Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C157693.
RIVERA, J.
Defendant David Carter appeals a judgment entered upon a jury verdict finding him guilty of murder, attempted murder, and assault with a firearm. He contends the trial court committed instructional and sentencing error. We shall order the abstract of judgment amended to reflect the correct sentence for attempted murder, and otherwise affirm the judgment.
I. BACKGROUND
A. The Evening Before the Crimes
On March 24, 2006, defendant walked into the home of Peggy Holland-Johnson, the mother of the victim, Jeffrey Johnson, and asked Peggy where her son Jeffrey was. Defendant said Jeffrey had something that belonged to him, but did not tell Peggy what it was. Peggy asked defendant to leave, and he told her, “I’m going to get it.” Defendant seemed angry and upset, and his voice was raised.
Because the members of the Johnson family share the same last name, we will refer to them by their first names. We intend no disrespect by this designation.
Later that evening, defendant told a friend, Tanisha Symon, that someone had taken his money, and he wanted to “get him to honor his family.” Symon testified that defendant drove a white minivan.
B. The Attempted Murder
The next morning, March 25, 2006, Jeffrey was in a car with his brother, Lawrence Johnson, going to their mother’s house. About a block from the house, a white minivan he recognized as defendant’s swerved and cut Lawrence’s car off. Lawrence lost control of the car and ran into a pole, denting the fender. Lawrence and Jeffrey went to get a friend who did auto bodywork, and returned with him to their mother’s house. The minivan pulled up in front of the house. Lawrence told Jeffrey to “go deal with it, ” and Jeffrey went to the front of the house. Lawrence heard his neighbor, Mr. Logan, who was defendant’s father, yell “Y’all stop that.” Someone driving by told Lawrence that Jeffrey was in a fight.
Lawrence went to the front of the house and saw Jeffrey backing away from defendant, while defendant went to his van. He did not see a fight. Defendant was carrying a gun as he came out of his van. He cocked it and fired it several times toward Jeffrey, who ducked and ran toward the carport, escaping unharmed. Defendant bent down and picked up gun shells, then got back into the van. Peggy called 911. A police officer went to the house, and Lawrence told her his brother had been in an argument with a man over money, and that Lawrence had heard three shots.
C. The Murder
That afternoon, March 25, 2006, Jeffrey’s sister-in-law, Shawntate Johnson, was at Peggy’s house. Jeffrey was outside the house. He walked away, and Shawntate heard gunshots coming from the direction Jeffrey had gone. In the rearview mirror of her car, Shawntate saw a white minivan and someone shooting from inside the van about a block away. The van came down the street, and defendant, who was driving, stopped and stared at Shawntate. Shawntate found Jeffrey lying on the ground a block away, bleeding. Jeffrey told Shawntate, “He shot me.”
Symon was with defendant in his van when he shot Jeffrey. As they drove, they saw a man, and defendant said, “There he go.” Defendant pulled a gun out of the glove compartment and shot about three shots out the window. The victim said, “He hit me, ” or “You got me, ” and fell to the ground.
Jeffrey died of a gunshot wound.
D. Trial and Sentencing
Defendant was charged with one count of murder (Pen. Code, § 187) (count one); one count of assault with a firearm (§ 245, subd. (a)(2)) (count two); and one count of willful, deliberate, premeditated attempted murder (§§ 187, subd. (a) & 664, subd. (f)) (count three). The information included various firearm enhancements.
All statutory references are to the Penal Code.
The jury found defendant guilty on all counts, and found true the firearm allegations, as well as an allegation that the attempted murder was willful, deliberate, and premeditated. The trial court sentenced defendant to a total term of 20 years plus 65 years to life.
II. DISCUSSION
A. Instruction on Lesser Included Offense
The trial court refused defendant’s request for an instruction on attempted voluntary manslaughter as a lesser included offense of attempted murder, concluding the record was “devoid of anything that warrants or justifies giving voluntary or involuntary manslaughter instructions.” Defendant contends this ruling was error.
“ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.” [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than charged. [Citations.]’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) Under this rule, “a trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support.” (Id. at p. 162.) The court “need not instruct on a lesser included offense whenever any evidence, no matter how weak, is presented” (People v. Barton (1995) 12 Cal.4th 186, 195, fn. 4), but only when there is “ ‘ “evidence from which a jury composed of reasonable [persons] could... conclude []” ’ that the lesser offense, but not the greater, was committed.” (Breverman, supra, 19 Cal.4th at p. 162.) Voluntary manslaughter is a lesser included offense of murder. (People v. Ochoa (1998) 19 Cal.4th 353, 422 (Ochoa).)
Breverman explained the elements of voluntary manslaughter: “An intentional, unlawful homicide is ‘upon a sudden quarrel or heat of passion’ (§ 192(a)), and is thus voluntary manslaughter (ibid.), if the killer's reason was actually obscured as the result of a strong passion aroused by a ‘provocation’ sufficient to cause an ‘ “ordinary [person] of average disposition... to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.” ’ [Citations.] ‘ “[N]o specific type of provocation [is] required.... ” ’ [Citations.] Moreover, the passion aroused need not be anger or rage, but can be any ‘ “ ‘[v]iolent, intense, high-wrought or enthusiastic emotion’ ” ’ [citations] other than revenge [citation]. ‘However, if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter....’ [Citation.]” (Breverman, supra, 19 Cal.4th at p. 163.) “Heat of passion” manslaughter is distinguished from murder by provocation. “The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.]” (People v. Lee (1999) 20 Cal.4th 47, 59.)
Defendant contends the evidence is susceptible to an interpretation that he shot at Jeffrey on the morning of March 25 after a sudden quarrel or in the heat of passion; for this contention, he points to the fact that Lawrence told Jeffrey to “deal with” defendant, that defendant’s father yelled, “Y’all stop that, ” and that someone told Lawrence that Jeffrey was fighting. He also points to evidence that Jeffrey used drugs, that he had spent time in jail, and that he would not shy away from a fight.
We reject this contention. Nothing in this evidence shows that defendant’s reason was obscured by passion when he shot at Jeffrey on the morning of March 25. Nor has defendant pointed to any evidence that the provocation—apparently a dispute over some unspecified property of defendant’s—was of the sort that would cause an ordinarily reasonable person to act rashly, and from passion rather than judgment. (See Breverman, supra, 19 Cal.4th at p. 163.) As noted by our Supreme Court, “ ‘The provocation must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment. Adequate provocation and heat of passion must be affirmatively demonstrated. [Citations.]’ [Citation.]” (People v. Gutierrez (2009) 45 Cal.4th 789, 826.) Neither has been shown here.
In any case, there was no prejudice. The evidence that defendant acted deliberately was compelling. The evening before the shootings, defendant told Jeffrey’s mother that Jeffrey had something that belonged to him and that defendant would get it. He told a friend the same evening that someone had taken his money and that he wanted to “get him.” Before shooting at Jeffrey on the morning of March 25, he forced the car Jeffrey was riding in off the road, then drove to Jeffrey’s house. Moreover, the jury’s findings made clear that it would have reached the same conclusion if it had been instructed differently. The jury was instructed: “If you find that the attempted murder was preceded and accompanied by a clear, deliberate intent to kill, which was the result of deliberation and premeditation, so that it must have been formed upon preexisting reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is attempt to commit willful, deliberate and premeditated murder.” (Italics added.) The jury made a separate finding that the attempted murder was willful, deliberate, and premeditated. In light of this finding—which indicated it found the attempt was not made under a sudden heat of passion or other condition precluding deliberation—we see no possibility the jury would have concluded defendant acted in the heat of passion if it had been instructed on attempted voluntary manslaughter.
B. Sentencing Error
The trial court sentenced defendant to a term of 15 years to life for count three, citing section 664, subdivision (f). Defendant points out that section 664, subdivision (f), provides for a term of 15 years to life for the attempted killing of a peace officer, firefighter, or other defined officers. (See § 664, subd. (e).) The victim here was not a peace officer or firefighter, and section 664, subdivision (f) is inapplicable. Defendant argues that he should have been sentenced instead in accordance with section 664, subdivision (a), under which the prison sentence for a person who committed attempted willful, deliberate, and premeditated murder is life with the possibility of parole. The Attorney General concedes this point, and we agree. We shall order the abstract of judgment amended to reflect the correct sentence.
III. DISPOSITION
The clerk of the superior court is directed to amend the abstract of judgment to reflect a sentence of life imprisonment with the possibility of parole for count three, attempted murder (§§ 187, subd. (a) & 664, subd. (a)), and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: RUVOLO, P.J., SEPULVEDA, J.