Opinion
B160734.
10-31-2003
THE PEOPLE, Plaintiff and Respondent, v. TORY BARBER, Defendant and Appellant.
John A. Colucci, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael C. Keller and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted defendant Tory Barber of one count of attempted murder and one count of shooting at an occupied motor vehicle and found true the allegations defendant had personally used and intentionally discharged a firearm in regard to the attempted murder. The court sentenced him to a 29-year term.
On this appeal, defendant raises four distinct contentions, none of which has merit. He first contends the trial court erred in permitting the People to use the former testimony exception to the hearsay rule to introduce at trial the victims testimony from the preliminary hearing. He next contends the trial court committed prejudicial error in denying his Penal Code section 995 motion and thereby permitting the jury to determine the truth of the allegation that the crimes were committed for the benefit of a gang, an allegation the jury ultimately found not to be true. In regard to the attempted murder conviction, he urges the trial court had a sua sponte duty to instruct on the lesser included offense of attempted voluntary manslaughter. Lastly, he claims there is insufficient evidence to sustain his conviction for attempted murder. Because we reject all assignments of error, we affirm the judgment.
STATEMENT OF FACTS
On July 6, 2000, 14-year-old Edgar Sanchez was riding his bicycle when defendant and two other men approached and surrounded him. They told Sanchez to give them his bicycle. After defendant swung a baseball bat at Sanchez, Sanchez relinquished his bicycle and left.
As will be explained in more detail later, Sanchez did not testify at trial. After the trial court found the predicates of the former testimony exception to the hearsay rule were present, Sanchezs testimony from the preliminary hearing was read into evidence at trial.
Sanchez returned home and told his father, Angel Lopez, what had happened. By car, Sanchez and Lopez went to look for defendant and his accomplices. At a park, Sanchez spotted the three men. Each was riding a bicycle, including the one taken from Sanchez. Sanchez screamed: "Give me my bike back." Lopez also screamed at the men to return the bicycle. Both Sanchez and Lopez were angry. Defendant and his companions quickly started to ride across the park. Sanchez and his father reentered their car and followed the three to the other side of the park. When Lopezs car reached the three men, defendant got off of his bike, pulled a revolver out from his waistband, pointed it in the direction of Sanchez and Lopez, and shot several times. Sanchez bent down to get out of the line of fire. Three bullets hit the car although neither Sanchez nor his father was hit.
The shooting was observed by two police officers who were working undercover in the area. The first is Detective Scott Romero. He was driving by the park to investigate potential gang activity as well as drinking in the park. Detective Romero saw defendant take out a revolver, shoot several times at Lopezs car, remount his bicycle, and ride to a nearby apartment building. The second is Officer Jose Verdin. He, too, was working undercover and was driving two car lengths behind Detective Romero. Officer Verdin saw defendant lift up his shirt, pull out a handgun, and shoot several times.
Shortly thereafter, the police apprehended defendant and recovered Sanchezs stolen bicycle.
Defendant testified. He admitted he had been in the park with friends at the time of the events but denied either having taken Sanchezs bicycle or having shot at the car. Defendant heard the shots but claimed he did not know who the shooter was.
Based upon the above events, defendant was charged with and convicted of the attempted murder of Sanchez. In regard to that crime, the jury found true the allegations of personal use and intentional discharge of a firearm but found not true the allegation the attempted murder was willful, deliberate, and premeditated. The jury also convicted defendant of the crime of shooting at an occupied motor vehicle. The jury deadlocked on a charge of attempted murder of Lopez and the prosecutor subsequently dismissed that charge. The jury found defendant not guilty of the robbery of Sanchez. Lastly, the jury found not to be true the allegation that the crimes were committed for the benefit of, at the direction of, and in association with a street gang.
DISCUSSION
A. USE OF HEARSAY TESTIMONY
Defendant first contends the trial court erred in permitting the prosecutor to introduce at trial Sanchezs testimony from the preliminary hearing. The trial court made its contested ruling after it found that Sanchez was unavailable; that the People had exercised due diligence to locate Sanchez; and that defendant had had adequate opportunity and motive to confront and cross-examine Sanchez at the preliminary hearing. We find no error in the trial courts rulings.
1. Factual Background
The crimes were committed on July 6, 2000. Sanchez testified at a preliminary hearing on September 14, 2000. An information was filed in the superior court on September 28, 2000. For reasons not explained in the record, on June 12, 2001, the prosecution dismissed the case. The minute order for that date recites: "The People state they intend to refile the case."
The prosecution quickly refiled another complaint. A preliminary hearing was conducted on June 26, 2001. Two police officers testified. One of them, Officer Verdin, testified, inter alia, to statements Sanchez had made to him. (Evid. Code, § 872, subd. (b).) Defendant was again held to answer on all charges and enhancements and an information was filed in superior court on July 11, 2001. A trial date was set but was thereafter continued several times, often on the request of defense counsel. Trial was ultimately conducted in March 2002.
Because the prosecution was unable to locate Sanchez, it sought to introduce at trial Sanchezs testimony from the September 2000 preliminary hearing. The prosecution relied upon the former testimony exception to the hearsay rule. (Evid. Code, § 1291.) A predicate for the use of that exception is that the witness is unavailable. Insofar as is relevant, Evidence Code section 240, subdivision (a)(5) provides a witness is unavailable if "[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the courts process." Consequently, on March 11, 2002, the court conducted a hearing before trial commenced to determine whether the prosecution had exercised reasonable diligence to obtain Sanchezs attendance at the March 2002 trial.
During this hearing, the prosecutor informed the court without any contradiction from defense counsel that he first learned in October 2001 Sanchez was unavailable as a witness when his investigator had been unable to serve him with a subpoena for trial then set for October 24, 2001.
Brandon Lenhart, an investigator with the district attorneys office, testified at the pretrial hearing to the following efforts he made to locate Sanchez and his father, Lopez.
Using a computer data base, Lenhart located a residential address for the two on Simpson Avenue. He went there on October 19, 2001, but the home was vacant. It appeared no one lived there anymore. Lenhart requested a forwarding address from the post office. The post office replied there was no forwarding address.
A neighbor told Lenhart that "the owner of the location owned a restaurant close to there." Using a computer, Lenhart located the owner of the realty and, on October 30, 2001, met him at his restaurant. The man told him "he rented to another individual and that he believed that the person that was renting from him actually subleased to other people that he wasnt familiar with [and that] the family moved out about two months" earlier.
Lenhart contacted Monroe High School because the prosecutor had told him Sanchez was enrolled there. The school, however, informed Lenhart that Sanchez was now attending North Hollywood High School. Lenhart contacted the latter school but was told Sanchez had not attended that school since June 29, 2001. "Paperwork" from that school "indicated that his family said he was leaving to Guadalajara, Mexico."
North Hollywood High School gave Lenhart both the work phone and emergency contact numbers it had for Lopez.
Lenhart called the emergency contact number. The first time "there was no answer"; the second time a woman answered who said she did not know either Sanchez or Lopez.
The work phone was for Sharkys restaurant. Lenhart went to the restaurant on October 22, 2001. The manager told Lenhart that Lopez "hadnt been there for about seven months." The manager had no other contact information for Lopez and suggested Lenhart contact the restaurants corporate office.
The subpoena listed a secondary address for the witnesses on Parthenia Street in North Hills. Lenhart went to that location. The tenant told him she had been living there for five months. The building manager told Lenhart that Adriana Estella Gutierrez had been a babysitter for the Lopez family and gave him Gutierrezs phone number. Gutierrez was contacted by phone. Gutierrez had moved to Mexico six months earlier and had no pertinent information. The building manager also told Lenhart that Lopez had a teenage daughter named Adriana. Lenhart checked with North Hollywood High School but no one with that name was enrolled in the school.
In early November 2001, Lenhart advised the prosecutor the witnesses might be in Mexico. The prosecutor directed Lenhart to contact Federico Sucar, the prosecutions Mexican liaison, to assist in locating them in Mexico. Lenhart had several conversations with Sucar but was unable to provide Sucar with sufficient information such as an address to locate either Lopez or Sanchez in Mexico.
Lenhart contacted the Employment Development Department (EDD) and learned "there was no assigned Social Security number to the one [he] had" for Lopez. His attempt with the Department of Motor Vehicles (DMV) to determine Lopezs whereabouts was likewise unsuccessful. Using the CLETS DMV data base, Lenhart learned a Kansas drivers license had been issued to an Angel Lopez. Lenhart, however, did not pursue that inquiry because not only did the date of issuance predate Lopezs residency in California but an updated LEXIS computer search indicated that no one named Lopez presently resided at the address found on the license. Lastly, Lenhart testified he "ran the mothers name in D.M.V. There were 111 records which matched the criteria. She had an extremely common name." Apparently, no effort was made to pursue any of the 111 leads so generated.
In a further effort to find Sanchez, Lenhart also contacted three local hospitals, the coroner, juvenile hall, and the California Youth Authority. None of these entities had had any contact with Sanchez.
In March 2002 the prosecutor asked Lenhart to renew his efforts. Trial was then set for March 8, 2002. At that time Lenhart contacted the school district to see if Edgar Sanchez had reenrolled in high school. He had not. Computer research of a public records data base disclosed two addresses in Michigan at which an Angel Lopez resided. Pursuant to Lenharts request, the local police went to each address but did not find Lopez. Lenhart obtained Lopezs Social Security number from the corporate office of Sharkys restaurant and unsuccessfully used it to try to find Lopez through the EDD. However, using the Social Security number, Lenhart found Lopez had a Michigan drivers license. Pursuant to Lenharts request, the local police went to the address on the license but Lopez was not found there. Inquiries with the Welfare Department, local hospitals, and the Coroner also proved fruitless. Lenhart again contacted Sucar for his assistance in trying to locate the witnesses in Mexico but because Lenhart still had no additional specific information to assist in the search, Sucar was unable to help.
The trial court ruled: "[T]he D. A. investigator [Lenhart] did a very thorough job and I think that the People have made a sufficient showing of due diligence. [¶] . . . Ive actually never seen the District Attorneys do this much investigation in terms of prior addresses." "[T]he People had made a sufficient showing of due diligence to allow the testimony of Edgar Sanchez to be read into the record from the preliminary hearing."
Defense counsel then urged another predicate of the former testimony exception had not been established. He relied upon subdivision (a)(2) of Evidence Code section 1291 which provides that for the exception to apply, "[t]he party against whom the former testimony is offered [e.g., defendant] was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant [e.g., Sanchez] with an interest and motive similar to that which he has at the hearing." Defense counsel argued he had not had an adequate opportunity to confront and cross-examine Sanchez because after the preliminary hearing he learned of two items of evidence he could have used to cross-examine Sanchez on his identification of defendant as the shooter. The first item was that after the preliminary hearing had concluded, a witness who had initially told the police he was unable to identify defendant as the shooter had since identified a third person in a six-person photo show-up as the person who had fled the crime scene with a gun. The second was that although Sanchez had testified at the preliminary hearing he was able to identify defendant "because he had lines in his hair," "braids of some sort," the defense had since learned that in a police broadcast made immediately after the crimes, one officer "described [the shooter] to have some sort of head gear on [e.g., a baseball cap]."
After reading the transcript of the preliminary hearing, the court ruled:
"[I]t does appear in my opinion that the public defender cross-examined the witness [Sanchez] quite extensively, both on a description of the perpetrator and the ability of the witness to see in terms of the lighting and things of that nature.
"So I do believe there was extensive cross-examination of the witness.
"Now, of course theres always questions that still counsel Im sure would like to ask of a witness who was here in person that was not asked on a prior date. I think thats always going to be an issue in any case in which a witnesss testimony is read into the record and the witness is not here.
"But I think the real issue is whether the information that is sought to be elicited is so crucial that the persons deprived of a fair trial. And as I recall the two issues [defense counsel] had brought up were, one, that he didnt — that the attorney didnt find out until after the preliminary hearing that someone — its not yet clear who — said that the perpetrator had a hat on.
"And he would have liked to have asked the witness [Sanchez] about — the witness who described the perpetrator as having corn row braids or what I interpret to be corn row braids in his hair and whether he had a hat on or not, but if there was such a witness that saw the perpetrator with a hat on [defense counsel] can still bring him in for trial and he could still make that argument to the jury that Edgar Sanchez was not able to identify because the other witness said he had a hat on.
"And the second one was that another witness picked out someone else from the photo spread. Its my understanding this other someone else in the photo spread who was, according to the People at least, misidentified and was not somebody connected with the defendants gang or somebody whos known to live or be in the area but was a photograph generated by a computer.
"[¶] . . . [¶]
". . . In reading the transcript of the preliminary hearing it does appear that when [Sanchez] made his identification it was not a one-person show-up; that he made his identification, according to the testimony both of the witness and of the police officers, out of a group — he identified two people out of a group of approximately 10 people who had been stopped and handcuffed by the police.
"I believe he also testified that he did not identify the first person who was shown to him but that the identification was made somewhere down the line.
"So I think in light of that I do believe that the People should be allowed to read the testimony into the record. I dont believe it deprives the defendant of his constitutional right of confrontation. So I will allow the People to read that into the record."
Discussion
"The confrontation clauses of both the federal and state Constitutions guarantee a criminal defendant the right to confront the prosecutions witnesses. [Citations.] That right is not absolute, however. An exception exists when a witness is unavailable and, at a previous court proceeding against the same defendant, has given testimony that was subject to cross-examination. [Evid. Code, § 1291.] Under federal constitutional law, such testimony is admissible if the prosecution shows it made `a good-faith effort to obtain the presence of the witness at trial. [Citations.] California allows introduction of the witnesss prior recorded testimony if the prosecution has used `reasonable diligence (often referred to as due diligence) in its unsuccessful efforts to locate the missing witness. [Citation.]" (People v. Cromer (2001) 24 Cal.4th 889, 892.)
"[T]he term `due diligence is `incapable of a mechanical definition, but it `connotes persevering application, untiring efforts in good earnest, efforts of a substantial character. [Citations.] Relevant considerations include "`whether the search was timely begun" [citation], the importance of the witnesss testimony [citation], and whether leads were competently explored [citation]." (People v. Cromer, supra, at p. 904.)
"An appellate court `will not reverse a trial courts determination under section 240 simply because the defendant can conceive of some further step or avenue left unexplored by the prosecution. Where the record reveals . . . that sustained and substantial good faith efforts were undertaken, the defendants ability to suggest additional steps (usually, as here, with the benefit of hindsight) does not automatically render the prosecutions efforts "unreasonable." [Citations.] The law requires only reasonable efforts, not prescient perfection." [Citations.] `That additional efforts might have been made or other lines of inquiry pursued does not affect a conclusion there was due diligence. . . . It is enough that the People used reasonable efforts to locate the witness. [Citation.]" (People v. Diaz (2002) 95 Cal.App.4th 695, 706.)
The trial courts due diligence determination is subject to independent review on appeal instead of the more deferential abuse of discretion test. (People v. Cromer, supra, 24 Cal.4th 889, 893, & 901.) In that regard, a reviewing court engages in a two-step approach. "[T]he first inquiry is a matter of determining the historical facts—a detailed account of the prosecutions failed efforts to locate the absent witness. Those facts will rarely be in dispute. When they are, a reviewing court must, of course, apply a deferential standard of review to the trial courts factual findings. [¶] [T]he second inquiry—whether these historical facts amount to due diligence by the prosecution—requires application of an objective, constitutionally based legal test to the historical facts." (Id. at p. 900.) That is, "once a trial court through its findings has determined the historical facts, it is no better situated than an appellate court to make the predominantly legal determination that those facts do or do not demonstrate prosecutorial due diligence in locating the absent witness." (Id. at p. 902.)
In this instance, the historical facts—the actions taken to find Sanchez—were not contested. The only witness on that issue was Lenhart who testified to all aspects of his investigation. Neither in cross-examination nor argument did defense counsel contest the veracity of Lenharts testimony about his actions. We therefore review de novo the trial courts finding that those facts constituted due diligence to locate Sanchez.
In regard to trying to find Sanchez for the October 2001 trial, Lenharts efforts were far-reaching. When unable to serve Sanchez at the address given in October 2001, Lenhart utilized a computer data basis to find another address. After finding the home vacant, Lenhart unsuccessfully sought forwarding information from the post office and the homes owner. Using information provided by the prosecutor, Lenhart contacted the two high schools Sanchez had attended but to no avail. Lenhart then pursued further leads created by contact information Lopez had given to one high school but learned nothing of value at that time. Lenhart also visited a secondary address given for the two and learned the name of Lopezs teenage daughter as well as the name of a woman who had babysat for the Lopez family. Using these names, Lenhart continued his investigation but once again learned nothing to point him toward Sanchezs specific whereabouts. Lenhart contacted the Mexican liaison for assistance because it appeared Lopez had moved his family to Mexico. However, the absence of any specific information rendered it impossible for the liaison to even begin to find the Lopez family in Mexico. In addition, Lenhart contacted three local hospitals, the coroner, juvenile hall, and the California Youth Authority to see if any of these institutions had had any contact with Sanchez. None had. And Lenharts efforts to locate Lopez through either the EDD or DMV were similarly fruitless.
In March 2002, Lenhart renewed his efforts. He contacted the school district to see if Sanchez had reenrolled. He had not. Lenhart learned of three Michigan addresses where Lopez potentially lived, two were gleaned from his computer research and the third was found after Lenhart obtained Lopezs Social Security number from his former employers corporate headquarters. In each instance, Lenhart had the local police investigate but to no avail.
Exercising our independent review, we conclude the prosecution acted with due diligence in its efforts to locate Sanchez for trial. At the prosecutors direction, Lenhart consistently pursued the leads presented to him and used information gleaned from those leads to further his investigation. A fair reading of the record indicates Lopez relocated his family to Mexico and left no forwarding address with his childrens schools, the post office, his employer, or his landlord. The prosecutors Mexican liaison simply did not have sufficiently detailed information to locate the family in Mexico. These sustained and good faith efforts constituted reasonable efforts to find Sanchez for the March 2002 trial.
Defendants arguments to the contrary are not persuasive. He claims: "[The People] allowed [Sanchez] to disappear, failed to maintain contact, and failed to timely commence efforts to locate him."
Defendants suggestion the prosecution had a duty to keep "periodic tabs" is not supported by law. Defendant, in fact, concedes: "[I]t is true that the prosecution does not have the duty to maintain contact and update the whereabouts of a non-informant witness for the defense." As our Supreme Court has explained a trial court cannot "properly impose upon the People an obligation to keep `periodic tabs on every material witness in a criminal case, for the administrative burdens of doing so would be prohibitive. Moreover, it is unclear what effective and reasonable controls the People could impose upon a witness who plans to leave the state, or simply `disappear, long before a trial date is set." (People v. Hovey (1988) 44 Cal.3d 543, 564.) Contrary to what defendant suggests, the fact Sanchez was an important eyewitness does not change that conclusion. Two officers observed defendant shoot the gun at Lopezs car. Those officers were available to testify and did in fact testify at the trial. Consequently, Sanchez was not such a critical or vital witness that the prosecution was required to "take reasonable precautions to prevent [him] from disappearing." (Id. at p. 564, citing People v. Louis (1986) 42 Cal.3d 969, 989-991.)
Defendant next argues the prosecution waited too long to search for Sanchez because its efforts did not begin until October 19, 2001, five days before trial was set to commence. We are not persuaded. For one thing, it appears Lenharts efforts were timely because they commenced very shortly after it became apparent Sanchez could not be found to accept service of the subpoena. For another thing, trial had already been continued twice during the previous months so a reasonable possibility remained it would again be continued. And lastly, Sanchez had appeared to testify at the preliminary hearing and the record contains no reason to believe he would not likewise appear to testify at trial. Therefore, it was not unreasonable for the prosecution to wait until October 19 to begin to search for him. (See People v. Lepe (1997) 57 Cal.App.4th 977, 986-987 including fn. 1 at p. 987.)
In a similar vein, defendant argues the prosecution was responsible for Sanchezs unavailability because in June 2001 it dismissed and then quickly refiled the case. Although the record contains no explanation for the dismissal, defendant asserts: "[The People] chose to dismiss and refile the case in a successful effort to resuscitate the gang allegations which had been dismissed pursuant to section 995. . . . [The People] should be estopped from profiting from the delay caused by its self-serving dismissal." (Fn. omitted.) Defendant concedes he has no case authority to support this novel proposition of law and instead relies by analogy upon cases that hold a party cannot profit from its own misconduct. The analogy is misplaced. For one thing, defendant has produced absolutely no evidence that the People purposefully delayed the case with the intent Sanchez not testify at trial. In fact, defendant posits an alternative and proper explanation for the delay—an opportunity to refile the case to permit the People to prove the gang allegations. Given this record and the Peoples statutory right to dismiss and refile a felony prosecution (see Pen. Code, § 1387), there is no misconduct by the People, ergo there can be no estoppel against the People.
Defendant concedes as much when he argues: "Whereas, here, there is no direct evidence that the dismissal and refiling was for the purpose of preventing the testimony of [Sanchez], [the Peoples] actions were for its own benefit in seeking to reinstate the gang allegations. This was done with reckless disregard for [defendants] rights to confront and cross-examine his accuser, and had the practical effect of preventing [Sanchezs] testimony. The harm is further exacerbated by the fact that the delay was for the purpose of reinstating an allegation which was eventually rejected by the jury."
Lastly, we address defendants claim that "[t]he motive and opportunity for cross-examination at the preliminary hearing was not co-extensive with that at trial because [he] did not have the opportunity to cross-examine on evidence which was disclosed to the defense after the preliminary hearing." The argument is not persuasive. "[A] defendants motive in cross-examining a witness at a preliminary hearing may differ somewhat from the motive at trial, but nevertheless the earlier testimony may be admissible at the trial under [the former testimony exception] because the `motives need not be identical, only "similar." [Citations.]" (People v. Samayoa (1997) 15 Cal.4th 795, 850.)
As the trial court correctly noted, Sanchez was extensively cross-examined at the preliminary hearing about his ability to identify defendant. This cross-examination was included in the testimony read to the jury at trial and defense counsel relied upon it in his closing argument to the jury. Defense counsels inability to question Sanchez about the additional fact that an unidentified witness had said that defendant was wearing a hat would not have qualitatively altered that cross-examination. And the fact another witness had identified someone other than defendant as the shooter has little, if any bearing, on Sanchezs identification of defendant. In sum, no error in admitting Sanchezs preliminary hearing testimony at trial.
B. DENIAL OF PENAL CODE SECTION 995 MOTION
Defendant next contends: "The court erred in deny[ing] [his] 995 motion with respect to 186.22(b)(1) gang allegations resulting in the introduction of prejudicial gang evidence."
Factual Background
As noted above, the charging information alleged, inter alia, the Penal Code section 186.22, subdivision (b)(1) sentencing enhancement that the crimes were committed "for the benefit of, at the direction of, or in association with [a] criminal street gang."
All subsequent undesignated statutory references in this portion of the opinion are to the Penal Code.
Defendant filed a section 995 motion contending insufficient evidence had been produced at the preliminary hearing to justify the magistrate in holding him to answer on that enhancement. The superior court, after reviewing the transcript of the preliminary hearing, denied the motion.
Consequently, the case proceeded to trial on all counts and gang allegations. To prove the allegations, the People proffered the testimony of Sergeant Chris McKinney, an expert in gangs. He testified that in his opinion, defendant was a member of the E. W. F. gang. He opined the crimes were committed for the benefit of the E. W. F. gang to instill fear in the community of the E. W. F. gang. When defendant testified, he flatly denied being a member of the E. W. F. gang.
E. W. F. stands for "Every Womans Fantasy."
The jury found the gang allegations to be not true in regard to the two charges for which it convicted defendant: attempted murder of Sanchez and shooting at an occupied motor vehicle.
Discussion
Defendant now contends "the section 995 motion was wrongly denied with respect to the gang allegations and that, consequently, he was prejudiced by the needless and erroneous introduction of prejudicial gang evidence" "which was, essentially, bad character evidence, and which was sure to affect the verdict."
The parties debate at length whether the trial courts denial of the section 995 motion was improper. We need not enter that debate because even were we to find that ruling error—a finding we do not make—defendant was not prejudiced thereby. We explain.
Defendants argument that the evidence of gang affiliation "was sure to affect the verdict" is speculative and unsupported by the record. The record, in fact, indicates the jury was very capable of separating the different charges and enhancement allegations. It convicted defendant of the attempted murder of Sanchez but found it was not a willful, deliberate, or premeditated crime. The jury deadlocked on the attempted murder of Lopez and acquitted defendant of the robbery of Sanchez. Furthermore, the jury instruction—which the jury presumptively followed—explained to the jury that it was not even to consider the gang allegation until it found the defendant guilty of a charged offense. Lastly, the prosecutors closing argument to the jury never contained any suggestion, explicit or implicit, that the jury could use the evidence of gang affiliation as "bad character evidence." Instead, the prosecutor only briefly touched on the allegation to explain how it was supported by the evidence. In sum, there is no evidence defendant was prejudiced by the denial of the section 995 motion.
C. NO SUA SPONTE DUTY TO INSTRUCT ON ATTEMPTED VOLUNTARY MANSLAUGHTER
Defendant next contends the trial court had a sua sponte duty to instruct on attempted voluntary manslaughter. We disagree because no substantial evidence of that offense was presented at trial.
At trial, defendant testified and denied having committed any of the offenses. In closing argument to the jury, defense counsel proffered the theory defendant had been misidentified. Although a theory of attempted voluntary manslaughter would have been inconsistent with this defense evidence and argument, the trial court nonetheless would have had a sua sponte duty to instruct on that offense if there was substantial evidence it was committed. (People v. Barton (1995) 12 Cal.4th 186, 196-197, and fn. 8 at p. 201.) On the other hand, "if the evidence is minimal and insubstantial the court need not instruct" on a lesser included offense. (People v. Springfield (1993) 13 Cal.App.4th 1674, 1680.) "[T]he existence of `any evidence, no matter how weak will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is `substantial enough to merit consideration by the jury. [Citations.] `Substantial evidence in this context is `"evidence from which a jury composed of reasonable [persons] could . . . conclude" that the lesser offense, but not the greater, was committed." (People v. Breverman (1998) 19 Cal.4th 142, 162.) In this case, no substantial evidence was presented at trial to support a theory defendant attempted to kill either in the heat of passion or in the exercise of imperfect self-defense.
To establish attempted voluntary manslaughter under a theory of heat of passion, there must be evidence both of provocation and heat of passion. (See People v. Lee (1999) 20 Cal.4th 47, 59.) The provocation that incites the putative killer to act must be caused by the victim(s) and "the provocation must be such as to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (People v. Lujan (2001) 92 Cal.App.4th 1389, 1411-1412.)
Defendant argues: "[T]here is evidence of a sudden quarrel or heat of passion [because Sanchez and Lopez] confronted [defendant] and his companions in an angry manner. When [defendant] left peaceably, [Sanchez and Lopez] yelled after them and chased them in a vehicle. . . . The violent pursuit by [Sanchez and Lopez], which involved a vehicle, angry words and shouting, . . . rises to the level of provocation which might induce a sudden quarrel or heat of passion."
Defendants argument is not persuasive because it mischaracterizes the evidence.
Prior to the shooting, the two victims had simply confronted defendant and his companions and demanded in an angry tone the return of Sanchezs bicycle. After defendant and his companions rode off on bicycles, Lopez and Sanchez reentered the car and followed the men whereupon defendant shot at the vehicle. Contrary to what defendant now urges, there is no evidence the victims engaged in a "violent pursuit." Consequently, there was no substantial evidence to suggest any objectively reasonable provocation before defendant shot at the car.
Similarly, defendants argument that "the pursuit by [Sanchez and Lopez] may have fostered an[] unreasonable, but honest, belief in the need for self-defense" lacks any evidentiary support. Defendant never testified to such a belief because he denied being the shooter. And there was no evidence either Lopez or Sanchez had any weapon or had threatened defendant. As a result, no reasonable jury could infer from the evidence that defendant shot based upon an honest but unreasonable belief in the need to defend himself.
D. SUFFICIENCY OF THE EVIDENCE TO ESTABLISH ATTEMPTED MURDER
Lastly, defendant contends his conviction for the attempted murder of Sanchez is not supported by substantial evidence because there is insufficient evidence of the specific intent to kill. We disagree.
"One who intentionally attempts to kill another does not often declare his state of mind either before, at, or after the moment he shoots. Absent such direct evidence, the intent obviously must be derived from all the circumstances of the attempt, including the putative killers actions." (People v. Lashley (1991) 1 Cal.App.4th 938, 945.) "The act of firing toward a victim at a close, but not point blank, range `in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill." (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) "Whether a defendant possessed the requisite intent to kill is, of course, a question for the trier of fact. While reasonable minds may differ on the resolution of that issue, our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.] Due process of law does not require a reviewing court to reweigh evidence . . . . Our role is to determine the legal sufficiency of the found facts and not to second guess the reasoning or wisdom of the fact finder." (People v. Lashley, supra, 1 Cal.App.4th at pp. 945-946.)
The jury had sufficient evidence from which it could infer defendant intended to kill Sanchez when he shot at the car. Only shortly before, defendant had been confronted by Sanchez and Lopez. Defendant attempted to evade the two who then entered a car and followed him. At that point, defendant took out the revolver and fired several shots in the direction of Sanchez. Sanchez bent down to avoid the fire. Three shots hit the vehicle. From these facts, a reasonable jury could infer defendant intended to kill Sanchez.
In the opening portion of his closing argument, the prosecutor argued: "[T]his was if nothing else an intent to kill. You dont pull out a gun at point blank range and start shooting into a car with two people in it if you dont intend to kill them. Theres nothing to indicate that this individual, the defendant, put that gun straight up in the air and started firing to scare someone off. Instead he shot at point blank range and shot almost identically or almost exactly where that victim [Sanchez] was seated in that car."
In the rebuttal phase, the prosecutor reiterated the point as follows: "Why do you shoot at someone at the range he [defendant] was at if youre not trying to kill them? What was he trying to do? If you pointed that gun in the air and shot rounds off, great argument. He wasnt trying to kill them. But when you fire into a car and you get that close to where the victims were sitting there is nothing other than attempted murder that you could find in this case. Absolutely clear 100 percent. Whether or not you believe it was the defendant who did it, Ill tell you right now whoever did this was trying to kill those two individuals. And the evidence is absolutely 100 percent clear it was the defendant."
Defendants argument that "his intent could have been only to disable or chase the victim off" because no bullets actually hit Sanchez fails. As one appellate court has explained, "the fact that the victim may have escaped death because of the shooters poor markmanship [does not] necessarily establish a less culpable state of mind" than intent to kill. (People v. Lashley, supra, 1 Cal.App.4th at p. 945.) "There is nothing inherently illogical or absurd in a finding that a person who unsuccessfully attempted to kill another did so with the intent to kill." (Ibid.) In any event, this argument as well as defendants other arguments more properly belong in the trial court advanced to the jury because in them defendant simply argues inferences favorable to himself from the facts to show he did not have the specific intent to kill. That approach is inapplicable on appeal. "[E]ven though the appellate court may itself believe that the circumstantial evidence might be reasonably reconciled with the defendants innocence, this alone does not warrant interference with the determination of the trier of fact. [Citations.] Whether the evidence presented at trial is direct or circumstantial, . . . the relevant inquiry on appeal remains whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt." (People v. Towler (1982) 31 Cal.3d 105, 118.)
DISPOSITION
The judgment is affirmed.
We concur, EPSTEIN, J. and CURRY, J.