Opinion
E068378
12-07-2018
THE PEOPLE, Plaintiff and Respondent, v. ALDO DELACRUZ, Defendant and Appellant.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland and James H. Flaherty III, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB1501643) OPINION APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson, Jr., Judge. Affirmed with directions. William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Aldo Delacruz of two counts of attempted murder, one count of carjacking, and one count of attempted driving or taking of a vehicle without the consent of the owner. The jury also found true special allegations regarding great bodily injury and firearm use. Delacruz appeals, arguing that the trial court erred in failing to instruct the jury on attempted voluntary manslaughter as a lesser included offense of attempted murder, and that the trial court should be permitted to consider striking the firearm enhancements in light of recent amendments to the Penal Code (Sen. Bill No. 620 (2017-2018 Reg. Sess.) stats. 2017, ch. 682 (Senate Bill 620)). We conclude the trial court had no duty to instruct on the lesser included offense because no substantial evidence exists to support the charge. We therefore affirm the conviction. We agree with both parties that the case should be remanded for resentencing to permit the trial court to exercise its discretion as to whether to strike the firearm enhancements.
I. FACTS
The People charged Delacruz with the attempted murder of Roberto Arellano-Ortiz and Francisca Arriaga. In the early morning hours of October 12, 2014, as Arellano-Ortiz and Arriaga were leaving a bar and walking to their car, an unidentified man approached them. Arellano-Ortiz did not confront the unidentified man. Arellano-Ortiz and Arriaga got into their car and started driving away. Arriaga, the passenger, turned and saw the unidentified man fall to the ground. Arriaga did not remember whether their car struck the unidentified man. Arriaga then heard a succession of approximately five gunshots and saw Arellano-Ortiz fall to his side. The rear windshield shattered, Arellano-Ortiz said he had been hit, and their car crashed into a fence across the street from the bar. Arriaga did not see who had shot at them. As a result of the shooting, Arellano-Ortiz was hospitalized for three months and is permanently paralyzed from the waist down.
A few minutes before the shooting, Jose Gutierrez was sitting in his truck nearby when Delacruz approached him and asked whether he had any drugs. After Gutierrez replied that he did not, Delacruz started to leave. Gutierrez then saw Arellano-Ortiz and Arriaga's car strike the unidentified man and Delacruz fire a gun at the car. Delacruz approached Gutierrez, put the gun to Gutierrez's head, told him to get out of his truck, and started to drive the truck toward Arellano-Ortiz and Arriaga's car while continuing to shoot at it. Law enforcement recovered Gutierrez's truck two weeks later, but his keys, wallet, and cell phone were not recovered. Approximately two months later, in December 2014, Delacruz went to Gutierrez's residence and tried to take the truck while Gutierrez was asleep.
In addition to charging Delacruz with the attempted murder of Arellano-Ortiz (count 1) and Arriaga (count 2), the People charged him with carjacking Gutierrez's truck (count 3) and attempting to drive or take the truck in December 2014 (count 4). (Pen. Code, §§ 664, 187, subd. (a), 215, subd. (a); Veh. Code, § 10851, subd. (a).) The People specially alleged that Delacruz personally inflicted great bodily injury (§ 12022.7, subds. (a)-(b)); personally used a firearm (§ 12022.53, subd. (b)); personally and intentionally discharged a firearm (§ 12022.53, subd. (c)); personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)); and was previously convicted of a serious or violent felony (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)).
All further undesignated statutory references are to the Penal Code.
At trial, Delacruz requested that the court instruct the jury on a lesser included charge of attempted voluntary manslaughter. The trial court denied the request.
The jury found Delacruz guilty on all counts and found the great bodily injury and firearm special allegations to be true. The trial court then held a bench trial on the prior conviction allegation and found the allegation to be true. Delacruz was sentenced to a total determinate term of 36 years 8 months, plus an indeterminate term of 25 years to life.
II. DISCUSSION
A. Applicable Law
"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." (People v. St. Martin (1970) 1 Cal.3d 524, 531.) "That obligation encompasses instructions on lesser included offenses if there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser." (People v. Blair (2005) 36 Cal.4th 686, 745, disapproved on another ground in People v. Rices (2017) 4 Cal.5th 49, 76.) "To justify a lesser included offense instruction, the evidence supporting the instruction must be substantial—that is, it must be evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist." (People v. Blair, supra, at p. 745.) "[T]he court is not obliged to instruct on theories that have no such evidentiary support." (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman); see People v. Williams (2015) 61 Cal.4th 1244, 1264 ["'[s]peculation is insufficient to require the giving of an instruction on a lesser included offense'"].)
"Attempted voluntary manslaughter is a lesser included offense of attempted murder." (People v. Speight (2014) 227 Cal.App.4th 1229, 1241.) Attempted murder is reduced to attempted voluntary manslaughter "when the requisite mental element of malice is negated by a sudden quarrel or heat of passion . . . ." (People v. Gutierrez (2003) 112 Cal.App.4th 704, 708.) Heat of passion arises "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."'" (Breverman, supra, 19 Cal.4th at p. 163.)
"We review de novo a trial court's failure to instruct on a lesser included offense [citation], and in doing so we view the evidence in the light most favorable to the defendant." (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.)
B. Analysis
1. Jury Instruction on Lesser Included Offense
We affirm the conviction because there is no substantial evidence justifying an instruction on attempted voluntary manslaughter. Delacruz argues that "reasonable jurors could have readily inferred that [he] was provoked by the fact that the victims had just run over the man in the parking lot and were leaving the scene without stopping." Nothing in the record, however, indicates that Delacruz was actually provoked. Delacruz did not testify at trial, and no witness offered any indication of what Delacruz's state of mind may have been at the time. As in People v. Gutierrez, supra, 112 Cal.App.4th at page 709, where the Court of Appeal held that no instruction on attempted voluntary manslaughter was required, the "defendant's state of mind [was] never argued by the defense." Moreover, we have seen no evidence that Delacruz saw Arellano-Ortiz and Arriaga's car strike the unidentified man or that he knew who the man was.
Delacruz cites two cases holding that a trial court erred in not instructing on heat of passion, but neither is remotely analogous. In Breverman, "the jury could infer that defendant observed an attack on his vehicle, within feet of the entrance to his home, by a large, armed, and clearly hostile group of men who, defendant had reason to suspect, were seeking revenge for the incident of the previous evening, and that defendant feared the intruders intended to force their way into the residence." (Breverman, supra, 19 Cal.4th at p. 164, fn. 11.) In People v. Berry (1976) 18 Cal.3d 509, prior to being killed, the defendant's wife had engaged in "a two-week period of provocatory conduct" in which she "alternatively taunted defendant" about an affair she was having with another man "and at the same time sexually excited defendant, indicating her desire to remain with him." (Id. at pp. 513, 515.) Here, in contrast, Delacruz fired at a vehicle that apparently struck an unidentified man while exiting a parking lot. Neither Delacruz's safety nor his property was in any sign of danger, and nothing indicated Delacruz had any prior relationship or interaction with Arellano-Ortiz, Arriaga, or the unidentified man. Because no evidence offered by Delacruz or the People suggested that Delacruz was provoked, the trial court was not required to instruct the jury on attempted voluntary manslaughter.
Although an unreasonable but good faith belief in the necessity of self-defense may also reduce murder to manslaughter (People v. Gutierrez, supra, 112 Cal.App.4th at p. 708), Delacruz does not argue self-defense here. In addition, Delacruz argues that the trial court improperly relied on Gutierrez in denying his jury instruction request, but "on appeal, we review the correctness of the court's ruling, not its reasoning." (People v. Dickens (2005) 130 Cal.App.4th 1245, 1254.)
2. Senate Bill 620
Senate Bill 620 amended section 12022.53, subdivision (h) as of January 1, 2018, to provide that "[t]he court may, in the interest of justice . . . and at the time of sentencing, strike or dismiss an enhancement" otherwise required to be imposed by section 12022.53. At the time of Delacruz's sentencing in 2017, the trial court had no such discretion to strike the firearm enhancements imposed by section 12022.53, subdivisions (b), (c), and (d). (Former § 12022.53, subd. (h).) Both parties agree that the trial court now has discretion even though Delacruz was convicted and sentenced before the amendment took effect. We agree as well. (See People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091.) We therefore remand so that the trial court can exercise its discretion as to whether to strike the firearm enhancements.
III. DISPOSITION
The judgment of conviction is affirmed. The matter is remanded to the trial court to exercise its discretion under section 12022.53, subdivision (h), as amended by Senate Bill 620, and, if appropriate following exercise of that discretion, to resentence Delacruz accordingly.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J. We concur: RAMIREZ
P. J. FIELDS
J.