Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Burt Pines, Judge, Los Angeles County Super. Ct. No. PA038864.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
A jury convicted Jesus Javier Carrillo of first degree murder and possession of a firearm by a felon and found true several special gang and firearm-use enhancement allegations. On appeal Carrillo contends the court’s instructions to the jury concerning provocation were erroneous because they implied provocation must be objectively reasonable in order to raise a reasonable doubt as to the presence of premeditation, allowing the jury to conclude the killing was second degree murder. Carrillo also challenges various aspects of his sentence, claiming imposition of the enhancement for intentionally discharging a firearm causing great bodily injury or death along with his sentence for first degree murder violated the merger doctrine and Penal Code section 654; and, even if imposition of that enhancement was proper, the court erred in staying, rather than striking, the lesser firearm-use enhancements. We affirm.
Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL HISTORY
1. The Amended Information
An amended information charged Carrillo with one count of murder (§ 187, subd. (a)) and one count of possession of a firearm by a felon (§ 12021, subd. (a)(1)). As to the murder count, the amended information specially alleged Carrillo had personally used a firearm (§ 12022.53, subd. (b)), personally and intentionally discharged the firearm (§ 12022.53, subd. (c)) and, as a result of discharging the firearm, caused great bodily injury and death (§ 12022.53, subd. (d)). In addition, it was alternatively specially alleged that a principal personally used a firearm (§ 12022.53, subds. (b), (e)) and a principal personally and intentionally discharged the firearm (§ 12022.53, subds. (c), (e)(1)), causing great bodily injury and death (§ 12022.53, subds. (d), (e)(1)). Finally, it was alleged as to both the murder count and the felon-in-possession count that the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and that Carrillo had served a prior prison sentence for a felony (§ 667.5, subd. (b)).
The amended information alleged Carrillo had been convicted of burglary, a felony, in 1999.
2. The Trial
According to the evidence presented at trial, Carrillo is a member of the Cayuga Street gang. The murder victim, Vincent Mena, was a member of the Van Nuys Boys gang, a rival of the Cayuga Street gang. On April 14, 2001, the day of the murder, a neighbor of Carrillo’s, Elizabeth Garcia, saw Carrillo huddled together on the street with two other men examining a black handgun. Another neighbor, Helen Hernandez, testified she overheard Carrillo talking to two other men about “jumping” somebody because “there was a Van Nuys Boy down the street.” Hernandez saw Carrillo and his two companions walk a half-block down the street and “beat up” Mena, who was trying to get away. Mena did not appear to have a weapon. Hernandez then heard gunshots and saw the three men, including Carrillo, flee the scene. Hernandez saw Carrillo put a gun in his pocket as he fled.
When questioned by Los Angeles Police Department detectives Jim Freund and Charles Lenane, Carrillo admitted he had shot Mena, but provided three different explanations for the killing. First, he said that Mena and three of Mena’s fellow gang members pulled up in a black Ford Expedition, asked Carrillo and his friends to identify their gang affiliation and, when Carrillo and his friends responded, a fistfight ensued. During the fight, Mena pointed a handgun at Carrillo. Carrillo picked up a gun that was on the ground and shot Mena.
In a second version of events reported by Carrillo during the same interview, Carrillo asserted he was alone on the street when three men pulled up in the black Ford Expedition and “mad-dogged him.” Carrillo offered a “peace sign” as a symbol of friendship and walked away. When Carrillo arrived at his friend’s house, he saw the black Expedition parked in front. Carrillo and two of his fellow gang members confronted Mena and his companions in the Expedition, and a fistfight ensued. During the fight, Mena took out a gun, pointed it at Carrillo and fired, but the gun jammed. Carrillo retrieved a gun from his friend’s car, covered his eyes and shot Mena.
Carrillo provided a third version of events after detectives informed him Mena did not have a gun. In the third version Carrillo acknowledged Mena did not point a weapon at him. Carrillo explained that, during the fistfight, he had obtained a gun from his friend’s car, pointed it at Mena and pulled the trigger, but the safety feature was activated and the gun did not discharge. He took the safety off the gun, put the gun in his waistband and resumed his participation in the fistfight. Later, he brought the gun up from his waistband as Mena was running away, but with no intention to shoot. As he handled the weapon, the gun discharged accidentally.
The defense provided evidence Mena was under the influence of cocaine and PCP at the time he was shot and those drugs at toxic levels could cause a person to feel paranoia, display anger and rage and appear to have “superhuman” strength because the drugs interfere with a person’s sensation of pain.
3. Jury Instructions
After instructing the jury as to the elements of murder pursuant to the pattern jury instructions adopted by the Judicial Council of California Criminal Jury Instructions (CALCRIM) in 2006, the court instructed the jury in accordance with CALCRIM No. 521 that murder in the first degree is proved only if the jury finds beyond a reasonable doubt the defendant acted willfully, deliberately and with premeditation; all other murders are murder in the second degree. The court also instructed the jury concerning provocation, pursuant to CALCRIM No. 522, which provides, “Provocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. Also, consider the provocation in deciding whether the defendant committed murder or manslaughter.”
CALCRIM No. 521 provides, “If you decide that the defendant has committed murder, you must decide whether it is murder of the first or second degree. [¶] The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before committing the act that caused the death. [¶] The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time. [¶] All other murders are of the second degree. [¶] The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder.”
In addition to instructing the jury on the elements of murder, the court instructed the jury on voluntary manslaughter: “A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or heat of passion. [¶] The defendant killed someone because of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant was provoked; [¶] 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; [¶] [and] 3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment. [¶] . . . [¶] In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time. [¶] It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts. . . .” (CALCRIM No. 570.)
4. The Verdict and Sentence
The jury found Carrillo guilty of first degree murder and of possession of a firearm by a felon. The jury also found each of the alleged firearm-use enhancements true as well as the special allegation the crimes were committed for the benefit of a street gang. In a bifurcated proceeding Carrillo waived his right to a jury trial on the allegation of the prior prison term for a felony, and the court found that allegation true within the meaning of section 667.5, subdivision (b).
The court sentenced Carrillo to an aggregate state prison term of 51 years to life, consisting of a 25-years-to-life term for first degree murder, a consecutive 25-years-to-life firearm-use enhancement pursuant to section 12022.53, subdivision (d), and an additional one-year prior prison term enhancement (§ 667.5, subd. (b)). In addition, the court imposed and stayed a 20-year firearm-use enhancement pursuant to section 12022.53, subdivision (c), and a 10-year firearm-use enhancement under section 12022.53, subdivision (b).
The court also imposed and stayed additional firearm-use enhancements under sections 12022.53, subdivisions (c), (d) and (e) (relating to a principal’s use and discharge of a firearm). However, no additional gang enhancement was imposed on the murder count pursuant to section 186.22, subdivision (b)(5), which prohibits parole for persons whose underlying offense (apart from the gang enhancement) results in the imposition of a life sentence until a minimum of 15 years has been served. On the felon-in-possession charge (count 2), the court imposed a two-year term for the underlying offense plus a three-year gang enhancement under section 186.22, subdivision (b)(1), and ordered the sentence to run concurrently with the sentence on the murder charge.
DISCUSSION
1. The Court’s Jury Instructions on Provocation Were Not Misleading
Carrillo acknowledges the trial court properly instructed the jury in accordance with CALCRIM No. 522 that the fact of provocation should be considered in determining whether premeditation existed. (See People v. Valentine (1946) 28 Cal.2d 121, 132 [subjective provocation that is inadequate to find voluntary manslaughter may nevertheless raise a reasonable doubt as to presence of premeditation and permit finding of second degree murder]; People v. Padilla (2002) 103 Cal.App.4th 675, 679 [same].) He also concedes CALCRIM No. 570, which advises the jury that the provocation must be reasonable before a jury can conclude the killing was voluntary manslaughter is also an accurate statement of law and was properly given. (See People v. Cole (2004) 33 Cal.4th 1158, 1216 [provocation must be reasonable under circumstances for jury to find an absence of malice and conclude killing was voluntary manslaughter].) However, he argues, when considered together, CALCRIM Nos. 570 and 522 erroneously imply that the provocation must be “objectively reasonable” in order to raise a reasonable doubt whether premeditation exists and the failure to provide additional clarification on this point resulted in misleading instructions that violated his right to due process.
When a criminal defendant contends an ambiguous or potentially misleading instruction violated his or her federal constitutional right to a trial by jury, an appellate court must review the instructions as a whole and determine “‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution. [Citation.]” (Estelle v. McGuire (1991) 502 U.S. 62, 72 [112 S.Ct. 475, 116 L.Ed.2d 385]; see also Jones v. United States (1999) 527 U.S. 373, 390 [119 S.Ct. 2090, 144 L.Ed.2d 370]; People v. Smithey (1999) 20 Cal.4th 936, 963; People v. Frye (1998) 18 Cal.4th 894, 957.)
There is no reasonable likelihood the jury understood the instructions defining the provocation properly considered in determining whether premeditation exists (and therefore whether a murder is first or second degree) to be the same as that required to negate malice and reduce a homicide to voluntary manslaughter. CALCRIM No. 522 correctly instructs that the existence of provocation may be considered by the jury in deciding both whether premeditation exists for first degree murder and whether malice exists for purposes of voluntary manslaughter. CALCRIM No. 570, pertaining solely to voluntary manslaughter, properly specifies provocation in that context must be objectively reasonable, in other words, that “a person of average disposition would have been provoked” “in the same situation knowing the same facts.” The only reasonable interpretation of these two legally correct instructions, taken together, is that the provocation precluding a finding of premeditation is something different from (and less than) that which would preclude a finding of malice. That is, the jury necessarily understood, even if some provocation exists, the killing must be second degree murder unless the jury finds the provocation was reasonable under the circumstances. Otherwise, there would be no need to instruct the jury to consider provocation in the context of second degree murder. In sum, considering the instructions as a whole, a reasonable juror would necessarily have understood that something less than the objectively reasonable provocation could preclude a finding of premeditation and justify a verdict of second degree murder. (See, e.g., People v. Mena (2005) 133 Cal.App.4th 702, 705 [although jury instruction concerning charge of possession of methamphetamine while armed with a firearm did not expressly state that defendant must “knowingly” have a firearm available for immediate offense or defensive use, the “instructional language implicitly included the element of knowledge, and there is no reasonable likelihood the jury could have misunderstood”]; see also People v. Scott (1988) 200 Cal.App.3d 1090, 1095 [“[j]urors are presumed able to understand and correlate instructions and are further presumed to have followed the court’s instructions”]; see also People v. Mickey (1991) 54 Cal.3d 612, 671; People v. Williams (1995) 40 Cal.App.4th 446, 456.)
We need not, and do not, decide in this case whether the trial court would have erred had it denied a request by Carrillo for additional clarification of CALCRIM No. 522, itself a pinpoint instruction (see Bench Notes, CALCRIM No. 522 [CALCRIM No. 522 is a pinpoint instruction]), because Carrillo never made such a request. (See People v. Rogers (2006) 39 Cal.4th 826, 878-879 [CALJIC No. 8.73 (the precursor to CALCRIM No. 522) is a pinpoint instruction relating particular evidence to an element of the offense; except in context of affirmative defense, trial court has no sua sponte obligation to give pinpoint instructions].)
CALJIC No. 8.73, which provides, “If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed without deliberation and premeditation,” makes explicit what we conclude is necessarily implicit in the CALCRIM instructions. Although it is generally preferable for the trial court to state explicitly even that which it believes is necessarily implicit in the instructions, we cannot say the court’s instructions as given were ambiguous or erroneous or there is any reasonable likelihood the jury misunderstood them.
Nor can we conclude on this record, as Carrillo alternatively argues, that the failure to request additional clarification constitutes ineffective assistance by Carrillo’s counsel. On a direct appeal a conviction will be reversed for ineffective assistance of counsel only when the record demonstrates there could have been no rational tactical purpose for counsel’s challenged act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 442 [“[r]eviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel’s omissions”]; People v. Mitcham (1992) 1 Cal.4th 1027, 1058 [“‘[i]f the record sheds no light on why counsel acted or failed to act in the manner challenged, “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation” [citation], the contention [that counsel provided ineffective assistance] must be rejected’”].) Here, defense counsel may well have made a tactical decision not to further highlight CALCRIM No. 522 with the hope a jury considering the extent of provocation would be more inclined to find voluntary manslaughter.
2. The Trial Court Did Not Violate The Merger Doctrine or Section 654 When It Imposed the Sentence for Both the Underlying First Degree Murder and the Firearm-use Enhancement
Carrillo contends the court violated the “merger doctrine” articulated in People v. Ireland (1969) 70 Cal.2d 522, 539 when it imposed the section 12022.53, subdivision (d), enhancement in addition to the sentence for premeditated murder. That contention is without merit. The merger doctrine, limited to the felony murder context (see, e.g., People v. Randle (2005) 35 Cal.4th 987, 1004-1005; People v. Hansen (1994) 9 Cal.4th 300, 311; People v. Sanders (1990) 51 Cal.3d 471, 509, 517; People v. Garrison (1989) 47 Cal.3d 746, 778), does not apply to sentencing enhancements. (People v. Sanders (2003) 111 Cal.App.4th 1371, 1374 [rejecting contention that imposition of sentence for murder with firearm-use enhancement violates merger doctrine; “no authority [has] extend[ed] the merger doctrine to enhancements].)
Carrillo’s related contention that imposition of both the firearm-use enhancement under section 12022.53, subdivision (d), and the sentence for first degree murder violates section 654 fares no better. Section 654 provides that a person committing an act punishable under separate laws may only be punished under the one providing for the longest imprisonment, but not under the others. Whatever role section 654 may play with respect to sentencing enhancements generally (see People v. Palacios (2007) 41 Cal.4th 720, 729 [leaving for “another day” resolution of the question whether § 654 applies to enhancements generally]), section 654 does not apply in the context of firearm-use enhancements under section 12022.53. (Palacios, at p. 726 [language in § 12022.53 plainly evidences Legislature’s intent to create “a sentencing scheme unfettered by section 654”; “the broad and unambiguous scope of [the statutory language] ‘notwithstanding any other provision of law’ overrides the application, if any, of section 654 to the imposition of punishment prescribed in section 12022.53, subdivisions (b), (c), and (d)”]; see also People v. Hutchins (2001) 90 Cal.App.4th 1308, 1314-1315 [§ 654 does not apply in context of firearm-use enhancements]; People v. Sanders, supra, 111 Cal.App.4th at p. 1375 [“‘section 654 does not bar imposition of a single firearms use enhancement to an offense committed by the use of firearms, unless firearms use was a specific element of the offense itself. Indeed, where imposition of a firearms use enhancement is made mandatory not withstanding other sentencing laws and statutes, it is error to apply section 654 to stay imposition of such an enhancement’”].)
Section 654, subdivision (a), provides, “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
3. The Trial Court Did Not Err in Imposing and Staying the Lesser Firearm Enhancements under Section 12022.53
Carrillo contends the court erred in staying, rather than striking, the 10-year enhancement under section 12022.53, subdivision (b), and the 20-year enhancement under section 12022.53, subdivision (c). We find no error in the staying the lesser firearm-use enhancements. (See People v. Bracamonte (2003) 106 Cal.App.4th 704, 713 [when maximum § 12022.53, subd. (d) enhancement is imposed, it is error to strike lesser section 12022.53 enhancements; proper course of action under § 12022.53, subds. (f) and (h) is to impose and stay lesser § 12022.53 enhancements]; People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061-1062 [same].)
The issue whether lesser firearm use enhancements under section 12022.53 should be stricken, stayed or simply not imposed at all when separate firearm enhancements under sections 12022.5 and 12022.53 are found true and the longest enhancement is imposed is currently pending before the Supreme Court in People v. Gonzalez, review granted March 14, 2007, S149898.
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., ZELON, J.