Opinion
A132814
04-30-2013
THE PEOPLE, Plaintiff and Respondent, v. WALTER LAFONZE EDWARDS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. C164975)
A jury convicted defendant Walter Edwards of second degree murder (Pen. Code, § 187) and of shooting into an inhabited dwelling (§ 246). The jury also found, with respect to both counts, that defendant personally and intentionally discharged a firearm and caused great bodily injury and death (§ 12022.53, subd. (d)), that he personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), that he personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subds. (b), (g)), and that he personally inflicted great bodily injury (§ 12022.7, subd. (a)). Prior to trial, defendant pled guilty to unlawful possession of a firearm as charged in a third count. (§ 12021, subd. (a)(1)).
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant contends that the trial court erred by failing to instruct sua sponte on a novel theory of voluntary manslaughter now under review by our Supreme Court, that an unintentional and nonmalicious killing during a felonious assault constitutes voluntary manslaughter. We conclude that even if this theory should be accepted, under the facts of this case the trial court was not required to give such an instruction. We shall therefore affirm the judgment with one minor correction of the sentence imposed.
People v. Bryant (2011) 198 Cal.App.4th 134, review granted November 16, 2011, S196365.
Factual and Procedural History
At trial, there was evidence of the following facts.
On March 19, 2006, at approximately 11:30 a.m., Officer Jennifer Sena received a report that shots were fired at a convenience store located at 7994 MacArthur Boulevard in Oakland. Upon arrival, Sena found Francisco Sanchez receiving medical attention near the store. A store clerk, who was present during the incident, told Sena that three Black males and Sanchez were in an altercation inside the store. The clerk told the men to go outside and shortly thereafter the clerk heard gunshots.
Around 6:19 p.m. that same day, Officer Robert Rodriquez responded to a shooting at an apartment complex located at 7979 MacArthur Boulevard, across the street from the convenience store. Rodriquez testified that as he walked down the driveway of the complex, a Hispanic female, Karen Chavez, approached him, limping with blood on her feet. She motioned towards her apartment, apartment 13, which opened on to the driveway, and told Rodriquez that her boyfriend, George Hasbun, had been shot. As he approached the apartment, Rodriquez noticed several 7.62 caliber assault weapon shell casings on the ground. On entering the apartment, he "saw a male adult laying on his back with a pool of blood surrounding his head. As [he] walked up to him, [he] could tell [the victim] . . . had no pulse." Hasbun had suffered a gunshot wound to the left side of his face. Dr. Thomas Rogers, a forensic pathologist, testified that Hasbun died from a gunshot wound to the head and neck.
Lansing Lee, a criminalist for the Oakland Police Department, examined the cartridge cases and bullet fragments from the crime scene. Lee concluded that 26 cartridge cases were fired from a single semiautomatic firearm.
Darius Fields observed both shootings. On April 1, 2006, Fields met with Sergeant James Morris, a homicide investigator, and provided the following description of events. Fields was socializing near the convenience store when the assault and shooting occurred. The altercation started when a Hispanic male bumped into defendant, causing defendant to feel disrespected. The "youngsters," including defendant, "started the fight and jumped on the dude and beat him up pretty bad." Within minutes, Fields observed a "female Hispanic and male Hispanic" retaliate against the attackers, firing "two or three times" in the general direction of the store. Police officers arrived and everyone cleared the area. Later, when Fields spoke to defendant about the assault, defendant said "everyone of them in the building'll get the business."
At trial, Fields repeatedly said that he did not remember his prior statement and claimed he told Morris what Morris wanted to hear to obtain his own release from custody. The trial court allowed the prosecutor to impeach Fields with his prior inconsistent statement and the jury was allowed to consider the statement for the truth of the matter asserted.
Later that same day, Fields saw defendant walk towards 7979 MacArthur Boulevard carrying an assault weapon. Fields told Morris that he saw defendant point the gun towards [apartment 13], "discharging the assault weapon into the building the entire time." Fields estimated over 20 shots were fired. After defendant stopped shooting, he fled the scene. Fields believed defendant's motive was [Hasbun's] affiliation to the "Hispanic that was either beat up or the Hispanic that did the shooting" at the convenience store earlier that day. Fields identified defendant from a photo lineup as the individual he saw doing the shooting.
Jermaine Hackett provided Sergeant Morris with a statement on July 27, 2006, detailing his observations of both shootings. Hackett told Morris that on March 19, between 10:00 a.m. and 11:00 a.m., Hackett heard gunshots from his apartment. Neighbors told him there had been a fight between "two Mexicans, and two Blacks" at which point "[t]he Mexican went back in the building and grabbed a gun and came back and started shootin'. " Hackett said that Hasbun was not involved in the altercation. Later that day, Hackett was sitting in his car in front of 7979 MacArthur Boulevard when he saw defendant cross the street carrying an assault rifle. Hackett told defendant "Don't do it. There's hella kids outside." Defendant proceeded towards apartment 13, knocked on the door, "stepped back and he knelt down. And as soon as the door [started to open] he [started] firing." Hackett believed that the shooting was retaliation for the assault and shooting that happened earlier in the day. Hackett identified defendant from a photo lineup as the person who did the shooting at apartment 13.
At trial, Hackett also denied the accuracy of his previous statement and being present during the shootings. He denied observing defendant approach the apartment complex with an assault weapon and seeing defendant shoot at apartment 13. ~ (RT 572)~ He testified that he heard about the events through "neighborhood talk." The trial court also permitted evidence of Hackett's prior statement to be admitted for the truth of the statement.
Darnell Carter testified that he was at the apartment complex on March 19 around 6:00 p.m. and saw defendant approach apartment 13 carrying an assault rifle. As defendant approached, Carter heard him say, "If you ain't got shit to do with this, get the fuck up out of here." Defendant then knocked on the front door of the residence and when somebody answered the door, defendant rested the rifle on the roof of a white truck located 20 feet from the apartment and started shooting. Defendant fired 20 to 30 shots from the white truck. Carter positively identified defendant in a photo lineup and at the preliminary hearing.
At trial, Carter was deemed unavailable and his preliminary hearing testimony was read to the jury.
Sergeant Gus Galindo conducted a follow-up investigation and discovered that defendant was in custody in Columbus, Georgia. On March 31, 2009, Sergeants Galindo and Parkinson interviewed defendant at a jail in Columbus and a recording of the interview was played during trial. Defendant admitted that he was at the convenience store on March 19 and involved in the altercation with the Mexican men. He was angry with the Mexican men for shooting at him and his friends. He retrieved his gun from his apartment in order to retaliate but by the time he reemerged, police officers had arrived. Defendant returned the gun to his apartment and watched the police arrest his attackers.
Defendant admitted retrieving his weapon an hour or two later with the intent to "shoot [Hasbun's] house up." When he reached apartment 13, he knocked on the door. When Hasbun did not answer, defendant said "Fuck it, I'm going to shoot this shit" so when he comes home "he will see that his house was shot up, he knew who did it." Defendant then walked across the parking lot, made the kids move, and started shooting. He emptied the entire magazine. Defendant told the officers that he did not know Hasbun was in the apartment and did not intend to kill him. He claimed to be shooting at the laundry mat and "didn't know that the bullets [were] going in the house." Defendant volunteered to take a lie detector test.
The court instructed the jury on the elements of murder and of the heat-of-passion theory of voluntary manslaughter as a lesser included offense of murder. After the jury returned its guilty verdicts, defendant admitted three prior felony convictions, for one of which he had served a prison term. (§ 667.5, subd. (b).) In sentencing defendant to 49 years and eight months to life in state prison, the court used the prior prison term to enhance defendant's sentence by one year for both the murder and shooting-into-an-inhabited-house counts. (§ 667.5, subd. (b).) Defendant filed a timely notice of appeal.
Discussion
I. The court did not err in failing to instruct sua sponte on a novel theory of voluntary manslaughter.
Defendant contends that the trial court had the duty to instruct sua sponte on a theory of voluntary manslaughter suggested by dictum in People v. Garcia (2008) 162 Cal.App.4th 18, that an unintentional killing without malice during a felonious assault constitutes voluntary manslaughter.
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. [Citation.] 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. . . .' " (People v. Breverman (1998) 19 Cal.4th 142, 154.)
In California there are two recognized theories under which an intentional killing is reduced from murder to voluntary manslaughter: a killing resulting from a sudden quarrel or in the heat of passion, or committed while acting in imperfect self-defense. (See CALCRIM Nos. 570, 571; CALJIC No. 8.40; Pen. Code, § 192, subd. (a).) In the present case, the court instructed on the first of these theories and was not requested to instruct on any other theory by which a killing may be reduced from murder to voluntary manslaughter. Based on a statement in Garcia, defendant now contends the court, on its own motion, should have instructed on a third theory of voluntary manslaughter which, as indicated above, is now under consideration by our Supreme Court.
In Garcia, the defendant and victim were involved in an altercation. When the victim lunged towards the defendant, the defendant struck the victim with the butt of a shotgun he was holding, causing the victim to fall and hit his head on the sidewalk, ultimately leading to his death. (People v. Garcia, supra, 162 Cal.App.4th at pp. 22-23.) The defendant was convicted of voluntary manslaughter and on appeal contended that the trial court should have instructed on involuntary manslaughter because there was substantial evidence that the killing "was committed without malice and without either an intent to kill or conscious disregard for human life and therefore, was neither murder nor voluntary manslaughter." (Id. at p. 26.) The court rejected this contention, stating that "an unlawful killing during the commission of an inherently dangerous felony, even if unintentional, is at least voluntary manslaughter." (Id. at p. 31.) From this statement, defendant here draws the conclusion that voluntary manslaughter is established if, in the commission of an inherently dangerous felony, an unintentional killing is committed without malice.
Other than the case now pending before the Supreme Court, which may not be cited as authority, defendant provides no other authority supporting his contention. However, even if the Supreme Court should adopt defendant's theory, there are at least two reasons why reversal would not be justified in the present case. At the time of defendant's trial in May 2011, the theory was not a "general principle of law" which would have necessitated a sua sponte instruction. "Given the undeveloped state of the [doctrine], [the reviewing court] cannot impose upon the instant trial court so formidable a duty as to conceive and concoct an instruction embodying that rule. 'The duty of the trial court involves percipience—not omniscience.' " (People v. Flannel (1979) 25 Cal.3d 668, 683, superseded on other grounds by statute as stated in In re Christian S. (1994) 7 Cal.4th 768, 777.)
The Court of Appeal decision in People v. Bryant was rendered in August of 2011.
--------
Secondly, the evidence in this case would not in any event warrant an instruction based on this new theory. An instruction should be given only if there is substantial evidence in the record that would support a finding applying the instruction. (In re Christian S., supra, 7 Cal.4th at p. 783.) The evidence here is plainly insufficient to support a finding necessary even under defendant's proposed theory, that he acted without actual or implied malice.
The theory of implied malice has both a physical and a mental component. The "physical component is satisfied by the performance of ' " an act, the natural consequences of which are dangerous to life." ' " (People v. Nieto Benitez (1992) 4 Cal.4th 91, 106-107.) "An act is dangerous to life, for purposes of implied malice, when there is a high probability it will result in death." (People v. Calderon (2005) 129 Cal.App.4th 1301, 1310.) The mental component of implied malice "involves an act ' "deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. . . ." ' " (Nieto Benitez, supra, at p. 107.) The defendant does not need to be "[aware] of life-threatening risk to a particular person. Instead, implied malice may be found . . . whenever . . . the facts establish a defendant's awareness and conscious disregard that his conduct poses a high probability of death to some person." (People v. Albright (1985) 173 Cal.App.3d 883, 887; see also People v. Taylor (2004) 32 Cal.4th 863, 868 [implied malice does not require the defendant to specifically know the existence of each victim].)
Here, the evidence permits no conclusion other than that both components of implied malice were present. Defendant performed an act, the natural consequences of which unquestionably were dangerous to life — he intentionally discharged 26 casings from a military assault weapon aimed at the victim's residence. (See People v. Nieto Benitez, supra, 4 Cal.4th at p. 91 [brandishing loaded firearm in a threatening manner constitutes a sufficiently dangerous act to support finding of implied malice].) And the evidence established without controversy that defendant knew his actions endangered the life of another and that he acted with conscious disregard of that danger. Defendant himself acknowledged that the assault rifle used in the shooting was a "dangerous ass weapon" and that shooting at a house was a dangerous thing to do. Immediately prior to the shooting, defendant marched through a crowd of spectators, which included numerous children, and Hackett warned him of their presence, yet defendant "didn't break his stride." Defendant stated in his interview that he did not know Hasbun was home and did not intend to endanger any life, but both Carter and Hackett testified that the front door of the apartment opened after defendant knocked and before the shooting began. Whether or not defendant intended to kill his eventual victim, his conduct created an obvious likelihood of killing somebody, which is sufficient to establish implied malice. (People v. Albright, supra, 173 Cal.App.3d at p. 887.)
Thus, even on the premise that voluntary manslaughter can be established as defendant urges, the evidence here would not support such a finding and the trial court had no sua sponte duty to give such an instruction.
II. Defendant's sentence must be corrected to impose only one prior prison term enhancement.
Defendant next contends that the trial court improperly used a single prior felony conviction to enhance the sentence on both the murder and shooting-into-a-dwelling convictions. (§ 667.5, subd. (b).) The Attorney General concedes the merit of this claim and we agree.
"Prior prison term enhancements are status enhancements which can be imposed only once, on the aggregate sentence." (People v. Edwards (2011) 195 Cal.App.4th 1051, 1060; People v. Tillotson (2007) 157 Cal.App.4th 517, 542; see also People v. Williams (2004) 34 Cal.4th 397, 402 [enhancements pursuant to section 12022.1 are added only once in arriving at the aggregate sentence].) Here, the trial court used defendant's prior conviction for a violation of former section 12021, subdivision (a)(1), which resulted in a prison term, to enhance defendant's sentence under each of the two counts by one year each. The court incorrectly stated that "the law requires the prison prior be added to the indeterminate amount, as well as the determinate amount, so even though it is one prior, you add a year to [count one] and you add a year to [count two]."
Pursuant to section 1260, this court "may . . . modify a judgment or order appealed from." (See also People v. Mitchell (2011) 197 Cal.App.4th 1009, 1018.) Therefore, we shall modify defendant's sentence by striking one one-year prior prison term enhancement. As a result, defendant's sentence is reduced to a prison term of 48 years and eight months to life.
Disposition
The judgment is affirmed in all respects except that the one year enhancement pursuant to section 667.5, subdivision (b) is stricken as to count two.
______________________
Pollak, J.
We concur: ______________________
McGuiness, P. J.
______________________
Siggins, J.