Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court No. 05HF1930 of Orange County, M. Marc Kelly, Judge.
Susan D. Shors, 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, Jeffrey J. Koch and Pamela Ratner Sobeck, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
INTRODUCTION
A jury found defendant Luis Alberto-Acevedo Cruz guilty of first degree murder and found he committed the murder by intentionally and personally discharging a firearm. Defendant contends the trial court erred by (1) instructing the jury with CALCRIM No. 521 (2006-2007) on first degree murder, arguing the instruction contains inaccurate definitions of the terms “willful action,” “premeditation,” and “deliberation,” and (2) denying his request to instruct the jury on involuntary manslaughter as a lesser included offense of murder.
We affirm. As explained post, CALCRIM No. 521 accurately defined willful action, premeditation, and deliberation, and was properly given to the jury. Furthermore, a jury instruction on involuntary manslaughter as a lesser included offense of murder was not warranted by the evidence presented at trial.
FACTS
At approximately 1:00 p.m. on October 23, 2005, defendant walked into a bar in Costa Mesa. In his pockets, he had $40 worth of cocaine and methamphetamine. Defendant also had a gun tucked into the back waistband of his pants; the gun was concealed by the tail of the shirt he was wearing.
After defendant had consumed about eight beers and had used “some of the drugs,” around 4:00 p.m., he saw Jose Pilotzi-Salaus (Salaus) walk into the bar and sit down near defendant. Defendant testified Salaus “started to look at [defendant] . . . [and] started to do some signs.” Defendant stayed in his seat at the corner of the bar, and then moved away from Salaus. Defendant testified he recognized Salaus as the man who, about a month earlier, had followed him from the bar into an alleyway and told defendant he “didn’t like [defendant], he didn’t want to see [him] there at the bar, and beat [him] up.” Defendant never told anyone about the beating, went to the hospital, called the police, or alerted the bar’s security guard of any prior problems he had with Salaus. Defendant testified he did not leave the bar when Salaus arrived because he was watching a soccer game and wanted to drink more beer. The bar’s security guard testified he saw defendant and Salaus drinking together that afternoon and did not notice any conflict between them.
At 11:10 p.m., defendant began shooting Salaus. Defendant shot Salaus in the neck from a distance of approximately six inches. Defendant also shot Salaus three times in the chest and once in the foot. The last shot was fired after Salaus had fallen to the floor. The bar’s security guard pulled defendant outside, wrestled the gun away from him, and subdued him. When the police arrived at the bar, they found Salaus dead on the dance floor. The forensic pathologist who conducted Salaus’s autopsy testified any one of the shots, except the shot which grazed Salaus’s foot, would have been fatal.
Defendant was arrested, taken to the police department, and interviewed. He initially told the police another person did the shooting, and gave the police a description of that person. After defendant was confronted with photographs of the surveillance video showing him shooting Salaus, he admitted he was the shooter in the video. During the interview, defendant said he purchased the gun a week earlier because every time he went to the bar, Salaus was “giving [defendant] problems.” Defendant told the police he knew Salaus would be at the bar that night and he took the gun to the bar because he wanted to scare Salaus. Defendant also told the police he shot Salaus because he was angry and lost his temper.
About two hours after the shooting, defendant’s blood tested positive for cocaine, methamphetamine, and cocaethylene, and had a .22 percent alcohol concentration. An expert witness for the defense testified defendant’s blood-alcohol concentration was likely .23 to .24 percent at the time of the shooting.
Defendant testified Salaus mocked and threatened him several times during the night of the shooting; defendant stated Salaus threatened, “next time you go out, I am going to get you.” Defendant testified he told Salaus he did not want any problems. The surveillance video showed, however, that one hour before the shooting, defendant left the bar and went outside while Salaus remained inside the bar. Defendant stated he went back inside the bar because he still “had [a] bucket of beer.” Defendant testified that approximately 30 minutes before the shooting, he used more of his drugs in the bathroom. Approximately 10 minutes before the shooting, defendant testified Salaus again threatened him, saying defendant had not left when he was told to leave, and “it was not long.” Defendant testified Salaus also threatened to kill him.
Defendant testified he lied to the police during the interview when he told them he had brought the gun to the bar knowing Salaus would be there. Defendant stated he also lied to the police when he told them his reason for buying the gun was because Salaus always gave him problems at the bar; he testified the real reason he bought the gun was because he wanted to have one. Defendant testified he lied when he told the police he had shot Salaus because he was angry at him and lost his temper; he stated the reason he shot Salaus was because he was afraid of him. Defendant testified he told the police he remembered shooting Salaus two or three times. Defendant stated Salaus, whose hands were in his pockets, was not a threat to him at the time he shot him.
PROCEDURAL BACKGROUND
Defendant was charged in an information with one count of murder. (Pen. Code, § 187, subd. (a).) (All further statutory references are to the Penal Code.) The information contained an enhancement alleging defendant committed the murder by intentionally and personally discharging a firearm causing death within the meaning of sections 12022.53, subdivision (d), 1192.7, and 667.5. The jury found defendant guilty of first degree murder and found true the firearm enhancement allegation.
Defendant moved for a new trial on the ground there was insufficient evidence to support the jury’s verdict. The trial court denied the motion.
The trial court sentenced defendant to a total term of 50 years to life in state prison, based on a 25-years-to-life term for first degree murder and a consecutive term of 25 years to life for the firearm enhancement.
Defendant appealed.
DISCUSSION
I.
THE TRIAL COURT DID NOT ERR BY INSTRUCTING THE JURY WITH CALCRIM NO. 521.
Defendant argues the jury was erroneously instructed with CALCRIM No. 521 which, in concert with CALCRIM No. 520 (which was also given to the jury), “erroneously conflated definitions for the intent to kill, express malice, willful action, premeditation and deliberation.” Defendant did not object to the trial court instructing the jury with CALCRIM No. 521. However, “[t]he appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” (§ 1259.) We therefore turn to the merit of defendant’s argument and review the jury instruction de novo to determine whether it accurately stated the law. (People v. Posey (2004) 32 Cal.4th 193, 218.)
The trial court instructed the jury with a modified version of CALCRIM No. 520, which stated, in part, “[t]he defendant acted with express malice if he unlawfully intended to kill.” The jury was also instructed with a modified version of CALCRIM No. 521, which stated: “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 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.”
Defendant does not argue that CALCRIM No. 520 inaccurately defined express malice or that it should not have been given to the jury. (See People v. Moon (2005) 37 Cal.4th 1, 29 [“A willful murder is an intentional murder, and malice is express when there is an intent to unlawfully kill a human being”].) Instead, defendant contends CALCRIM No. 521’s definitions of willful, deliberate, and premeditated improperly required the jury to find defendant guilty of first degree murder upon a finding he formed an intent to kill before killing Salaus, thereby leaving the jury “without any basis upon which to find intentional second degree murder.”
Defendant’s argument is without merit for the following reasons. CALCRIM No. 521 instructed the jury that in order for it to find defendant committed first degree murder, it must determine he (1) intended to kill Salaus; (2) carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill Salaus; and (3) decided to kill Salaus before committing the act that caused Salaus’s death (shooting the gun). CALCRIM No. 521 also expressly stated: “A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated” and “[t]he test is the extent of the reflection, not the length of time.” If the jury did not find defendant committed the murder by acting willfully and with premeditation and deliberation, CALCRIM No. 521 instructed it must find the murder to be of the second degree. Thus, defendant’s argument CALCRIM No. 521 permitted the jury to find defendant guilty of first degree murder by simply concluding that defendant formed the intent to kill before killing Salaus, without more, does not withstand analysis.
Furthermore, CALCRIM No. 521 is consistent with its counterpart CALJIC No. 8.20. The California Supreme Court has held CALJIC No. 8.20 contains a correct statement of the law. (See People v. Millwee (1998) 18 Cal.4th 96, 135, fn. 13 [CALJIC No. 8.20 is a correct statement of the law]; People v. Lucero (1988) 44 Cal.3d 1006, 1021 [“The trial court had correctly defined a deliberate and premeditated murder by giving CALJIC No. 8.20”].)
CALJIC No. 8.20 states in relevant part: “All murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree. [¶] The word ‘willful,’ as used in this instruction, means intentional. [¶] The word ‘deliberate’ means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. The word ‘premeditated’ means considered beforehand.”
The trial court therefore did not err.
II.
THE TRIAL COURT DID NOT ERR BY REFUSING TO INSTRUCT THE JURY ON INVOLUNTARY MANSLAUGHTER.
Defendant contends the trial court erred by denying his request to instruct the jury on involuntary manslaughter. In the opening brief, defendant argues: “Contrary to the lower court’s analysis, it is established California law that voluntary intoxication can obviate malice and render an intentional homicide involuntary manslaughter. In addition, involuntary manslaughter would apply if [defendant] intended to brandish the weapon to scare Salaus, then shot him.”
Defendant’s counsel requested that the trial court instruct the jury with involuntary manslaughter in the form of CALCRIM No. 580 which stated in part: “When a person commits an unlawful killing but does not intend to kill and does not act with conscious disregard for human life, then the crime is involuntary manslaughter. [¶] The difference between other homicide offenses and involuntary manslaughter depends on whether the person was aware of the risk to life that his or her actions created and consciously disregarded that risk. An unlawful killing caused by a willful act done with full knowledge and awareness that the person is endangering the life of another, and done in conscious disregard of that risk, is voluntary manslaughter or murder. An unlawful killing resulting from a willful act committed without intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter.”
In denying defense counsel’s request to instruct the jury with CALCRIM No. 580, the trial court stated, “I went back and reread the bench notes and the cases involved there, and I don’t think it applies. That was my opinion yesterday, and I still feel that way. [¶] This is not a situation where it was a fist fight in the bar, it is a situation where the defendant pulled a gun. I don’t see any lawful act. And I just don’t see how we get to an invol[untary manslaughter] in this situation. So my analysis is that it doesn’t apply and it should not be given to the jury.” The trial court was correct in its conclusion that the evidence did not support giving an instruction for involuntary manslaughter.
“‘“[A] defendant has a constitutional right to have the jury determine every material issue presented by the evidence[, and] . . . an erroneous failure to instruct on a lesser included offense constitutes a denial of that right . . . .” [Citations.] To protect this right and the broader interest of safeguarding the jury’s function of ascertaining the truth, a trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present.’” (People v. Heard (2003) 31 Cal.4th 946, 980-981.)
With this standard in mind, we first review the elements of involuntary manslaughter. Penal Code section 192, subdivision (b) defines involuntary manslaughter as “the unlawful killing of a human being without malice” through “the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” The California Supreme Court has held that “[i]nvoluntary manslaughter ordinarily is considered a lesser included offense of murder” and that it “includes criminally negligent homicide.” (People v. Heard, supra, 31 Cal.4th 946, 981.) The Supreme Court has further held, “‘[w]hen a person renders himself or herself unconscious through voluntary intoxication and kills in that state, the killing is attributed to his or her negligence in self-intoxicating to that point, and is treated as involuntary manslaughter.’” (Ibid.)
In People v. Heard, supra, 31 Cal.4th 946, our Supreme Court analyzed the question of sufficiency of evidence to require an instruction for involuntary manslaughter. The trial court had instructed the jury on first degree premeditated and felony murder and implied-malice second degree murder. (Id. at p. 980.) The defendant argued the trial court erred by failing to instruct the jury on involuntary manslaughter as a lesser included offense because the evidence at trial showed he had used cocaine and alcohol before sexually assaulting and murdering the victim, which established he “‘was not conscious of what he was doing’” when he committed the crimes. (Ibid.) The defendant cited the testimony of an expert witness who testified the defendant “was suffering from cocaethylene syndrome—as a result of the combined effects of cocaine and alcohol—and that ‘it was reasonably inferable that in his intoxicated state he was unaware of, and thus unable to control, his behavior.” (Id. at p. 981.) This is essentially the same argument defendant in this case is making.
The California Supreme Court rejected the defendant’s argument and held the instruction was not required, stating, “[a]lthough unconsciousness in this context ‘“can exist . . . where the subject physically acts in fact but is not, at the time, conscious of acting”’ [citation], the record in the present case fails to reflect substantial evidence that defendant’s ingestion of cocaine and alcohol rendered him unconscious.” (People v. Heard, supra, 31 Cal.4th at p. 981.) The Supreme Court stated the defendant’s expert witness “did not indicate defendant was unconscious at the time of the attack . . ., but rather testified only that defendant’s drug consumption may have impaired his judgment and precipitated a ‘frenzied state’ rather than deliberate behavior.” (Ibid.) The court concluded, “[f]urthermore, other circumstances, including the manner of the killing and defendant’s own statements prior to the crimes, are inconsistent with any suggestion that defendant was unconscious when he committed the acts in question.” (Ibid.)
Here, the record shows defendant had a high blood-alcohol concentration (according to his expert witness, he had a .23 to .24 percent blood-alcohol concentration) and had used cocaine and methamphetamine before he shot Salaus. Defendant’s expert witness testified defendant’s use of alcohol, cocaine and methamphetamine during the night of the shooting impaired his judgment and impulse control. As explained in People v. Heard, supra, 31 Cal.4th 946, 981, evidence of impaired judgment and impulse control alone does not establish a perpetrator is unconscious sufficient to require an involuntary manslaughter instruction.
Employing another factor relied on in People v. Heard, supra, 31 Cal.4th at page 981, the manner in which defendant killed Salaus is inconsistent with a finding defendant was unconscious at that time. Defendant shot Salaus once in the neck from a distance of approximately six inches, three times in the chest, and once grazing Salaus’s foot. The last shot was fired after Salaus had fallen to the floor. One of the officers at the scene testified he did not observe defendant to show signs of extreme intoxication.
Defendant contends, “the jury could have found that [defendant] brandished the loaded gun at Salaus and that this reckless conduct constituted misdemeanor manslaughter.” However, the record does not support a finding defendant merely sought to brandish his weapon. The evidence shows defendant suddenly drew his weapon and shot Salaus five times.
For all of these reasons, under California law, the trial court did not err by refusing to instruct the jury on involuntary manslaughter.
Even assuming the trial court erred by refusing to give the jury an instruction on involuntary manslaughter, any such error was harmless. In People v. Abilez (2007) 41 Cal.4th 472, 516, the California Supreme Court stated: “Even assuming the court erred, the failure to instruct on involuntary manslaughter was harmless. The jury was properly instructed on first degree murder, second degree murder and voluntary manslaughter. As in People v. Rogers [(2006)] 39 Cal.4th [826,] 884: ‘The jury rejected the lesser options and found defendant guilty of first degree premeditated murder. Under the circumstances, there is no reasonable probability that, had the jury been instructed on involuntary manslaughter, it would have chosen that option.’”
Here, the jury was instructed on first degree murder, second degree murder, voluntary manslaughter based on an imperfect self-defense theory, and voluntary manslaughter based on a heat of passion theory. The jury was also instructed with CALCRIM No. 625 on how to consider evidence of voluntary intoxication. The trial court also instructed the jury with CALCRIM No. 505 on justifiable homicide based on self-defense or defense of another. The jury, however, returned a verdict for first degree murder. Based on this record, there is no reasonable probability the jury would have selected involuntary manslaughter had it been instructed on it.
The jury was given the following modified version of CALCRIM No. 625 which stated: “You may consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill, or the defendant acted with deliberation and premediation[.] [¶] A person is voluntarily intoxicated if he becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] You may not consider evidence of voluntary intoxication for any other purpose.”
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J. ARONSON, J.