Opinion
D070940
01-31-2017
THE PEOPLE, Plaintiff and Respondent, v. CANDACE MARIE BRITO et al., Defendants and Appellants.
Paul J. Katz, under appointment by the Court of Appeal, for Defendant and Appellant, Candace Marie Brito. Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant, Vanesa Tapia Zavala. Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Scott C. Taylor and Daniel Hilton, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14CF0205) APPEAL from judgments of the Superior Court of Orange County, Thomas M. Goethals, Judge. Affirmed. Paul J. Katz, under appointment by the Court of Appeal, for Defendant and Appellant, Candace Marie Brito. Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant, Vanesa Tapia Zavala. Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Scott C. Taylor and Daniel Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted codefendants Candace Marie Brito and Vanesa Tapia Zavala of voluntary manslaughter of Annie P. (Pen. Code, § 192, subd. (a); count 1), and of assaulting Annie with force likely to produce great bodily injury (§ 245, subd. (a)(4); count 2.) As to count 2, the jury found true allegations that the defendants personally inflicted great bodily injury on the victim. (§ 12022.7.) The court sentenced Brito and Zavala to the midterm of six years in prison for voluntary manslaughter, and stayed their count 2 sentence under section 654.
Following California Rules of Court, rule 8.90, we will hereafter refer to the victim by her first name for anonymity purposes, and not out of disrespect.
Statutory references are to the Penal Code.
Each defendant contends insufficient evidence supports her conviction for voluntary manslaughter. Brito separately contends the court erroneously declined to instruct the jury regarding aider and abettor liability; and, it abused its discretion in sentencing her to the midterm. Zavala separately contends the court did not properly instruct the jury regarding proximate cause as to voluntary manslaughter; and, her counsel provided ineffective assistance by failing to request such an instruction. Finding no error, we affirm the judgments.
FACTUAL BACKGROUND
Prosecution Case
On the night of January 18, 2014, Annie and her friends drank some alcoholic drinks and went to a night club in Santa Ana. While they were standing outside the club taking photographs, Emelia Calderon and some friends walked by and Calderon bumped into Annie. Calderon then said something like, "What the fuck?" Annie replied sarcastically and responded with something like, "I will fuck you up." Calderon walked back toward Annie, they exchanged profanities, and Annie hit Calderon. Annie and Calderon fought, both fell to the ground and pulled each other's hair. Immediately afterwards, Annie's friends and Calderon's friends joined in, turning the fight into what one witness called an "all-out melee." Some individuals recorded the incident with their cell phones, and the videos were played for the jury.
We have watched those videos. Brito is seen fighting with Annie. A security guard pulled Brito away, but she returned and kicked in the direction of Annie. Some men pushed Brito aside; she fell, but returned and kicked at Annie again. Zavala is also seen kicking in the direction of where Annie lay on the ground. After Zavala's kick, Annie went limp and did not recover. As to both defendants, the videos' camera angles, do not show the exact spots where the kicks landed.
Vincent Hoang testified he saw Brito kick Annie in the head as Annie lay on her back on the ground. Patrick Madriaga testified he saw Brito twice kick towards Annie's head while Annie was on the ground. He also saw Zavala kick at Annie, but he did not see where the kicks landed. Madriaga identified Zavala in a photo lineup and also at trial.
Darwin Arayata saw Zavala and Brito kick Annie in the direction of her head or face. Arayata assumed by Annie's reaction that the kicks landed. But he did not remember the order of the kicks. He saw more clearly the second kick. After that one, Annie became unconscious and someone at the scene said, "It's over."
Jason Loyola witnessed the incident and testified he saw what appeared to be a hard kick land around Annie's right cheek. Annie flopped down and became unconscious. Loyola did not identify who kicked Annie. Shortly after the incident, Loyola wrote in a social media post that Annie was "sucker kicked" by a woman wearing pointy boots. At trial, he described the kick as a "cheap shot," explaining that "it wasn't their fight, and someone just comes in and gives someone an undeserved kick." Loyola testified that Annie became unconscious immediately after she was kicked.
Police interviewed Zavala two days after the incident, but did not believe her. Accordingly, they arranged for an undercover detective to be Zavala's cellmate in jail. The undercover detective discussed the incident with Zavala, who mentioned that the police had talked to her about a video. The undercover detective told Zavala: "But who knows, maybe the video caught someone else." Referring to the detectives who had interviewed her, Zavala replied, "No, they described everything."
Forensic pathologist Etoi Davenport testified she performed an autopsy of Annie and found contusions or bruises on Annie's eyelids, forehead, left ear, legs, wrists and hands. Annie also had subarachnoid hemorrhage, indicating she had received blunt force trauma. Annie was hit at six different impact sites, although she could have been hit more than once at the same spots. The prosecutor asked Dr. Davenport on direct examination whether she could tell which blows to Annie's head or face caused death, or whether it was a combination. Dr. Davenport responded: "It was likely a combination. I can't tell which particular impact started the lethal process, one versus the other, but if you have significant force applied to the head that starts that process, and then you have continuing significant force, it doesn't help it. It will continue to make the brain swell and react." Dr. Davenport testified that the manner of Annie's death was homicide, and the cause of death was blunt force injury of the head or complications of blunt force injury of the head.
Dr. Davenport responded to a hypothetical on cross-examination and stated that someone could "suffer the lethal blow from blow one and still be involved in an altercation, and it takes time for your brain to swell significantly to cut off the oxygenated blood flow and then you pass out or become unconscious." Dr. Davenport also testified that the wounds to the back of Annie's head could have resulted from contact with a hard surface such as a foot, a boot, or the ground. Dr. Davenport added that "if the last blow is the blow that leads to the lethal complications, the downfall of this brain swelling, the hemorrhaged brain swelling, then the others might not have contributed. [¶] But if the first, second, third, or any one before the last blow [started the lethal complications], then the others following that would contribute."
Defense Case
Brito's Testimony
Brito testified that she went to the club that night and met Calderon, Zavala and other friends there. Brito drank part of a beer at the club. While leaving the club with Zavala and her boyfriend and Calderon and her boyfriend, Brito learned that Calderon was having a problem with someone. Therefore, Brito turned around and followed Calderon, who ended up arguing with Annie. Brito testified Annie tried to hit either Calderon or Zavala or both. Brito admitted she punched at Annie, claiming she was "just trying to protect [Calderon] and [Zavala]." Brito testified someone pulled her to the ground and hit her. Brito eventually got up, walked around looking for Calderon and Zavala, and saw a bunch of men crowding around those two women. Brito saw Annie and Calderon fighting on the ground. Brito admitted kicking at Annie twice, but claimed that the second time someone pushed her, and therefore that kick did not land. She denied aiming for, or actually kicking, Annie's head.
Brito also testified that as a youth she had suffered a petty theft conviction for shoplifting. Some years later, she was convicted of a misdemeanor for falsely identifying herself to a police officer.
Zavala's Testimony
Zavala testified on direct examination that she left the club with her boyfriend, Calderon and her boyfriend, and Brito. Zavala found out someone had bumped into Calderon outside the club. Zavala saw Calderon and Annie cussing at each other. Zavala testified that Annie struck Zavala in the face. Zavala tried hitting Annie back, but did not know if she managed to do so because a fight broke out among many people. Zavala saw someone push Calderon, who fell on her back. Zavala also was pushed to the ground. Zavala denied kicking Annie; instead Zavala claimed she had kicked at a male who had pushed Brito. That male appeared to Zavala like he was going to hurt Calderon. Zavala did not know whether her kick hit the male or anyone else because someone pulled her back.
On cross-examination, Zavala conceded the video appeared to show that she started kicking before the male had touched Calderon. Zavala also conceded that the video showed that after Annie had hit her, she struck Annie's face, grabbed her hair, and pulled her to the ground. Zavala admitted that during the incident she was not so angry that she did not know what she was doing. Zavala admitted that when the police interviewed her shortly after the incident, she gave a different account and had told them she did not kick anyone.
DISCUSSION
I.
Sufficiency of the Evidence
A. Zavala's Contention
Zavala contends the People presented no proof that her kick was the proximate cause of Annie's death: "[W]e can distill that the death process could easily have started either before or after or during the kicking. It cannot be said accurately that the kicking immediately preceding unconsciousness had any influence at all on the death process. No one can tell. And there was a clear candidate for starting the process before the kicking—the suffering of an injury to the back of [Annie's] head, apparently from her head hitting a hard surface such as the side of a building or the cement sidewalk. Since the pathologist could not pinpoint the cause of death and could not pinpoint the start of the fatal processes inside [Annie's] head, it would be a severe error in both medical and legal logic to defer to the prosecutor's unscientific argument that there was an instantaneous death resulting from kicking or that the final kick started the death process." B. Brito's Contention
Brito contends the evidence was insufficient to support her voluntary manslaughter conviction: "The prosecution charged Brito . . . based on three alternative theories: (1) direct-perpetrator liability, (2) conspiracy, and (3) aiding and abetting. The prosecution sought, under the latter two theories, to hold Brito vicariously liable for the death caused by Zavala's kick. But evidentiary holes in each of these theories bar Brito's manslaughter conviction as a matter of law. As to the first theory, the prosecution proved only the possibility that Brito's kicks helped to cause [Annie's] death—and that possibility is not substantial evidence. And as to the latter two theories, there was no evidence that Brito intended for—or even knew about—Zavala's kick before it happened." C. Applicable Law
" 'The standard of appellate review for determining the sufficiency of the evidence is settled. On appeal, " 'we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]" [Citation.] In conducting such a review, we " 'presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.]" [Citations.] "Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence." ' " (People v. Harris (2013) 57 Cal.4th 804, 849.) "If our review of the record shows that there is substantial evidence to support the judgment, we must affirm, even if there is also substantial evidence to support a contrary conclusion and the jury might have reached a different result if it had believed other evidence." (People v. Riley (2015) 240 Cal.App.4th 1152, 1165-1166.)
Voluntary manslaughter is the intentional but nonmalicious killing of a human being, and is a lesser offense of murder. (§ 192, subd. (a); People v. Moye (2009) 47 Cal.4th 537, 549.) A killing may be reduced from murder to voluntary manslaughter if it occurs upon a sudden quarrel or in the heat of passion on sufficient provocation, or if the defendant kills in the unreasonable, but good faith, belief that deadly force is necessary in defense of another. (People v. Beltran (2013) 56 Cal.4th 935, 942, 951; People v. Manriquez (2005) 37 Cal.4th 547, 583.)
In People v. Vernon (1979) 89 Cal.App.3d 853, the court summarized the facts as follows: "The evidence shows [one defendant] participated in the beating of [the victim]. There was testimony by a witness that [that defendant], together with the others aforementioned, kicked [the victim] while he was on the ground. As the men, including [that defendant] kicked at the victim's prostrate body, the witness heard thuds as the kicks landed and heard [the victim] moan. Another witness also saw [that defendant], together with [the codefendant and two other men], kicking the victim." (Id. at p. 864.) Based on that evidence, the court concluded: "When the conduct of two or more persons contributes concurrently as proximate causes of death, the conduct of each person is a proximate cause regardless of the extent to which each contributes to the death." (Ibid.)
"To establish . . . causal connection and for criminal liability to attach, the evidence must show that the defendant's conduct was both the actual and the legal, or proximate, cause of the . . . injuries" (People v. Marlin (2004) 124 Cal.App.4th 559, 569), meaning (1) " 'the defendant's conduct must be the "but-for" cause (sometimes called the "cause in fact") of the forbidden result' " (ibid.); and (2) " 'the defendant may fairly be held responsible for the actual result' " (ibid.). In other words, "the cause of the harm not only must be direct, but also [must] not [be] so remote as to fail to constitute the natural and probable consequence of the defendant's act." (People v. Roberts (1992) 2 Cal.4th 271, 319; see id. at p. 320, fn. 11 ["[T]here is no bright line demarcating a legally sufficient proximate cause from one that is too remote."].)
"Whether the defendant's conduct was a proximate rather than remote, cause of death is ordinarily a factual question for the jury unless ' "undisputed evidence . . . reveal[s] a cause so remote that . . . no rational trier of fact could find the needed nexus." ' [Citation.] A jury's finding of proximate causation will not be disturbed on appeal if there is 'evidence from which it may be reasonably inferred that [the defendant's] act was a substantial factor in producing' the death." (People v. Butler (2010) 187 Cal.App.4th 998, 1009-1010) D. Analysis
The facts of this case are similar to those in People v. Vernon, supra, 89 Cal.App.3d 853. The evidence showed Brito and Zavala wore boots when they kicked Annie in the head, a vulnerable part of her body. Annie became unconscious and eventually died from injuries sustained during the incident. The jury saw video recordings of the codefendants' involvement in the crimes and could evaluate the amount of force each of them used to injure Annie. Several witnesses testified they saw Brito and Zavala kick Annie. The forensic pathologist testified that the blows to Annie's head were consistent with blunt force trauma inflicted by kicks, and concluded her death likely was caused from a combination of blunt injuries. The jury heard the defendants' testimony, and could evaluate their credibility. In light of the total evidence presented at trial, the jury reasonably found that each defendant substantially injured Annie, causing her death. We conclude that the evidence was sufficient to support the jury's verdict. Under People v. Vernon, both defendants' actions were a proximate cause of death, regardless of the extent to which each contributed. (Id. at p. 864.)
Our conclusion is bolstered by other aspects of the jury's verdict. The jury was instructed on assault with great bodily injury with CALCRIM No. 875 that "[g]reat bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm." As noted, the jury convicted both defendants of that crime. Further, the jury was instructed regarding the personal infliction of great bodily injury allegation under section 12022.7 as follows: "If you conclude that more than one person assaulted Annie [] and you cannot decide which person caused which injury, you may conclude that the defendant personally inflicted great bodily injury on Annie [] if the People have proved that: [¶] 1. Two or more people, acting at the same time, assaulted Annie [] and inflicted great bodily injury on her. [¶] 2. The defendant personally used physical force on Annie [] during the group assault; [¶] AND [¶] 3A. The amount or type of physical force the defendant used on Annie [] was enough that it alone could have caused Annie [] to suffer great bodily injury; [¶] [OR] [¶] 3B. The physical force that the defendant used on Annie [] was sufficient in combination with the force used by the others to cause Annie [] to suffer great bodily injury. [¶] The defendant must have applied substantial force to Annie []. If that force could not have caused or contributed to the great bodily injury, then it was not substantial." In light of the fact the jury found true that allegation as to both defendants, it concluded under the instruction given that each defendant inflicted substantial injury to Annie. Those blunt injuries are included in the combination of blows that the forensic pathologist concluded had caused Annie's death.
II.
Brito's Instructional Error Claim
Brito contends the trial court prejudicially erred because although it instructed the jury regarding natural and probable consequences doctrine with CALCRIM No. 402, it failed to additionally instruct sua sponte on aiding and abetting with CALCRIM Nos. 400 and 401. Brito argues, "The result was that the jury could find [her] derivatively liable for Zavala's kick so long as Brito was Zavala's 'coparticipant' (i.e. aider and abettor.) (CALCRIM No. 402.) But the jury did not first have to find any of the elements of aiding and abetting—its particular knowledge, intent and act requirements." The People argue that the court had no sua sponte duty to instruct the jury with CALCRIM Nos. 400 and 401 because the People did not rely on an aiding and abetting theory of liability.
The court's instruction to the jury with CALCRIM No. 402 includes this statement: "A coparticipant in a crime is the perpetrator or anyone who aided and abetted the perpetrator. It does not include a victim or innocent bystander."
CALCRIM No. 400 states: "A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. [¶] A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator. [¶] [Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime.]"
CALCRIM No. 401 provides that to prove that a defendant is guilty of a crime based on aiding and abetting that crime, "the People must prove that: [¶] 1.) The perpetrator committed the crime; [¶] 2.) The defendant knew that the perpetrator intended to commit the crime; [¶] 3.) Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4.) The defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime."
"Even without a request, a trial court is obliged to instruct on ' "general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury's understanding of the case" ' [citation], or put more concisely, on ' "general legal principles raised by the evidence and necessary for the jury's understanding of the case" ' [citation]. In particular, instructions delineating an aiding and abetting theory of liability must be given when such derivative culpability 'form[s] a part of the prosecution's theory of criminal liability and substantial evidence supports the theory.' " (People v. Delgado (2013) 56 Cal.4th 480, 488.) Here, unlike in People v. Delgado, supra, 56 Cal.4th 480, the prosecutor did not rely on the theory of aiding and abetting. Instead, the prosecutor argued that three other theories of culpability were applicable. Therefore, the trial court had no basis for instructing the jury on aider and abettor liability.
Although CALCRIM No. 402 includes a brief sentence regarding aiding and abetting, the jury did not find defendants guilty under any aiding and abetting theory, but instead, found they both directly participated in kicking Annie. Nothing in the jury instructions regarding aiding and abetting undermines that verdict. Accordingly, the instruction with the misleading portion of CALCRIM No. 402 was harmless error. (Accord, People v. Crandell (1988) 46 Cal.3d 833 ["[T]he instruction was unsupported by the evidence and should not have been given, but we perceive no prejudice. It is not reasonably probable that the jury engaged in speculation, as defendant suggests, or that the instruction in any manner interfered with the jury's consideration of the . . . theory on which defendant relied at trial."].)
We also point out that here the jury was instructed that "[s]ome of these instructions may not apply, depending on your findings about the facts of the case. . . . After you have decided what the facts are, follow the instructions that do apply to the facts as you find them." (CALCRIM No. 200.) "[T]he general rule is that on appeal we must assume the jury followed the court's instructions and admonitions." (People v. Frank (1990) 51 Cal.3d 718, 728.)
III.
Brito's Contention Regarding Sentencing Error
Brito contends the court erroneously imposed the six-year midterm sentence by not stating on the record the aggravating factors it relied on, but instead merely incorporating by reference the aggravating factors cited in the probation report. Moreover, she claims the court improperly relied on two aggravating factors that are inherent in the crime of voluntary manslaughter, specifically that Brito's crime involved the threat of great bodily harm, and she engaged in violent conduct, indicating a serious danger to society. A. Background
The Court spoke at length at the sentencing hearing, and stated: "So the question that I have struggled with since the day the verdict was returned, and, frankly, the verdict did not surprise me given the evidence, is where does justice lie in this case? What is a just sentence for each of these individual defendants in light of what the evidence really was?" The court continued: "That was a melee out on the sidewalk on Broadway near Fourth Street. There is no other way to describe it. And as a result of that melee so many lives and so many families' futures have been so dramatically changed without any real hope that they will ever go back to what they were before that horrible evening in January of this year." The court stated that it needed to consider both punishment and deterrence in sentencing the defendants. It added: "[Justice] lies in a sentence which punishes the defendants for what they did, and in the context of all of my prior comments undoubtedly they both engaged in criminal conduct. I think the jury's verdict was reflective of the appropriate level of criminal misconduct engaged in by both Ms. Brito and Ms. Zavala." The court stated: "I believe having read the probation report as to both defendants several times along with the supplements that the report is fair and it accurately summarizes certain facts which cannot be denied in this case. The probation officer writes about circumstances in mitigation, and I cannot disagree with her conclusions having heard and considered the evidence."
Addressing the defendants, the court added: "[T]he video discloses beyond any doubt that none of you walked away. You were all in the fight up to your elbows. If any of you had just swallowed your pride and walked away none of us would be sitting here." The court concluded, "There is aggravation and mitigation in this case as discussed by the probation officer's fair report. And essentially I find that they balance one another out. As a result, I am sentencing both defendants to the midterm of six years in state prison."
Brito's probation report stated the circumstances in aggravation were that the crime involved the threat of great bodily harm in that Brito kicked the victim at least once during a physical altercation; and, she engaged in violent conduct, indicating Brito posed a serious danger to society. B. Applicable Law
Brito's probation report also listed the circumstances in mitigation: the victim was the aggressor or provoker of the incident; the crime was likely committed because of an unusual circumstance, great provocation by the victim, which is unlikely to recur; Brito has an insignificant record of criminal conduct; Brito is presumptively ineligible for probation; however, she may be viewed as a suitable candidate for probation given her lack of a prior criminal record, education, and employment history, and expressed remorse over the incident; and Brito's prior performance on informal probation was satisfactory.
Brito relies on People v. Fernandez (1990) 226 Cal.App.3d 669, where the Court of Appeal ruled that "the trial court's use of incorporation by reference as a sentencing technique permitted it to avoid careful consideration of the probation report, the sentencing rules, the choices before it, and the facts of the case. Indeed, it appears the court was unaware incorporation was improper and would necessarily cause additional sentencing errors." (Id. at p. 681.) The Fernandez court also stated: "The trial court imposed the maximum sentence possible with only the most cursory explanation. It failed to appreciate the gravity and complexity of sentencing in a case involving 156 offenses. And it does not appear to have examined the facts in light of the relevant sentencing factors." (Id. at p. 684.)
Even when the sentencing court fails to state its reasons for a sentencing choice, "remand for resentencing is not automatic; we are to reverse the sentence only if 'it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error.' " (People v. Sanchez (1994) 23 Cal.App.4th 1680, 1684.) C. Analysis
We preliminarily reject the People's contention that Brito forfeited her challenge to the sentence under People v. Scott (1994) 9 Cal.4th 331 (Scott) by failing to object to it at sentencing. "In Scott, [the California Supreme Court] prospectively announced a new rule: A party in a criminal case may not, on appeal, raise 'claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' if the party did not object to the sentence at trial. [Citation.] The rule applies to 'cases in which . . . the court purportedly erred because it . . . misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons[.]' " (People v. Gonzalez (2003) 31 Cal.4th 745, 751.) "But Scott went on to say: '[T]here must be a meaningful opportunity to object to the kinds of claims otherwise deemed waived by [the Scott] decision.' [Citation.] 'This opportunity can occur,' Scott observed, 'only if, during the course of the sentencing hearing itself and before objections are made, the parties are clearly apprised of the sentence the court intends to impose and the reasons that support any discretionary choices.' " (People v. Gonzalez, supra, at p. 751.)
In light of the California Supreme Court's directive that the trial court must describe the sentence it intends to impose and give the parties an opportunity to object to the proposed sentence before the actual sentencing, we decline to apply the Scott waiver rule. (Scott, supra, 9 Cal.4th at p. 356 [A meaningful opportunity to object to sentencing can occur "only if, during the course of the sentencing hearing itself and before objections are made, the parties are clearly apprised of the sentence the court intends to impose and the reasons that support any discretionary choices." (Italics added.)].)
Regarding the merits of Brito's contention, we review the "trial court's sentencing choice for an abuse of discretion and reverse only when there is a clear showing the sentence is arbitrary or irrational." (People v. Ogg (2013) 219 Cal.App.4th 173, 185, citing People v. Sandoval (2007) 41 Cal.4th 825, 847; People v. Castellano (1983) 140 Cal.App.3d 608, 614-615 [trial court's imposition of upper term sentence reviewed for an abuse of discretion].) " 'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' " (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) We presume that the trial court considered all of the relevant factors in choosing a sentence unless the record shows otherwise. (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
Under section 1170, subdivision (b), the sentencing judge may consider circumstances in aggravation or mitigation and any other factor reasonably related to the sentencing decision. The relevant circumstances may be obtained from the case record, the probation officer's report, other reports and statements properly received, statements in aggravation or mitigation, and any evidence introduced at the sentencing. (Accord, Cal. Rules of Court, rule 4.420(b).) However, the court may not use facts that are elements of the crime for purposes of imposing a greater term. (Cal. Rules of Court, rule 4.420(d).)
We find no error in the Court's exercise of its discretion to sentence Brito to the middle term. The court specifically stated it examined the facts of the case in light of the relevant sentencing factors, and sought to balance punishment with deterrence in deciding on the appropriate sentence. The court clearly signaled its reasons for imposing the midterm on the voluntary manslaughter count when it stated it found the mitigating and aggravating factors balanced each other. "Where sentencing error involves the failure to state reasons for making a particular sentencing choice . . . reviewing courts have consistently declined to remand cases where doing so would be an idle act that exalts form over substance because it is not reasonably probable the court would impose a different sentence." (People v. Coelho (2001) 89 Cal.App.4th 861, 889; see also People v. Blessing (1979) 94 Cal.App.3d 835, 838-839 [no remand necessary solely for a recital of reasons where record supported court's sentence choice].) Based on the record in this case, it is not reasonably probable that the court's sentencing choice would be different on remand. Resentencing is not required.
IV.
Zavala's Claims of Instructional Error and Ineffective Assistance of Counsel
Zavala contends the court did not adequately instruct the jury regarding causation as to the voluntary manslaughter conviction. She argues in a related ineffective assistance of counsel claim that the court should have instructed the jury on causation with CALCRIM No. 240. However, she acknowledges the jury was instructed regarding proximate cause (CALCRIM No. 520); involuntary manslaughter (CALCRIM No. 580); and voluntary manslaughter (CALCRIM Nos. 570 (heat of passion) and 571 (self-defense).) A. Background
CALCRIM No. 240 provides: "An act [or omission] causes injury if the injury is the direct, natural, and probable consequence of the act [or omission] and the injury would not have happened without the act [or omission]. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence. [¶] There may be more than one cause of injury. An act [or omission] causes injury only if it is a substantial factor in causing the injury. A substantial factor is more than a trivial or remote factor. However, it does not have to be the only factor that causes the injury." The bench notes to this instruction state: "If the particular facts of the case raise a causation issue and other instructions do not adequately cover the point, give this instruction."
In instructing the jury regarding first or second degree murder the court used CALCRIM No. 520: "[An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.] [¶] [There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death.]" That same language appears in CALCRIM No. 580 regarding involuntary manslaughter. But it does not appear in CALCRIM Nos. 570 and 571 regarding voluntary manslaughter.
The court told counsel it intended to omit CALCRIM No. 240 because its language was duplicated in CALCRIM Nos. 520 and 580. The court specifically asked Zavala's counsel whether CALCRIM No. 240 was needed. He replied in the negative: "I think [CALCRIM Nos.] 580 and 520 are both more specifically drawn to this particular case, the charges and the facts. And [CALCRIM No.] 240 is not only redundant; I guess one could argue that it's—it could be confusing." Brito's counsel said, "I agree." The court ruled: "So no one has an objection if I delete [CALCRIM No.] 240, which again discuses sua sponte material which is discussed in [CALCRIM Nos.] 520 and 580. So that makes [CALCRIM No.] 240 at least redundant and perhaps misleading. Therefore, I'm not going to give [it]."
The court also instructed the jury with a special instruction regarding causation: "If you have a reasonable doubt whether the defendant's act caused the death, you must find her not guilty."
The prosecutor stated in closing argument: "Let's talk about causation. Let's talk about the law on causation. There may be more than one cause of a death. An act causes death only if it is a substantial factor in causing the death, and then it defines substantial factor for us. A substantial factor is more than trivial or remote. However, it doesn't have to be the only factor that causes death."
Zavala's counsel argued to the jury: "There is only one kick that is basically in the People's theory of causation as to Miss Zavala, and at best that's all the prosecution has . . . and the kick has to be the cause of death in order for us to get past where we are right now. In order for [the prosecutor] to tell you that you can convict, you have to get there. That has to be the substantial cause of death." B. Applicable Law
"A claim of instructional error is reviewed de novo." (People v. Ghebretensae (2013) 222 Cal.App.4th 741, 759, citing People v. Guiuan (1998) 18 Cal.4th 558, 569-570.) " 'In considering a claim of instructional error[,] we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights. ' " (People v. Lopez (2011) 199 Cal.App.4th 1297, 1305.)
However, reversal is not required unless it is reasonably likely the jury misunderstood and misapplied the court's instructions to appellant's detriment. (People v. Smithey (1999) 20 Cal.4th 936, 963-964.) In making this determination, we must consider the court's instructions "as a whole, in light of one another," without "singl[ing] out a word or phrase." (People v. Holmes (2007) 153 Cal.App.4th 539, 545-546.) We must also keep in mind that " ' " '[t]he absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.' " ' " (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) And, we must presume the jurors were intelligent people capable of understanding and correlating all of the instructions they received. (Ibid.)
"Generally, a party may not complain on appeal about a given instruction that was correct in law and responsive to the evidence unless the party made an appropriate objection." (People v. Ramos (2008) 163 Cal.App.4th 1082, 1087.) In determining whether instructional error was harmless, "[a] reviewing court considers 'the specific language challenged, the instructions as a whole[,] the jury's findings' [citation], and counsel's closing arguments to determine whether the instructional error 'would have misled a reasonable jury.' " (People v. Eid (2010) 187 Cal.App.4th 859, 883.) C. Analysis
Preliminarily, we conclude Zavala's argument is barred by the doctrine of invited error. " 'The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest. If defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal. . . . [I]t also must be clear that counsel acted for tactical reasons and not out of ignorance or mistake.' " (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.) Here, Zavala's counsel affirmatively requested that CALCRIM No. 240 be omitted. He thought as a matter of tactics that two other instructions were more specific and better suited in this case; he also was concerned CALCRIM No. 240 would confuse the jury. In light of the above, Zavala is precluded from taking a contrary position on appeal.
In any event, we address the claim on the merits in light of Zavala's ineffective assistance of counsel claim. As the court and defense counsel recognized, CALCRIM No. 240 would have been redundant in light of the court's instructions with CALCRIM Nos. 520 and 580; therefore, the court was not required to give it. We must assume the jury was able to correlate instructions and apply to this case the language from CALCRIM No. 240 regarding natural and probable consequences and multiple potential causes of death that was included in the other instructions. Zavala's counsel's closing argument also emphasized that causation was only provable if the jury concluded that Zavala's kick was a substantial cause of Annie's death. As noted, the jury also convicted Zavala of inflicting great bodily injury on Annie; that is, that Zavala inflicted "significant or substantial physical injury . . . that is greater than minor or moderate harm." Based on the trial evidence and the verdict, the jury necessarily concluded Zavala's kick was a substantial, and not trivial, cause of Annie's death. We discern no prejudice to Zavala from the court's omission of instruction with CALCRIM No. 240.
The absence of prejudice vitiates Zavala's claim her trial counsel provided constitutionally ineffective assistance by declining to request instruction with CALCRIM No. 240. To make out a claim of ineffective assistance of counsel, she must show the attorney's performance did not meet an objective standard of reasonableness under prevailing professional norms; or that the deficient performance prejudiced her. (Strickland v. Washington (1984) 466 U.S. 668, 691-692; see also People v. Ledesma (1987) 43 Cal.3d 171, 214-218.) However, "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." (Strickland, supra, 466 U.S. at p. 697.)
DISPOSITION
The judgments are affirmed.
O'ROURKE, J. WE CONCUR: McCONNELL, P. J. IRION, J.