Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. PA063014, Kathryne Ann Stoltz, Judge.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
Jose Antonio Avila appeals from the judgment entered following his conviction of first degree murder, with findings that he committed the offense for the benefit of a criminal street gang and that a principal personally and intentionally used a firearm. Before this court appellant argues the trial court erred in failing to sua sponte instruct the jury on the lesser offense of voluntary manslaughter. As we shall explain, the claim lacks merit, and accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Shooting
On May 5, 2008, between 7:00 and 7:30, Juan Siordia known by the gang moniker “Slim, ” and Alejandro Villa known by the gang moniker “Slash, ” were on Van Nuys Boulevard. Siordia and Villa were associated with the Terra Bella Gang. One of the rivals of the Terra Bella Gang was the Project Boyz Gang. Prior to May 5, Siordia and Villa fought with Project Boyz Gang members on multiple occasions.
Siordia and Villa were near a Wells Fargo bank for about five minutes when a “kid” approached them on a bicycle. The kid said “Project Boyz, ” and Siordia responded “fuck rejects, ” which is a disrespectful reference to the Project Boyz Gang. The kid and Siordia fought. Siordia saw a group of between 10 and 15 young men approaching. Some of the young men fought with Siordia and some fought with Villa. The fight lasted approximately 20 seconds before Siordia and Villa ran away. While they were running, Siordia heard a gunshot and saw Villa fall to the ground. Siordia did not see who fired the gun. Villa died as a result of a single gunshot wound to his lower back.
Noemi Solorio was walking to the Wells Fargo bank when she saw about four young men fighting. Approximately one minute later she heard a gunshot. Solorio saw the victim on the ground and called an ambulance. Jaime Gurrola, Solorio’s son, also heard a gunshot and saw several boys run away. Juan Cepeda was also in the area at the time of the shooting. Cepeda saw six or seven young men fight, heard a gunshot, and then saw the victim on the ground.
B. Evidence and Trial
After the shooting, Los Angeles Police Officer Travis Coyle went to the San Fernando Gardens Housing Project to look for possible suspects. Officer Coyle saw Juan Reyes, Adrian Cervantes, Elias Sanches and appellant. All four of the young men were detained and later released after Officer Coyle learned that no witnesses were coming to identify them. Detective Joshua Byers responded to the scene of the shooting to collect evidence and found a nine-millimeter bullet casing on the ground.
The day after the shooting, Detective Mario Santana and Detective Heather Gahry conducted a recorded interview of Adrian Cervantes that was played for the jury. Cervantes admitted that he and appellant were both members of the Project Boyz Gang. Cervantes told Detectives that he was with appellant and two other friends the day of the shooting. They saw two rival gang members, approached them, and issued a gang challenge and then they all began to fight. At some point, the two young men ran away and appellant pulled out a gun. Cervantes told appellant not to shoot. Appellant shot one of the young men. Cervantes and his friends fled the scene. Cervantes later asked appellant what he did with the gun but appellant refused to tell him.
At trial, Cervantes denied ever being a member of the Project Boyz Gang. He testified that he was not on Van Nuys Boulevard the day of the shooting. He denied knowing appellant and claimed he never identified any photograph of appellant. He denied speaking with detectives.
Officers Byers and Martinez conducted a recorded interview of Jesus Marin on August 24, 2008, that was played for the jury. Marin stated that appellant claimed responsibility for the shooting. According to Marin, appellant approached Marin prior to the shooting and said he wanted to “put in some work” for the gang. Appellant told Marin he already had a gun and a “posse” to go with him. Appellant showed Marin the gun and asked if he wanted to join them, but Marin declined.
Marin stated that he spoke with appellant the day after the shooting and appellant told Marin he killed a person named Slash. A few weeks later, appellant gave Marin more details about the shooting. Appellant told Marin they went around the neighborhood looking for rival gang members when they saw Slash. A fight ensued when Slash said disrespectful things toward the Project Boyz Gang. Appellant further told Marin that he pulled out a gun and shot Slash when he attempted to run away.
At trial, Marin testified that he did not know or recognize appellant. He also testified that he was not interviewed by detectives regarding the shooting.
On October 24, 2008, detectives conducted a recorded interview of appellant which was played for the jury. Appellant acknowledged being a member of the Project Boyz Gang. Appellant initially denied any involvement in the shooting. Later in the interview, appellant admitted he was present during the shooting but denied shooting anyone. Appellant stated that he was with Cervantes and two other people when a fight broke out; however he was not involved in the fight or the shooting. Appellant stated that he initially lied about not having been at the scene because he was scared of being accused of killing Villa.
In a subsequent interview, appellant admitted that he shot Villa but claimed he fired the gun accidently. Appellant stated he found the gun in a park near some trash cans the day of the shooting. Appellant claimed he was slightly intoxicated and pulled the gun out during the fight and it “went off on me.” Appellant denied aiming the gun at Villa.
Appellant was charged with first degree murder (Pen. Code, § 187, subd. (a)), with allegations that he committed the offense for the benefit of a criminal street gang (Pen. Code, § 186, subd. (b)(1)(C)) and that a principal personally and intentionally used a firearm causing death (Pen. Code, § 12022.53, subds. (b)-(e)(1)).
Los Angeles Police Officer Fernando Avila was assigned to the Foothill Division’s gang enforcement detail. At trial, Officer Avila testified that appellant was a self-admitted member of the Project Boyz Gang. Their primary activities include murder, attempted murder, robbery, attempted robbery, witness intimidation, carjacking, vehicle theft, and possession and sales of narcotics. Officer Avila testified the shooting occurred in rival territory.
Los Angeles Police Officer Rodolfo Rodriguez testified that gang members move up in status with the gang by “putting in work” which often means committing some type of violent act upon a rival gang member. Based on a hypothetical mirroring of the prosecution’s evidence, Officer Rodriguez testified the shooting of Villa was committed for the benefit of the Project Boyz Gang.
Appellant’s sister, Elida Avila, testified that she was at the park with appellant at the time of the shooting. She testified that she sat with appellant to watch a soccer practice. Appellant’s sister-in-law also testified she was at the park with appellant at the time of the shooting. Witnesses Yesenia Gomez, Maria Gomez, Austin Gomez and Omar Alvarez also testified that they saw appellant at the park during the evening of the shooting.
At trial, appellant testified he was a member of the Project Boyz Gang. He testified that he was not involved in the shooting on May 5th and he was at the park watching a soccer practice. Appellant testified he falsely admitted shooting Villa because he was scared, and he believed he would be able to go home if he admitted to committing the crime.
Defense’s expert witness testified that one might falsely confess to a crime if they believe they will receive a lesser punishment if they confess.
C. Verdict, Sentencing and Appeal
A jury found appellant guilty of first degree murder (Pen. Code, § 187, subd. (a)), with findings that he committed the offense for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(C)) and that a principal personally and intentionally discharged a firearm causing death (Pen. Code, § 12022.53, subds. (b)-(e)(1)). The trial court sentenced appellant to a term of 25 years to life for murder, plus an additional term of 25 years to life for the firearm allegation. Appellant filed a timely notice of appeal.
DISCUSSION
The trial court instructed the jury on the principles of first degree premeditated murder and second degree murder as well as the lesser offense of involuntary manslaughter. Defense counsel specifically told the trial court that she was not requesting the jury be instructed on voluntary manslaughter and no instruction was given. Appellant contends the trial court had a sua sponte obligation to instruct the jury on voluntary manslaughter as a lesser included offense of murder. Specifically, appellant argues the evidence presented at trial would have supported an instruction premised on the theory of sudden quarrel or heat of passion because a fistfight preceded the shooting. We disagree.
“In a criminal case, a trial court must instruct on general principles of law relevant to the issues raised by the evidence, even absent a request for such instruction from the parties. [Citation.] The obligation extends to instruction on lesser included offenses when the evidence raises a question as to whether all the elements of the charged offense were present, but not when there is no evidence that the offense committed was less than that charged. [Citation.]” (People v. Cruz (2008) 44 Cal.4th 636, 664.) A trial court has a duty to instruct sua sponte on lesser included offenses when substantial evidence shows the lesser offense, but not the greater, was committed. (People v. Breverman (1998) 19 Cal.4th 142, 162.) “This substantial evidence requirement is not satisfied by ‘any evidence... no matter how weak....” (People v. Avila (2009) 46 Cal.4th 680, 705.) Substantial evidence means “evidence that a reasonable jury could find persuasive.” (People v. Benavides (2005) 35 Cal.4th 69, 102.) We review de novo the question of whether the trial court erred in failing to instruct on a lesser included offense. (People v. Cole (2004) 33 Cal.4th 1158, 1215.)
The doctrine of sudden quarrel or heat of passion is a narrow one. “A heat of passion theory of manslaughter has both an objective and a subjective component.” (People v. Moye (2009) 47 Cal.4th 537, 594.) “To satisfy the subjective element of this form of voluntary manslaughter, the accused must be shown to have killed while under ‘the actual influence of a strong passion’ induced by such provocation. [Citation.]” (Id. at p. 550.)
The record does not contain substantial evidence supporting an instruction on voluntary manslaughter, as there was no evidence that appellant killed under sudden quarrel or heat of passion. Rather, the evidence showed that appellant committed a premeditated murder. Appellant told Marin prior to the shooting he wanted to “put in some work” for the Project Boyz Gang. Appellant obtained a gun and assembled a “posse” of fellow gang members and entered rival gang territory. Appellant and his posse approached two members of a rival gang, proclaimed the name of their gang and initiated a fistfight. When Siordia and Villa ran away, appellant shot Villa in the back.
There is no evidence appellant acted while under the heat of passion. In appellant’s statements to the police, he claimed the gun fired accidently. At trial, appellant claimed he had an alibi and denied any involvement in the shooting. In addition, when asked if he would be upset if a rival gang member called the Project Boyz Gang “rejects” appellant answered that he would not be upset and he would “leave it alone.”
Appellant argues that multiple witnesses stated a fight immediately preceded the shooting. To satisfy the objective element “the accused’s heat of passion must be due to ‘sufficient provocation’ [Citation.] ‘... The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.]’” (Moy, supra, 47 Cal.4th at pp. 549-550.) The record shows that appellant and his “posse” approached Sirodia and the victim to start a fight. There is no evidence that the victim did anything to provoke appellant. “‘The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim.’ [Citation.] ‘[T]he victim must taunt the defendant or otherwise initiate the provocation.’ [Citations.]” (Avila, supra, 46 Cal.4th at 705.)
Appellant relies on People v. Ramirez (2010) 189 Cal.App.4th 1482, to support this argument. However, the case is distinguishable. In Ramirez, multiple witnesses stated the victim punched Ramirez during a gang fight. (Id. at pp. 784-785.) After the shooting, Ramirez appeared visibly shaken and stated he shot someone who was punching him. (Id. at p. 785.) In this case, when appellant admitted he was at the scene, he maintained that he watched but did not participate in the fight. There is no evidence that the victim engaged appellant in any physical or verbal altercation. Even when viewed against the background of a gang rivalry, the fight does not satisfy the requisite provocation. This 20-second fight was insufficient to provoke “an ordinary person of average disposition to act rashly or without due deliberation and reflection.” (People v. Lee (1999) 20 Cal.4th 47, 59.) Furthermore, appellant’s “posse” far outnumbered the rival gang members and the victim attempted to retreat when appellant pulled out a gun and shot him.
Additionally, appellant cannot claim adequate provocation when his “posse” initiated the gang fight. (People v. Oropeza (2007) 151 Cal.App.4th 73, 83 [a “defendant may not provoke a fight, become the aggressor, and, without first seeking to withdraw from the conflict, kill an adversary and expect to reduce the crime to manslaughter by merely asserting that it was accomplished upon a sudden quarrel or in the heat of passion”].) In view of all of the foregoing, we conclude the court did not err in omitting jury instructions on this theory of voluntary manslaughter.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., JACKSON, J.