of preventing any jury confusion when the evidence supports the "kill zone" concept and it is relied upon and argued as in this case.
As the People note, this court has previously reversed three attempted murder convictions for a combined failure of the court to give concurrent intent/kill zone instructions where the prosecutor argued that legal concept, albeit erroneously. (People v. Anzalone (2006) 141 Cal.App.4th 380, 392-393.) Here, Andrews does not claim that the prosecutor incorrectly argued that theory nor that the instructions were wrong as given; he only argues that the instructions should not have been given based on the facts of this case.
In sum, we conclude the trial court properly instructed the jury on the necessary elements of attempted murder for count 2 and properly answered the jurors' questions about the requisite specific intent to kill, concurrent intent and the kill zone. No error is shown.
B. Voluntary Manslaughter as Lesser Offense to Murder
After off the record discussions regarding the appropriate jury instructions, the court considered Andrews's counsel's request that voluntary manslaughter instructions be given as a lesser included offense of murder on the theories of sudden quarrel or heat of passion and imperfect or unreasonable self-defense, noting it was not inclined to instruct on such theories of voluntary manslaughter because there was no substantial credible evidence to support doing so. After hearing arguments of counsel on whether the theory of imperfect self-defense would apply, the court, relying on People v. Lucas (1997) 55 Cal.App.4th 721, 739-740 (Lucas), found that even if there arguably had been some heated words exchanged which caused Andrews to become angry, it did not think "that the provocation would have caused a person of average disposition to act irrationally without due deliberation from passion rather than from judgment [or that there was] any credible evidence that could lead a reasonable juror to, under that situation, knowing the same facts that provoked or not a reasonable person would have shot." The court therefore exercised its discretion, as the court had in Lucas to refuse to instruct on voluntary manslaughter on a theory of heat of passion, adequate provocation. (Ibid.)
The court then heard argument on whether it should instruct on voluntary manslaughter on the separate theory of "so-called imperfect self-defense under [no.] 571 of CALCRIM." Andrews's counsel argued that based on the experts' testimony that the shooting had occurred in a neighborhood with several Hispanic gangs, whose members often wore black hats, baggy blue jeans and t-shirts, and carried guns in waistbands under their baggy sweatshirts, that it was arguable that Andrews thought the victim, who was wearing a black hat, blue pants and a dark shirt, was an Hispanic gang member with a gun whose approach toward him caused him to believe he was in danger of death or great bodily injury and justified shooting the victim.
In addition to arguing that the imperfect self-defense theory was not applicable in this case because the prosecution was relying alternatively on a second degree felony murder theory as in People v. Tabios (1998) 67 Cal.App.4th 1, 6-9, the prosecutor asserted there was no evidence that the victim had a weapon and had stepped off the curb toward Andrews's car, or that Andrews, who backed up his car and invited a confrontation, had "an honest belief in the necessity to use deadly force." The court agreed with the prosecutor and denied the request to instruct on the imperfect self-defense theory for voluntary manslaughter because there was no evidence of necessity and felony second degree murder takes away the malice element to which such theory would be relevant.
The court subsequently denied Andrews's new trial motion made on grounds the court erred in failing to instruct the jury on voluntary manslaughter under either of the theories, commenting it remained convinced that there was no substantial evidence to require the giving of those instructions.
On appeal, Andrews contends the trial court erred in refusing to instruct on the lesser crime of voluntary manslaughter based on the theories of unreasonable self defense and sudden quarrel or heat of passion. He specifically argues, as he did below, that the evidence presented at trial showed that the heated argument in which he engaged with the victim, who was wearing clothing similar to that of Hispanic gang members, caused him to subjectively feel the need to defend himself against imminent peril and also caused his reasoning to become 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.' [Citation.]" (People v. Berry (1976) 18 Cal.3d 509, 515.) We disagree.
Generally, a court need only instruct on a lesser included offense when there is substantial evidence on which a reasonable jury could conclude the defendant was guilty of the lesser, but not the greater offense. (People v. Breverman (1998) 19 Cal.4th 142, 162.) A court need not instruct on unreasonable self-defense or heat of passion manslaughter where the evidence is "minimal and unsubstantial." (People v. Barton (1995) 12 Cal.4th 186, 201 (Barton).)
Specifically with regard to unreasonable self-defense, the evidence must show an honest but unreasonable belief in the need for self-defense in order to negate malice and reduce a killing from murder to manslaughter. (People v. Flannel (1979) 25 Cal.3d 668, 674.) To do so, the evidence must establish that the defendant actually feared imminent danger to life or great bodily injury. (In re Christian S. (1994) 7 Cal.4th 768, 783; People v. Manriquez (2005) 37 Cal.4th 547, 581 (Manriquez).)
Concerning heat of passion, there must be evidence that the defendant actually felt passion and that there was sufficient objective provocation to cause that passion in a reasonable person. (Manriquez, supra, 37 Cal.4th at pp. 583-584.) In turn, "[t]he provocative conduct by the victim . . . must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (Ibid.) In other words, " ' "[N]o defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man." [Citation.]' [Citations.]" (Id. at p. 584.)
Here, as the trial court properly concluded, there was not sufficient evidence to support the giving of the requested instructions on voluntary manslaughter as a lesser offense of the count 1 murder on either theory. Even assuming the victim Acosta appeared to be an Hispanic gang member based on his dark clothing, there was no evidence to suggest Andrews feared him or thought Acosta was about to kill or seriously harm him. Andrews did not testify and his passenger Harkins, who did testify, did not say that Andrews ever told him he felt threatened by Acosta. Nor was there any evidence that Acosta had a weapon or that it appeared he was reaching for one. Andrews was in a car with heavily tinted windows that backed up to confront Acosta who was on foot and was prevented from approaching the car by his girlfriend. Acosta was on a sidewalk approximately 20 feet away from Andrews's car when Andrews shot him with a bullet through his girlfriend's back. Under these circumstances, it was pure speculation Andrews shot Acosta out of an honest belief that Acosta was an immediate, mortal threat to him.
Moreover, although Andrews contends he and Acosta had engaged in a "heated argument," shown by Acosta yelling "fuck you," and some additional words, and his girlfriend holding him back so as to keep him from approaching Andrews's car, there was no evidence that Andrews in fact felt any actual fury, rage or passion, and acted upon such emotion in killing Acosta. Even the combined use of derogatory words and physical force, has been held to be insufficient on which to base heat of passion instructions where "[t]here was no showing that [the] defendant exhibited anger, fury, or rage [because without such] there was no evidence [he] 'actually, subjectively kill[ed] under the heat of passion. . . .' [Citation.]" (Manriquez, supra, 37 Cal.4th at p. 585-586; see also People v. Najera (2006) 138 Cal.App.4th 212, 226, fn. 2.) Additionally, as the court below found, even assuming such passion and anger, the provocation was not sufficient to provoke a reasonable person to shoot. (See Lucas, supra, 55 Cal.App.4th at pp. 739-740.)
In sum, because there was at best only "minimal and unsubstantial" evidence to support voluntary manslaughter instructions based on heat of passion or unreasonable self-defense (Barton, supra, 12 Cal.4th at p. 201), the trial court properly exercised its discretion in refusing the defense request to give such instructions.
II
SENTENCING ISSUES
A. Cunningham and Blakely
In Cunningham, supra, 127 S.Ct. 856, the United States Supreme Court determined that California's Determinate Sentencing Law (DSL), which permits a court to impose an upper term sentence based on aggravating facts not found true by a jury or beyond a reasonable doubt, is unconstitutional and violates the holdings in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely, supra, 542 U.S. 296, and United States v. Booker (2005) 543 U.S. 220 (Booker). In so holding, the court in Cunningham overruled People v. Black (2005) 35 Cal.4th 1238 (Black I), stating: "Contrary to the Black [I] court's holding, our decisions from Apprendi to Booker point to the middle term specified in California's statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent." (Cunningham, supra, 127 S.Ct. at p. 871, fn. omitted.) The high court again reaffirmed Apprendi's bright-line rule, that had been reiterated in both Blakely and Booker, that "[e]xcept for a prior conviction, 'any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' [Citation.]" (Cunningham, supra, 127 S.Ct. at p. 868.)
Subsequently, our Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II), in which it reconsidered its holding in Black I in light of the Cunningham decision, concluding that the existence of "a single aggravating circumstance" renders a defendant eligible for the upper term, thus making the upper term the "statutory maximum" in cases where at least one aggravating fact has been shown in a manner consistent with the requirements of the Sixth Amendment. (Black II, supra, 41 Cal.4th at p. 813.) The court specifically stated that "as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant's right to jury trial." (Black II, supra, 41 Cal.4th at p. 812.)
In a companion case decided the same day, our Supreme Court in People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), found, among other things, that because there were no factors in aggravation cited by the trial court in that case which satisfied the Sixth Amendment right to jury trial established under Blakely to make the defendant eligible for the upper term as there had been in Black II, the trial court committed error which must then be analyzed under the Chapman "harmless beyond a reasonable doubt standard." (Sandoval, supra, at pp. 837-838.) When the court did so in that case, it found the error prejudicial and set out the procedure for resentencing consistent with the Legislature's March 30, 2007 amendment of section 1170. (Sandoval, supra, 41 Cal.4th at pp. 843-852.)
In sentencing Andrews in this case, the trial court imposed an upper term for the count 2 attempted murder, as well as imposing upper terms for counts 3, 4, 5, 6, 8 and 9, essentially citing four factors for doing so: the "high degree of viciousness, callous, a more than total disregard for the humanity and basic human dignity of the victims or intended victims," planning, inducing a minor to commit a crime, and being the "moving force" or leader in the crimes. Andrews challenges the court's imposition of the upper terms basically arguing that because the aggravated terms were based on facts not found true by the jury, it violated his federal constitutional rights to a jury trial and to proof beyond a reasonable doubt as expressed in Cunningham, supra, 127 S.Ct. 856 and Blakely, supra, 542 U.S. 296.
Although the court stated it was imposing an upper term for count 6, because it imposed that term consecutively, it was required as a matter of law to actually impose only one-third the midterm, which it did. The court also stayed execution of the upper terms imposed for counts 3, 4, 5, 8 and 9 under section 654. Even though there is thus no discernible harm from the terms actually imposed for these other counts, because they may have some administrative effect on Andrews's placement in prison and the court used the same reasons to impose upper terms on them as for count 2, we consider Andrews's assertion of Cunningham and Blakely error with regard to all upper term counts imposed by the court.
The People concede there was error under Cunningham and Blakely because the reasons the court used for imposing the upper terms in this case were not admitted by Andrews or found true by the jury. However, citing Sandoval, supra, 41 Cal.4th 825, 838, the People assert this court should reject Andrews's claim of prejudicial error and affirm his sentence because any error was harmless because the facts the court relied upon "were unquestionably true [and a]ny jury would have found that shooting a young girl in the back to get at her boyfriend was all the things the court said it was." We disagree.
Although we may find the error in imposing an upper term harmless if we can say beyond a reasonable doubt that had the jurors been presented with the factors in aggravation that the court relied upon, they would have found at least one of them true beyond a reasonable doubt, thus authorizing the imposition of an upper term regardless of the validity of any of the other factors the court had relied upon to aggravate the term (see Washington v. Recuenco (2006) 548 U.S. 212, 216-222; Sandoval, supra, 41 Cal.4th 825, 838-839), and a jury could have found that the acts Andrews committed showed a high degree of viciousness and callousness, some planning and that he induced a minor to commit or assist in his crimes in which he took the lead, on this record we simply cannot say beyond a reasonable doubt that it would have found any one of those factors the trial court relied on to aggravate Andrew's sentence was true beyond a reasonable doubt thereby making the crimes in counts 2, 3, 4, 5, 6, 8 and 9 " 'distinctively worse than the ordinary.' [Citation.]" (Black II, supra, 41 Cal.4th at p. 817.) As Andrews points out, the first factor is highly subjective, and the others are debatable based on the evidence presented at trial which showed other people with him during two of the incidents had lengthy criminal histories both before and after the charged offenses, that the incidents were basically spontaneous and committed while Andrews and the others were using drugs and alcohol.
Accordingly, each of the upper term sentences must be vacated or stricken as violative of Cunningham and Blakely. Normally we would then remand the matter for resentencing as set forth in Sandoval, supra, 41 Cal.4th at pages 846 to 858. However, we do not do so in this case. Because Andrews's total prison term, which includes a sentence of life without the possibility of parole coupled with a consecutive indeterminate life term and consecutive terms of 25 years to life and 20 years to life for firearm enhancements, is not capable of being served in his lifetime, it would be a waste of judicial resources and serve no real purpose to remand for resentencing where the only conceivable difference is two years of a determinate term to be served before the indeterminate life terms from which Andrews will likely never be paroled. Under these futile circumstances and in the interests of justice, we use our inherent powers under section 1260 to modify the sentences for counts 2, 3, 4, 5, 6, 8 and 9 by imposing middle terms for those counts, so that count 2 is now seven years consecutive to the indeterminate life terms, count 6 is again run consecutive at one-third the midterm, and the respective middle terms on the other counts (counts 3, 4, 5, 8 & 9) are imposed and again stayed under section 654. The trial court is ordered to amend the abstract of judgment accordingly to reflect such modifications.
B. The Parole Revocation Fine
Finally, relying on People v. Oganesyan (1999) 70 Cal.App.4th 1178 (Oganesyan), Andrews contends the $10,000 parole revocation fine imposed but suspended under section 1202.45 was unauthorized and must be stricken because such does not apply to sentences of life without possibility of parole. Based on the recent holding in People v. Brasure (2008) 42 Cal.4th 1037 (Brasure), we disagree.
In Brasure, supra, 42 Cal.4th 1037, our Supreme Court held that even though the defendant there was sentenced to death, because he also was sentenced to a determinate term under section 1170, as a matter of law such term was required under section 3000, subdivision (a)(1) to "include a period of parole," and in turn was required to have a parole revocation fine imposed under section 1202.45. (Brasure, supra, at p. 1075.) The court in Brasure specifically distinguished Oganesyan, supra, 70 Cal.App.4th 1178, upon which Andrews relies, because it involved "no determinate term of imprisonment imposed under section 1170, but rather a sentence of life without the possibility of parole for first degree special circumstance murder and an indeterminate life sentence for second degree murder. [Citation.]" (Brasure, supra, 42 Cal.4th at p. 1075.) The court noted that even though the defendant there was "unlikely ever to serve any part of the parole period on his determinate sentence[, n]onetheless, such a period was included in his determinate sentence by law and carried with it, also by law, a suspended parole revocation restitution fine. Defendant is in no way prejudiced by assessment of the fine, which will become payable only if he actually does begin serving a period of parole and his parole is revoked." (Ibid.)
The same is true for Andrews. Because Andrews was sentenced to unstayed determinate prison terms on counts 2 and 6 in addition to his life without parole term and other indeterminate life terms, the holding in Brasure is dispositive of his claim the court erred in imposing the parole revocation restitution fine in this case. (Brasure, supra, 42 Cal.4th at p. 1075.)
DISPOSITION
The sentence is modified to vacate the upper terms imposed for counts 2, 3, 4, 5, 6, 8 and 9 and to impose the middle terms for those counts in accordance with the views expressed in this opinion. As so modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect the modifications and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: BENKE, Acting P. J., McDONALD, J.