Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Bernardino County, No. FVA021749, Teresa S. Bennett, Judge.
NARES, J.
In this drive-by shooting case, which occurred in Fontana in San Bernardino County, a jury found Richard Allen Eppard, Jr. guilty of the first degree murder of his friend and unintended target Christopher Bonadiman (count 1: Pen. Code, § 187, subd. (a)), the attempted murder of the intended victim Robert Gonzalez, Jr. (Gonzalez) (count 2: §§ 664, 187, subd. (a)), and the discharge of a firearm in a grossly negligent manner resulting in the death of a person (a lesser included offense of count 9: § 246.3). The jury returned true findings on three firearm allegations (§§ 12022.53, subd. (b), 12022.53, subd. (c), 12022.5, subd. (a)) alleged in both count 1 and count 2 of the information. The jury also found Eppard not guilty of six attempted murder counts (counts 3-8). The court sentenced Eppard to an aggregate state prison term of 45 years to life, consisting of a 25-year-to-life indeterminate term for the murder conviction (count 1), plus a consecutive 20-year term enhancement for the true finding on the section 12022.53, subdivision (c) allegation in count 1. The court imposed a concurrent seven-year middle term for the attempted murder conviction and a concurrent two-year middle term for the grossly negligent discharge of a firearm conviction, and stayed the remaining firearm enhancements.
The felony complaint, the information, and the verdicts all refer to Eppard as Richard Allen Eppard, Jr. However, the abstract of judgment refers to him as Richard Allen Eppard, which (according to the probation officer's report) is his father's name.
All further statutory references are to the Penal Code.
In counts 3 through 8, the information charged Eppard with attempting to murder Robert Gonzalez, Sr., Mary Gonzalez, Nicole Stockwell, Deena Gonzalez, Dana Gonzalez, and Conner Marez, respectively, who were inside the Gonzalez residence.
Eppard appeals, contending (1) the court prejudicially confused the jury by instructing that he could be found guilty of first degree murder as an aider and abettor; (2) the court erred by failing to instruct the jury under either CALJIC No. 8.73 or CALCRIM No. 522 that, even if the evidence of provocation was insufficient to support a finding of voluntary manslaughter, the jury could consider whether the provocation prevented him from acting with premeditation and deliberation; (3) his trial counsel provided ineffective assistance by failing to request that the court instruct the jury under either of those instructions; and (4) the cumulative effect of these errors denied him a fair trial. We conclude the court did not err, defense counsel did not provide ineffective assistance, and Eppard has failed to show he was denied a fair trial. Accordingly, we affirm.
FACTUAL BACKGROUND
A. The People's Case
Eppard and Bonadiman were good friends, and Gonzalez knew Bonadiman from high school. A couple of weeks before the shooting at issue in this case, which occurred on April 8, 2004, Bonadiman went to the market where Gonzalez worked in the meat department and tried to start a problem by throwing some scales on the ground and calling Gonzalez names. Around the same time, Bonadiman occasionally drove his car past Gonzalez's house in his white Mercury with the car stereo playing very loudly. Gonzalez testified that after Bonadiman threw down the scales where Gonzalez worked, Gonzalez found spit on his car windows, and someone slashed his tires. Gonzalez did not know whether Bonadiman was responsible for those acts, but he suspected he was based on a description that Gonzalez's mother gave him about a car that would stop in front of the house, playing loud music, while Gonzalez was at work.
All further dates are to calendar year 2004.
During the day on April 8, Gonzalez was in front of his residence when Bonadiman drove by in his white Mercury. Gonzalez recognized Bonadiman and threw two rocks at his car, shattering a couple of the car windows. Bonadiman spun out and drove away.
Melissa Matzenauer was Bonadiman's girlfriend. On the day of the shooting, Matzenauer arranged for Bonadiman to pick her up at her aunt's house and take her to Eppard's house, where they planned to spend the night. When Bonadiman arrived with Eppard in Bonadiman's car at around 8:30 or 9:00 p.m., Matzenauer noticed the car's rear and rear driver's-side windows were shattered. The car had not been in that condition earlier in the day when Bonadiman dropped Matzenauer off at her aunt's house.
Bonadiman, Eppard and Matzenauer drove to the mobile home where Eppard resided. Matzenauer testified that when they arrived, Eppard got out of the car and said "I'll roll with you, dog" to Bonadiman, which meant Eppard would go with Bonadiman. Eppard then went inside. Bonadiman directed Matzenauer to go inside the mobile home, and she got out of the car and went inside.
Matzenauer testified that Eppard returned to the car carrying a rifle in a towel and got into the front passenger seat. The rifle was an AK-47 that belonged to Eppard's uncle, Lloyd Sherman, with whom he lived. Matzenauer waited in the mobile home for Bonadiman and Eppard to return. She believed they were going to the house of the person who threw the rocks at Bonadiman's car. At trial, she identified that person as Gonzalez.
In the evening on April 8, as he was walking to the street to lock his family's cars, Gonzalez again saw Bonadiman driving his white Mercury down his street, this time slowly with the lights off. The people in the Mercury started firing weapons, and Gonzalez immediately dropped to the ground. He could hear bullets going over his head and "hitting stuff." Inside the house were Gonzalez's pregnant girlfriend, Nicole Stockwell; Nicole's sister, Faith; his sisters, Dana and Deena Gonzalez; his parents, Robert Gonzalez, Sr., and Mary Gonzalez; and Mary Gonzalez's nephew, Conner Marez.
Jose Vasquez, an eyewitness, testified he was sitting in the back seat of his brother-in-law's car, which was parked on the street near Gonzalez's house. The white car crashed into the back of the car in which Vasquez was sitting.
The parties stipulated that Bonadiman was found dead in the driver's seat of the white Mercury. He had sustained two fatal gunshot wounds to the right side of his head, and a third gunshot wound to his right bicep muscle. Later, the autopsy revealed gun powder strippling on the skin near each gunshot entry wound, indicating the shots were fired from close range.
After what Matzenauer testified was "too long" a time, Eppard returned to the mobile home without Bonadiman. He was on foot, jogging, sweaty, and shirtless. Matzenauer noticed blood spatter on Eppard's hands, chest, and face. She asked Eppard where Bonadiman was. Eppard did not answer and immediately went to the bathroom, washed his face and hands, and put on a shirt. Eppard's uncle testified that Eppard, who was very excited, angrily punched a hole in the wall.
Eventually, Eppard told Matzenauer that Bonadiman was "gone" and that he "got shot in the head." Eppard drove Matzenauer to the corner near Bonadiman's parents' house where Bonadiman had been living, dropped her off, and told her not to tell anyone he had been with Bonadiman.
DNA evidence derived from blood samples showed that Bonadiman's blood was on the floor of Eppard's bathroom. DNA evidence also confirmed that blood from Bonadiman and Eppard was on the rear passenger door handle of Bonadiman's car.
Fontana Police Department Officer David Lally testified for the prosecution as a gun expert. He inspected Bonadiman's car after the shooting. The police recovered an AK-47 from inside the car. That weapon used.223-caliber bullets. Officer Lally found blood, five empty.223-caliber bullet casings, and a.45-caliber Smith and Wesson handgun on the front floorboard.
After inspecting the crime scene around the Mercury, Officer Lally found a bullet hole in the left front fender of a Nissan Altima that was parked in front of the Gonzalez residence and belonged to one of Gonzalez's sisters. Officer Lally retrieved from that car a.45-caliber bullet that matched the caliber of the Smith and Wesson handgun found in Bonadiman's car.
Judy Fontana, a field evidence technician employed by the Fontana Police Department, testified she found the AK-47 on the passenger-side floorboard, and the Smith and Wesson handgun on the driver-side floorboard, of the Mercury. She also found on the rear passenger floorboard a jersey-style shirt that carried the name "Eppard." Blood was spattered on the sleeve. In the back seat area of the car, Fontana found smooth black rocks that were four or five inches in diameter.
B. The Defense
The defense rested without calling any witnesses.
DISCUSSION
I. AIDING AND ABETTING INSTRUCTION
Eppard first contends the court prejudicially confused the jury by instructing that he could be found guilty of first degree murder as an aider and abettor. We reject this contention.
A. Background
In support of this first claim of instructional error, Eppard relies primarily on the testimony of Vasquez, the eyewitness who was sitting in the back seat of the car that Bonadiman's white Mercury rear-ended immediately when Bonadiman was shot to death. The prosecutor asked Vasquez whether he saw anybody in the front passenger seat of the white car. Vasquez replied he "couldn't really tell." When the prosecutor asked him whether he remembered telling the police officers that he could see somebody in the front seat, Vasquez stated, "I told him that was the driver."
At the court's direction, the prosecutor again asked Vasquez whether he saw somebody in the front seat and Vasquez replied, "I remember seeing the driver. I kind of recall seeing the head, but I am not sure if it was in the passenger seat or in the back." (Italics added.) The prosecutor again asked whether Vasquez recalled telling the police officers that he saw somebody in the front passenger seat and Vasquez responded:
"I remember telling him I saw a head in the front, but I wasn't sure if it was the driver or the passenger, because I was at an angle."
The prosecutor asked whether Vasquez did not remember telling the officer there was somebody in the front passenger seat, and Vasquez stated, "No, I don't." The prosecutor then asked Vasquez whether he remembered telling the officer "that that person left through the rear door outside of the car," and Vasquez replied, "No."
At the court's direction, Vasquez read to himself the pertinent portion of the police report. The following exchange then took place between the prosecutor and Vasquez:
"[Prosecutor:] Does that help refresh your recollection as to what you told the police?
"[Vasquez:] A little bit. I do remember seeing a head now. It was on the passenger side.
"[Prosecutor:] Okay.
"[Vasquez:] On the right side.
"[Prosecutor:] Did you watch the car long enough to see somebody leave the car?
"[Vasquez:] No, I did not, because I was... convers[ing] with my brother-in-law about what had happened. And then as soon as that happened, we just stayed in my house for like five or ten minutes and then the police showed up and then we came out.
"[Prosecutor:] So to the best of your recollection, you don't remember anyone leaving out any of the doors?
"[Vasquez:] (Inaudible response.)
"[The court:] Is that 'no'?
"[Vasquez:] No."
1. Aiding and abetting instructions
Later, the prosecution requested that the court give the jury aiding and abetting instructions. Defense counsel objected, stating:
"I think the theory, and the only theory that we have is that basically that my client [Eppard] was not an aider and abettor here, he was the person that was in the vehicle shooting. So I think this just serves nothing but to confuse the jury. I am not going to be arguing that he was not in the vehicle."
Referring to an off-the-record discussion it previously had with counsel, the court stated its understanding that the prosecutor was "anticipating a defense attorney could possibly make the argument that there was a third person in the car who was doing the shooting" (italics added), and in that case Eppard would be liable under the aiding and abetting theory.
The prosecutor indicated that the court's understanding of that discussion was correct and added that "the jury could decide... that maybe there's not enough evidence to put [Eppard] as the actual shooter; maybe there was a third person. To deal with that situation, I wanted to be able to address the jury and state, if you do believe that, you still must find [Eppard] guilty as an aider and abettor." (Italics added.)
Over defense counsel's objection, the court ruled it would give aiding and abetting instructions, stating:
"Because it is a potential theory that the prosecution believes could be put forth based on the evidence -- I believe it was [Vasquez] who testified in Court that he didn't see anyone in the car and he was impeached with that testimony by the statement that he gave to the police that he saw someone actually leaving the rear of the car -- that the jury could potentially infer that there [were] more than two people in that vehicle...." (Italics added.)
Later, the court instructed the jury on aiding and abetting under CALCRIM Nos. 400 and 401.
2. Tranferred intent instruction
The court also gave the following instruction on the doctrine of transferred intent:
In People v. Bland (2002) 28 Cal.4th 313, 317, the California Supreme Court explained that "the doctrine of transferred intent applies when the defendant intends to kill one person but mistakenly kills another. The intent to kill the intended target is deemed to transfer to the unintended victim so that the defendant is guilty of murder."
"If the defendant intended to kill one person, but by mistake or accident killed someone else instead, then the crime, if any, is the same as if the intended person had been killed."
B. Applicable Legal Principles
Generally, the trial court must "instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request." (People v. Rogers (2006) 39 Cal.4th 826, 866.) This obligation applies, with reservations not applicable here, to instruction on defenses when they are supported by substantial evidence. (People v. Barton (1995) 12 Cal.4th 186, 195.) In this context substantial evidence means evidence which is sufficient to deserve consideration by the jury and from which a jury composed of reasonable persons could conclude the particular facts underlying the instruction existed. (People v. Wickersham (1982) 32 Cal.3d 307, 324, disapproved on other grounds in People v. Barton, supra, 12 Cal.4th at pp. 200-201.)
C. Analysis
In claiming the court prejudicially confused the jury by instructing that he could be found guilty of first degree murder as an aider and abettor of the actual shooter, Eppard complains that "the only way [he] could have been an aider and abettor of the actual shooter was if he aided and abetted [Bonadiman] in accidentally killing himself while [Bonadiman] tried to kill [Gonzalez] by shooting out of the driver's side window." Eppard asserts that "[t]his is a fanciful theory without evidentiary support." He also maintains the court's aiding and abetting instructions required the jury to decide whether he specifically intended to aid and abet the actual shooter in killing Gonzalez and to additionally decide whether Bonadiman's death was a natural and probable consequence of the actions of the actual shooter and whether the specific intent of the shooter was transferred to him (Eppard). "It is hard to imagine," he asserts, "a more convoluted path to first degree murder." Eppard also claims, with respect to the issue of prejudice, that the court's instructional error "likely resulted in the jury merely relying on its emotions in convicting [him] of first degree murder by decid[ing] he played some part in his friend's (Bonadiman's) homicide and, as an aider and abett[o]r, all culpability could be laid at his feet."
Eppard's assertions are unavailing as they are based on the false premise that the "only way" he could have been an aider and abettor of the actual shooter was if he aided and abetted Bonadiman in accidentally killing himself while Bonadiman tried to kill Gonzalez. However, as already noted, the court gave the aiding and abetting instructions over defense counsel's objection that Eppard "was not an aider and abettor here, he was the person that was in the vehicle shooting." In rejecting that objection, the court found there was sufficient evidence from which the jury "could potentially infer" that there was a third person─someone other than Bonadiman and Eppard─in Bonadiman's car who was doing the shooting, and thus if Eppard were "a participant in the totality of the acts" at the scene of the shooting, he "would be liable under the aiding and abetting theory."
The trial record contains evidence that, although not strong, was sufficient to support the court's decision to give the aiding and abetting instructions out of an abundance of caution. As already noted, Eppard relies primarily on Vasquez's testimony. However, he fails to address the testimony that the intended victim in this case, Gonzalez, gave during cross-examination by his trial counsel, Gary Meastas. After Gonzalez acknowledged he went to the police station after the shooting and gave a statement about the incident, Meastas asked him whether he remembered telling the police he believed there were three people in the car from which the shots were fired. When Gonzalez replied, "I don't remember." Meastas asked Gonzalez to read quietly to himself his statement to the police. After Gonzalez read the statement, Meastas asked him:
"[D]id you tell the police that you believe you saw two other people in the vehicle, one person was wearing a red or orange shirt and you believe you saw a person in the backseat of the vehicle, but you were not able to see anyone in the front passenger seat?" (Italics added.)
Gonzalez replied, "I don't remember." The court later directed Meastas to read the following statement attributed to Gonzalez that was in the police report:
"Gonzalez advised the vehicle was full of people and he could not tell me who the passengers were in the vehicle. Gonzalez advised after they shot at him, he ducked down to avoid being shot." (Italics added.)
When Meastas asked Gonzalez whether he had made those statements to the police, Gonzalez replied, "I couldn't recall that; I don't remember." The following exchange then occurred:
"[Meastas:] So you don't remember if you told him there were two, three, or the vehicle was full; you don't remember?
"[Eppard:] I don't remember."
The foregoing evidence suggested a third person was in Bonadiman's car and participated in the shooting, and the weight to be given to that evidence depended on Gonzalez's credibility regarding his statements to the police, which was an issue to be decided by the jury. Because the evidence was sufficient to deserve consideration by the jury, we conclude the court did not err in giving the aiding and abetting instructions. (People v. Wickersham, supra, 32 Cal.3d at p. 324.)
In light of our conclusion that the court did not commit instructional error, we need not address the People's argument that any such error was harmless under any standard. Were it necessary for us to reach the issue of prejudice, we would conclude the evidence of Eppard's guilt was overwhelming, and any error in giving the aiding and abetting instructions was harmless under any standard. Eppard's contention that those instructions confused the jury is belied by the fact that the jury was able to follow the voluminous instructions with care, as shown by the fact that although it found Eppard guilty of the first degree murder of Bonadiman based on the doctrine of transferred intent (discussed, ante), the attempted murder of Gonzalez, and the discharge of a firearm in a grossly negligent manner resulting in the death of a person as a lesser included offense of count 9, the jury found Eppard not guilty of the remaining six counts charging him with the attempted murder of the members of Gonzalez's family who were inside the Gonzalez residence at the time of the shooting.
II. FAILURE TO REQUEST OR GIVE A PINPOINT INSTRUCTION
Eppard next contends that because there was some evidence at trial that the shooting occurred immediately after Gonzalez shattered two of Bonadiman's car windows by throwing rocks at the car, and thus there was evidence that Gonzalez provoked the shooting, the court erred and denied Eppard a fair trial by failing to sua sponte instruct the jury under either CALJIC No. 8.73 or CALCRIM No. 522 that, even if the evidence of provocation was insufficient to support a finding of voluntary manslaughter, the jury could have considered whether the provocation prevented him from acting with premeditation and deliberation. Eppard also contends his trial counsel provided ineffective assistance by failing to request that the court instruct the jury under either CALJIC No. 8.73 or CALCRIM No. 522. We reject these contentions.
A. Background
Eppard relies primarily on Gonzalez's trial testimony. On cross-examination by defense counsel Meastas, Gonzalez stated he did not remember whether he told the police that he threw rocks at Bonadiman's car after Bonadiman stuck his head of the driver's side window of his car and began yelling at Eppard. Gonzalez also stated he did not recall telling a police officer at the scene of the shooting that the shooting started as he was about to throw a rock. Gonzalez further stated he did not recall testifying at the preliminary hearing that the shooting started when the car started moving and Gonzalez picked up a rock. When asked whether his testimony at the preliminary hearing was totally incorrect, Gonzalez stated:
"First time they came, I threw a rock. They came back and there was─there was no other rock thrown after that."
On redirect examination by the prosecutor, Gonzalez testified he threw two rocks at the car the first time it came down his street on April 8. He also stated that he saw the same car later that day, in the evening, when he went outside to lock up some cars. Gonzalez testified he "[saw] the car... was parked or going slow, the lights were off and everything, just started shooting." During recross-examination by Meastas, Gonzalez stated he did not remember testifying at the preliminary hearing that the shooting started as he was getting a rock.
Eppard also relies on the trial testimony of Sergeant Robert Ratcliffe of the City of Fontana Police Department. Sergeant Ratcliffe testified he listened to an investigating officer's interview of Gonzalez after the shooting. He recalled Gonzalez saying that he threw a rock at a car that he recognized as Bonadiman's and that there was gunfire immediately after he threw the rock.
B. Analysis
1. Court's failure to sua sponte give CALJIC No. 8.73 or CALCRIM No. 522
Eppard contends that in light of the foregoing testimony suggesting the shooting incident may have been precipitated by Gonzalez's act of throwing rocks at Bonadiman's car, the trial court's failure to instruct sua sponte under either CALJIC No. 8.73 or CALCRIM No. 522 that evidence of provocation may reduce a murder from first to second degree violated his constitutional right to a fair trial. We reject this contention.
CALJIC No. 8.73 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 with or without deliberation and premeditation."
"A pinpoint instruction 'relate[s] particular facts to a legal issue in the case or "pinpoint[s]" the crux of a defendant's case, such as mistaken identification or alibi.'" (People v. Ward (2005) 36 Cal.4th 186, 214 (Ward), quoting People v. Saille (1991) 54 Cal.3d 1103, 1119.) Although a trial court is required to give a pinpoint instruction on a defense theory upon request when there is evidence supportive of that theory, it is not required to give a pinpoint instruction on the court's own motion. (People v. Rogers (2006) 39 Cal.4th 826, 878-879 (Rogers); Saille, supra, 54 Cal.3d at p. 1119.)
As Eppard acknowledges, the California Supreme Court has held that CALJIC No. 8.73 is a pinpoint instruction. (Rogers, supra, 39 Cal.4th at p. 878; see also Ward, supra, 36 Cal.4th at p. 214; People v. Mayfield (1997) 14 Cal.4th 668, 778.) CALCRIM No. 522, which is the CALCRIM analogue to CALJIC No. 8.73, is also a pinpoint instruction. (Rogers, supra, 39 Cal.4th at p. 879; see also bench notes to CALCRIM No. 522.)
The version of CALJIC No. 8.73 at issue in Ward (5th ed. 1988) provided: "When the evidence shows the existence of provocation that played a part in inducing the unlawful killing of a human being, but also shows that such provocation was not such as to reduce the homicide to manslaughter, and you find that the killing was murder, you may consider the evidence of provocation for such bearing as it may have on the question of whether the murder was of the first or second degree." (Ward, supra, 36 Cal.4th at p. 214.)
Because CALJIC No. 8.73 is a pinpoint instruction, a trial court is not required to sua sponte give this instruction. In Rogers, the Supreme Court explained:
"[U]nder the principles expressed in CALJIC No. 8.73, provocation is relevant only to the extent it 'bears on the question' whether defendant premeditated and deliberated. [Citation.] Because CALJIC No. 8.73 relates the evidence of provocation to the specific legal issue of premeditation and deliberation, it is a 'pinpoint instruction' as that term was defined in People v. Saille, supra, 54 Cal.3d at pages 1119-1120, and need not be given on the court's own motion." (Rogers, supra, 39 Cal.4th at pp. 878-879.)
This analysis applies equally to CALCRIM No. 522, which (as already discussed) is a pinpoint instruction that is the CALCRIM analogue to CALJIC No. 8.73. Accordingly, we conclude the court did not err in failing to sua sponte give either CALJIC No. 8.73 or CALCRIM No. 522, as Eppard did not request such an instruction.
2. Ineffective assistance of counsel claim
As already noted, Eppard also contends that his counsel provided ineffective assistance of counsel by failing to request that the court instruct the jury under CALJIC No. 8.73 or CALCRIM No. 522. He maintains the jury did not have "the chance to find that... the evidence of provocation... raised a reasonable doubt about whether [he] acted with deliberation and premeditation." These contentions are unavailing.
a. Applicable legal principles
To establish ineffective assistance of counsel, Eppard bears the burden of showing both that counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms, and that it is reasonably probable the verdict would have been more favorable to him absent counsel's error. (People v. Hernandez (2004) 33 Cal.4th 1040, 1052-1053.) "We presume that counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions." (People v. Holt (1997) 15 Cal.4th 619, 703) We will reverse on the ground of ineffective assistance of counsel "'only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.'" (People v. Zapien (1993) 4 Cal.4th 929, 980). Furthermore, in an appropriate case, we may dispose of Eppard's ineffectiveness claim on the ground of lack of prejudice without determining whether his counsel's performance was deficient. (Strickland v. Washington (1984) 466 U.S. 668, 697; In re Fields (1990) 51 Cal.3d 1063, 1079.)
b. Eppard has failed to show his counsel's performance was deficient
Applying the foregoing principles, we conclude Eppard has failed to demonstrate that there could have been no rational tactical purpose for his trial counsel's failure to request that the court instruct the jury under CALJIC No. 8.73 or CALCRIM No. 522 and that his trial counsel's performance was deficient. As already noted, those instructions would have directed the jury to consider any evidence of provocation for the bearing it may have had on whether Eppard killed with or without deliberation and premeditation and thus whether he committed first or second degree murder. (See fns. 6 & 7, ante.) Regarding the rock-throwing provocation, the jury heard extensive but conflicting testimony (discussed, ante) that Gonzalez threw the rocks during a separate incident earlier in the day and that he threw the rocks immediately before the shooting started. Notwithstanding evidence that he made prior inconsistent statements, Gonzalez maintained at trial that he threw the rocks during a separate incident earlier in the day. His credibility was an issue for the jury to decide, as was the factual issue of when the provocation occurred.
As shown by defense counsel's closing arguments, Eppard's defense was self-defense. Counsel argued that Gonzalez threw rocks at Bonadiman's car immediately before the shooting began. Counsel then argued the shooting was an act of reasonable self-defense that was a complete defense as to all of the charged offenses:
"We are talking about self-defense.... In fact, self-defense is such a complete and thorough defense that it covers all the counts here, every single count. Because... he is acting reasonably by shooting back."
Later, counsel reiterated that Eppard had acted in self-defense:
"The last thing Mr. Eppard wanted to do was shoot one of his best buddies; yet, he's ironically facing a murder charge on that from what he thought was either defending himself, or his partner next to him.... [¶] And I got up and said from the get-go, think about self-defense all the way through."
The court had instructed the jury under a modified version of CALCRIM No. 521 that if it found Eppard guilty of murder, it was required to decide whether it was murder of the first or second degree. However, Eppard's counsel did not argue that if the jury found Eppard guilty of murder, it should find him guilty of second degree murder rather than first degree murder. Such an argument was inconsistent with Eppard's defense that he had acted in self-defense. Rather, counsel argued instead that "[i]f you believe that he's acting unreasonably by firing back, imperfect self-defense then comes into play. And this will reduce it... from a murder to manslaughter." (Italics added.)
In People v. Humphrey (1996) 13 Cal.4th 1073, 1082, the California Supreme Court explained the defenses of perfect and imperfect self-defense: "For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. [Citation.] If the belief subjectively exists but is objectively unreasonable, there is 'imperfect self-defense,' i.e., 'the defendant is deemed to have acted without malice and cannot be convicted of murder,' but can be convicted of manslaughter. [Citation.] To constitute 'perfect self-defense,' i.e., to exonerate the person completely, the belief must also be objectively reasonable." (Fn. omitted.)
From the foregoing record, it is apparent that Eppard's trial counsel made a rational tactical decision to avoid arguing to the jury that if Eppard committed murder, it was only murder in the second degree. Counsel's closing arguments show he believed that (1) Eppard's best defense was perfect self-defense based on evidence that tended to show Gonzalez threw the rocks immediately before the shooting started, and that (2) if the jury believed that Gonzalez had thrown the rocks during a separate incident earlier in the day, and thus Eppard had acted unreasonably when he began shooting, it should convict him of manslaughter. Counsel's failure to ask the court to instruct the jury under CALJIC No. 8.73 or CALCRIM No. 522 was consistent with these rational tactical decisions. In sum, we conclude that Eppard has failed to demonstrate that there could have been no rational tactical purpose for his trial counsel's failure to request that the court instruct the jury under CALJIC No. 8.73 or CALCRIM No. 522 and that his trial counsel's performance was deficient. We need not, and do not, reach the issue of whether he has demonstrated prejudice.
III. CUMULATIVE ERROR CLAIM
Last, Eppard contends the cumulative effect of the foregoing claimed errors denied him a fair trial. This contention is unavailing.
A series of trial errors, though harmless when considered independently, may in some circumstances rise by accretion to the level of prejudicial, reversible error. (People v. Cunningham (2001) 25 Cal.4th 926, 1009.)
As we have already concluded, however, the court did not err with respect to Eppard's claims of instructional error. Accordingly, we also reject Eppard's claim of cumulative error.
DISPOSITION
The trial court is directed to amend the abstract of judgment to reflect defendant's true name, Richard Allen Eppard, Jr., and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
WE CONCUR: McCONNELL, P. J., BENKE, J.
CALCRIM No. 522 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.] [¶] [Provocation does not apply to a prosecution under a theory of felony murder.]"