Opinion
E047555 Super.Ct.No. FSB 703832
08-02-2011
THE PEOPLE, Plaintiff and Respondent, v. JAMES EARL BOYKINS, Defendant and Appellant.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Meagan Beale and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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OPINION
APPEAL from the Superior Court of San Bernardino County. Colin J. Bilash, Judge. Affirmed with directions.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Meagan Beale and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury found defendant James Earl Boykins guilty of premeditated attempted murder and of discharging a firearm in the attempted murder, causing great bodily injury to the victim, Ricky Johnson. (Pen. Code, §§ 187, 664, 12022.53, subds. (c), (d).) The jury found not true an allegation that defendant committed the attempted murder at the direction of or for the benefit of a criminal street gang. (§ 186.22, subd. (b).) Defendant was sentenced to life in prison, plus 25 years to life, and appeals.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant claims: (1) his due process and confrontation rights were violated by the admission of testimonial and nontestimonial hearsay evidence; (2) the prosecutor committed prejudicial misconduct in eliciting evidence from a defense witness, Nichola Demery, suggesting that defendant may have been involved in another shooting the day before the Johnson shooting; (3) the trial court erroneously refused to instruct on the lesser included offense of voluntary manslaughter, based on heat of passion, and on the lesser related offense of assault with a deadly weapon or firearm; and (4) his abstract of judgment must be corrected to show he was sentenced to life with a 14-year minimum parole eligibility period on his premeditated attempted murder conviction.
We remand the matter with directions to correct the abstract of judgment. We find defendant's other claims without merit, and affirm the judgment in all other respects.
II. BACKGROUND
A. The Shooting
Around 9:00 p.m. on May 20, 2007, City of Rialto Police Officer John Lopez was dispatched to 647 Lamar Street. There, he found Ricky Johnson lying in a driveway, bleeding from a gunshot wound to his abdomen.
At the scene, Johnson told Officer Lopez he was driving southbound on Lamar Street in a white minivan and was being chased by "unknown suspects" in a black Ford Expedition. Lamar Street is a cul-de-sac or "dead end" street. Johnson told Officer Lopez he got out of the van and tried to jump over a fence at the end of Lamar Street. He was unable to jump over the fence and was shot while "running back northbound" on Lamar Street.
Johnson's van was found parked near the end of the Lamar Street cul-de-sac. There was a bullet hole on the driver's side of the van, and another bullet shattered the windows of an "uninvolved" Nissan that was parked near the van.
On June 1, San Bernardino County Sheriff's Deputy Donald Patton interviewed Johnson. During the interview, Johnson said he was in strip mall near Foothill and Meridian in Rialto when he got into a "disagreement" with two persons in a black Ford Expedition. He tried to flee in his van, and as he drove away the Expedition followed him. When he reached the dead end of Lamar Street, he got out of his van and ran toward a fence. Someone in the Expedition fired three shots at him as he tried to jump over the fence.
During the interview, Deputy Patton asked Johnson whether he knew defendant, who was also known as "Jamie O." Johnson said he knew Jamie O. as a fellow member of the Five Time Hometown Crips gang, and "some of his little homies had some issues with Jamie O." concerning "some windows being broken out of a vehicle . . . ." Johnson denied he had any "disagreements" with Jamie O., however, and also denied that Jamie O. had "a problem" with him. Johnson said he did not want police to find the person who shot him, because "that was the lifestyle he chose" and "if he died, he died."
Johnson testified at trial in May 2008. Again, Johnson claimed he did not know who shot him, and even if he did he would not identify the shooter. He knew defendant or Jamie O., because defendant had "watch[ed] [him] grow up," but he denied that defendant shot him. Johnson also denied telling officers that he was being chased by some people in a black Ford Expedition or that he tried to flee by jumping over a fence. B. The Wiretap Evidence
On May 20, 2007, the day of the shooting, San Bernardino County Sheriff's Detective Robert Kelly was involved in a wiretap investigation concerning the gang and narcotics activities of Kevin Radford. Over a period of three months, a wiretap intercepted over 2,000 calls placed to and from Radford's cell phone, and identified the telephone numbers of most of the telephones involved in the calls. The dates and times of the calls were recorded, and the calls were transcribed. Several of the calls were played for the jury.
1. The Calls Between Defendant and Radford (Before the Shooting)
The first call the jury heard was between Radford and defendant and occurred at 3:45 p.m., around five hours before the shooting. During that call, Radford suggested that some "niggas" had broken defendant's car window, and defendant said he was going to get his window fixed. Radford also said, "them niggas ain't worth you blowin their heads off cuz and go to prison" and "black man need his ass whipped though. You need to knock his little bitch ass out." Near the end of the call, Radford said he was going to a park.
During a second call at 4:25 p.m. between defendant and Radford, defendant was heard asking Radford whether he was going to Glen Helen Park, and Radford said he was on his way to the park. Defendant said he was in the park but did not "see Man Man no where . . . ." Then defendant said he found "them" and was going to "talk to them right now." Around 5:00 p.m., Detective Kelly went to the park. He saw defendant arrive in a black Tahoe, with its right rear passenger window broken out, and get out of the Tahoe. Around the same time, he saw Radford in the park.
2. The Radford and McMillan Calls (Around the Time of the Shooting)
At 8:42 p.m. on May 20, officers intercepted a call between Radford and Randall McMillan. During that call, which was very brief, Radford is heard saying to McMillan, "Cuz, get ready to bring that thing cuz, niggas down at the, out here trippin cuz, hold on . . . ." McMillan responded by asking Radford where Radford was, and Radford told McMillan, "I'm at J&K right here, I'm at J&K right here cuz. Nigga uh a red five four."
At 8:50 p.m., police intercepted a second call between Radford and McMillan. During that call, Radford, McMillan, and unknown males in the background are heard discussing the shooting as it occurred. Radford is heard telling McMillan, "He's on that niggas ass cuz. I told you." In the background, unknown males are heard saying, "I told these niggas Kev," and "I knew he wasn't gonna be playin. Where was he out there at the park?"
Next, McMillan asked, "Hey what happened, that nigga disrespected us?" Radford responded, "Ya, ya, he might be coming your way cuz. That nigga runnin cuz and he's hoppin, look, look cuz, he hoppin like a bitch." Shortly thereafter, Radford said, "They chasin him, Jamie-O behind that nigga cuz in the truck . . . . He lost em . . . ." Then an unknown male in the back ground said, "No he aint, he got it he got it . . . . He already bust twice he got him." McMillan then said, "He gotta reload cuz."
3. The Calls Between Defendant and Radford (Following the Shooting)
Then, during a 9:00 p.m. call between defendant and Radford, unknown men in the background were heard telling Radford that the police were looking for them with a spotlight and helicopter. During the call, defendant told Radford, "I, I tried to chase him down. He tried to hop a fence," and Radford said, "I know you did, we was behind you, but we lost you." Defendant also said, "I ain't playing with none of them. . . . This ain't no game out here with me. They done fucked up with me. They do something to that car, they did something to me and I don't play homie."
After Radford told defendant to "stay away from the neighborhood right now" and to "[j]ust go park it and call it a night," defendant responded, "No, I'm gonna catch him and little homie over with. They cancelled." Later during the call, defendant said, "I just shot at him . . . it's over with. [¶] . . . [¶] Them niggers will be eliminated homie," and "I went into a deadend. He tried to hop the fence . . . . I couldn't get out of the car quick enough and I was jumping out my window niggers."
Finally, during a 9:33 a.m. call between defendant and Radford on May 21, the day after the shooting, defendant asked Radford "what was being said last night after all of that . . . ." Radford said "nothing" was being said and "you['re] alright . . . you had to do what you had to do . . . ." C. The May 24 Search of Defendant's Apartment
On May 24, officers searched defendant's Rialto apartment pursuant to a search warrant, and arrested defendant following the search. A GMC Yukon was parked outside the apartment, and inside the Yukon officers found a traffic citation. The parties stipulated that the citation was signed by defendant and referenced his apartment address and the Yukon. A cell phone used in the calls between defendant and Radford on May 20 and 21, was also found inside the Yukon. D. Detective Scott Walker's Expert Gang Testimony
City of San Bernardino Police Detective Travis Walker testified as a gang expert for the prosecution. He was familiar with the Five Time Hometown Crips, a Black criminal street gang claiming a western portion of the City of San Bernardino, bordering on the City of Rialto, as its turf.
Detective Walker opined that Radford and McMillan were self-admitted members of the gang and that defendant was an associate of the gang. The detective explained that associates generally assist in criminal conduct for the gang, including hiding narcotics or weapons for the gang, driving gang members to and from crimes, and helping gang members elude capture by law enforcement.
In Detective Walker's opinion, a hypothetical shooting similar to the Johnson shooting would be committed for the benefit of a criminal street gang. He explained that when a younger gang member disrespects an older gang member or associate, the older member or associate must "do something" to regain his respect or he will "lose[] face" within the gang.
Radford and McMillan were named in a current gang injunction or court order naming specific individuals within the gang, but defendant was not named in the injunction. Detective Walker was unable to find any gang cards or field identification cards identifying defendant as a member or associate of any gang. He explained that if a person identified in a gang card or field identification card has had no contact with law enforcement for five years, that person's card is purged from law enforcement's files. E. Defense Evidence
Defendant and his ex-wife, Nichola Demery, testified for the defense. Demery and defendant were married from October 2004 to December 2007, but Demery still visited defendant every weekend.
Demery was familiar with gangs because she had grown up in the inner city areas of San Bernardino and Los Angeles and had family members who were gang members. She had never known defendant to be "engaged in any gangs" and had known defendant her entire life.
Demery and defendant were friends with some older gang members, including Radford and McMillan, whom they had known their entire lives. Their friendships did not involve gang activity. Demery knew Radford had a black Ford Expedition, but defendant had never owned a Ford Expedition.
Sometime following his arrest on March 24, 2007, defendant admitted to Demery that he shot Johnson. According to Demery, defendant shot Johnson because he was angry that Johnson and other young gang members had damaged his car and disrespected him.
Defendant also testified in his own defense. He was 46 years old at the time of trial, and denied he had ever been a gang member. The "I.E." and "San Bernardino" tattoos on his chest and back had nothing to do with gangs. He purchased his dark gray Yukon after he had been working for "Sante Fe trains" for about a year, following his release from prison. He worked for Sante Fe trains for 15 months, and as of May 20, 2007, he had been laid off. After he lost his job, he began selling marijuana.
Around 11:00 a.m. on May 20, defendant was on 5th Street in San Bernardino when four or five gang members, including Johnson and someone named "Danny," came up to him, accused him of making too much money on their block selling marijuana, and began "busting" up his truck. Johnson tried to stab defendant with a screwdriver. Later that day, defendant got a gun from McMillan, and shot Johnson with it because Johnson tried to stab him with a screwdriver.
Defendant claimed he was only trying to scare Johnson and did not intend to hit him with any bullets, or kill him. He only wanted Johnson to know he could not try to hurt him or damage his truck. He shot at Johnson with his left hand, though he is right-handed, and he did not get out of his truck to chase Johnson or shoot him again. He felt "bad" after he hit Johnson with a bullet, despite what he told Radford in the wiretapped calls following the shooting.
III. DISCUSSION
A. Hearsay and Crawford Issues; Harmless Error
Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
Defendant claims the statements contained in the two wiretapped Radford-McMillan calls, and at least some of the documents relied on by Detective Walker in forming his opinions, constituted testimonial hearsay, and as such were admitted in violation of his confrontation rights under Crawford and its progeny. He also claims that, to the extent any nontestimonial hearsay was admitted through the two Radford-McMillan calls or the detective's testimony, its admission violated his due process rights because none of the statements or underlying documents were shown to be reliable, or bore "particularized guarantees of trustworthiness." (Ohio v. Roberts (1980) 448 U.S. 56, 66, overruled in Crawford, supra, 541 U.S. at pp. 60-69.)
We conclude that the Radford-McMillan calls contained no testimonial hearsay whatsoever. In any event, the jury found the gang allegation not true, and all of the complained-of evidence was either solely relevant to, or was admitted for the limited purpose of, determining the truth of the gang allegation. Additionally, defendant admitted he shot Johnson. For these reasons, none of the complained-of evidence could have affected the jury's guilty verdict on the attempted murder charge, its premeditation finding, or its personal discharge finding.
First, it is obvious that the two wiretapped calls between Radford and McMillan contained no testimonial hearsay whatsoever. Under Crawford, the admission of a testimonial hearsay statement at trial against a criminal defendant violates the defendant's Sixth Amendment right to confront witnesses, when the declarant is unavailable at trial and the defendant has not had a prior opportunity to cross-examine him or her. (Crawford, supra, 541 U.S. at p. 68; Michigan v. Bryant (2011) 131 S.Ct. 1143, 1152-1153; People v. Thomas (2011) 51 Cal.4th 449, 496.)
Testimonial statements are quintessentially "out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial." (People v. Cage (2007) 40 Cal.4th 965, 984.) Although a hearsay statement "need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony," and it "must have been given and taken primarily for the purpose ascribed to testimony—to establish or prove some past fact for possible use in a criminal trial." (Id. at p. 984, fn. omitted, some italics added.) Neither of these indicia is present in the Radford-McMillan calls.
In view of the circumstances under which the calls took place, and the nature of the statements made during the calls, it is apparent that the persons who spoke during the calls, including Radford, McMillan, and the unknown males in the background, had no idea that law enforcement officers had wiretapped Radford's telephone, or were listening to what the speakers were saying, as they were saying it. Thus, none of the statements in the calls were made to law enforcement officers "under circumstances which would lead an objective witness [or declarant] reasonably to believe the statement would be available for use at a later trial . . . ." (Crawford, supra, 541 U.S. at p. 52; People v. Cage, supra, 40 Cal.4th at p. 984.) As observed in Crawford: "An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." (Crawford, supra, at p. 51.)
Furthermore, it is unnecessary to address defendant's further due process and confrontation claims, because any error in admitting any of the complained-of evidence was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 23; Sullivan v. Louisiana (1993) 508 U.S. 275, 279 [test for harmless error under Chapman "is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error."].)
As indicated, the jury found the gang allegation not true, and all of the statements made in the two Radford-McMillan calls, and all of Detective Walker's expert testimony, was either solely relevant to the truth of the gang allegation, or was admitted for the limited purpose of determining the truth of the gang allegation. Thus, none of the complained-of evidence could have affected the jury's guilty verdict on the attempted murder charge, or its true findings on the premeditation allegation or the personal discharge enhancement.
Before trial, defendant objected to the admission of the Radford-McMillan calls on hearsay grounds. The court rejected the prosecutor's claims that the statements in the calls constituted spontaneous utterances (Evid. Code, § 1240) or statements in furtherance of a conspiracy (id., § 1223), but concluded the statements were admissible as circumstantial evidence of gang activity to prove the gang allegation (Pen. Code, § 186.22, subd. (b)(1)(C)). That is, the court ruled that the calls were admissible, not for the truth of the statements made in the calls, but to show that defendant shot Johnson for the benefit of, at the direction of, or in association with the Five Time Hometown Crips gang. (Ibid.)
During the 8:42 p.m. call, which was very brief, Radford is heard telling McMillan that he, Radford, was "at [the] J&K" and also telling McMillan to bring a gun with him. ("Cuz, get ready to bring that thing cuz, niggas down at the, out here trippin cuz, hold on . . . .") Though, as defendant points out, no limiting instruction was given for the 8:42 p.m. call, it is clear that the statements Radford made during the call were relevant only to the truth of the gang allegation, that is, whether Radford and McMillan supplied defendant with the gun he used to shoot Johnson, and whether defendant shot Johnson for the benefit of the gang.
By contrast, a limiting instruction was given for the 8:50 p.m. call, immediately before that call was played to the jury. The court instructed the jury to consider the contents of the call for the "limited purpose" of determining the truth of the gang allegation. Though at the time the court gave the limiting instruction it also told the jury it would give a "more specific instruction" at the end of the case, and no further limiting instruction was given, the limiting instruction that was given before the call was played was clear and specific, and we presume the jury followed it. (See, e.g, People v. Lynch (2010) 50 Cal.4th 693, 760.)
Detective Walker relied on various documents, including gang identification cards and court records—none of which were discussed in detail or presented to the jury—in forming his opinions that: (1) Radford and McMillan were members, and defendant was an associate, of the Five Time Hometown Crips gang; (2) the primary activities of the gang included narcotics sales, shootings, assaults, and murders (§ 186.22, subd. (e), (f)); and (3) three other gang members had committed predicate offenses for the gang (ibid). Notwithstanding whether any of the documents the detective relied upon in forming his opinions contained any testimonial hearsay, or whether any of that testimonial hearsay was effectively offered for its truth, it is clear that all of the detective's testimony was solely relevant to the truth of the gang allegation, and none of it had any bearing on whether defendant was the person who shot Johnson, or acted with premeditation when he shot Johnson.
See People v. Hill (2011) 191 Cal.App.4th 1104, 1127-1137 (criticizing People v. Gardeley (1996) 14 Cal.4th 605, and this court's opinion in People v. Thomas (2005) 130 Cal.App.4th 1202 [Fourth Dist., Div. Two] for failing to recognize that testimonial hearsay statements, when offered to support an expert witness's opinion, may violate the confrontation clause).
Furthermore, defendant admitted he shot Johnson (1) in his wiretapped calls to Radford shortly after the shooting and the morning following the shooting, (2) to Demery sometime following his March 24, 2007, arrest for the shooting, and (3) in testifying in his own defense at trial. Defendant's own testimony also showed he acted with premeditation and deliberation when he shot Johnson, because he admitted he went looking for Johnson and chased him down before he shot him.
In sum, in view of the jury's not true finding on the gang allegation, defendant's admissions that he shot Johnson, and the limited relevancy and admissibility of the Radford-McMillan calls and the detective's expert gang testimony, it is clear that neither the Radford-McMillan calls, nor the detective's testimony, could possibly have affected the jury's guilty verdict on the attempted murder charge or its true findings on the premeditation and personal discharge allegations. B. The Prosecutor Did Not Err in Questioning Demery
Defendant claims the prosecutor committed prejudicial misconduct in suggesting, during his cross-examination of defense witness Demery, that defendant was involved in a second shooting on May 19, in addition to the May 20 shooting of Johnson. He also claims the prosecutor's error denied him a fair trial, and his counsel was ineffective in failing to object to the prosecutor's attempts to elicit the evidence of a second shooting. For the reasons we explain, we reject these claims.
1. Relevant Background
As discussed, Demery testified for the defense. Before Demery testified, defense counsel sought the court's permission to ask her whether any guns were found in her apartment during a search on May 20, only several hours before the May 20 shooting. The prosecutor objected to questioning Demery about the May 20 search on relevance grounds.
The prosecutor pointed out that the parties had stipulated that a traffic citation, signed by defendant and referencing his and Demery's apartment address and the Yukon, was found in the Yukon during the May 24 search of the apartment he shared with Demery. The purpose of the stipulation was to show that defendant had dominion and control over the Yukon, without allowing the jury to hear that the citation was issued to defendant for marijuana possession. The jury also did not hear that, shortly after defendant was pulled over and the citation was issued, police officers went to his and Demery's apartment, searched it, and found no guns. Neither defendant nor the Yukon were at the apartment during the May 20 search. Thus, the prosecutor argued, the May 20 search was irrelevant because it had nothing to do with the May 20 shooting.
The court ruled that defense counsel could ask Demery whether any weapons were found in her apartment during the May 20 search, but the court also said, "that is the only question I am going to allow him to ask." Addressing the prosecutor, the court said, "As for cross-examination, you will have leeway to ask questions about that. But do not get into why they were there." (Italics added.)
Upon calling Demery to the stand, defense counsel asked her whether she was present "on May 20th of 2007" when the police searched her apartment. Demery responded that she was present, four officers were there, to her knowledge the officers did not find anything, and defendant was not home at the time of the May 20 search.
In cross-examining Demery, the prosecutor first asked what time of day the police searched her apartment. Demery responded, "Which search? The 20th?" The prosecutor responded by asking, "The 20th?" Demery then said, "The 20th, [defendant] left the house about 10:30 or 11, so it was 11:30 or 12. [¶] . . . [i]n the morning[.]"
At that point, the following colloquy ensured:
"[THE PROSECUTOR:] So it wasn't about the shooting
"[DEMERY:] Actually, it was about the
"[THE PROSECUTOR:] It wasn't about the shooting with which [defendant] is now charged with?
"[DEMERY:] As I was stating, yes, it was. The sergeant that came to the door, opened the door with the key—first, he knocked on the door—knock, knock
"[THE PROSECUTOR:] Let me stop you there. [¶] You know that the shooting occurred eight hours, ten hours later; right?
"[DEMERY:] You are incorrect, sir. The sergeant that came to my house on the 20th with three other officers, came to the house with [defendant's] key, knocked twice, and the door went from locked to unlocked. He stuck his head halfway in and he said
"[DEFENSE COUNSEL]: Objection. Hearsay.
"THE COURT: Overruled. Go on.
"[DEMERY:] 'San Bernardino Police Department,' and he said that [defendant] had given him the key and did I mind if he came in. I said I didn't mind. Both my children were
"[THE PROSECUTOR:] Do you know when the shooting occurred, this crime he is on trial on?
"[DEMERY:] Well, from what the actual sergeant said that it was a shooting that occurred on the 19th.
"[THE PROSECUTOR:] Let me just state, first, that we are talking about a different shooting.
"[DEMERY:] Okay.
"[THE PROSECUTOR:] He is charged with a crime on May 20th at 8:00 at night. Are you aware of that?
"[DEMERY:] I am telling you all I know, sir, is that my apartment was searched twice.
"[THE PROSECUTOR:] So you are not aware of what crime he is charged with right now?
"[DEMERY:] I guess for a shooting.
"[THE PROSECUTOR:] But you don't know which shooting?
"[DEMERY:] How many shootings were there?
"THE COURT: Hold on.
"[DEMERY]: I don't know. I'm sorry.
"THE COURT: Everybody take a breath. [¶] First of all, do not argue with the attorney. [¶] [Prosecutor], do not argue with the witness. [¶] Let's not refer to which shooting, [defendant]
"Ladies and gentlemen, please disregard that exchange. Do not interpret that . . . [defendant] is—that he is involved in some other shooting. That interpretation could lead—it has nothing to do with this question.
"Disregard the questions and answers and anything related to that.
"That is all stricken from the record. The last part of the question and answer are all stricken from the record."
Later during his cross-examination, the prosecutor asked Demery whether she had directed police to the address of defendant's sister as a place where defendant might be staying. Demery said "[n]o," and explained that when "the sheriff's department" searched her apartment "on [May] 24th," they obtained the address of defendant's sister after seeing that his niece had cosigned for his car.
Then, when asked to clarify whether "the police" came to her apartment on the 24th, Demery responded "yes," but it wasn't the police, it was the sheriff's department. Demery also testified that, as of May 24th, defendant was staying at his sister's house because Demery was upset with him about "the incident that happened on the 20th." Demery also said that when the sheriff's department searched her apartment on the 24th, they showed her a search warrant.
Demery later testified on cross-examination that defendant admitted to her that he shot "this person" he was on trial for shooting. The prosecutor then asked, "Now, are you aware of any firearms that [were] found at [defendant's sister's address] on the 24th?" Demery answered "[y]es," and that the guns were not defendant's guns. Next, the prosecutor asked, "Now, when you spoke to [defendant] and he told you about what occurred . . . . [¶] . . . [¶] . . . regarding the shooting . . . . [¶] . . . [¶] . . . was it your impression this whole time that it was about a shooting on the 19th?" Demery responded "[y]es."
The prosecutor next asked Demery whether defendant had told her about another shooting or she simply misunderstood what defendant was talking about. Demery answered, "I don't understand how I can misunderstand when the police officers came to the house and gave the exact same scenario that the deputies came with on the 24th. So it could be possible that you are mistaken, but not I."
Shortly thereafter, Demery responded "[y]es" when asked whether the shooting that defendant told her about was the shooting for which he was on trial. She understood that the shooting incident began near the J & K market near 5th Street, and someone gave him the gun he used in the shooting. Finally, when asked whether defendant told her he acted in self-defense, Demery said, "The incident that happened prior, yes."
2. Analysis
Defendant claims the prosecutor prejudicially erred in "deliberately inserting prejudicial speculation about multiple shootings" into the trial, by questioning Demery regarding a possible second shooting on May 19. We disagree.
"'The applicable federal and state standards regarding prosecutorial misconduct are well established. "'A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process."'" [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves "'"the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."'" [Citation.]' [Citation.]" (People v. Smithey (1999) 20 Cal.4th 936, 960.)
"It is, of course, misconduct for a prosecutor to 'intentionally elicit inadmissible testimony.' [Citations.]" (People v. Bonin (1988) 46 Cal.3d 659, 689, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Defendant relies on the principle that a prosecutor has a duty to guard against statements by his own witnesses containing inadmissible evidence. (See, e.g., People v. Warren (1988) 45 Cal.3d 471, 481-482; People v. Bentley (1955) 131 Cal.App.2d 687, 690-691, disapproved on other grounds in People v. White (1958) 50 Cal.2d 428, 431.) This is, of course, a corollary of the principle that it is misconduct for a prosecutor to intentionally elicit inadmissible testimony. (People v. Bonin, supra, at p. 689.)
Here, however, the prosecutor did not intentionally elicit any inadmissible testimony about any May 19 shooting. After Demery testified that her apartment was searched on May 20, and that nothing was found during the May 20 search, the prosecutor appropriately asked her whether the May 20 search "wasn't about" the shooting for which defendant was on trial. As indicated, Demery responded by insisting that the May 20 search was "about" the shooting for which defendant was on trial. And, when asked whether she knew that the shooting for which defendant was on trial occurred some eight or ten hours after the May 20 search, Demery "blurted" that the sergeant who came to her apartment on May 20 told her the shooting occurred on May 19.
The prosecutor's questions whether the May 20 search "wasn't about" the May 20 shooting were appropriate, given that the jury had already heard, during the prosecution's case-in-chief, that the May 20 shooting occurred during the evening of May 20, and the apartment was searched on May 24 pursuant to a search warrant. Nor did the prosecutor's questions violate the court's admonition not to "get into" why the officers searched the apartment on May 20. The prosecutor did not ask Demery why her apartment was searched on May 20; instead, he sought to clarify that her apartment was not searched on May 20 as a result of the May 20 shooting, or "wasn't about" the May 20 shooting. Given the state of the evidence, the failure to clarify the matter may have confused the jury.
Apparently, neither the prosecutor nor defense counsel anticipated that Demery would say the May 20 search was "about," or was prompted by, any May 19 shooting. As discussed, before Demery testified, the court and counsel discussed outside the presence of the jury that the May 20 search occurred very shortly after defendant was cited for marijuana possession while driving his Yukon on the morning of May 20. There was no mention of any May 19 shooting being the reason for the May 20 search, either during that discussion or at any other time during the trial.
Additionally, in view of Demery's later testimony, the jury must have understood that there was, in fact, no May 19 shooting, and Demery was simply mistaken about the date of the Johnson shooting for which defendant was on trial. Demery later testified that the May 19 shooting was the same shooting that defendant told her he committed and for which he was on trial. According to Demery, defendant shot the victim, Johnson, because he had damaged defendant's car and disrespected defendant. All of the other evidence corroborated this explanation. Thus, it was abundantly clear to the jury that Demery was confused about the date of the May 20 shooting, or the shooting for which defendant was on trial, and mistakenly believed it occurred on May 19.
Given Demery's mention of a May 19 shooting and her subsequent testimony that defendant admitted to her that he "shot at this person," it was also appropriate for the prosecutor to ask Demery whether the shooting defendant admitted he committed "was about a shooting on the 19th," or whether she simply misunderstood what defendant was talking about.
After Demery first mentioned a May 19 shooting, the trial court instructed the jury to disregard the "exchange" between the prosecutor and Demery about a May 19 shooting. This instruction, together with Demery's subsequent testimony and the evidence that no May 19 shooting actually occurred, cured any prejudice caused by the prosecutor's questions and Demery's references to a May 19 shooting. (See People v. Bradford (1997) 15 Cal.4th 1229, 1337 [no prejudicial misconduct where "the jury's apprehension of the evidence and references thereto was fleeting," and the jury was specifically instructed to disregard the evidence].)
Similarly, given the inescapable conclusion that Demery was confused about when the shooting for which defendant was on trial occurred, the jury could not have interpreted any of the prosecutor's questions, or Demery's answers to those questions, in an objectionable fashion. (See People v. Samayoa (1997) 15 Cal.4th 795, 841 ["[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion."].)
For the same reasons, we reject defendant's concomitant claims that the prosecutor elicited "bad character" or "other crimes" evidence (Evid. Code, § 1101, subd. (a)) in questioning Demery, and that his trial counsel rendered ineffective assistance in failing to object to the prosecutor's questions (Strickland v. Washington (1984) 466 U.S. 668, 687-694 [ineffective assistance claim requires showing of prejudice]). C. Instructions on the Lesser Included Offense of Attempted Voluntary Manslaughter Were Properly Refused Because There was Insufficient Evidence of Provocation
Defendant next claims the trial court erroneously refused his request to instruct the jury on the lesser included offense of attempted voluntary manslaughter based on heat of passion or reasonable provocation, on the attempted murder charge. We disagree. The trial court properly refused the instruction because there was insufficient evidence that defendant was reasonably provoked to shoot Johnson.
"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 . . . ." (People v. Gutierrez (2003) 112 Cal.App.4th 704, 708.) Similarly, when a person attempts to kill in a sudden quarrel or heat of passion, the crime is attempted voluntary manslaughter, not attempted murder. (People v. Van Ronk (1985) 171 Cal.App.3d 818, 824-825.) Attempted voluntary manslaughter is therefore considered a lesser included offense of attempted murder. (See People v. Avila (2009) 46 Cal.4th 680, 704-705.)
A trial court has a duty to instruct on lesser included offenses when substantial evidence shows that the lesser offense, but not the greater, was committed. (People v. Breverman (1998) 19 Cal.4th 142, 154, 162.) This substantial evidence requirement is not satisfied by "'any evidence . . . no matter how weak'" but by evidence from which a jury composed of reasonable persons could conclude that the lesser offense, but not the greater, was committed. (People v. Cruz (2008) 44 Cal.4th 636, 664.) On appeal, we independently determine whether substantial evidence required lesser included offense instructions to be given. (People v. Cole (2004) 33 Cal.4th 1158, 1215.)
The heat of passion requirement for voluntary manslaughter has both an objective and a subjective component. (People v. Steele (2002) 27 Cal.4th 1230, 1252.) "The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively. . . ." (Ibid.) Under the objective standard, "'[h]eat of passion arises when "at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment."'" (People v. Lee (1999) 20 Cal.4th 47, 59, italics added.)
"'[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.'" (People v. Steele, supra, 27 Cal.4th at pp. 1252-1253, italics added.) And, "'"[I]f sufficient time has elapsed for the passions of an ordinarily reasonable person to cool, the killing is murder, not manslaughter."'" (People v. Avila, supra, 46 Cal.4th at p. 705.)
Here there was insufficient evidence that defendant was adequately or reasonably provoked to shoot or attempt to kill Johnson. Around 11:00 a.m., on May 20, Johnson and some of his cohorts, or fellow gang members, threatened defendant, and dented and broke at least one of the windows of defendant's Yukon. Johnson's actions and those of his cohorts were not sufficiently provocative to arouse the passions of an ordinarily reasonable person to homicidal conduct. (People v. Moye (2009) 47 Cal.4th 537, 551 [victim's act of kicking the defendant's car was insufficient to provoke an ordinarily reasonable person to act out of a heat of passion and kill the victim].)
Further, defendant shot Johnson several hours after Johnson threatened defendant and damaged his Yukon. Around 8:50 p.m. on May 20, defendant, while driving his Yukon, chased Johnson down Lamar Street and shot him after he unsuccessfully tried to flee by jumping over a fence. A sufficient cooling off period had ensued between the time Johnson threatened defendant and damaged his truck, and the time of the shooting. (See, e.g., People v. Hach (2009) 176 Cal.App.4th 1450, 1459.)
Defendant argues that, in refusing to instruct on the lesser included offense of attempted voluntary manslaughter based on heat of passion, the trial court erroneously refused to consider the "actual facts and actual circumstances of a non-gang member in an inner city gang-riddled neighborhood, and that an average person living in that environment may very well 'snap' at the provocation of having his property vandalized." He criticizes the trial court for saying the average person is not, "quote, [the] average black person in that neighborhood. It's an average person in the universe."
Defendant is taking a portion of the trial court's comments out of context. The court effectively explained that an ordinarily reasonable person of average disposition, living in such an inner city environment, would not be reasonably provoked to shoot or attempt to kill someone who vandalized his property or threatened to harm him, either immediately after the threats and vandalism occurred or several hours later, as occurred here. (People v. Lee, supra, 20 Cal.4th at p. 59.) Defendant cannot "'set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused . . . .'" (People v. Steele, supra, 27 Cal.4th at p. 1252.) Rather, "'the facts and circumstances [must be] sufficient to arouse the passions of the ordinarily reasonable man'" (id. at p. 1253), and here they were not. D. Instructions on the Lesser Related Offenses of Assault With a Deadly Weapon or Firearm Were Properly Refused in the Absence of the Prosecutor's Consent
After defendant testified and admitted he shot Johnson but did not intend to hit him with any bullets or kill him, defense counsel requested that the court instruct the jury on the lesser related offense of assault with a deadly weapon, or firearm. (§ 245, subd. (a)(1), (2).) The prosecutor refused to consent to such instructions, so the trial court did not give them. This was proper.
In People v. Birks (1998) 19 Cal.4th 108 (Birks), the California Supreme Court overruled People v. Geiger (1984) 35 Cal.3d 510, which had held that a "defendant's unilateral request for a related-offense instruction must be honored over the prosecution's objection." (People v. Nelson (2011) 51 Cal.4th 198, 215.)
Defendant concedes that Birks overruled Geiger, but he argues that the trial court should have nevertheless instructed the jury on the lesser related offense because they were, in fact, lesser included offenses under the accusatory pleadings test. Alternatively, he argues the instructions should have been given because his sole defense was that he committed assault with a deadly weapon or firearm, rather than attempted murder. We reject these claims.
Both claims are contrary to the rule of Birks, that instructions on lesser related but not necessarily lesser included offenses may not be given in the absence of the prosecution's consent. (Birks, supra, 19 Cal.4th at p. 136.) We are, of course, bound by Birks (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and for the reasons explained in Birks, supra, at pages 128 to 136, defendant's purported "sole defense" and accusatory pleadings exceptions would undermine that rule. E. Correction to Abstract of Judgment
Defendant was sentenced to life with the possibility of parole for his premeditated attempted murder conviction, with a minimum parole eligibility date of 14 years—double the usual seven years as provided in section 3046, due to defendant's prior strike conviction. (People v. Jefferson (1999) 21 Cal.4th 86, 96-97 [minimum parole eligibility date for life term imposed under § 667, subd. (e)(1) is double the seven-year period established by § 3046].)
Defendant's abstract of judgment incorrectly states, however, that defendant was sentenced to 25 years to life on his premeditated attempted murder conviction in count 1. This is to be distinguished from the consecutive 25-year-to-life term the trial court imposed on the section 12022.53, subdivision (d) enhancement in count 1, which the abstract properly reflects.
Defendant claims, and the People agree, that the abstract of judgment must be corrected to reflect that he was sentenced to life with a minimum parole eligibility date of 14 years on count 1, not 25 years to life. The court's oral pronouncement of judgment controls over any discrepancy in the abstract of judgment (People v. Mesa (1975) 14 Cal.3d 466, 471), and when such a discrepancy appears, the abstract of judgment must be corrected to reflect the sentence that was orally imposed (People v. Mitchell (2001) 26 Cal.4th 181, 185). We therefore remand the matter to correct the abstract of judgment.
IV. DISPOSITION
The matter is remanded to the trial court with directions to correct defendant's abstract of judgment to reflect that he was sentenced to life with the possibility of parole, with a minimum parole eligibility date of 14 years, for his premeditated attempted murder conviction in count 1, and to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
King
J.
We concur:
McKinster
Acting P.J.
Miller
J.