Opinion
NOT TO BE PUBLISHED
Superior Court County Ct. No. GA061974 of Los Angeles Janice C. Croft, Judge
Cynthia A. Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Timothy M Weiner, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, Acting P.J.
In this domestic violence case, a jury convicted Lonzo Atkins, Jr. of attempted murder of his wife (Pen. Code, §§ 664/187, subd. (a)) and two counts of assault with a firearm (§ 245, subd. (a)(2)), with special findings that he personally and intentionally discharged a handgun (§ 12022.53, subd. (c)) and personally used a handgun to inflict great bodily injury (§§ 12022.5, subd. (a); 12022.7, subd. (e)). The trial court sentenced him to 33 years state prison.
All statutory references are to the Penal Code.
He appeals, claiming instructional error.
Facts and Procedural History
On June 26, 2005, appellant visited his wife, Linda Atkins, in Monrovia. Linda was staying with her parents and did not want to return home with appellant.
Appellant accused Linda of cheating on him, drew a .357 caliber revolver from his waistband, and said "I'll show you motherfuckers." Pointing the revolver at Linda, appellant stated that he was going to kill her. Linda screamed, "Put the gun down" and grabbed his arm.
Linda's brother, Timmy Cormier, saw appellant pointing the revolver at Linda and tried to disarm him. Appellant fired three shots. Two bullets went through the kitchen stove and a third bullet hit the ceiling. One bullet struck Linda's father, 85-year-old Martin Cormier, in the back.
Appellant defended on the theory that it was an accidental shooting. He denied arguing with Linda, denied that he drew the revolver, and denied that he intended to shoot anyone. Appellant claimed that Linda tackled him without provocation and that her brother, Timmy Cormier, joined the fracas.
Attempted Voluntary Manslaughter
Appellant argues that the trial court erred in not instructing on attempted voluntary manslaughter based on theories of imperfect self-defense and sudden quarrel or heat of passion. (See e.g., People v. Barton (1995) 12 Cal.4th 186, 201-202 [attempted voluntary manslaughter a lesser included offense to attempted murder].) "Voluntary manslaughter is a lesser included offense of murder when the requisite mental element of malice is negated by a sudden quarrel or heat of passion, or by an unreasonable but good faith belief in the necessity of self-defense." (People v. Gutierrez (2003) 112 Cal.App.4th 704, 708.)
Appellant testified that he did not draw the revolver, point it at anyone, or intend to shoot anyone. He denied arguing with Linda and stated that they were having a calm conversation. "After she tackled me I asked her what was she doing. We was talking calm. I didn't think anything of it." (Emphasis added.)
Appellant claimed that the revolver was still in his waistband when Linda yelled, "Get the gun." "[W]e all grabbed it. [¶] . . . [¶] We all pulled it out together. I never had possession of the gun alone." Appellant was unsure who pulled the trigger when the revolver "went off" and did not "know about the other two [shots]. I might have been unconscious."
The trial court instructed on accident and misfortune (CALJIC 4.45) but declined to instruct on attempted voluntary manslaughter, citing People v. Gutierrez, supra, 112 Cal.App.4th 704. It did not err. " 'We agree with the Attorney General that evidence of provocation or heat of passion is not present in this case, and there is nothing in the record "substantial enough to merit consideration" by the jury of the lesser included offense of attempted voluntary manslaughter under a theory of sudden quarrel or heat of passion. . . .' [Citation.]" (Id., at p. 709.) There was no evidence that appellant believed he had to shoot the revolver to protect himself from an imminent threat of death or great bodily injury. (See e.g., People v. Sinclair (1998) 64 Cal.App.4th 1012, 1016.)
The following colloquy occurred:
The argument that it was a sudden quarrel or heat of passion shooting also fails. Appellant stated that he was calm, even after Linda tackled him. Based on appellant's testimony, the trial court was not required to instruct on attempted manslaughter.
Citing People v. Elize (1999) 71 Cal.App.4th 605, appellant argues that a lesser included instruction must be given even when the factual premises underlying the instruction contradicts the defendant's own testimony. "Thus for example, an instruction on heat of passion manslaughter is required even though the defendant testifies that he had no intent to shoot and the shot was accidental." (Id., at p. 615.) But a trial court may not instruct on attempted voluntary manslaughter as a lesser included offense unless there is substantial evidence of provocation and heat of passion. (People v. Barton, supra, 12 Cal.4th at p. 195, fn. 4.)
Appellant denied that he was angry and stated that the revolver just "went off." Linda, however, testified that appellant jumped up with the revolver and threatened to kill her before anyone touched him. Timmy Cormier grabbed the gun barrel and pushed it away, but appellant pushed the revolver back towards Linda and fired three shots. There was no evidence that appellant actually believed his life was in peril. (Compare People v. Vasquez (2006) 136 Cal.App.4th 1176, 1179.)
Assuming that the trial court erred in refusing to instruct on attempted voluntary manslaughter as a lesser offense, the alleged error was harmless. (People v. Breverman (1998) 19 Cal.4th 142, 178; People v. Watson (1956) 46 Cal.2d 818, 836.) The jury found that appellant harbored express malice aforethought and acted with the specific intent to kill. (CALJIC 8.66.) The firearm enhancements required the jury to find that appellant "intentionally displayed a firearm in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it." (CALJIC 17.19.) Had the jury credited appellant's testimony that the shooting was accidental, it would have acquitted him on the assault counts.
Not instructing on a lesser included offense is harmless where, as here, the jury necessarily decides factual questions posed by the omitted instructions adversely to the defendant under other properly given instructions. (People v. Lewis (2001) 25 Cal.4th 610, 646.) There is no reasonable probability that appellant would have received a more favorable verdict had the trial court instructed on attempted voluntary manslaughter as a lesser included offense. (People v. Breverman, supra, 19 Cal.4th at p. 178 .) "[E]ven if we were to assume the failure to instruct on imperfect self-defense violated defendant's constitutional rights, we would find the error harmless." [Citation.]" (People v. Manriquez (2005) 37 Cal.4th 547, 582.)
CALJIC 17.01
Appellant next contends that the trial court erred in not giving a CALJIC 17.01 unanimity instruction on attempted murder. The prosecution argued that the jury could find appellant guilty of attempted murder when he jumped up and pointed the revolver at Linda, or when appellant struggled with Timmy Cormier seconds later and fired the revolver.
A jury unanimity instruction is not required where the acts are so closely connected in time as to form part of one transaction. (People v. Diedrich (1982) 31 Cal.3d 263, 281-282; People v. Stankewitz (1990) 51 Cal.3d 72, 100.) "The 'continuous conduct' rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them. [Citation.]" (Ibid.)
The evidence here established a series of acts so closely connected in location and time (about 30 seconds), that they formed a single transaction. The jury was not required to unanimously agree at what millisecond in time he attempted to murder his wife. Nor has appellant shown that the alleged instructional errors violated his due process right to a fair trial.
The judgment is affirmed.
We concur: COFFEE, J., PERREN, J.
"MR. FOUNTAIN [defense counsel]: Well, I think that the court might have [the] option of saying that this was purely an accident. However, assuming the jury doesn't believe that I certainly think defense counsel has a right to argue these alternative crimes, particularly attempted voluntary manslaughter because we get into exactly what we had here, a struggle in the heat of passion, a gun going off, so even if the jury believes my client intended to shoot his sister or her brother, that this would be sort of a classic case of voluntary manslaughter if it was a murder or attempted voluntary manslaughter in the facts of this case.
"THE COURT: I guess if he hadn't testified that's true but when he gets up on the stand and says a complete denial, they are the ones that grabbed the gun. I mean a complete denial. Didn't even say there was[] an argument. He was in a calm state. There is nothing. [¶] I didn't know how that – I don't think once he testifies to a complete denial that he can now ask for it because then you'd have to say your client is lying . . . ."